Heinig v. Commissioner Social Security Administration

Filing 28

OPINION AND ORDER: The decision of the ALJ is AFFIRMED and this case is DISMISSED. Final judgment shall be entered. Signed on 1/2/2018 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ROBIN L. HEINIG,

Plaintiff,

Civ. No. 1:16-cv-01698-AA

v.

OPINION & ORDER

NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY,

Defendant.
AIKEN, District Judge:
Plaintiff Robin Heinig seeks judicial review of the final decision of the Commissioner of
Social Security ("Commissioner") denying disability and disability insurance benefits pursuant
to Title II of the Social Security Act.

For the reasons set forth below, the decision of the

Commissioner is AFFIRMED and this case is dismissed.
BACKGROUND

Plaintiff filed a Title II application for a period of disability and disability insurance
benefits on January 27, 2011. Tr. 508. Plaintiff alleged disability beginning July 15, 2010. Id
Her application was denied initially and upon review. Id Plaintiff appeared before an
Administrative Law Judge ("ALJ") at a hearing held October 23, 2012. Id. On December 7,
2012, the ALJ issued a decision finding Plaintiff not disabled. Id. The Appeals Council denied
review and Plaintiff sought review before this Court in Heinig v. Commissioner, 1: 14-cv-1362-

Page I - OPINION & ORDER

MC ("Heinig I"). Id. In Heinig I, the patties stipulated to a remand of the matter to the
Commissioner for futiher proceedings. On July 21, 2015, Judge Michael McShane signed an
order granted the stipulated remand and a judgment was entered.
On December 10, 2015, the Appeals Council implemented this Comi's Order and
directed the ALJ to (1) obtain additional evidence concerning Plaintiffs impairments; (2) futiher
consider treating and non-treating source opinions as appropriate; (3) further consider Plaintiffs
maximum residual functional capacity and provide rationale and citation to the record; (4) obtain
supplemental evidence from a vocational expeti to determine whether Plaintiff can perform her
past relevant work and/or other work in the national economy; and (5) offer Plaintiff another
oppotiunity for a hearing. Tr. 508.
A second hearing was held on May 9, 2016. Tr. 508. On June 9, 2016, the ALJ issued a
decision finding Plaintiff not disabled. Tr. 527. This appeal followed.
DISABILITY ANALYSIS

A claimant is disabled if he or she is unable to "engage in any substantial gainful activity
by reason of any medically detetminable physical or mental impairment which ... has lasted or
can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C.

§ 423(d)(l)(A). "Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act."
Keyser v. Comm 'r, 648 F.3d 721, 724 (9th Cir. 2011).

The five-steps are: (1) Is the claimant presently working in a substantially gainful
activity? (2) Is the claimant's impairment severe? (3) Does the impaitment meet or
equal one of a list of specific impairments described in the regulations? (4) Is the
claimant able to perform any work that he or she has done in the past? and (5) Are
there significant numbers of jobs in the national economy that the claimant can
perform?
Id. at 724-25; see also Bustamante v. lvfassanari, 262 F.3d 949, 954 (9th Cir. 2001).

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The claimant bears the burden of proof at steps one through four. Bustamante, 262 F.3d
at 953. The Commissioner bears the burden of proof at step five. Id at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, "taking into consideration the claimant's residual functional
capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national
economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant
is able to perform other work existing in significant numbers in the national economy, the
claimant is not disabled. Bustamante, 262 F.3d at 953-54.
THE ALJ'S FINDINGS
The ALJ performed the sequential analysis. At step one, the ALJ found that Plaintiff had
not engaged in substantial gainful activity since the alleged onset date of July 15, 2010. Tr. 511.
The ALJ determined that Plaintiff had the following severe impaitments: diabetes mellitus with
neuropathy of the feet; degenerative disc disease of the cervical spine, status post-fusion;
degenerative disc disease of the lumbar spine; status-post bilateral hip replacement; and obesity.

Id

The ALJ determined that Plaintiffs severe impairments did not meet or equal a listed

impaitment. Tr. 512.
The ALJ determined that Plaintiff had the RFC to perfo1m light work with the following
additional restrictions: she must be allowed to alternate between sitting and standing throughout
the day; no more than frequent crawling, crouching, kneeling, stooping, balancing, or climbing
of stairs or ramps; no more than occasional climbing of ropes, ladders, and scaffolds; no more

Page 3 - OPINION & ORDER

than frequent overhead reaching bilaterally; and avoid working around heights, moving
machinery, and similar hazards. Tr. 513.
The ALJ found that Plaintiff was able to perfotm her past relevant work as a call center
supervisor. Tr. 525. In the alternative, the ALJ found that Plaintiff could perform work as a mail
sorter, office helper, or storage facility rental clerk. Tr. 527. Accordingly, the ALJ determined
that Plaintiff was not disabled. Id.
STANDARD OF REVIEW

The district court must affom the Commissioner's decision ifthe decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial
evidence "means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal
quotation marks omitted). In reviewing the Commissioner's alleged errors, this court must
weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion.''
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence

are insignificant ifthe Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d
676, 679 (9th Cir. 2005).
When the evidence before the ALJ is subject to more than one rational interpretation, we
must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shala/a, 53
F.3d 1035, 1041 (9th Cir. 1995)). A reviewing comi, however, cannot affirm the
Commissioner's decision on a ground that the agency did not invoke in making its decision.
Stout v. Comm 'r, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a comi may not reverse an ALJ's

decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that

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an en-or is harmful n01mally falls upon the party attacking the agency's dete1mination." Shinseki
v. Sanders, 556 U.S. 396, 409 (2009).

DISCUSSION
Plaintiff asserts that the ALJ en-ed by (1) improperly rejecting Plaintiffs subjective
symptom testimony; (2) improperly rejecting the medical opinion of treating physician Alan
Mersch, D.O.; (3) improperly rejecting the opinion of physician's assistant Emily Rogers; (4)
improperly categorizing Plaintiffs past relevant work; (5) failing to follow the remand
instructions of the Appeals Council; and (6) failing to meet the Commissioner's burden at step
five based on an improper formulation of Plaintiffs RFC.

I.

Plaintifrs Subjective Symptom Testimony
Plaintiff asserts that the ALJ erred by rejecting her subjective symptom testimony. To

determine whether a claimant's testimony is credible, an ALJ must perform a two-stage analysis.
20 C.F.R. § 416.929. The first stage is a threshold test in which the claimant must produce
objective medical evidence of an underlying impairment that could reasonably be expected to
produce the symptoms alleged. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). At the
second stage of the credibility analysis, absent evidence of malingering, the ALJ must provide
clear and convincing reasons for discrediting the claimant's testimony regarding the severity of
symptoms. Carmickle v. Comm 'r, 533 F.3d 1155, 11.60 (9th Cir. 2008).
The ALJ must make findings that are sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin,
763 F.3d 1154, 1163 (9th Cir. 2014). An ALJ may use "ordinary techniques of credibility
evaluation" in assessing a claimant's credibility, such as prior inconsistent statements concerning
the symptoms, testimony that appears less than candid, or a claimant's daily activities.

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Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). A claimant's daily activities may

undennine her allegations if the claimant spends a substantial pmi of her day engaged in
activities that are transferrable to a work setting or if the activities contradict her testimony. Orn
v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).

At the hearing, Plaintiff testified that she has a congenital hip condition and that, despite
hip replacement surgery, she continues to have difficulty with her right side. Tr. 545. She
testified that she has worsening neuropathy of the feet, which causes her to lose feeling and
sensation in her feet, but also to suffer constant foot pain. Id.

She testified that her foot

condition causes her to trip and fall, pmiicularly on stairs. Id. Plaintiff testified that she is "on
some really good pain medication" for her feet, but that "it just masks the pain," and doesn't
completely take it away. Tr. 547. Plaintiff described the pain in her feet as burning, pins and
needles, and spasming. Id. Plaintiff also testified that she has a neck conditions which has
caused her to suffer numbness in her fingers, which began six or seven months before the
hearing. Tr. 546. The numbness has caused Plaintiff to experience difficulty picking things up.
Id. Plaintiff finds it painful to carry things and she has a tendency to drop them. Id. Plaintiff
also testified that she suffers from pain in her lower back due to mihritis, as well as fibromyalgia.
Tr. 547. The ALJ found Plaintiffs testimony less than fully credible based on a number of
factors, discussed below. Tr. 515.
A. Reason for Leaving Past Employment

The ALJ noted that Plaintiff stopped working for her last employer because of a businessrelated lay-off, and not due to any allegedly disabling impaitments. Tr. 515. That conclusion is
consistent with Plaintiffs testimony at her original hearing. Tr. 39 ("Harry & David decided
they no longer needed my position.").

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This is an appropriate consideration in the ALJ's

credibility analysis. See, e.g., Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). The ALJ
also noted that Plaintiffs medical condition was substantially similar prior to the lay-off, which
suggested that Plaintiffs impainnents did not prevent her from maintaining employment. Tr.
516. There is evidence in the record to support the ALJ's conclusion: On July 13, 2009, Plaintiff
was seen by Mark Greenberg, M.D., where she reported "continuous and constant" burning and
stabbing pain, which she rated at 5/10, but which did not prevent her from working full time at
Harry and David. Tr. 269.
Although Plaintiff urges a different reading of the record, the Court concludes that the
ALJ's analysis is reasonable.
B. Inconsistent Statements

The ALJ noted that Plaintiffs hearing testimony concerning the side effects of her
medication was not consistent with the statements she made to her treatment providers. Tr. 514.
Inconsistent statements are a valid basis for finding a claimant not credible. Ghanim, 763 F.3d at
1163.
At the hearing, Plaintiff testified that she suffers "extreme fatigue" and cloudiness or
inability to focus due to her medications. Tr. 548, 554. Plaintiff testified that the side effects of
her medication have generally been consistent, except for a month-long period where her
Percocet does was increased and she suffered increased side effects.

Tr. 556.

Plaintiffs

treatment notes, however, indicate that she generally denied such side effects from her
medications. See, e.g., Tr. 946, 961, 969 (Plaintiff "denies mental cloudiness associated with
medications use; ... denies medication related fatigue; denies drowsiness.").
The ALJ reasonably concluded that this inconsistency unde1mined Plaintiffs credibility
regarding her limitations.

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C. Daily Activities

The ALJ also noted that Plaintiffs daily activities were inconsistent with her alleged
degree of limitation. Tr. 521. Daily activities can suppoti the discounting of a claimant's
alleged limitations when the claimant's activities either contradict her other testimony or meet
the threshold for transferable work skills.

Molina, 674 F.3d at 1112-13.

In evaluating a

claimant's purpotied limitations, the ALJ need not consider whether the claimant's activities are
equivalent to full-time work; it is sufficient that the claimant's activities "contradict claims of a
totally debilitating impairment." Id. at 1113.
Plaintiff spends her time watching television, reading on her Nook, or going outside to
walk. Tr. 553. Plaintiff has a driver's license and drives "when I have to," including to the
grocery store, the post office, and the phannacy. Tr. 549-50. Plaintiff testified that she cannot
sweep, mop, vacuum, or scrub, but that she cleans patis of her house, and does other household
chores such as washing dishes or cooking three nights per week. Tr. 550. Plaintiff also testified
that she volunteers regularly at the animal shelter, although she limits her volunteer work to
feeding and socializing with the cats and avoids doing anything strenuous. Tr. 551. Plaintiff
testified that it usually took her "a day or two to recover" after any kind of exertion. Tr. 557.
Plaintiffs treatment notes, however, indicate that Plaintiff "stays very busy volunteering
at the animal shelter, and is currently fostering three kittens," and in July 2014 noted that
Plaintiff "continues to stay busy volunteering at the animal shelter." Tr. 972, 965. There are
indications that Plaintiff also traveled out of state and engaged in some exercise, but the extent of
these activities are unclear. Tr. 914, 930, 976. Plaintiff repotied to Dr. Grunwald that her
hobbies include camping, boating and fishing. Tr. 335.

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The ALJ concluded that Plaintiffs daily activities undennine her claims regarding the
intensity, persistence, and limiting effects of her symptoms. Tr. 521. The ALJ also concluded
that the record indicated that Plaintiffs daily activities "have, at times, been somewhat greater
than generally repotied."

Id.

The Comt concludes that the ALJ adequately suppotted his

conclusion that Plaintiffs daily activities contradicted her claimed limitations.

Although

Plaintiff offers an alternative interpretation of the record and of Plaintiffs daily activities, the
ALJ' s conclusion is rational and the Court declines to disturb it.
The Court concludes that the ALJ gave sufficient clear and convincing reasons for
rejecting Plaintiffs subjective symptom testimony and those reasons were supported by
substantial evidence in the record.

II.

Dr. Mersch
Plaintiff asserts that the ALJ erred by rejecting the opinion of Dr. Mersch, Plaintiffs

treating physician.

The ALJ is responsible for resolving conflicts in the medical record.

Carmickle, 533 F.3d at 1164. "As a general rule, more weight should be given to the opinion of
a treating source than to the opinion of doctors who do not treat the claimant[.]" Turner v.

Comm 'r, 613 F.3d 1217, 1222 (9th Cir. 2010) (internal quotation marks and citation omitted).
An ALJ may reject the uncontradicted medical opinion of a treating or examining physician only
for "clear and convincing" reasons supported by substantial evidence in the record. Bayliss v.

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ may reject the contradicted opinion of a
treating or examining doctor by providing "specific and legitimate reasons that are supported by
substantial evidence." Id. Specific, legitimate reasons for rejecting a physician's opinion may
include its reliance on a claimant's discredited subjective complaints, inconsistency with medical
records, inconsistency with a claimant's testimony, inconsistency with a claimant's daily

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activities, or internal inconsistency. Tommasetti, 533 F.3d at 1041; Andrews, 53 F.3d at 104243; Morgan v. Comm 'r, 169 F.3d 595, 601-03 (9th Cir. 1999).
When a non-examining physician's opinion contradicts an examining physician's opinion
and the ALJ gives greater weight to the non-examining physician's opinion, the ALJ must
articulate her reasons for doing so with specific and legitimate reasons supported by substantial
evidence. See, e.g., Nguyen v. Colvin, 95 F. Supp.3d 1286, 1293 (D. Or. 2015) (citing Ryan v.
Comm 'r, 528 F.3d 1194, 1198 (9th Cir. 2008)).

In this case, the opinion of Dr. Mersch was contradicted by the opinions of the state
agency consultants and by the opinion of examining physician Dr. Gregory Grunwald. Tr. 7485, 88-101, 332-44. The ALJ was therefore required to give specific, legitimate reasons for
discounting Dr. Mersch's opinion.
Dr. Mersch submitted a series of letters to the Commissioner concerning Plaintiffs
impaitments. In July 2011, Dr. Mersch opined that Plaintiff should be approved for disability
"on a structural basis as well as a medical basis." Tr. 349.

Dr. Mersch noted Plaintiffs "bad

neck disorder regarding cervical disc," her "bad low back disorder," and neuropathy secondary
to both of those disorders. Id. Dr. Mersch stated that Plaintiff had "myofascial trigger points and
post traumatic fibromyalgia," as well as "medical issues related to diabetes, hyperlipidemia,
hypertension, and hypothyroidism." Id. The ALJ gave little weight to the opinion of Dr. Mersch
as put forth in the 2011 letter, noting that his "conclusory statement was unsupported by the
record as a whole," the objective findings of Plaintiffs physical examination, or Plaintiffs daily
activities. Tr. 522.
In July 2012, Dr. Mersch filled out a check-box medical source statement sent to him by
Plaintiffs counsel. Tr. 409-12. In that form, Dr. Mersch checked boxes indicating that Plaintiff

Page JO-OPINION & ORDER

was incapable of performing either light or sedentary work, even if given the opportunity to
alternate between sitting and standing. Tr. 409-10. Dr. Mersch marked boxes indicating that
Plaintiff had mild or moderate restrictions in her ability to maintain attention and concentration,
as well as moderate or severe restrictions to her ability to perform activities within a schedule,
maintain attendance, complete a normal workday or work week without intenuptions from
medically-based symptoms, or perform at a consistent pace without an umeasonable number and
length of rest periods. Tr. 411. The ALJ gave no weight to Dr. Mersch's 2012 medical source
statement, finding that it was not supported by the medical evidence, objective findings, or
Plaintiffs daily activities. Tr. 522. The ALJ also noted that the medical source statement
provided no supp01i or explanation for the restrictions it included. Id.
In March 2013, Dr. Mersch submitted a second letter, in which he once again opined that
Plaintiff was disabled. Tr. 504. Dr. Mersch stated that Plaintiff would be unable to sit, stand, or
walk for "more than 2 hours at a time or less than four hours per day at any situation." Id. Dr.
Mersch "believe[d] that it would be inappropriate for her to be lifting more than the weight of a
gallon of milk or a small grocery bag at any one time and not on a repetitive, regular basis." Id.
The ALJ gave no weight to Dr. Mersch's 2013 letter because it did not contain any supp01i for
the assessed limitations. Tr. 523. The ALJ also noted that the limitations assessed by the 2013
letter were not supported by the objective findings of Plaintiffs physical examinations or her
activities of daily living. Id.
In March 2016, Dr. Mersch submitted a third letter opinion. Tr. 1060. Dr. Mersch retired
from practice in October 2014 and had not treated Plaintiff since his retirement. Id. Dr. Mersch
believed that Plaintiff was disabled by degenerative disc disease of the cervical spine, status
post-fusion; degenerative disc disease of the lumbar spine, status-post bilateral hip replacement;

Page 11 - OPINION & ORDER

diabetes mellitus with neuropathy of the feet; anxiety; depression; and obesity. Id. Dr. Mersch
stated that Plaintiff also had issues related diabetes, hyperlipidemia, hypertension,
hypothyroidism, and post traumatic fibromyalgia. Id. Dr. Mersch stated that Plaintiffs pain
would increase with prolonged activity and that she would be unable to sustain work, even if she
was able to attend on a regular basis. Id. Dr. Mersch specifically noted that Plaintiffs chronic
C-7 radiculopathy and post traumatic fibromyalgia resulted in chronic pain of the sort that
"wears a person down." Id. Dr. Mersch stated that he believed that Plaintiffs reports of pain
and limitation were consistent with the medical findings and that he did not believe Plaintiff to
be malingering. Id. The ALJ gave limited weight to Dr. Mersch's opinion as expressed in the
2016 letter:

Although Dr. Mersch had a longstanding treatment relationship with the claimant,
the objective findings tln·oughout the medical evidence of record as a whole, the
claimant's repeated reports that her condition improved and [was] well managed
with medication, and the claimant's activities of daily living suggest she was not
as limited as Dr. Mersch alleges. Notably, Dr. Mersch finally provided some
objective suppo1t for his opinion by citing to an unspecified test revealing cervical
radiculopathy. He noted no other objective findings to supp01t his opinion. By
contrast, the claimant's treatment notes and physical examinations throughout the
period at issue generally show her condition was stable and effectively managed
with medication. Fmthermore, Dr. Mersch's opinion appears to be based on the
claimant's subjective repo1ts, rather than objective findings or personal
knowledge. For example, it is questionable whether Dr. Mersch had personal
knowledge that the claimant stayed in bed half the day. Moreover, such an
assertion is inconsistent with the claimant's activities of daily living and her 2016
hearing testimony.
Tr. 524 (internal citation omitted).
As the ALJ noted, Dr. Mersch's 2011 letter, his 2012 medical source statement, and his
2013 letter do not include any explanation of the reasons for the limitations he assessed. This is

a proper basis for rejecting those opinions.

See Molina, 674 F.3d at 1111 (an ALJ may

permissibly reject a check box opinion that does not sufficiently explain the reasons for the

Page 12 - OPINION & ORDER

physician's conclusions).

Upon review of the record, the Comt concludes that the ALJ

reasonably found these medical opinion to be conclusory and without sufficient explanation.
Plaintiffs daily activities are discussed in detail in the preceding section and the Court
concludes that the ALJ reasonably interpreted Plaintiffs daily activities to be inconsistent with
the limitations assessed by Dr. Mersch. As previously noted, conflict with the claimant's daily
activities is a valid reason for rejecting a medical opinion.

Tommasetti, 533 F.3d at 1041;

Andrews, 53 F.3d at 1042-43; 1Worgan, 169 F.3d at 601-03. The Court concludes that the ALJ

reasonably found Plaintiffs daily activities to be inconsistent with the limitations assessed by Dr.
Mersch.
The ALJ also noted that Dr. Mersch's opinion as set forth in the 2016 letter seemed to be
based on Plaintiffs subjective repo1ts. The ALJ may properly reject an opinion if it is premised
on the claimant's subjective complaints and the ALJ has already validly discounted the
claimant's testimony.

Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989).

As previously

discussed, the Coutt has concluded that the ALJ properly discounted Plaintiffs subjective
symptom testimony. To the extent that Dr. Mersch based his opinion on Plaintiffs subjective
complaints, the ALJ reasonably rejected that opinion.
Finally, the ALJ noted that Dr. Mersch's opinion as set forth in all three letters and the
medical source statement was inconsistent with the objective medical evidence and Plaintiffs
treatment records. In paiticular, Plaintiffs treatment notes indicate a stable condition that was
well controlled with medication. See, e.g., 893 (Plaintiff "stable" and medication allows her to
function at home and in her volunteer activities); 911, 931, 939 (Plaintiffs pain medication
making "a real difference in her life,"), 343 (Dr. Grnnwald conducted a physical examination
and determined that Plaintiff was able to frequently lift and cany twenty pounds with periodic

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breaks); see also Tr. 487 (Dr. Greenberg notes that Plaintiff"has been presenting with numerous
complaint without objective verification on exam, which is concerning."); Tr. 799, 519 (Dennis
Minister, M.D., examines Plaintiff, who denies back pain, weakness, or numbness, with n01mal
exam results on March 31, 2014.).

Such inconsistencies are a valid basis for discounting that

opm1on. Tommasetti, 533 F.3d at 1041; Andrews, 53 F.3d at 1042-43; Morgan, 169 F.3d at 60103.

Based on the record, the Cami concludes that the ALJ gave sufficient specific and
legitimate reasons for discounting the opinion of Dr. Mersch.

III.

Ms. Rogers
Plaintiff asserts that the ALJ e11'ed by rejecting the opinion of Ms. Rogers, a physician's

assistant.

Physician's assistants are considered "other sources" and are not entitled to the

deference given to acceptable medical sources.

Molina, 674 F.3d at 1111. An ALJ may

discount the opinion of "other sources," including physician's assistants, if the ALJ "gives
reasons germane to each witness for doing so." Id. (internal quotation marks and citation
omitted).
In February 2016, Ms. Rogers submitted a physical medical source statement. Tr. 105558. In it, Ms. Rogers opined that Plaintiff could sit for thhiy minutes before needing to stand and

stand for fifteen minutes before needing to sit, for a total of less than two hours of standing or
walking in an eight hour working day and about four hours of sitting in the same period. Tr.
1056. Ms. Rogers said that Plaintiff would require an option to shift from standing to sitting or

walking and would require periods of walking during the workday. Id Mr. Rogers believed that
Plaintiff would need to walk for ten minutes every forty five minutes and would require an
unscheduled break of five-to-six minutes every hour due to pain, numbness, and the adverse

Page 14 - OPINION & ORDER

effects of medication. Id. Ms. Rogers also believed that Plaintiff would need to elevate her legs
to knee level for 80% of the work day due to pain in the lower back and legs. Tr. 1057. Ms.
Rogers opined that Plaintiff could lift less than ten pounds occasionally, ten pounds occasionally
with her left arm and could never lift twenty or more pounds. Id. Ms. Rogers believed that
Plaintiff could occasionally twist, rarely climb stairs, and never stoop, crouch/squat, or climb
ladders. Id. She also assessed limitation to Plaintiffs reaching handling and fingering: Plaintiff
could grasp turn or twist 50% of the time with her left hand and never with her right, could not
perfotm any fine manipulation or overhead reaching, and was limited to reaching in front of the
body 50% of the time with her left arm and 10% of the time with her right aim. Id. Ms. Rogers
believed Plaintiff would be off-task 25% or more of the time, would be incapable of even "low
stress work," and would be absent from work more than four days per month. Tr. 1058.
The ALJ gave no weight to Ms. Rogers's opinion, finding that it was inconsistent with
the medical evidence, including Ms. Rogers's own treatment notes, as well as inconsistent with
Plaintiffs daily activities. Tr. 524. In patiicular, the ALJ pointed to Ms. Rogers's treatment
notes indicating that Plaintiffs condition was stable, that she was able to perfo1m household
chores, and catTy on with volunteer activities. Id.
A review of Ms. Rogers's treatment notes supports the ALJ's interpretation. The notes
frequently show that Plaintiff"reports pain relief from cunent pain reliever(s) is enough to make
a real difference in her life." See, e.g., Tr. 911, 931, 939. In July 2014, Ms. Rogers noted that
Plaintiff "feels she is doing quite well," and that her medication "is working a great deal better,"
and she is "sleeping pretty well." Tr. 965. Of note, Ms. Rogers indicated in May 2014 that
Plaintiff "stays very busy volunteering at the animal shelter, and is currently fostering three
kittens," and in July 2014 noted that Plaintiff "continues to stay busy volunteering at the animal

Page 15 - OPINION & ORDER

shelter." Tr. 972, 965. In October 2015, Ms. Roger's treatment notes indicate that Plaintiff"is
doing an excellent job of having a full and rich life, despite her pain." Tr. 906. In February,
2016, Ms. Roger's reported improved paint management, with Plaintiff appearing "comfo11able

and relaxed." Tr. 896. In May 2016, Plaintiffs pain was reported as "stable," with Plaintiff
"getting substantial benefit from her medication, which allows her to function at home and in her
volunteer activities." Tr. 893.
The Court concludes that the ALJ reasonably determined that Ms. Rogers's opinion
conflicted with her treatment notes, as well as Plaintiffs daily activities, as discussed in the
previous sections. Accordingly, the Com1 concludes that the ALJ gave proper germane reasons
for rejecting the opinion of Ms. Rogers.
IV.

Appeals Council Remand Order
Plaintiff asserts that the ALJ failed to comply with the directives of the Appeals

Council's remand order, which provided as follows:
The [ALJ' s original] decision's residual functional capacity finding includes a
limitation that the claimant requires the option to sit or stand "as needed," which
means at will. However, the Administrative Law Judge asked the vocational
expe11 to assume an individual who must change positions but "not at will, but
throughout the day." The decision's assessment is more limiting than the
hypothetical question posed to the vocational expe11.
It is unclear from the record whether the decision's intended assessment was an

at-will or a not-at will option to change positions, which must be clarified on
remand. The decision must be specific as to the frequency of the claimant's need
to alternate sitting and standing.
Tr. 626 (internal citations omitted).
In the subsequent decision, the ALJ specifically found that Plaintiff "would need to be
allowed to alternate between sitting and standing as needed throughout the day." Tr. 513. At the
2016 hearing, the ALJ' s hypothetical question to the Vocational Expe11 included the limitation

Page 16 - OPINION & ORDER

that the individual "would need to be allowed to alternate between sitting and standing as needed
throughout the day."

Tr. 560. 1 Plaintiff asse1is that the ALJ failed to meet the Appeals

Council's directive that the decision "be specific as to the frequency of the claimant's need to
alternate sitting and standing."
The Comi is not persuaded. By the plain terms of the order, the Appeals Council was
seeking to clarify whether Plaintiff RFC required her to be able to alternate sitting and standing
at will or at some specific interval. In particular, the Appeals Council was concerned about an
apparent discrepancy between the RFC as it appeared in the Heinig I ALJ decision and the less
limiting restriction included in the original VE hypothetical. On remand, the ALJ appropriately
clarified that the RFC required her to be able to change positions "as needed." The Appeals
Council's remand order noted that "as needed" means "at will." Tr. 626. The ALJ therefore
complied with the Appeals Council's directive in formulating both Plaintiff's RFC and the VE
hypothetical.
V.

Past Relevant Work and Step Five Findings
Plaintiff asserts that the ALJ e11'ed at step four by misidentifying Plaintiff's past relevant

work. Plaintiff also asserts that the ALJ's step five findings were in error, based on an improper
formulation of Plaintiff's RFC.
The ALJ identified Plaintiff's past relevant work as "call center supervisor," Dictionary
of Occupational Titles ("DOT") No. 239.137-014, which is classified as sedentary with an SVP
of 6. Tr. 525, 560. The VE testified that a hypothetical person with Plaintiff's RFC would be
capable of working as a "call center supervisor." Tr. 561. The VE also testified that Plaintiff's
RFC would permit work as a mail smier, an office helper, and a storage facility rental clerk and

1

Plaintiffs attorney also used "as needed" language in his hypothetical question to the VE. Tr. 563.

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the ALJ incorporated that testimony into an alternative finding at step five of the analysis. Tr.
561-62; 527.

The Commissioner concedes that the ALJ identified the wrong position and that
Plaintiffs past relevant work should have been classified as "supervisor, order takers," DOT
249.137-026. Although the Commissioner argues that there is no meaningful difference between

the two positions with regard to Plaintiffs RFC and work as actually and generally performed,
that argument amounts to impermissible post-hoc rationalization. See, Stout, 454 F.3d at 1054
(courts may not affirm the Commissioner's decision on a ground the agency did not invoke in
making its decision).

The ALJ's e11'or at step four of the sequential analysis is, however,

hmmless in light of the ALJ's alternative findings at step five. See, id. at 1055 (noting that
harmless error applies where the improper findings were inconsequential to the ultimate
nondisability dete1mination).
At step five of the analysis, the ALJ found that Plaintiff could perform work as a mail
sorter, office helper, or storage facility rental clerk. Tr. 527. Plaintiff objected to these findings
on the basis that the ALJ inc011'ectly assessed Plaintiffs RFC based on the ALJ's rejection of
Plaintiffs subjective symptom testimony, the medical opinion of Dr. Mersch, and the other
source opinion of Ms. Rogers. PL Reply. As set forth above, the Court has affilmed the ALJ's
findings on those issues and accordingly concludes that the ALJ properly fo1mulated Plaintiffs
RFC.
The ALJ's alternative findings at step five of the analysis are therefore appropriate. As
the ALJ' s e1rnr in categorizing Plaintiffs past relevant work at step four was inconsequential to
the ultimate non-disability determination, the Court concludes that the error was harmless.

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CONCLUSION

For the reasons set forth above, the decision of the ALJ is AFFIRMED and this case is
DISMISSED. Final judgment shall be~
DATED this

2-8ay of

· 2018.

ANN AIKEN
United States District Judge

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