Cantrell v. Commissioner Social Security Administration
Filing
24
OPINION and ORDER - The Commissioner's findings on Cantrell's disability, considering the record as a whole, are supported by substantial evidence. The decision of the Commissioner is AFFIRMED. Dated this 22nd day of March, 2012, by U.S. Magistrate Judge John V. Acosta. (peg)
UNITED STATES DISTRICT COURT
DISTRICT COURT OF OREGON
PORTLAND DIVISION
3: 10-cv-030S0-AC
DEBORAH J. CANTRELL,
OPINION AND
ORDER
Plaintiff,
v.
MICHAEL ASTRUE, as
Commissioner of Social Security,
Defendant.
ACOSTA, Magistrate Judge:
Introduction
Plaintiff, Deborah J. Cantrell ("Cantrell"), filed this action under 42 U.S.C. § 40S(g) of the
Social Security Act (the "Act"), to review the final decision of the Commissioner of Social Security
(the "Commissioner") who denied her social security disability insurance ("DBI") and supplemental
OPINION AND ORDER
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security income benefits ("SSI") (collectively "Benefits").
The cOUli finds the Administrative Law Judge ("ALl") considered relevant indicators of
credibility, and offered clear and convincing reasons for discrediting Cantrell's reports about her
pain. The cOUli also finds the ALJ properly considered, before rejecting, opinions of Kathy Finley,
F.N.P ("Nurse Finley"), Michelle Kaplan, M.D. ("Dr. Kaplan"), and Ryan Scott, Ph.D. ("Dr. Scott").
Finally, the court finds any omission of conditions made by the ALJ in step two of the sequential
disability analysis to be harmless enol'. For these reasons, set forth in more detail below, the court
affilIDs the Commissioner's decision to deny Cantrell disability benefits.
Background
1. Procedural History
On January 31, 2006, Cantrell filed applications for Benefits alleging an onset date of April
20, 2005.'
(Tr. 123, 130.)2
These applications were denied initially (Tr. 86, 91), upon
reconsideration (Tr. 99, 102), and by an ALJ after a hearing. (Tr. 27.) The Appeals Council denied
review and the AU's decision became the final decision of the Commissioner on April 8, 2010. (Tr.
1.)
lCantrell actually alleged four different onset dates tlll'oughout the administrative record: 1)
. June 30,1990, in her application for supplemental security income (Tr. 123); 2) July 21,2005, in
her application for disability insurance benefits (Tr. 130); 3) April 20, 2005, in her Disability Report
-the day on which she became unable to work because of her health conditions (Tr. 145); and 4)
July 20, 2005, in her Disability RepOli - the day on which she stopped working after she was fired.
(Tr. 145.) The court considers her onset date to be April 20, 2005, because the AU states that
Cantrell's disability began on that date, and neither pmiy disputes that finding. (Tr. 27.)
2Citations "Tr." refer to indicated pages in the official transcript of the administrative record
.
filed on May 4,2011. (Docket # 12.)
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II. Factual HistOlY
Cantrell is cUll'ently forty-two years old and lives in Springfield, Oregon, with her two young
sons. She has completed four or more years worth of college credit, after taking her last class in May
2003. (Tr. 156.) Cantrell has worked as a janitor, a construction manager, an electrician, and a
computer technician. (Tr. 172.) She worked the longest as an electrician - a period totaling about
sixteen years. (Tr. 172.) She has not been employed since July 20, 2005. (Tr. 145.) Cantrell alleges
disability based on degenerative disc disease, bulging discs, bursitis,3 sciatic nerve problems,
tendonitis, carpal tunnel syndrome, chronic sinusitis, ilTitable bowl syndrome ("IBS"),' chronic
fatigue, fibromyalgia, chronic myofacial pain, bipolar disorder, depression, osteoarthritis,
gastroesophageal reflux disease ("GERD"), 5 diabetes, chronic migraines, high cholesterol, astluna,
and clu'onic bronchitis. (Tr. 145.) She is prescribed and takes seventeen different medications for
her illnesses. (Tr. 199-201.) Cantrell's earnings record establishes she has acquired sufficient
coverage to remain insured tlu'ough March 31, 2009. (Tr. 142, 169.)
A. Claimant Testimony
3Cantrell's Disability Report lists "bracitis," which the court assumes to be a misspelling of
"bursitis" because "bracitis" does not appear in the Merriam-Webster medical dictionary. MEDLINE
PLUS
MEDICAL
DICTIONARY,
MERRIAM-WEBSTER,
http://www.mell.iam-webster.comlmedlinepluslbracitis (last visited Feb. 17,2012). The ALJ also
lists "bursitis," and not "bracitis," as one of Cantrell's alleged ailments. (Tr. 30.)
4Irritable bowel syndrome is often abbreviated with "IBS", which Cantrell uses in her
Disability Report. See Irritable Bowel Syndrome and CAivL At a Glance, NATIONAL INSTITUTES OF
HEALTH, http://nccam.nih.gov/health/digestivel111'itableBoweISyndrome.htm (last visited Feb. 6,
2012).
5Gastroesophageal reflux disease is the full title for the acronym "GERD," which Cantrell
lists in her Disability Report.
See Heartburn, Gastroesophageal Reflux (GER), and
Gastroesophageal RefluxDisease, NA TIONALDIGESTIVE DISEASES INFORlVIATION CLEARINGHOUSE,
hltp:lldigestive.niddk.nih.gov/ddiseases/pubs/gerdl (last visited Feb. 6,2012).
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Cantrell testified that she had surgery in both hands for catpal tunnel syndrome in 2002,
somewhere in St. Louis. (Tr. 48.) When she went for testing before the surgery, she was told that
her carpal tunnel was so severe that "they wondered how [she] fimctioned." (Tr. 63.) Allegedly, the
surgeons told her that they could not address the problem in a single surgery and that a second
surgelY would be necessaty. (Tr. 49.) Cantrell reported at the hearing, "I've been putting it off until
I can't stand it anymore for obvious reasons." (Tr. 49.) She justified her recent lack of complaints
to doctors about pain from cmpal tunnel syndrome with the explanations that pain pills and braces
were the only treatment for the problem besides surgery, she already had medication and wrist
braces, and she was not ready for a second surgery. (Tr. 49.) Still, she claimed of increasing pain
in her fingers and anns, stemming from the shoulders, that felt like a tingling or burning sensation.
(Tr. 50.)
Cantrell suffers from pain while typing or writing for any period of time. If she continues
to type or write after the pain has started, her fingers will turn numb, so she has to take frequent
breaks when she is writing or drawing. (Tr. 50.) However, she admitted that she could type for short
periods of time. (Tr. 63.) Cantrell explained that due to her wrist pain she would only be able to
pick up pennies on a table ifshe slid them off the side of the table. (Tr.62.) She has to pick up a
piece of paper that same way, by sliding it off a table. (Tr. 63.)
The bone spurs in Cantrell's feet were diagnosed in Illinois a few years ago and were treated
with Cortisone shots. (Tr. 51.) The pain from Cantrell's bone spurs has gotten worse since her
initial Cortisone treatment in Illinois, and now feels like a burning sensation in her leg. - (Tr. 51.)
According to Cantrell, standing for more than five or ten minutes, or walking a couple of blocks,
triggers the pain in her feet. (Tr. 52-53.) Cantrell testified at the hearing that Nurse Finley, most
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recently treated her bilateral bone spurs with Cortisone injections, and sent Cantrell to get X-rays
taken. (T1'.52.) Her obesity contributes to her foot pain. (Tl'.72.) Cantrell testified at the hearing
that "they thought I was diabetic so they put me on medication which made me gain more weight."
(Tl'.72.)
At one point during the hearing, Cantrell asked the ALJ if she could stand because her hip
was going numb due to the "pinched nerve in [her] ... back or sciatica or whatever you call it." (Tl'.
53.) She reported that doctors had not recently recommended testing in response to her back pain,
because all the tests had been done in Illinois. (Tr. 53.) However, she did have an MRI on her
lumbar spine in Oregon that came back nOlmal. (Tr. 57,59.) Cantrell recounted that the doctor who
interpreted the MRI told her that nerve damage would not show up on the image. 'Tr. 57.)
Cantrell reported having pain and swelling in her neck that happens "all the time," and keeps
her awake at night. (Tr. 72.) Cantrell testified that she expected the neck pain was caused by the
degenerative disc disease. (Tr. 72.) She described her condition as "migraines that start from back
here at my neck and they work their way out the right side and it's such great pain that I can't do
anything except take major pain pills and go to sleep." (Tr. 72-73.)
Two counselors have diagnosed Cantrell with depression. Cantrell sought treatment from
the first counselor in California during her battle for legal custody of her children in 1994 or 1995.
(Tr. 64.) Cantrell testified in the hearing that she had no way of anticipating what her mood would
be on any given day. (T1'.64.) She called her depression the "super woman syndrome"- some days
she felt like she could do things that she should not and after she did them, she was in severe pain.
(T1'.64.) On the other hand, she had days where she could hardly get out of bed and take care of her
kids. (Tr. 65.) According to Cantrell, the slightest event reminded her of her lifetime of traumatic
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events, and set off her depression. (Tr. 66.)
Cantrell testified that she has not taken her Trazadone (medication for depression, posttraumatic stress, and bipolar disorder) as often as prescribed because the combination of all
seventeen medications often made her sicker or knocked her out so that she was unable to function
at all. (Tr. 67.) In her Function Report, Cantrell wrote, "my meds make it hard, if not impossible
to remember things, complete tasks, concentrate, understand, follow instructions." (Tr. 185.)
Cantrell testified that she cannot drive when she is on medication, so she limits her trips to
town. (Tr. 70.) For example, she did one big grocery shopping trip a month. (Tr. 71.) She did drive
to her medical appointments in Shady Cove. (Tr. 71.) In her Pain Questionnaire, Cantrell stated
that on the days that she took her medication, she had to sleep for two to three hours to be able to
function. (Tr. 189.)
At the time of the hearing, Cantrell took pain medication three to four times a day depending
on her pain, including one for the nerve-ending pain from sciatica and disk disease prescribed by
Nurse Finley. (Tr.68-69.) When the AU asked Cantrell why she took pain medication for her spine
after her MRIs revealed that her spine was in alignment, she said, "the two [car] accidents knocked
the disk out of place and the third one knocked them back in. And that last one I had done was taken
right after the third accident and I suggest (sic) that they've come back out since then." (Tr. 69.)
B. Vocational Expert Testimony
The AU posed the following hypothetical to the vocational expert eVE") in attendance at
the hearing: a thirty-nhie year old individual who would be limited to light work; would need to
avoid concentrated exposure to fumes, gases, et cetera; would be unable to stand or walk for more
than one half hour; and would be unable to have close interaction with co-workers and the general
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public. (Tr. 77-78.) The VE responded that an individual with those limitations would not be able
to perform any of Cantrell's prior gainful employment. (Tr.78.) However, the VE identified that
such an individual would be able to work as an assembler of small products, machine trimmer, or
addresser. (Tr. 78.) Those three positions would not require prolonged standing or walking, but
would necessitate frequent use of the hands. (Tr. 79.) If the individual had only occasional use of
her hands, those occupations would be unavailable. (Tr.79.)
Cantrell's attorney posed a second scenario with an individual who could lift or carry items
less than ten pounds, could stand or walk no more than two hours in an eight-hour work day, and
could sit only six hours in an eight-hour work day. The VE responded that such an individual would
not be qualified for any jobs in the national or regional economy because those limitations would
prohibit the individual from working a full-time job. (Tr. 79.)
C. Medical Evidence
Cantrell primarily complains of sinus infections, and back and neck pain resulting from a
motor vehicle accident that occurred in Illinois before Cantrell moved to Oregon. Since 2005, she
has been regularly treated for obesity, degenerative disc disease, disc bulges, asthma, sinusitis, and
variants of migraines. Before moving to Oregon, Cantrell began treatment with the Belleville Family
Health Center in Belleville, Illinois, for carpal tunnel syndrome, and pain in her neck and back after
a car hit her vehicle from behind. (Tr. 441.)
When Cantrell moved to Oregon, she established care at Eagle Point Medical Clinic with
Nurse Finley on June 29, 2005. (Tr.243.) Cantrell explained to Nurse Finley that she suffered from
migraine headaches all the time. (Tr. 243.) Nurse Finley's only clinical examination during that
initial visit noted stiffness in the neck and pain at the base of the skull after palpation. (Tr. 243.)
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She also ordered an X-ray of Cantrell's spine at C4-5 and C5-6. (Tr. 249.) The X-ray results showed
age-compatible degenerative changes, but no acute pathology. (Tr. 249.) However, Nurse Finley's
assessment included classical and tension migraine headaches, cervicalradiculopathy, fibromyalgia,
degenerative disc disease and bulging discs of the cervical neck, and reflux symptoms. (T1'.243.)
Cantrell returned to Nurse Finley for lidocaine injections on July 29, 2005. (T1'.242.) After
examination revealed pain in her posterior right shoulder, posterior right scalp, and at several
fibromyalgia trigger points, Nurse Finley administered injections in Cantrell's right shoulder and
scalp. (T1'.242.) During that same visit, Nurse Finley refilled Cantrell's pain medications for her
fibromyalgia, carpal tunnel syndrome, and migraine headaches. (Tl'. 242.) However, she noted that
Cantrell continued to smoke three quarters of a pack of cigarettes each day and was "not ready to quit
at th[atl time." (Tr. 242.) On August, 10,2005, T. Myer, F.N.P., at Eagle Point Medical Clinic told
Cantrell that she needed to quit smoking. (Tr. 241.)
An MRI of Cantrell's cervical spine taken on August 17, 2005, showed normal spinal cord
signal, spinal cord morphology, and vertebral alignment. (Tr. 246.) In addition, the MRI revealed
either minimal posterior disc bulges or marginal osteophytes at the C5-6 level, or both. However,
neural impingement or stenosis were not apparent. (Tr. 246.)
On September 15, 2005, Nurse Finley refe11'ed Cantrell for steroid injections at the C5-6
spine and nerve conduction studies, after Cantrell complained of a "headache that just won't go
away" and pain in the upper right extremity - including her right elbow. (Tr. 240.) Cantrell
informed Nurse Finley that she had previously had surgery for carpal tunnel syndrome in both arms,
and had been told at the time that surgelY would not "completely resolve the problem." (Tr. 240.)
Also during that visit, Nurse Finley noted that Cantrell was still smoking fifteen cigarettes per day
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even though she had switched to filtered cigarettes. (Tr. 240.)
The iast report from Nurse Finley in the record is dated September 26, 2005, after Cantrell
had repOlied to the Providence Medical Center emergency room with labored breathing. (Tr. 238.)
The emergency room attendants gave Cantrell a Toradol shot for her migraine, which Cantrell opined
was "related to her sinuses." (Tr.238.) Over two years later, on May 15, 2008, Nurse Finley
completed and signed an ability to do work-related activities form in which she listed degenerative
disc disease of the cervical spine, fibromyalgia, carpal tunnel syndrome, tendonitis, sciatica, bone
spurs, and depression as the underlying medical findings for her assessment of Cantrell's function.
(Tr. 527.) In that repOli, Nurse Finley concluded that Cantrell could only lift 01' cany a total often
pounds, stand or walk a total of two hours, and sit a total of six hours in a eight-hour workday. She
also concluded that Cantrell has limited ability to push or pull with her upper extremities. (Tr. 527.)
During the period of November 21, 2005, through August I, 2006, Cantrell received
treatment from the Thurston Medical Clinic (the "Thurston Clinic"). Stephen Ames, M.D. ("Dr.
Ames"), first treated Cantrell on November 21, 2005, when she sought care for her ongoing
conditions.
(Tr. 315.)
That day, Cantrell complained about an ongoing sinus infection,
fibromyalgia, and degenerative disc disorder at C3-4 in her neck. (Tr. 315.) After a clinical
assessment, Dr. Ames noted that Cantrell had multiple trigger points in her back and leg, but that she
also had trigger points that didn't consistently correspond. (Tr. 315.) Dr. Ames praised Cantrell for
decreasing her smoking habit to a half of a pack of cigarettes each day, noting that she really needed
to stop smoking. (Tr. 315.) He wrote Cantrell a prescription for Percocet to alleviate pain from her
sinus infection, and Neurontin to ease her fibromyalgia and neck pain. (Tr.315.)
On Janumy 19, 2006, Cantrell returned to Dr. Ames complaining that she had "headaches
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in the neck" and "sciatica nerve pain on the right." (Tr. 313.) Upon palpation, Dr. Ames found
Cantrell very tender in the bursa area on the right hip and prescribed Prednisone. (Tr. 313.) Dr.
Ames also opined that the headaches were probably tension headaches, not migraines, and were
related to her sinus problems. (Tr. 313.)
In April 2006, Cantrell saw Eric Geisler, M.D. ("Dr. Geisler"), at the Thurston Clinic. She
complained of a worsening pain going down her leg, and claimed that cln'onic pain medications were
not working. (Tr.307.) Dr. Geisler reported tenderness over her superior gluteus on the right side,
but assessed that her fibromyalgia hindered the extent of his exam. (Tr. 307.) On April 12, 2006,
Dr. Geisler wrote in his notes that he had suggested to Cantrell that she quit smoking "for her cln'onic
nocturnal cough," and noted again on April 19, 2006, that Cantrell "has to cut down on her
smoking." (Tr. 305, 307.)
On Janumy 1, 2006, X-ray images ordered by Richard Lindquist, M.D., of Cantrell's lumbar
spine showed no degenerative changes and generally a normal lower spine. (Tr. 322.) Results from
an MRl of the lumbar spine on April 13, 2006, were also nOlmal. (Tr. 317.)
In May 2006, Cantrell began a four-month period of treatment at Thurston Clinic with Dr.
Kaplan. (Tr. 304.) On May 5, 2006, Dr. Kaplan gave Cantrell a shot ofToradol to ease her migraine
pain. (Tr. 304.) Cantrell returned tln'ee days later to get better acquainted with Dr. Kaplan. Cantrell
explained that she got migraines nearly evelyday and that she had severe migraines at least foul'
times a month. (Tr. 302.) From Cantrell's description of her headaches, Dr. Kaplan opined that the
migraines were of the common variety with nausea, vomiting, photophobia, and phonophobia. (Tr.
302.) Dr. Kaplan prescribed Topamax for Cantrell's migraines. (Tr. 302.) Cantrell also reported
going to the emergency room over the weekend, where doctors had diagnosed her with a heel spur
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in her right foot. (Tr. 302.) Several days later, on May 8, 2006, during a visit where Cantrell
complained of knee and right heel pain, Dr. Kaplan noted that Cantrell was smoking one pack of
cigarettes or one half pack of cigar-type cigarettes a day. (Tr. 30 I.) Dr. Kaplan encouraged Cantrell
to quit and offered support when she was ready to stop smoking. (Tr. 301.)
Cantrell returned to the Thurston Clinic on May 18, 2006, to ask for a shot ofToradol, which
Dr. Kaplan provided that day and then repeated on May 22, 2006. (Tr. 301,298.) Dr. Kaplan had
dissuaded Cantrell from getting an injection of Toradol on May 12,2006, insisting that Cantrell
needed to allow some time for the Topamax to be effective. (Tr. 300.) On May 22, 2006, Dr.
Kaplan noted that Cantrell had sought injections of Toradol from the Thurston Clinic or the
emergency room two or three times a week over the last several weeks. (Tr. 298.) On June 13,
2006, Cantrell repOlied that she was having fewer sinus headaches, which Dr. Kaplan linked to the
changing of the seasons. (Tr. 296.)
On June 23,2006, Cantrell returned for another shot ofToradol for a migraine resulting frorn
a pulled muscle in her shoulder. (Tr. 295.) During that visit, Cantrell discussed her disability
paperwork with Dr. Kaplan, who reported that "twenty minutes were spent with this patient
reviewing her work form and the extent of her disability." (Tr. 295.) On June 30, 2006, Dr. Kaplan
repOlied that Cantrell was still smoking a half pack of cigarettes each day. (Tr. 294.)
Dr. Kaplan and Cantrell took another twenty minutes to complete the "questionnaire
regarding her disabilities ... with the patient's assistance" on August 1,2006. (Tr. 292.) In that
report, Dr. Kaplan wrote that Cantrell could only lift or carry a total often pounds, stand or walk a
total of two hours in an eight-hour work day, and sit periodically in alternation with standing during
an eight-hour workday, but that her ability to push or pull was not limited. (Tr. 289-290.)
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Additionally, Dr. Kaplan reported that Cantrell '.s manipulative function was limited except in her
ability to feel. (Tr. 291.) Finally, Dr. Kaplan concluded that Cantrell had severe and persistent
asthma that was exacerbated by temperature extremes; dust, humidity.or wetness; and fumes, odors,
chemicals, and gases. (Tr. 291.) Dr. Kaplan completed and signed a second ability to do workrelated activities form on April 16,2007, in which she concluded that it would be difficult for
Cantrell to regularly attend ajob as a result of her frequent, yet unpredictable, headaches. (Tr. 378.)
Unlike in the previous form, Dr. Kaplan reported on April 16,2007, that Cantrell had unlimited
manipulative limitations. (Tr. 379.)
On August 15, 2006, the Depmiment of Human Services referred Cantrell for a
comprehensive psychological evaluation with Dr. Scott. (Tr. 324.) As pmi of the evaluation,
Cantrell self-administered a Personality Assessment InventolY and Wechsler Adult Intelligence
Scale, among other tests. (Tr. 327-78.) Results from the testing indicated that Cantrell's foremost
mental impairment was borderline personality disorder. (Tr. 330.) Dr. Scott concluded that
Cantrell's "significant mental health impahment" would affect her daily living and work life. (Tr.
330.) Finally, after learning from Cantrell that her histOlY of substance abuse had ended ten years
prior, except for "the occasional hit ofpot," Dr. Scott opined that Cantrell was "likelyunderreporting
her marijuana use given her significant history of substance abuse." (Tr. 327, 330.) During an
office visit on June 26, 2006, Dr. Kaplan also diagnosed Cantrell as having a borderline personality
disorder based on her chronic instability in relationships. (Tr.296.)
On August 22, 2006, state agency physician Mmiin Kehrli, M.D. ("Dr. Kehrli"), analyzed
the severity of Cantrell's alleged physical impairments. He concluded that Cantrell's multiple
allegations were "minimally partially credible" because the medical record did not SUPPOli Cantrell's
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conclusions about her symptoms. (Tr. 333.) He relied on previous testing that revealed the bulges
in Cantrell's spine were minor and appropriate for her age. (Tr. 333.)
On August 28, 2006, Paul Rethinger, Ph.D. ("Dr. Rethinger"), reviewed Cantrell's mental
health record. (Tr. 335.) Dr. Rethinger concluded that Cantrell had depression, but that it wasn't
severe. (Tr. 347.) Also, he noted that Cantrell had identified her physical limitations as her main
issue. (Tr. 347.) Dr. Rethinger detennined that her mental health conditions placed mild restrictions
on her daily life and social functioning, but none on her ability to maintain concentration, persistence
or pace. (Tr. 345.)
The Oregon Depmlment of Human Services refened Cantrell to Options Counseling Services
of Oregon ("Options Counseling"), where she received counseling from licensed social workers,
primarily Shelley Monis, L.C.S.W., ("Morris") from October 9, 2006, to November 13,2007. (Tr.
471-525.) On March 19,2007, Cantrell admitted that she had a felony on her record from writing
a bad check for merchandise in Illinois. (Tr. 498.) During a discussion with Morris about her
childhood on August 20, 2007, Cantrell admitted that she had stolen money when she was twelve
years old, and continued to steal periodically afterwards. (Tr. 477.)
On November 17, 2006, Cantrell underwent testing to determine what was wrong with her
sinuses. A Computed Tomography (a "CT") image of Cantrell's sinuses on June 1, 2006, had
revealed no evidence of significant sinus inflammatory disease. (Tr.316.) This November CT scan
of her paranasal sinuses again showed no signs of abnOlmalmucosal thickening or abnormal fluid.
(Tr. 375.) Dr. Kaplan interpreted the scan as normal and referred her to allergist, Dr. Kraig
Jacobson, M.D. ("Dr. Jacobson"), to rule out an allergic reaction. (Tr. 371.) After testing, Dr.
Jacobson concluded on November 22,2006, that Cantrell had no allergic sensitivities, but that "she
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does have both hands firmly on the self destruct button with her continued smoking." (Tr. 365.) Dr.
Jacobson observed: "[Cantrell] already has a significant decrease in PFTs and much of her upper
airway symptoms are really caused by this irritation." (Tr. 365.) At the conclusion of the exam, Dr.
Jacobson recommended to Cantrell that she start using the new Chantix to stop smoking. (Tr. 365.)
A subsequent X-ray of Cantrell's cervical spine on March 19, 2008, at the Medford
Radiological Group (the "Group") showed "marked multilevel degenerative changes -... with
posterior facet hypelirophic change." (Tr. 544.) Brian Tryon, M.D., of the Group recommended an
MRl for further evaluation. (Tr. 544.) There are no results from a subsequent MRl in the
administrative record 01' any indication that one was administered.
III. ALJ Decision
The ALJ found that Cantrell suffered from a severe combination of asthma in a
smoker/recurrent sinusitis, obesity, mild type II diabetes, heel spurs, an affective disorder (major
depression), and a borderline personality disorder. (Tr. 30.) However, the ALJ also found that
medical evidence in the record, specifically X-rays and MRls during 2005 and 2006, did not support
Cantrell's allegations that she suffered from degenerative disc disease and disc bulges. (Tr. 31.) The
ALJ found Cantrell retained the "residual functional capacity to perfOlID light work ... except due
to respiratory issues, she needs to avoid concentrated exposure to fumes, gases, et cetera.
Employment requiring standing or walking over one half hour continuously is precluded. Close
contact with coworkers is precluded. Interaction with the general public is precluded." (Tr. 33.)
Accordingly, the ALJ concluded that Cantrell was not disabled under the meaning of the Act at any
time from April 20, 2005, through February 21,2008. (Tr. 27.)
In reaching this conclusion, the ALJ found Cantrell's statement regarding the intensity,
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persistence, and limiting effect of her pain to be not credible because the majority of her alleged
ailments were not supported by objective medical evidence, and the diagnosis of a borderline
personality disorder suggested exaggeration. (Tr. 34, 36.) For example, the ALJ contrasted
Cantrell's hearing testimony about her limited hand dexterity to Dr. Kaplan's assessment that
Cantrell was free from manipulative restrictions on April 16, 2007, as well as the lack of Cantrell's
reporting on the issue to her doctors, before concluding that Cantrell had not suffered from carpal
tunnel syndrome since 2002. (Tr. 35.) One of the ALJ's reasons for discrediting Cantrell's
statements was her non-compliance with the multitude of recommendations from her care providers
to stop smoking. The ALJ specifically referenced the recommendation of Dr. Jacobson, who
determined that Cantrell's continued smoking, and not allergies, had caused her sinus irritation. (Tr.
35.)
As a result of finding Cantrell's testimony incredible, the ALJ discounted Nurse Finley's
assessment that Cantrell's headaches, cervical radiculopathy, degenerative disc disease, and bulging
discs at the cervical neck would be extremely limiting because she apparently based those diagnoses
entirely on Cantrell's reporting, as radiodiagnostics did not reveal any significant neck impairments.
(Tr. 35.) For the same reason, the ALJ discounted treating physician Dr. Kaplan's report that
degenerative disc disease, asthma, and chronic headaches restricted Cantrell's ability to work,
because Dr. Kaplan assumed these impaitments existed without objective medical evidence to
support such a conclusion. (Tr. 35.)
Standard ofReview
The Act provides payment of Benefits to people whosuffer from physical or mental disability
through DBI if they have contributed to the Social Security program and through SSI, even if they
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have not, but have limited income. 42 U.S.C. § 423(a)(I) (2006) (DBI); 42 U.S.C. § 1382(a) (2006)
(SSI). The disability criteria are the same for both Benefits. 20 C.F.R. § 404.1520 (2006) (DBI);
20 C.F.R. § 416.920 (2006) (SSI). The claimant bears the burden of proving her disability in order
to qualify for either Benefit. Gomez v. Chater, 74 FJd 967, 970 (9th Cir. 1996) (DBI); Drouin v.
Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992) (citation omitted) (SSI).
To meet this burden, the claimant must demonstrate an inability to engage in any substantial
gainful activity by reason of any J.lledically detelminable physical or mental impainnent that can be
expected to cause death or to last for a continuous period of a least twelve months. 42 U.S.c. §§
423(d)(I)(A), 1382c(a)(3)(A). An individual is disabled by this definition only if her physical or
mental impairment or impairments are so severe that she is not only unable to do her previous work,
but cannot, considering her age, education, and work experience, engage in any other kind of
substantial gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Commissioner has developed a five-step sequence for evaluating whether a person is
disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chafer, 81 FJd 821, 828 n.5 (9th Cir. 1995)
(DBI); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989) (SSI). If the Commissioner
finds the claimant is disabled after any of the five steps, it is not necessary to evaluate the claimant
under the remaining steps. First, the Commissioner detelmines whether the claimant is engaged in
substantial gainful activity. If the claimant is engaged in such activity, the claimant is ineligible.
20 C.F.R. §§ 404.1520(b), 416.920(b). If not, the Commissioner determines whether the claimant
has a medically severe impairment or combination of impairments in step two. 20 C.F.R. §§
404.1520(c), 416.920(c). A severe impairment is one "which significantly limits [the claimant's]
physical or mental ability to do basic work activities." Id If the claimant has no severe impairment
OPINION AND ORDER
16
{CKH}
or combination of impairments, she is ineligible.
Otherwise, in step three, the Commissioner detennines whether that severe impahment or
combination thereof equals one of a number of listed impairments that the Commissioner
acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d),
416.920(d). If one or more impairments is listed or equals a listed impairment, the claimant is
conclusively presumed to be disabled. fd If not, the Commissioner, in the fourth step, determines
whether the impairment prevents the claimant from performing work that she has performed in the
past. 20 C.F.R. §§ 404.1520(f), 416.920(f). For this analysis, the Commissioner evaluates the
claimant's residual functional capacity ("RFC"), which represents the type of work activity the
claimant can still perfOlm. fd In determining a claimant's RFC, an ALJ must consider all relevant
evidence in the record, including, inter alia, medical records, lay evidence, and "the effects of
symptoms, including pain, that are reasonably attributed to a medically determinable impahment."
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (internal citation omitted); accord
20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). If the claimant is able to perfonn work that she has
performed in the past, the Commissioner makes a final decision that the claimant is "not disabled,"
and the claimant is ineligible for Benefits. fd
If the claimant is unable to do work she has performed in the past, the Commissioner
detennines in the fifth and final step whether the claimant can perform other work in the national
economy, considering her age, education, and work experience.
20 C.F.R. §§ 404.1520(g),
416.920(g). The claimant is entitled to Benefits only if she is not able to perform other work. fd
The reviewing court must affilm the Commissioner's decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence from the record. 42
OPINION AND ORDER
17
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U.S.C. § 405(g) (2006); Batson v. Comm'r o/the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance."
Robbins, 466 F.3d at 882. Substantial evidenceis such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993).
If the evidence can support either affitming or reversing the ALJ's conclusion, the reviewing
comi may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citation
omitted). The ALJ is responsible for detelmining credibility, resolving conflicts in: medical
testimony, and defining ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
However the reviewing comi "may not affilm simply by isolating a specific quantum of suppOliing
evidence." Lingen/elterv. Astrue, 504 F.3d 1028,1035 (9th Cir. 2007) (internal quotations omitted).
Discllssion
1. Cantrell's Credibility
Cantrell argues that the ALJ's reasons for rejecting her testimony, particularly the reliance
on her continued smoking, borderline personality disorder, past illegal activity, and the lack of
objective medical evidence to suppoli her reports of neck pain, are not suppOlied by the record.
(Pl.'s Br. at 18.) The ALJ conducts a two-step analysis to assess subjective claimant testimony.
Under step one, the claimant "must produce objective medical evidence of an underlying
impairment" or impairments that could reasonably be expected to produce some degree of symptom.
Tommasettiv. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273,
1281-82 (9th Cir. 1996». If a claimant meets this threshold, under step two the ALJ may reject
testimony about the severity of the claimant's symptoms as long as the ALJ provides specific, clear,
and convincing reasons for doing so. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). The
OPINION AND ORDER
18
{CKH}
ALI may consider various factors in weighing a claimant's credibility, including: (1) ordinmy
indications of untruthfulness, such as prior inconsistent statements concerning the symptoms, and
other testimony by the claimant that appears less than candid; (2) unexplained or inadequately
explained failure to seek treatment or to follow a prescribed course of treatment; and (3) daily
activities inconsistent with alleged symptoms. Tommaselti, 533 F.3d at 1039 (internal citations
omitted). "Contradiction with medical records is also a sufficient basis for rejecting the claimant's
subjective testimony." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008)
(internal quotation omitted). The ALI's overall credibility finding may be upheld even if not all of
the ALJ's reasons for rejecting the claimant's testimony are suppOlied by the record. See Batson,
359 F.3d at 1197.
Here, the ALI found that while Cantrell's medically determinable impairments could
reasonably be expected to produce some symptoms, her statements concerning the intensity,
persistence, and limiting effects of her headaches, neck pain, carpal tunnel syndrome, and other
conditions were not credible to the extent they were inconsistent with the RFC. (Tr. at 34.) The ALI
points to three of Cantrell's behaviors that generally suggest she was evasive or duplicitous: 1) the
medical record supportive of a borderline personality disorder; 2) her propensity to steal when she
was younger and her recent felony conviction for writing a bad check;6 and 3) Dr. Scott's report that
he believed Cantrell was underreporting her marijuana use. (Tr. 36-37.) As long as the ALI makes
specific findings that are suppOlied by the record, the ALI may discredit the claimant's allegations
6The ALI provides an incorrect citation to the record for Cantrell's admission that she was
convicted of a felony for writing a bad check to buy merchandise when she lived in Illinois. (Tr. 37.)
The correct source for that evidence is a counseling session with Morris on March 19, 2007. (Tr.
498.)
OPINION AND ORDER
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{CKH}
based on relevant character evidence. Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991).
Cantrell incolTectiy claims that the ALI erred in considering her past criminal record and
personality disorder diagnosis for the credibility analysis because, while the ALI used these
indicators to discredit Cantrell's testimony generally, they are specific findings of allowable
character evidence supported by the record. In determining the credibility of testimony, the ALl may
consider a claimant's reputation for truthfulness. Burch, 400 F.3d at 680 (intemal citation omitted).
"For instance, 'if a claimant has a reputation as a liar, ... that may be properly taken into account
in determining whether or not his claim of disabling pain should be believed." Fair v. Bowen, 885
F.2d 597, 604 n.5 (9th Cir. 1989). Similarly, Cantrell's past conviction for writing a bad check, Dr.
Scott's conclusion that Cantrell was minimizing her drug use, and the borderline personality disorder
diagnosis bear on Cantrell's general reputation for truthfulness. Thus, the ALl did not elT in
considering how these factors affected the credibility of Cantrell's testimony.
Even if the ALl had erred in relying on general evidence of untruthfhlness, the ALl further
supports the adverse credibility finding by identifying objective medical evidence contradicting
Cantrell's pain testimony. Cantrell charges the ALl with substituting lay opinion about the severity
of Cantrell's back and neck pain for that of her treatment providers, Nurse Finley and Dr. Kaplan,
who reported in ability-to-work statements that degenerative disc disease limited Cantrell's
functioning. (PI. 's Br. at 18.) The AU must specify whattestimony is not credible and identify the
evidence that undermines the claimant's complaints - "[g]eneral findings are insufficient." Burch,
400 F.3d at 680. Although lack of medical evidence can notfOlID the sole basis for discounting pain
testimony, it is a factor that the AU can consider in his credibility analysis. Id. at 681.
In Burch, the Ninth Circuit found that the AU properly discredited Burch's testimony after
OPINION AND ORDER
20
{CKH}
considering, in pat1, that MRI and X-ray imaging revealed "only mild degenerative disc disease at
L5-S1, and mild dextroscoliosis" without apparent disc hemiation or nerve root impingement. ld.
The ALJ in this case relied on both the lack of objective medical evidence, as well as other general
findings of Cantrell's lack of credibility, to reject Cantrell's testimony regarding the severity of her
neck pain. The medical evidence that conflicted with Cantrell's rep0l1s of severe neck pain were:
1) a June 2005 neck X-ray that showed only age-compatible degenerative changes with no acute
pathology; 2) "anol1nal August 2005 MRI with the exception of minimal posterior disc bulge and/or
marginal osteophytes" at C5-6; and 3) a normal 2006 MRI of the lumbar spinal region. (Tr. 31.)
The ALJ did not discuss a March 19,2008, X-ray that revealed "multiple degenerative
changes of the posterior facets" in Cantrell's spine. (Tr. 544.) Section 405(g) expressly provides
for remand when new evidence is material and there is good cause for the failure to incorporate the
evidence in a prior proceeding. Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (citation
omitted). To meet the materiality requirement, the new evidence must bear directly and substantially
on the matter. ld. The cou11 does not find this most recent X -ray to be material because the results
were not conclusive of acute pathology that would have sUPP0l1ed Cantrell's testimony about the
severity of her neck and back pain. Thus, the court need not address whether it was error for the ALJ
to omit the X-ray taken February 21, 2008, even though it was absent from the record with which
the ALJ assessed Cantrell's disability. (Tr. 40.)
Cantrell also contends that the ALJ improperly relied on her inability to cease smoking as
a reason for discrediting testimony about the severity of her headaches.
(PI.'s Br. at 18.)
Specifically, Cantrell argues that the ALJ should have demonstrated that Cantrell's ability to work
would be restored if she stopped smoking before relying on that reason. (PI.'s Br. at 18.) The ALJ
OPINION AND ORDER
21
{CKH}
cites four specific notes from care providers about Cantrell smoking fifteen cigarettes to a pack a
day, but reports that there are many more instances of this notation in the record. (Tr. 34.)
Thc ALJ properly referenced Cantrell's refusal to stop smoking to suggest that Cantrell "was
not so limited as to see the need to aggressively pursue remedies," an indicator that her pain was not
as severe as her testimony made it seem. (Tr. 35.) Reliance on evidence in the record of a claimant's
failure to comply with recommended treatment constitutes a legitimate reason for discounting her
credibility. Fail', 885 F.2d at 603. The Ninth Circuit held in Byrnes that the ALJ "must examine the
medical conditions and personal factors that bear on whether a claimant can reasonably remedy his
or her impairment." Byrnes v. Shalala, 60 F.3d 639, 641 (9th Cir. 1995) (citations omitted).
However, that opinion merely required that the ALJ do so before entirely basing a denial of benefits
on noncompliance with treatment. Id. The Ninth Circuit has not held, and did not suggest in Byrnes,
that when noncompliance is merely one of the reasons for determining a claimant is less than
credible, it is necessary for the ALJ to make the additional finding that but for smoking the claimant
would be able to work. Sorg v. Astrue, No. C09-5063KLS, 2009 WL 4885184, at * 13 (W.D. Wash.
Dec. 16,2009). In Sorg, the ALJ considered Sorg's noncompliance with recommended treatment
as one factor in discrediting her testimony. Id. at *12. As in Sorg, the ALJ considered Cantrell's
unexplained refusal to stop smoking, despite a multitude of medical direction to do so, as a specific
reason to dismiss her testimony regarding her headaches in addition to several general indicators that
Cantrell was less than tlUthful.
Cantrell conectly points out that the ALJ failed to consider Cantrell's frequent visits to the
emergency room and the Thurston Clinic during May 2006 for Toradol injections to relieve headache
pain. (Pl.'s Br. at 11.) However, the court finds that this single omission is not grounds for
OPlNlON AND ORDER
22
{CKH}
assigning enol' to the credibility determination because the AU specifically references Cantrell's
noncompliance with directives to discontinue smoking before discrediting Cantrell's pain testimony
about her headaches. The record shows that even though Cantrell understood that her headaches
were related to her sinus irritation, which Dr. Jacobson had diagnosed as caused by her smoking
habit, and she received recommendations to stop smoking from almost eve1Y care provider, she
continued smoking. Based on that evidence, the AU properly discredited Cantrell's testimony as
to the severity of her headaches. Overall, the AU considered relevant indicators of credibility, and
offered clear and convincing reasons for not fully crediting Cantrell's repo11s about her pain.
II. Medication Side Effects
Cantrell alleges that she suffered severe side effects from her medications, including fatigue,
poor balance, difficulty concentrating, and impaired driving ability. (pl.'s Br. at 17.) Contrmy to
Cantrell's contention that the AU ignored these side effects in the RFC analysis, the AU inserted
into the decision segments of Cantrell's reports about her limitations from taking medications, and
dismissed that testimony as exaggerated after finding Cantrell to be less than fully credible. (Jd.)
The AU took into account Cantrell's reports about how her medications affected her
activities. "I can't drive far due to medications. I don't dare try to go further than a few blocks to
the store or bank or bus stop for my son. All my medications make me drowsy, dizzy, or fatigued
- if not all of the above at once." (Tr. 34.) The AU found Cantrell to be inconsistent in her reports
about the side effects of her seventeen medications, and found her reporting of activities to indicate
that she was still able to drive ShOll distances on a daily basis. (Tr. 34.) The AU questioned how
Cantrell's testimony that she could not drive on her medications could be credible in light of the
evidence that she drove to therapy sessions and to pick up her son from school. (Tr. 34) Inconsistent
OPINION AND ORDER
23
{CKH}
statements are one common basis for discrediting claimant testimony, as described above. And,
while there may be reasonable explanations for this inconsistency, "if evidence exists to support
more than one rational interpretation, we must defer to the Commissioner's decision." Batson, 359
F.3d at 1193. Based on the foregoing, the AU did not create a reversible error by detennining that
Cantrell's testimony regarding her medications was less than fully credible.
III. Opinions of Dr. Scott, Dr. Kaplan, and Nurse Finley
Cantrell argues that it was legal en'or for the AU to reject the medical opinions of Dr. Scott,
Dr. Kaplan, and Nurse Finley. (PI. 's Br. at 17.) Specifically, Cantrell argues that Nurse Finley and
Dr. Kaplan relied on their own clinical observations when opining that Cantrell suffered from
degenerative disc disease, carpal tunnel syndrome, and other ailments. (PI.' s Br. at 15.) In addition,
Cantrell contends that the AU did not mention Dr. Scott's borderline personality disorder diagnosis,
and did not provide reasons for that omission. (PI.'s Br. at l3.)
"Although a treating physician's opinion is generally afforded the greatest weight in disability
cases, it is not binding on an ALJ with respect to the existence of an impairment or the ultimate
detelmination of disability." Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). In fact,
the AU may disregard the treating physician's opinion whether or not that opinion is contradicted.
Batson, 359 F.3d at 1195. lfthe treating physician is not contradicted by another acceptable medical
source, the AU can reject it only for clear and convincing reasons. Thomas v. Barnhart, 278 F.3d
947,956-57 (9th Cir. 2002). lfthe treating physician's opinion is contradicted by a non-examining
physician, the opinion of the non-examining physician by itself does not constitute substantial
evidence to reject the opinion of a treating or examining physician. Lester, 81 F.3d at 831 (citation
omitted). It may constitute substantial evidence if it is consistent with other evidence in the record.
OPINION AND ORDER
24
{CKH}
AIagallanes v. Bowen, 881 F.2d 747,752 (9th Cir. 1989).
Additionally, when two opinions are contradictOlY, discrediting opinions that are conclusOlY,
brief, and unsupported by the record as a whole or by objective medical findings, is an example of
a clear and convincing reason. Tonapetyan, 242 F.3d at 1149. The ALJ may also reject portions of
a physician's opinion predicated on reports ofthe claimant properly deemed not credible by the ALJ.
Ryan v. Astrue, 528 F.3d 1194, 1199-1200 (9th Cir. 2008).
A. Dr. Scott
Dr. Scott examined Cantrell one time for a comprehensive psychological evaluation. (Tr.
324.) After Cantrell perfonned psychological and intelligence testing, Dr. Scott opined that Cantrell
"clearly has significant mental health impainnent that would interfere with her ability to perform
basic work tasks." (Tr. 330.) Dr. Scott indicated that Cantrell's mental health restrictions would
necessitate a work environment in which Cantrell has little contact with the general public and with
a supervisor who has significant patience for her mood swings, as a result of her borderline
personality disorder. (Tr. 330.)
The ALJ acknowledged this examination three times throughout the opinion. First, the ALJ
credited this opinion by naming Cantrell's borderline personality disorder as a severe impairment.
Second, the ALJ relied on the opinion when mentioning another of Dr. Scott's conclusions that
Cantrell's marijuana use might be increasing her depression and interfering with her medication.
(Tr. 37.) Third, while the ALI does not specifically refer to Dr. Scott's assessment of Cantrell's
workplace limitations in the RFC analysis, the ALJ did recognize the restrictions identified by Dr.
Scott by prohibiting close contact with coworkers and the general public in the final RFC. (Tr. 33.)
The ALI's treatment of Dr. Scott's opinion is proper because the ALJ did not discredit this
OPINION AND ORDER
25
{CKH}
examining psychologist's assessment. The opinion of an examining doctor, even if contradicted by
another doctor, can only be rejected for specific and legitimate reasons that are supported by
substantial evidence in the record. Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)
(emphasis added). Otherwise, the ALJ need not discuss all evidence presented, but "must explain
why 'significant probative evidence has been rejected.'" Van Sickle v. Astrue, 385 F. App'x 739,
741 (9th Cir. 2010) (quoting Vincentv. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)).
Cantrell contends that the lack of discussion of Dr. Scott's diagnoses and the absence of a
justification for rejecting his assessment of her mental limitations was a legal error. (PI.'s Br. at 13).
On the contrmy, the ALJ never discredited Dr. Scott's mental health diagnoses or rejected his
assessment of Cantrell's function in the workplace. In fact, the ALJ's opinion includes all of Dr.
Scott's conclusions, except that "Cantrell will likely need significant one-on-one assistance to work
on developing job tasks." (Tr. 330.)
Instead of specifically including this last recommendation, the ALJ adopted the general
conclusions of Dr. Rethinger, a reviewing psychologist, regarding Cantrell's restrictions in daily
living, concentration, pace, and persistence. Like Dr. Scott, Dr. Rethinger concluded that Cantrell's
daily activities were restricted by her mental impairments. However, Dr. Rethinger concluded that
Cantrell's mental impairments were not severe, relying in part on Cantrell's statement that her
physical impairments were her main limitation. (Tr.347.) This is consistent with Dr. Scott, who
prefaced his conclusion that Cantrell would need individual supervision by noting that Cantrell
claimed she could perform work tasks ifnot impaired by her physical limitations. (Tr.330.) Based
on the consistency between these two opinions with regard to Cantrell's basis daily living and her
insistence that physical limitations created her main restrictions, the ALJ properly addressed Dr.
OPINION AND ORDER
26
{CKH}
Scott's recommendation of individual supervision related to Cantrell's basic functioning.
B. Dr. Kaplan and Nurse Finley
Both Dr. Kaplan and Nurse Finley completed statements identifying Cantrell's abilities to
do work-related activities. Dr. Kaplan completed two statements that directly contradicted each
other. (Tr. 289, 377). In the 2006 assessment, Dr. Kaplan concluded that Cantrell had limited
manipulative ftmctioning due to her degenerative disc disorder and carpal tunnel syndrome. (Tr.
291.) In Dr. Kaplan's second report a year later, she recorded that Cantrell had unlimited
manipulative function, but still noted that Cantrell suffered from degenerative disk disorder. (Tr.
378.) Nurse Finley also noted that degenerative disc disease limited Cantrell's ability to lift, stand,
sit, and push, and that carpal tunnel syndrome would restrict Cantrell's use of her hands. (Tr. 527.)
The ALI rejected Dr. Kaplan and Nurse Finley's opinions that degenerative disc disease
restricted Cantrell's ftmctioning primarily because there was no objective medical support for that
finding, and both treatment providers had accepted Cantrell's alleged restrictions based entirely on
claimant's own repmiing.
(Tr. 35.) In addition, the ALI noted that Nurse Finley's initial
examination of Cantrell on Iune 29, 2005, was completely normal, except for a repmi of stiffuess
in the neck and pain at the base of the skull. (Tr. 35.) In rejecting Dr. Kaplan's opinion, the ALI
relied on the fact that Dr. Kaplan was unable to specify actual limitations inmost of the report areas,
and had opined about Cantrell's mental health limitations, which were outside her expC1iise as a
physician. (Tr. 35.)
The reasons given by the ALI in rejecting the limitations described by Cantrell's treating
physicians are legitimate and supported by the administrative record. As noted above, the comi has
found that the ALI properly rejected Cantrell's testimony as less than credible. Dr. Kaplan's notes
OPINION AND ORDER
27
{CKH}
from June 23, 2006, and August 1,2006, indicate that she spent a total of twenty minutes each day
completing work forms and disability paperwork with Cantrell's assistance. (Tr. 292.) Neither Dr.
Kaplan nor Nurse Finley's assessment of Cantrell's ability to do work include reliance on objective
testing to detelmine specific restrictions. The ALJ concluded from the administrative record that
Cantrell was providing the limitations given in Dr. Kaplan's report. (Tr. 37.) In fact, neither
provider included clinical observations to support the conclusion that Cantrell was suffering from
degenerative disc disease. Nurse Finley only noted that Cantrell reported some neck and back pain
during her first visit. (Tr.238.)
In addition, the ALJ properly considered the contradicting opinion of non-examining state
agency physician, Dr. Kehrli. (Tr. 31.) While the contrary opinion of a non-examining medical
expert does not alone constitute a specific, legitimate reason for rejecting a treating or examining
physician's opinion, it may constitute substantial evidence when it is consistent with other
independent evidence in the record. Tonapetyan, 242 F.3d at 1149 (citation omitted). Dr. Kehrli's
conclusion that Cantrell did not suffer from severe degenerative disc disease was consistent with
radio diagnostic testing from 2005 and 2006. The ALJ's conclusion is consistent with the Ninth
Circuit's decision in Tonapetyan, which upheld the rejection of medical evidence that was
"unsuppOlied by rationale or treatment notes, and offered no objective medical findings to support
the existence ofTonapetyan's alleged conditions." Id.
IV. Step Two: Determination of Severity
Cantrell contends that the ALJ erred in not finding her carpal tunnel syndrome, degenerative
disc disease, and headaches to be severe impairments at step two of the disability analysis. (PI.' s Br.
at 12.) The Commissioner argues that the ALJ's findings, with regard to the severity of these alleged
OPINION Al\fD ORDER
28
{CKH}
impairments, are irrelevant because the ALJ considered all severe and non-severe conditions in
identifying Cantrell's RFC. (Def. 's Briefat 5.) Cantrell does not deny that an error in step two was
hamlless to the final ALJ decision. The court finds that the ALJ did not commit reversible errol' by
concluding these conditions were not severe in step two.
The concept of harmless error is applicable to the review of final decisions made by the
Social Security Administration. "A decision of the ALJ will not be reversed for errors that are
harmless." Stout v. Comm '/', Soc. Sec. Admin., 454 FJd 1050, 1054 (9th Cir. 2006) (citing CUI'IY
v. Sullivan, 925 F.2d 1127,1131 (9th Cir. 1990)). More specifically, to the extent anALJ errs at step
two in concluding that any conditions are not severe, that enol' is hamlless if the ALJ considered the
potential effects of those same conditions in detelmining the claimant's RFC. }v1cCawley v. As/rue,
423 F. App'x 687, 690 (9th Cir. 2011) (citing Burch, 400 FJd at 681-83). The Ninth Circuit in
Burch assumed without deciding that the ALJ's failure to address claimant's obesity during the step
two analysis was legal error, but concluded that such error was hmmless because it would not have
affected the ALJ's analysis at either step four or five. Id. At step four, the court found that Burch
could not have established that she met a listing requirement or its equivalent based on the record.
And, at step five, the ALJ explicitly noted the impact of Burch's obesity on her back problems and
resulting physical limitations. Id. at 682-83.
Similarly, in this case the ALJ failed to mention in the step two analysis the medical
assessments from Nurse Finley and Dr. Kaplan indicating that Cantrell suffered from carpal tunnel
syndrome. The ALJ did, however, discuss Cantrell's headaches and neck pain in step two before
deciding thatthose conditions were not severe. (Tr. 30-31.) Regardless, the ALJ discussed all three
conditions in detail during the RFC analysis. (Tr. 34-35.) The comt finds that this omission in step
OPlNlON AND ORDER
29
{CKH}
two was harmless because it did not affect the outcome of the ALJ's determination in steps three
(listing impailment determination) or five (RFC) - the only unfavorable decisions for Cantrell in the
sequential process.
Any error in step two did not affect the ALJ's step three finding that none of Cantrell's
impairments were separately listed or equal to listed impairments. "Degenerative disc disease" is
considered a listed impairment in the SSA Disability Evaluation Blue Book at 1.04 if it results in
compromise of a nerve root or the spinal cord, with evidence of nerve root compression, spinal
arachnoiditis, or lumbar spinal stenosis resulting in pseudo claudication. Disability Programs,
SOCIAL
SECURITY
ONLINE,
htlp;llwww.ssa.gov/disability/professionals/bluebook/l.OO-
Musculoskeletal-Adult.htm#l 04 (last visited Feb. 15,2012). Although degenerative disc disease
is listed, Cantrell does not present objective medical evidence that her neck and back pain are
symptoms of any of the three conditions required to qualify under that listing.
In fact, Cantrell's MRIs since 2005 have been negative for acute pathology. MRI imaging
in August 2005 displayed normal morphology and spinal chord signal, and a lack of neural
impingement or stenosis. (Tr. 246.) That MRI did show minimal posterior disc bulge at the C5-6
level, but the listing does not contemplate disc bulges as symptomatic of severe degenerative disc
disease. (Tr.246.) Her April 2006 MRI revealed normal appearance ofthe lumbar spine. (Tr. 317.)
Cantrell does not present evidence that even if the ALJ considered her degenerative disc disease a
severe impairment, the ALJ would have been required to find that her condition fell under the
definition of the listing for the disease. 7 See Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)
As noted before, the court does not find error in the ALJ's omission of evidence from the
March 19,2008, X-ray of Cantrell's spine because the test occuned.after the ALJ issued the
decision, and the results were not conclusive of acute pathology that would have required the ALJ
7
OPINION AND ORDER
30
{CKH}
("The Ninth Circuit has held that a claimant carries the initial burden of proving a disability.")
Without this evidence, the omission of the degenerative disc disease in step two is harmless.
The same is true for Cantrell's carpal tunnel syndrome and headaches. If the impailment is
not a separately listed impairment, a claimant will be deemed to meet the requirement if that
impairment, in combination with other non-listed impailments, is equivalent to a listed impailment.
Burch, 400 F.3d at 682 (intemal quotations omitted). An AU is not required to discuss the
combined effect of a claimant's impailments or compare them to any listing in an equivalency
determination, unless the claimant presents evidence in an cff01i to establish equivalence. See Lewis
v. Apfel, 236 F.3d S03, S14 (9th Cir. 2001). In Burch, the Ninth Circuit found that Burch did not
demonstrate an error because she did not specify which listing she believed she met and did not set
f01ih evidence to suppoli the diagnosis and findings of a listed impailment. Burch, 400 F.3d at 683
(citing 20 C.F.R. § 404.lS2S(d)). As in Burch, Cantrell does not present evidence of the specific
listing condition she believes she would have met if the ALJ had considered headaches or carpal
tunnel syndrome to be severe.
Finally, there was no error in step five of the analysis because the ALJ considered all three
ofthese conditions before detennining Cantrell's RFC and vocational ability. Cantrell contends that
because these three conditions were actually severe, the ALJ's RFC should have included limitations
resulting from each one. (Pl.'s Br. at 12.) However, the ALJ considered each one of these three
conditions in step five, and properly chose not to include in the RFC any limitations caused by these
conditions that were contradicted by objective medical evidence or based entirely on Cantrell's
testimony. (Tr. 34-36.)
to classify Cantrell's neck and back pain as a listed impailment or equivalent to one.
OPINION AND ORDER
31
{CKH}
Cantrell identified no functional limitations posed by carpal tunnel syndrome, degenerative
disc disease, or headaches that the ALJ did not consider in the RFC analysis. See Burch, 400 F.3d
at 684 (holding that the ALJ adequately considered the claimant's impairment where the claimant
had set forth no evidence of any functional limitations that the ALJ failed to consider). First, the
ALJ considered but rejected any evidence that Cantrell experienced limitations due to carpal tunnel
syndrome during the period at issue. (Tr. 36.) The ALJ considered Cantrell's hearing testimony that
she could not pick up coins off a table without sliding them to the edge, but gave greater weight to
Dr. Kaplan's most recent April 2007 assessment that Cantrell had no manipulative restrictions. (Tr.
35.) Cantrell argues enor based on the ALJ's failure to consider Dr. Kaplan's earlier August 2006
assessment, in which she concluded Cantrell had limited manipulative function. (Pl.'s Br. at 10.)
However, the court finds it clear from the ALl's phrasing, "physician Kaplan concluded most
recently," that the ALJ considered Dr. Kaplan's earlier report as well. (Tr. 35.)
Nurse Finley reached the conclusion on January, 15,2008, similar to Dr. Kaplan's earlier
report - that Cantrell had limited manipulative function for fingering and feeling. (Tr. 528.)
Although the ALJ does not explicitly refer to this repmi, the ALJ considered Dr. Kaplan's similar
opinion before concluding the record showed that Cantrell did not raise the issue of her dexterity at
any of her medical visits during that time, or otherwise provide objective medical evidence to
support that she still suffered from carpal tunnel since her surgelY in 2002.
Moreover, because Nurse Finley was not supervised by a physician during her visits with
Cantrell or when reporting afterwards, she is not an acceptable medical source. Medical opinions
establishing disability must be from an acceptable medical source. Licensed physicians and
psychologists are included within this definition, but a nurse practitioner working without the
OPINION AND ORDER
32
{CKE}
supervision of a physician does not constitute an acceptable medical source. 20 C.F .R. § 404.1513
(2011); Gomez, 74 F.3d at 971. Because the record supports the ALJ's stated reasons for not
including manipulative restrictions in the RFC, and because Nurse Finley is not an accepted medical
source in the context of disability benefits, the court finds that the ALJ conducted a proper RFC
analysis despite failing to specifically reference Nurse Finley's report.
Second, the ALJ dedicated the majority ofthe RFC analysis to potential restrictions caused
by Cantrell's neck and back pain. (Tr.35.) The ALJ considered all of the evidence that Cantrell
highlights in her brief, expect her frequent trips to the emergency room and the Thurston Clinic for
Toradol injections during the month of May 2006. (Pl.'s Br. at 11-12.) Specifically, the ALJ
considered all the restrictions resulting from Cantrell's degenerative disc disease that were identified
by her treatment providers, as well as the results of X-rays and MRls taken during the period at issue,
including the revealed minimal spondylosis at C5-6 of Cantrell's spine. (Tr. 31.) The final RFC
reflects some of the limitations identified by Nurse Finley and Dr. Kaplan by restricting Cantrell's
capacity to "light work" and prohibiting employment requiring continuous standing or walking over
one half hour. (Tr.33.)
Third, the ALJ considered potential restrictions in Cantrell's work activity caused by her
reoccurring headaches. Although the ALJ did not specifically cite Dr. Kaplan's opinion that
headaches would be disruptive to work life, the ALJ did consider Dr. Kaplan's opinion in noting "the
claimant's non-compliance with medical direction would suggest that the claimant was not so
limited as to see the need to aggressively pursue remedies." (Tr. 35.) In other words, the ALJ not
only considered but conceded that these headaches may have restricted Cantrell's ability to work
before discounting Cantrell's credibility based on her failure to stop smoking in order to treat her
OPINION AND ORDER
33
{CKH}
headaches, as discussed above. (Tr. 35.) In doing so, the ALJ relied on the medical opinion of Dr.
Jacobson, who linked Cantrell's sinus irritation to her smoking habit after disqualifying allergies as
the cause of her sinus pain through objective testing. (Tr. 34.) Cantrell has failed to establish that
the ALJ neglected to consider restrictions from Cantrell's degenerative disc disease, carpal tunnel
syndrome, or headaches in the RFC analysis. Accordingly, the comi finds that any omission ofthese
conditions from the step two analysis was harmless error.
V. Evidentiary Value of Vocational Hypothetical
Cantrell contends that the hypothetical posed by the ALJ to the VE has no evidentiary value
because it did not contain all of Cantrell's restrictions. (PI. 's Br. at 12.) Cantrell does not specify
which restrictions the ALJ omitted, but the comi assumes that she refers to restrictions resulting from
her alleged carpal tunnel syndrome, degenerative disc disorder, and headaches. In response, the
Commissioner defends the validity of the hypothetical on the ground that the ALJ validly analyzed
Cantrell's credibility and medical evidence, and properly concluded which restrictions belonged in
the RFC. (Def.'s Br. at 9.)
Hypothetical questions posed to a VE must set out all the limitations and restrictions of the
particular claimant, including pain and an inability to engage in celiain activities. Embrey v. Bowen,
849 F.2d 418, 422 (9th Cir. 1988). Othelwise, the VE's opinion regarding work capabilities "has
no evidentiary value." Bail1 v. As/rile, 319 F. App'x 543, 545 (9th Cir. 2009). However, the ALJ
is not required to include limitations that are not supported by substantial evidence in the record.
1V/0011
v. Barnhart, 28 F. App'x 666, 668 (9th Cir. 2002).
In this case, the ALJ properly omitted any alleged restrictions from the hypothetical after
providing clear and convincing reasons for discounting them in the RFC analysis. As described
OPINION AND ORDER
34
{CKH}
above, the AU properly discredited Cantrell's testimony regarding the extent of her pain caused by
degenerative disc disease, carpal tunnel, and headaches by providing specific instances of
untrustworthy behavior and tests results contradicting the existence of those ailments. Furthermore,
the AU properly rejected the treating providers' assessments of Cantrell's limitations based on the
lack of objective medical evidence in the record, and their reliance on Cantrell's discredited
testimony and reporting.
Conclusion
The Commissioner's findings on Cantrell's disability, considering the record as a whole, are
supported by substantial evidence. The decision of the Commissioner is AFFIRtvrED.
DATED this 22d day of March, 2012.
oiINv. ACOSTA
United
OPINION AND ORDER
35
St~tes
\;
Magistrate Judge
{CKH}
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