McLamb v. Commissioner Social Security Administration
OPINION & ORDER: The Commissioner's decision is supported by substantial evidence in the record and is therefore Affirmed. Signed on 4/11/17 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
OPINION AND ORDER
NANCY A. BERRYHILL,
Commissioner of Social Security,
PAPAK, Magistrate Judge:
Plaintiff Katrina McLamb ("McLamb") seeks judicial review of the Commissioner of
Social Security's final decision denying her applications for social security insurance ("SSI") and
disability insurance benefits ("DIB") under Titles II and XVI of the Social Security Act (the
"Act"). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). I have
considered all of the parties' briefs and all of the evidence in the administrative record. For the
reasons set forth below, the Commissioner's final decision is AFFIRMED.
DISABILITY ANALYSIS FRAMEWORK
To establish disability within the meaning of the Act, a claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not
less than 12 months." 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step
sequential process for determining whether a claimant has made the requisite demonstration. See
Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only
at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step, the Administrative Law Judge considers the claimant's work activity, if
any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If
the ALJ finds that the claimant is engaged in substantial gainful activity, the claimant will be
found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i),
404.1520(b), 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will proceed to the second
At the second step, the ALJ considers the medical severity of the claimant's impairments.
See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment is "severe" if it significantly limits the claimant's ability to perform basic work
activities and is expected to persist for a period of twelve months or longer. See Bowen, 482
U.S. at 141; see also 20 C.F.R. §§ 404.1520(c), 416.920(c). The ability to perform basic work
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activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§
404.1521(b), 416.921(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's
impairments are not severe or do not meet the duration requirement, the claimant will be found
not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c),
If the claimant's impairments are severe, the evaluation will proceed to the third step, at
which the ALJ determines whether the claimant's impairments meet or equal "one of a number of
listed impairments that the [Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one
of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will
conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d), 4 l 6.920(a)(4)(iii), 416.920(d).
If the claimant's impairments are not equivalent to one of the enumerated impairments,
the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all
the relevant medical and other evidence in the claimant's case record. See 20 C.F.R. §§
404.1520(e), 416.920(e). The RFC is an estimate of the claimant's capacity to perform
sustained, work-related, physical and mental activities on a regular and continuing basis, despite
the limitations imposed by the claimant's impairments. See 20 C.F.R. §§ 404.1545(a),
416.945(a); see also SSR 96-8p, 1996 WL 374184.
At the foutih step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that
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the claimant can still perform his or her past relevant work, the claimant will be found not
disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(t),
416.920(a)(4)(iv), 416.920(£). In the event the claimant is no longer capable of performing her
past relevant work, the evaluation will proceed to the fifth and final step, at which the burden of
proof is, for the first time, on the Commissioner.
At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's age, education, and work experience to determine whether the claimant can perform
any jobs that exist in significant numbers in the national economy. See Bowen, 482 U.S. at 142;
see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 416.920(a)(4)(v),
416.920(g), 416.960(c), 416.966. If the Commissioner meets its burden to demonstrate that the
claimant is capable of performing jobs existing in significant numbers in the national economy,
the claimant is conclusively found not to be disabled. See Bowen, 482 U.S. at 142; see also 20
C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g),
416.960(c), 416.966. A claimant will be found entitled to benefits ifthe Commissioner fails to
meet its burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
A reviewing Court must affirm an Administrative Law Judge's decision ifthe ALJ
applied the proper legal standards and his findings are supported by substantial evidence in the
record. See 42 U.S.C. § 405(g); see also Batson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir.
2004). '"Substantial evidence' means more than a mere scintilla, but less than a preponderance;
it is such relevant evidence as a reasonable person might accept as adequate to suppott a
4 - OPINION AND ORDER
conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
The Court must review the record as a whole, "weighing both the evidence that supports
and the evidence that detracts from the Commissioner's conclusion." Id. The Court may not
substitute its judgment for that of the Commissioner. See id, citing Robbins, 466 F.3d at 882;
see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). If the ALJ's interpretation
of the evidence is rational, it is immaterial that the evidence may be "susceptible [of] more than
one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).
Born in February, 1978, McLamb was 34 years old on her alleged onset date. Tr. 20,
249. 1 She protectively filed for SSI and DIB on August 21, 2012, alleging disability as of her
filing date due to scoliosis. Tr. 213. McLamb completed the tenth grade and has past work
experience as a batiender and waitress. Tr. 214.
After her applications were denied initially and on reconsideration, McLamb requested a
hearing before an ALJ. Tr. 129-30. She appeared and testified before ALJ Robert Spaulding at
an administrative hearing on July 10, 2014. Tr. 27-70. The ALJ also heard testimony from
vocational expert ("VE") Francene Geers. Tr. 63-69. On September 26, 2014, ALJ Spaulding
issued a decision finding McLamb not disabled. Tr. 11-21. The Appeals Council denied
McLamb's subsequent request for review on February 1, 2016. Tr. 1-6. This appeal followed.
Citations to "Tr." refer to the page(s) indicated in the official transcript of the
administrative record filed herein as Docket No. 15.
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SUMMARY OF ALJ FINDINGS
At the first step of the five-step sequential evaluation process, the ALJ found that
McLamb had not engaged in substantial gainful activity since her alleged onset date of August
21, 2012. Tr. 13. At the second step, the ALJ found that McLamb had the following severe
impairments: scoliosis, cervical degenerative disc disease, lumbar degenerative disc disease, and
sciatica of the left leg. Id. Because McLamb's impairments were deemed severe, the ALJ
properly proceeded to the third step of the analysis. Tr. 13-14.
At the third step, the ALJ found that McLamb's impairments did not meet or medically
equal any of the impairments listed in 20 C.F.R. § 404, subpt P, app. 1. Tr. 15. The ALJ
therefore conducted an assessment ofMcLamb's RFC. Id.
The ALJ found McLamb retained the RFC to perform sedentary work with the following
limitations: she can frequently push and pull with her right upper extremity; she can perform jobs
with sit and stand options while remaining on task; she can frequently reach overhead with her
dominant right arm and frequently finger and handle; she cannot climb ladders and scaffolds, and
she should not be exposed to hazards such as moving mechanical parts and unprotected heights.
At step four, the ALJ found that McLamb was unable to perform any of her past relevant
work as a waitress and bartender. Tr. 20. At step five, the ALJ determined that McLamb could
perform jobs that exist in significant numbers in the national economy including order clerk,
charge account clerk, and taper. Tr. 20-21. The ALJ therefore concluded that McLamb was not
disabled. Tr. 21.
6 - OPINION AND ORDER
McLamb argues that the Commissioner erred because he (1) rejected her subjective
symptom testimony; (2) formulated an incorrect RFC; and (3) ignored the lay witness testimony.
Because the ALJ' s conclusion was supported by substantial evidence, it is affirmed.
McLamb first argues that the ALJ erred in rejecting her subjective symptom testimony.
The Ninth Circuit established two requirements for a claimant to present credible symptom
testimony: the claimant must produce objective medical evidence of an impairment or
impairments; and must show the impairment or combination of impairments could reasonably be
expected to produce some degree of symptom. Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir.
1986). The claimant, however, need not produce objective medical evidence of the actual
symptoms or their severity. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
If the claimant satisfies the above test and there is not any affirmative evidence of
malingering, the ALJ can reject the claimant's testimony only ifthe ALJ provides clear and
convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). General
assertions that the claimant's testimony is not credible are insufficient. Id. The ALJ must
identify "what testimony is not credible and what evidence undermines the claimant's
complaints." Id. (quoting Lester v. Chafer, 81 F.3d 821, 834 (9th Cir. 1995)).
McLamb stated that she was unable to work primarily due to limitations resulting from
scoliosis. Tr. 213. She alleged that leg and back pain affected her ability to lift, pull, push, sit,
and stand. Tr. 233. McLamb testified that she was diagnosed with scoliosis in the foutih grade,
and was able to work as a bartender and waitress before her alleged onset date. Tr. 35-36. She
testified that she can stand for five minutes at a time and adjusts positions often. Tr. 48.
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The ALJ rejected McLamb's testimony. Tr. 16. First, the ALJ discussed medical
evidence that did not suppott McLamb's allegations of severe symptoms and limitations. Lack
of objective suppott from the medical record can undermine a claimant's credibility when other
clear and convincing reasons are present. See Lingenfelter, 504 F.3d at 1040 (valid factors for
doubting credibility include "whether the alleged symptoms are consistent with the medical
evidence"). Here, the ALJ noted that there was no evidence of radiculopathy or pain medication
use in August 2012, McLamb's alleged onset date. Tr. 16, 290. He also noted that a bone scan
showed "no radiotracer update that required further attention or evaluation for surgical
intervention." Tr. 17, 326 (treatment note indicating that McLamb was "neurologically intact in
terms of sensation, motor strength, and reflexes"). He also noted that McLamb exhibited full
motor strength in December 2012, and that her MRI showed no evidence of spinal cord
nan-owing or significant degenerative changes, and that nerve conduction studies were "within
normal limits" in her left lower extremity. Tr. 17, 304. On this record, the ALJ reasonably
concluded that McLamb's testimony was undermined by the medical evidence.
The ALJ also noted that McLamb used conservative treatment methods to manage her
pain. Tr. 17-18. Evidence of conservative treatment is a relevant credibility consideration and
can be sufficient to discount a claimant's testimony regarding the severity of an impairment.
Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). Here, the ALJ noted that McLamb used
conservative methods of pain management, and that no surgical intervention was necessary for
her conditions. Tr. 17-18, 358. This finding also suppotts the ALJ's credibility determination.
Parra, 481 F.3d at 751.
The ALJ also considered McLamb's "significant work history with her scoliosis." Tr. 19,
36. Activities of daily living that conflict with a claimant's testimony can provide a clear and
8 - OPINION AND ORDER
convincing reason for rejecting the claimant's credibility. Molina v. Astrue, 674 F.3d 1104,
1112-13 (9th Cir. 2012). Here, the ALJ noted that while McLamb repo1ted that she was able to
stand only 10 to 15 minutes at a time, she was able to perform strenuous work as a waitress and
bartender after she was diagnosed with scoliosis. Tr. 19, 36. It was reasonable for the ALJ to
conclude that "[t]hese drastic changes in self-repo1ted abilities without significant changes in ...
objective findings" undermined McLamb's credibility.
In sum, the ALJ provided legally sufficient reasons supported by substantial evidence in
the record for rejecting McLamb's subjective symptom testimony. McLamb argues that the ALJ
erred because he did not provide any specific reasons for his credibility determination, and that
the Commissioner has provided an impermissible post-hoc rationalization of his findings. The
court disagrees. The ALJ stated that he rejected McLamb's testimony "for the reasons explained
in this decision" and proceeded to evaluate the entire medical record, including the reasons set
fotth above, specifically referencing the issues with McLamb's credibility. Tr. 16-19. On this
record, the ALJ' s credibility determination was supported by substantial evidence and is
McLamb next argues that the ALJ failed to identify the frequency and duration of the sitstand option in her RFC, as required by Social Security Ruling 96-9p. The Ruling states that the
RFC assessment "must be specific as to the frequency of the individual's need to alternate sitting
and standing," because the occupational base for a full range of unskilled sedentary work will be
eroded, in part, by the frequency of the need to alternate sitting and standing. SSR 96-9p. In
such situations, "[i]t may be especially useful ... to consult a vocational resource in order to
determine whether the individual is able to make an adjustment to other work." Id.
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At the hearing, the ALJ consulted a vocational expert to dete1mine whether a claimant
who could perform sedentary work and remain on task while alternating between sitting and
standing could perform jobs in the national economy. The VE testified that such individual
could perfo1m the jobs of order clerk, account clerk, and taper. Tr. 20-21, 65-66. The ALJ thus
reasonably complied with SSR 96-9p by limiting McLamb to occupations with a "sit and stand
option while remaining on task." Tr. 15.
McLamb argues that the RFC is flawed because she cannot maintain any one position for
an extended period. The RFC, however, accounts for the need to change positions because it
allows McLamb to sit and stand at will so long as she remains on task. Tr. 15.
McLamb points out that she would not be productive if she needed to change position
every 30 seconds. The court rejects this argument. First, there is no evidence in the record to
support a finding that McLamb must change positions every 30 seconds. For example, the ALJ
noted that during the 70 minute administrative hearing, McLamb changed position only four
times. Tr. 29, 70. Futiher, the ALJ's RFC indicates that McLamb must be able to sit and stand
at will while remaining on task - thus, so long as McLamb remains on task, there is no limit to
the frequency with which she can change position. Tr. I 5.
In sum, the ALJ reasonably complied with SSR 96-9p because he indicated that McLamb
would need to alternate sitting and standing and consulted a vocational expert regarding
McLamb's abilities to perform work in the national economy given this limitation. The ALJ did
not err in assessing McLamb's RFC.
Lay Witness Testimony
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McLamb also argues that the ALJ improperly rejected the lay opinion of her mother
Gloria McLamb. The ALJ must provide germane reasons for rejecting the testimony of a lay
witness. It is harmless error to ignore a lay witness's testimony where "the same evidence that
the ALJ refened to in discrediting [the claimant's] claims also discredits [the lay witness's]
claims." Molina, 674 F.3d at 1122.
Ms. McLamb completed a third party function rep01i describing McLamb's symptoms
and limitations. Tr. 241-48. She stated that McLamb has difficulty with almost all movement,
including walking, standing, bending, and squatting. Tr. 241. She also stated that McLamb lives
with her parents, receives assistance caring for her children, and requires significant assistance
completing household chores, basic care and grooming, and grocery shopping. Tr. 241-42, 244.
Ms. McLamb also noted that McLamb rarely engaged in hobbies due to her mobility issues, and
was unable to walk further than a quatier of a mile before needing to stop and rest for 15-20
minutes. Tr. 245-45.
The ALJ considered Ms. McLamb's opinion, but did not incorporate her entire opinion
into the RFC. Tr. 15-16. Here, Ms. McLamb endorsed limitations that paralleled the limitations
described in McLamb's testimony. For example, both endorsed difficulty with standing,
moving, and working. Tr. 233, 238, 241, 246. Because the ALJ provided legally sufficient
reasons for rejecting McLamb's testimony, the same evidence that the ALJ refened to in
discreditingMcLamb's claims also discredits Ms. McLamb's testimony. Any error in the ALJ's
evaluation of the lay testimony was therefore harmless. Molina, 674 F.3d at 1122. The ALJ's
decision is affirmed.
11 - OPINION AND ORDER
The Commissioner's decision is suppo1ted by substantial evidence in the record and is
Dated this 11th day of April, 2017.
Honorable Pau Papa
United States Magistrate Judge
12- OPINION AND ORDER
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