Bales v. Commissioner, Social Security Administration

Filing 18

OPINION & ORDER: The Commissioner's decision is AFFIRMED. See 18-page opinion & order attached. Signed on 9/25/2015 by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CHARLENE BALES,
No. 3:14-cv-01553-HZ
Plaintiff,
OPINION & ORDER
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

George J. Wall
Law Offices of George J. Wall
1336 E Burnside, Ste. 130
Portland, OR 97214
Attorney for Plaintiff
//
//

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Billy J. Williams
Acting United States Attorney, District of Oregon
Janice Hebert
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97201
Leisa A. Wolf
Special Assistant United States Attorney
Social Security Administration
SSA Office of General Counsel
701 5th Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant

HERNÁNDEZ, District Judge:
Plaintiff Charlene Bales brings this action under the Social Security Act (“Act”), 42
U.S.C. § 405(g) for judicial review of the Commissioner of Social Security’s final decision
denying her application for Disability Insurance Benefits (“DIB”) under Title II of the Act, and
Supplemental Security Income Benefits (“SSI”) under Title XVI of the Act. Because it is based
on legally sufficient reasons supported by substantial evidence, the Commissioner’s decision is
affirmed.
BACKGROUND
Bales applied for SSI and DIB on December 30, 2011, alleging an onset date of
December 1, 2011. Tr. 264–77. The Commissioner denied both applications, and Bales requested
a hearing before an ALJ. Tr. 192–203, 216–17. After a hearing in September of 2013,
Administrative Law Judge (“ALJ”) Jo Hoenninger found Bales was not disabled. Tr. 53–66.
Bales appealed. Tr. 44–46. On July 2, 2014, the Appeals Council granted Bales’s request for
review and Administrative Appeals Judges Mark K. Haydu and Patricia Smith issued a “Notice
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of Appeals Council Action” in which they informed Bales that the Appeals Council planned to
adopt the ALJ’s decision in large part, including the conclusion that Bales was not disabled. Tr.
259–60. Bales submitted new evidence to the Appeals Council, but when it issued its final
decision finding Bales was not disabled, the Appeals Council noted that it did not consider the
new medical evidence she submitted because it was about a later time than the period covered by
her applications and the ALJ’s decision. Tr. 1. The Appeals Council’s determination that Bales is
not disabled became the Commissioner’s final decision that Bales now challenges in this Court.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if she is unable to “engage in any substantial gainful activity by
reason of any medically determinable 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)(1)(A). Disability claims are evaluated according to a five-step procedure. See Valentine
v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). Each step is potentially
dispositive. At step one, the presiding ALJ determines whether the claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled; if not, the analysis continues. 20
C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has
one or more severe impairments. If not, the claimant is not disabled. 20 C.F.R. §§ 404.1520(c),
416.920(c). At step three, the ALJ determines whether the impairment meets or equals one of the
impairments listed in the SSA regulations and deemed “so severe as to preclude substantial
gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987); 20 C.F.R. §§ 404.1520(d),
416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis moves to
step four. 20 C.F.R. §§ 404.1520(d), 416.920(d). At step four, the ALJ determines whether the
claimant, despite any impairments, has the residual functional capacity (“RFC”) to perform past

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relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant cannot perform his or her
past relevant work, the analysis moves to step five where the ALJ determines whether the
claimant is able to do any other work in the national economy considering the claimant’s RFC,
age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g).
The burden to show disability rests with the claimant at steps one through four, but if the
analysis reaches step five, the burden shifts to the Commissioner to show that a significant
number of jobs exist in the national economy that the claimant could perform. 20 C.F.R. §§
404.1520(e) & (f), 416.920(e) & (f); Tackett v. Apfel, 180 F.3d 1094, 1098–1100 (9th Cir.
1999). If the Commissioner demonstrates a significant number of jobs exist in the national
economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§
404.1520(g)(1), 416.920(g).
APPEALS COUNCIL DECISION
The Appeals Council adopted the ALJ’s findings at steps one, two, and three of the
sequential disability analysis. Tr. 5. At step one, the ALJ found Bales had not engaged in
substantial gainful activity since December 1, 2011. Tr. 7, 55. At step two, the ALJ found Bales
had the “following severe impairments: disc herniation with canal narrowing, right shoulder
bursitis, and carpal tunnel syndrome[.]” Tr. 7, 55. At step three, the ALJ found Bales’s
impairments or combination of impairments did not meet or equal the severity of any listed
impairments. Tr. 57. The Appeals Council also adopted the ALJ’s formulation of Bales’s RFC:
“the claimant has the residual functional capacity to perform a less than full range of light work
with the ability to frequently climb ramps and stairs; occasionally climb ladders, ropes and
scaffolds; occasionally stoop, kneel, crouch and crawl; frequently handle and finger bilaterally;
and occasionally reach overhead with the right upper extremity.” Tr. 7; 58. The Appeals Council

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did not, however, adopt the ALJ’s finding that Bales could perform her past relevant work as a
telephone solicitor because Bales did not earn enough at that position to meet the regulatory
definition of “past relevant work,” and thus it could not be a basis for finding she was not
disabled. Tr. 6. The Appeals Council also found that Bales could not perform her past unskilled
work as a flagger, construction worker, general laborer and fast food worker because “the
strength and manipulative requirements of the positions exceed [Bales’s] residual functional
capacity for a range of light work.” Tr. 6. The Appeals Council then found that, based on Bales’s
age, education, skills, and RFC, she was not disabled “based on the application of Rules 202.20
and 202.13, Table No. 2 of 20 CFR Part 404, Subpart P, Appendix 2 of the Social Security
Administration.” Tr. 6. The Appeals Council also noted that the vocational expert who testified
at the ALJ hearing stated that a hypothetical person with Bales’s medical-vocational profile and
RFC could perform unskilled work as a price marker, cashier II, and baker conveyor-line worker,
and because those jobs existed in significant numbers in the national economy, Bales was not
disabled. Tr. 6.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record as a whole. 42
U.S.C. § 405(g); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “Substantial
evidence means more than a mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The court
must weigh all of the evidence, whether it supports or detracts from the Commissioner’s
decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). If the evidence is susceptible to
more than one reasonable interpretation, the court must uphold the decision. Andrews, 53 F.3d at

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1039–40. A reviewing court must consider the entire record as a whole and cannot affirm the
Commissioner by simply isolating a specific quantum of supporting evidence. Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation omitted).
DISCUSSION
Bales contends the Appeals Council erred by 1) refusing to consider new and material
evidence she submitted during the Appeals Council’s review of her case; 2) adopting the ALJ’s
adverse credibility finding; 3) adopting the ALJ’s rejection of the opinions of Bales’s
naturopathic doctor, Trevor Elliott, N.D; and 4) failing to find her depression and radiculopathy
were severe at step two. Plaintiff’s Brief (“Pl. Brief”) at 7.
1. New Evidence Offered to the Appeals Council
After the ALJ issued her decision in October of 2013, Bales obtained two additional
pieces of medical evidence—an April, 2014 physical capacity evaluation from the Providence
Portland Worker Rehabilitation Center, and a June, 2014 neuropsychological evaluation from
Robert Weniger, Psy. D.—which she submitted to the Appeals Council. Exhibits A & B to Pl.
Br., ECF Nos. 13-1, 13-2. When the Appeals Council issued its final decision on August 7, 2014,
the Administrative Appeals Judges wrote that they “looked at additional evidence [Bales]
submitted,” but because the “new information [was] about a later time,” it “[did] not affect the
decision about whether [Bales was] disabled beginning on or before October 11, 2013.” Tr. 1.
Bales argues the Appeals Council erred when it declined to consider her new medical evidence.
During the Appeals Council review process, a claimant may submit “any new and
material evidence . . . which relates to the period on or before the date of the administrative law
judge hearing decision.” 20 C.F.R. § 404.976(b)(1). The Appeals Council is required to
“consider” evidence it determines relates to the relevant time period on or before the ALJ’s

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decision. 20 C.F.R. §§ 404.970(b), 416.1476(b)(1) (“If new and material evidence is submitted,
the Appeals Council shall consider the additional evidence only where it relates to the period on
or before the date of the administrative law judge hearing decision.”) (emphasis added). “[W]hen
the Appeals Council ‘considers new evidence in deciding whether to review a decision of the
ALJ, that evidence becomes part of the administrative record, which the district court must
consider when reviewing the Commissioner’s final decision for substantial evidence.’ ” Brewes
v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012).
Where, however, the Appeals Council determines that the new evidence falls outside of
the relevant time period, it has not “considered” that evidence as that term is used in the Social
Security regulations. 20 C.F.R. §§ 404.976(b)(1), 416.1476(b)(1) (“The Appeals Council will
consider . . . any new and material evidence . . . which relates to the period on or before the date
of the [ALJ] hearing decision. If you submit evidence which does not relate to the period on or
before the date of the [ALJ] hearing decision, the Appeals Council will return the additional
evidence to you with an explanation as to why it did not accept the additional evidence[.]”). The
rejected evidence does not become part of the administrative record. Barrington v. Colvin, No.
1:13-CV-01512-JO, 2014 WL 5342371, at *8 (D. Or. Oct. 20, 2014) (evidence the Appeals
Council determined “did not relate to the period under review” was not a part of the
administrative record before the court).
In this case, the Appeals Council declined to consider Bales’s new evidence because the
reports from April and June of 2014 were “about a later time” and thus did “not affect the
decision about whether [Bales was] disabled beginning on or before October 11, 2013.” Tr. 1.
Bales’s new evidence, therefore, is not a part of the administrative record that is before the
Court. Oetinger v. Astrue, No. CIV. 10-379-PK, 2011 WL 4406308, at *2 (D. Or. Aug. 23,

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2011) report and recommendation adopted, No. 3:10-CV-379-PK, 2011 WL 4405851 (D. Or.
Sept. 19, 2011) (evidence the Appeals Council declined to admit because it was “about a later
time” and therefore did not affect the disability determination did not become part of the
administrative record before the district court).
The Court could still remand Bales’s case to the Commissioner for consideration of new
evidence pursuant to 42 U.S.C. § 405(g) sentence six. Remand of an ALJ decision in a social
security case occurs under either sentence four or sentence six of 42 U.S.C. § 405(g). Melkonyan
v. Sullivan, 501 U.S. 89, 99–100 (1991). A sentence four remand is a final judgment that the
“agency erred in some respect in reaching a decision to deny benefits” which must be based
solely on the administrative record before the district court. Akopyan v. Barnhart, 296 F.3d 852,
854 (9th Cir. 2002). Sentence six remands, by contrast, do not constitute final judgments. Id. at
855. Instead, sentence six remands are made absent a determination of whether the ALJ erred,
and in only two situations: “where the Commissioner requests a remand before answering the
complaint, or where new, material evidence is adduced that was for good cause not presented
before the agency.” Id. at 855. The claimant has the burden of demonstrating materiality and
good cause. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).
Bales has failed to show good cause in this case. “To demonstrate good cause, the
claimant must demonstrate that the new evidence was unavailable earlier.” Id. at 463 (citing Key
v. Heckler, 754 F.2d 1545, 1551 (9th Cir.1985)). “Merely obtaining a more favorable report after
an adverse decision is insufficient to warrant a sentence six remand.” Gibb v. Astrue, No. CIV.
09-533-HA, 2010 WL 988467, at *3 (D. Or. Mar. 15, 2010) aff'd sub nom. Gibb v. Comm'r of
Soc. Sec., 420 F. App'x 767 (9th Cir. 2011) (citing Mayes, 276 F.3d at 463). Bales does not
explain why she did not seek or could not have obtained these evaluations before the ALJ’s

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hearing. Marek v. Astrue, No. 1:11-CV-00354-CL, 2012 WL 3526787, at *3 (D. Or. Mar. 29,
2012) report and recommendation adopted, No. 1:11-CV-354-CL, 2012 WL 3527236 (D. Or.
Aug. 15, 2012) (holding that plaintiff failed to meet her burden for a sentence six remand
because she “offer[ed] no explanation why the proffered evidence was not produced in the earlier
proceeding, either in her motion or in any reply to defendant’s response.”). Accordingly, the
Court declines to remand Bales’s case for consideration of new evidence under sentence six.
2. Credibility
Bales also asserts that the ALJ erroneously evaluated her testimony and subjective
complaints about the intensity, persistence, and limiting effects of her symptoms. Pl. Brief at 13–
17. 1 In determining a claimant’s RFC, the ALJ must consider all relevant evidence in the record,
including medical records, lay testimony, and the “effects of symptoms, including pain, that are
reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883
(quoting SSR 96–8p, 1996 WL 374184, at *5); see also 20 C.F.R. §§ 404.1529(a), 404.1545(a),
416.929(a), 416.945(a) (explaining that, in determining whether a claimant is disabled, the Social
Security Administration considers “all . . . symptoms, including pain, and the extent to which
[those] symptoms can reasonably be accepted as consistent with the objective medical evidence
and other evidence.”).
An ALJ analyzes the credibility of a claimant's testimony regarding her subjective pain
and other symptoms in two steps. Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir.
2007). “First, the ALJ must determine whether the claimant has presented objective medical
evidence of an underlying impairment which could reasonably be expected to produce the pain
or other symptoms alleged.” Id. at 1036 (citation and internal quotation omitted). “The claimant,
1

The Appeals Council found that “[t]he claimant’s subjective complaints are not fully credible for the
reasons identified in the hearing decision.” Tr.7.

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however, need not show that her impairment could reasonably be expected to cause the severity
of the symptom she has alleged; she need only show that it could reasonably have caused some
degree of the symptom.” Id. (citation and internal quotation omitted). Second, if the claimant
meets the first test, and there is no evidence of malingering, the ALJ can reject her testimony
about the severity of her symptoms only by offering specific, clear and convincing reasons for
doing so. Id. (citation and internal quotation omitted). The ALJ's credibility findings must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (en banc )). The ALJ may consider
objective medical evidence and the claimant’s treatment history, as well as the claimant’s daily
activities, work record, and observations of physicians and third parties with personal knowledge
of the claimant’s functional limitations. Smolen v. Chater, 80 F.3d 1273, 1283 (9th Cir. 1996).
The ALJ may additionally employ ordinary techniques of credibility evaluation, such as
weighing inconsistent statements by the claimant. Id.
At step one, the ALJ found that an MRI performed in December of 2011 showed a large
herniated disc in Bales’s lower back with pronounced spinal canal narrowing. Tr. 58. Bales
testified that her back problems prevent her from working. Tr. 84–85. She said she has “good
days” and “bad days”— some days she cannot go to the bathroom by herself, but other days she
is “okay.” Tr. 88. She claims her back prevents her from climbing stairs, carrying things like
buckets of tools, and that she has to switch positions often because of the pain. Tr. 88–91, 99.
At step two, the ALJ gave “[l]imited weight” to Bales’s “testimony regarding the severity
of her symptoms and limitations.” Tr. 59. There is no evidence of malingering in the record.
Therefore, the ALJ’s reasons for discounting Bales’s credibility must be clear and convincing.

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The ALJ wrote that Bales’s testimony that “she ‘broke’ her back and is ‘unbearable’ pain
appear[ed] to be exaggerated,” because Bales’s medical records reflected that she got
“reasonable relief of her pain with medication” and that her symptoms and functioning improved
over time and with pulsed electromagnetic field therapy (“PEMF”). Tr. 59, 63–64. The ALJ also
noted that objective medical testing showed her bulging disc improved, and that after treatment
Bales was “independent in her movement,” “did not exhibit any pain behavior,” and “had no
strength deficits on physical exam.” Tr. 59. The ALJ also discounted her testimony because she
refused to undergo back surgery, and her activities of daily living did not indicate she was
suffering from “unbearable” pain that would prevent her from working. Tr. 59–60. Finally, the
ALJ noted inconsistencies in Bales’s testimony about her past drug use and that she seemed to
engage in narcotic-seeking behavior. Tr. 63–64.
After reviewing the record, the Court finds the ALJ’s numerous reasons for discounting
Bales’s credibility meet the required “clear and convincing” standard. For one, Bales’s medical
records reflect that her back pain, while certainly present, was not so severe that it would
preclude her from working altogether. For example, the ALJ pointed to an MRI in December of
2012, approximately one year after Bales’s initial back injury, which showed a “noticeable
diminution [in] volume of herniated disk material.” Tr. 606. Bales points out that the same exam
showed that “a large disk herniation nonetheless remains at this level with persistent high-grade
distortion and narrowing of the right later recess remaining.” Tr. 606. But when Bales visited her
medical providers following that MRI, they reported she was “not exhibiting pain compensation
behavior” and that she was “improving.” Tr. 695. In January of 2013, she reported pain that was
4/10 on average” and that she had not taken any pills for pain relief. Tr. 697. Again, her medical
provider noted she was “improving,” was “not exhibiting pain compensation behavior” and was

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“independent in movement.” Tr. 697. The ALJ legitimately relied on inconsistencies between
Bales’s testimony that her pain was “unbearable” and reports from her doctors that suggested
otherwise to discount her credibility. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
Additionally, the ALJ noted that Bales regularly reported to her providers that she got
relief from her back pain through medications such as ibuprofen, muscle relaxers, and Vicodin,
and with PEMF treatment provided by her naturopath, Dr. Travis Elliott. Tr. 478, 562–63, 693.
Impairments that can be controlled effectively with medication or treatment are not disabling for
purposes of determining eligibility for benefits. Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d
1001, 1006 (9th Cir. 2006). Therefore, the ALJ may rely on evidence of effective treatment in
making a negative credibility finding. 20 CFR § 404.1529(c)(3)(iv) & (v); Tommasetti v. Astrue,
533 F.3d 1035, 1040 (9th Cir. 2008); Solorio-Cardenas v. Colvin, No. 01:13-CV-02324-HZ,
2015 WL 667559, at *4 (D. Or. Feb. 15, 2015) (explaining that effectiveness of conservative
treatment, including acupuncture and pain medication such as Vicodin, was not consistent with
allegations of debilitating pain).
The record also supports the ALJ’s conclusion that Bales engaged in drug-seeking
behavior. In February of 2012, she returned for a follow up appointment about her back pain and
reported that she had received forty-five Vicodin pills ten days prior and had already run out. Tr.
468. She requested more, and after she agreed to sign a pain contract and submit to a urine
analysis, her provider prescribed additional pills. Tr. 466. That urine analysis came back positive
for amphetamines and methamphetamine, and her providers subsequently refused to prescribe
additional narcotics. Tr. 631. Bales continued to seek narcotics, and even “stormed out of the
clinic” when a provider told her she was not going to get any. Tr. 612, 617, 686. Bales’s drugseeking behavior is a valid reason for discounting credibility. Edlund v. Massanari, 253 F.3d

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1152, 1157 (9th Cir. 2001). Moreover, the ALJ noted that Bales testified at the hearing that she
had not used methamphetamine since 2007, but tested positive for methamphetamine in 2012.
Tr. 64. That inconsistency is yet another valid reason for discounting Bales’s credibility. Smolen
v. Chater, 80 F.3d at 1283
Finally, the ALJ also discounted Bales’s credibility because Bales testified that “she [did]
not want to undergo surgery essentially because her dad underwent surgery and it did not
improve his symptoms.” Tr. 60. “It is, of course, entirely [Bales’s] right to choose whether to
undergo any particular procedure,” the ALJ wrote, but her “unwillingness to comply with
recommended treatment suggests that her symptoms are not ‘unbearable’ as she reported.” Tr.
60. Bales counters that the reason she refused the surgery was that “her insurance would not
cover the treatment, that she was homeless, and that she had no place for post-surgical
convalescence.” Pl. Br. at 15. A review of the record shows that Bales gave different reasons for
refusing the surgery at different times. When her doctors first recommended the surgery in the
months following her injury in December of 2011, she said she was postponing surgery because
of her “socioeconomic situation,” Tr. 476, and in February of 2012, she was “unable to do
surgery given lack of finances.” Tr. 466. However, in March of 2012, she stated she was
“terrified” of the procedure “because she knows several people who have had very bad results
and complications from spinal surgery.” Tr. 448. In April, 2012, she told doctors she “would
only like neurosurgery if there is a promise of no complications” and appeared reluctant because
of “previous experiences of friends/family.” Tr. 521. In May of 2013, her provider quoted her as
reporting “I have a broken back and I choose not to have surgery.” Tr. 686. And finally, at the
hearing before the ALJ, Bales testified: “I haven’t had surgery because I watched my dad break
his back . . . . I watched him go through surgery after surgery and it never got better. It always

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made him worse.” Tr. 100. With the conflicting evidence in the record and Bales’s unequivocal
testimony at the hearing, the ALJ was justified in interpreting the evidence as suggesting Bales
had chosen to forego surgery. Rollins v. Massanari, 261 F.3d 853, 857 (2001) (“It is true that
[Plaintiff's] testimony was somewhat equivocal . . . and the ALJ’s interpretation of her
testimony may not be the only reasonable one. But it is still a reasonable interpretation and is
supported by substantial evidence; thus, it is not our role to second-guess it.”). Additionally, even
if the ALJ’s reasoning on this particular point was insufficient, the ALJ gave numerous, wellsupported reasons for discounting Bales’s testimony, and therefore the ALJ’s conclusion that
Bales was less than fully credible is still supported by substantial evidence in the record. See
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (explaining that
an error in one reason for discounting credibility is harmless where an ALJ’s “remaining
reasoning and ultimate credibility determination were adequately supported by substantial
evidence in the record.”).
3. Dr. Travis Elliott, N.D.
Next, Bales contends that the ALJ improperly gave “limited weight” to the opinion of
naturopathic doctor Travis Elliott, N.D. Pl. Br. at 17. Dr. Elliott submitted several opinions
explaining Bales’s back condition, the limitations he believed her back pain imposed on her
ability to work, and his belief that Bales could not sustain competitive employment. Tr. 560, 577,
594, 700–01.
The ALJ discounted Dr. Elliot’s opinion because “his assessment is inconsistent with the
objective medical evidence including his own treatment records,” and his opinions “appear[ed]
to be based primarily on [Bales’s] self-reports rather than the objective medical evidence.” Tr.

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61. The ALJ also noted that “Dr. Elliott is a naturopath and is not considered an acceptable
medical source under Social Security Regulations and his opinion is viewed in that light.” Tr. 61.
Social Security Regulations divide medical source into two categories: “acceptable” and
“not acceptable.” 20 C.F.R. § 416.902. Acceptable medical sources include licensed physicians
and psychologists. 20 C.F.R. § 416.902. Medical sources classified as “not acceptable” include,
but are not limited to, nurse practitioners, therapists, licensed clinical social workers, and
chiropractors. SSR 06–03p, at *2. Naturopaths are not acceptable medical sources. Hollo v.
Colvin, No. 3:14-CV-00366-BR, 2015 WL 3447927, at *4 (D. Or. May 29, 2015) (citation
omitted). Factors the ALJ should consider when determining the weight to give an opinion from
those not acceptable sources include the length of time the source has known the claimant and
the number of times and frequency that the source has seen the claimant, the consistency of the
source’s opinion with other evidence in the record, the relevance of the source’s opinion, the
quality of the source’s explanation of his opinion, and the source’s training and expertise. SSR
06–03p, at *4.
The Court finds no error in the ALJ’s rejection of Dr. Elliott’s opinions. As explained
above, the medical evidence shows that Bales’s symptoms improved with conservative
treatment, such as PEMF therapy, and medications such as ibuprofen and Vicodin. Dr. Elliot’s
notes reflect that Bales’s “functional limitations” decreased steadily until they reached only 3/10
or 2/10, Tr. 569–70, and he wrote that Bales was “improving,” and “not exhibiting any pain
compensation behavior.” Tr. 695, 697. The inconsistency between Dr. Elliott’s opinions and his
the medical evidence in the record is a legitimate reason for discounting Dr. Elliott’s opinion of
Bales’s limitations. Tommasetti, 533 F.3d at 1041. Furthermore, the ALJ found that many of Dr.
Elliott’s opinions seemed to be based on Bales’s self-reporting, and an ALJ may reject a medical

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opinion which is based on subjective complaints from a non-credible claimant. Bayliss v.
Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (ALJ did not err in rejecting medical opinions
based on subjective complaints); Andrews, 53 F.3d at 1043 (A medical opinion which is
“premised to a large extent upon the claimant’s own accounts of his symptoms and limitations
may be disregarded, once those complaints have themselves been properly discounted.”).
4. Severity
Finally, Bales asserts that the Appeals Council erred by failing to find her depression,
anxiety, and radiculopathy were severe impairments at step two. Pl. Br. at 10. At step two, the
claimant bears the burden to show the existence of a severe impairment or combination of
impairments—medically determinable conditions that have more than a minimal effect on the
claimant’s ability to perform work-related activities. 20 C.F.R. § 404.1520(a)(4)(ii); Tackett, 180
F.3d at 1099; Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). A physical or mental
impairment must be established by medical evidence consisting of signs, symptoms, and
laboratory findings, and cannot be established on the basis of a claimant’s symptoms alone. 20
C.F.R. § 404.1508. According to the regulations, “an impairment is not severe if it does not
significantly limit [the claimant’s] physical ability to do basic work activities.” 20 C.F.R. §
404.1521(a). Basic work activities are “abilities and aptitudes necessary to do most jobs,
including, for example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or
handling.” 20 C.F.R. § 404.1521(b). An impairment is “not severe” only if the evidence
establishes a slight abnormality that has “no more than a minimal effect on an individual's ability
to work.” Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir.1988); Colter v. Colvin, No. 3:14-CV00896-SI, 2015 WL 2250460, at *5 (D. Or. May 13, 2015).

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The ALJ’s conclusion that Bales’s depression and anxiety symptoms were “not severe,”
i.e. would not cause her significant vocational limitations, is supported by substantial evidence.
The ALJ noted that while Bales has been “diagnosed with depression, seasonal affective
disorder, general anxiety disorder, and panic disorder without agoraphobia,” she never received
treatment for her depression and “only minimal treatment for her anxiety symptoms.” Tr. 56. The
ALJ reasoned that Bales’s medical records “often indicate that she has a normal mood and
affect,” and that Dr. Elliott opined that she had no significant mental deficits.” Tr. 56, 690. Bales
does not argue that the ALJ’s analysis of these records was in error; instead she points to
references in her medical records from various providers that she appeared “very labile” and
“hyper,” Tr. 504, that she was “agitated,” Tr. 522, or was “continually disrespectful to staff” and
“uncomfortable appearing, visibly angry,” Tr. 481. The Court fails to see how these scattered
references are related to her depression or anxiety disorder, or how they tend to show Bales is
limited in performing basic work activities.
Alternatively, Bales refers to new evidence she submitted to the Appeals Council as
evidence of the limiting effects of her mental impairments. As explained above, that evidence is
not part of the record before this Court and thus cannot form a basis for overturning the
Commissioner’s decision.
Finally, Bales contends that the Appeals Council and ALJ erred at step two by “fail[ing]
to discuss” her “gait problems” or “radiculopathy.” The Court finds no error. The ALJ resolved
step two in Bales’s favor by identifying several impairments, including her “herniated disc with
canal narrowing,” as medically severe. Tr. 55–56. Once Bales established one or more severe
impairments at step two, the ALJ was required to “consider all evidence of functional limitations
imposed by medically determinable impairments, including any that were not identified as severe

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at step two.” Walton v. Colvin, No. 3:11-CV-01384-AC, 2013 WL 2659658, at *6 (D. Or. June
10, 2013) (citing 20 C.F.R. § 404.1523; SSR 96–8p, available at 1996 WL 374184). Throughout
her opinion, the ALJ discussed Bales’s “ability to ambulate effectively,” her allegations that she
had trouble walking and suffered from leg pain “from her hip to her toes . . . in both legs but
primarily on the right,” and Dr. Elliot’s opinion that Bales’s “foot drop . . . prevents her from
walking easily.” Tr. 59–60. As explained above, the ALJ gave sufficient reasons for finding
Bales’s allegations only partially credible and for giving only limited weight Dr. Elliot’s
opinions. The ALJ also noted that one medical record stated that Bales “reported leg pain with
numbness and muscle weakness but this was not prominent on examination.” Tr. 59. In sum , the
ALJ accounted for Bales’s radicular symptoms and gait difficulties and incorporated only those
functional limitations that were supported by substantial evidence into Bales’s RFC. Therefore,
any error by the ALJ in failing to list those impairments as severe at step two was harmless.
Walton, 2013 WL 2659658 (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007);
Mondragon v. Astrue, 364 F. App’x 346, 348 (9th Cir. 2010).
CONCLUSION
For the reasons stated, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
Dated this _________ day of _________________, 2015.

__________________________________
MARCO A. HERNÁNDEZ
United States District Judge

18 - OPINION & ORDER