Smith v. Commissioner Social Security Administration

Filing 31

Opinion and Order: The Commissioner's final decision is affirmed in part with respect to the ALJ's rejection of Dr. Gostnell's medical opinion and the ALJ's evaluation of Plaintiff's credibility. However, because the Appeal s Court erred in finding that the ALJ's decision was support by substantial evidence, despite the introduction of new objective medical evidence, the Commissioner's final decision is Reversed and Remanded in part for further proceedings. Upon remand, the ALJ shall consider the opinions and observations of Dr. Andersen. Signed on 3/15/2016 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DEANNA SMITH,
Plaintiff,

v.

Civ. No. 3:15-cv-00267-MC
OPINION AND ORDER

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security
Administration,
Defendant.
MCSHANE, Judge:
Claimant Deanna Smith brings this action for judicial review ofa final decision of the
Commissioner of Social Security denying her application for supplemental security income
payments (SSI) under Title XVI of the Social Security Act.
The issues before this Court are whether the Administrative Law Judge (ALJ) ened in
rejecting the opinion of Dr. David Gostnell, an examining psychologist; whether the ALJ erred in
evaluating Smith's credibility; and whether the Appeals Council e!Ted by finding the ALJ's
decision to be supported by substantial evidence, despite new medical evidence submitted for the
first time to the Appeals Council. Because the ALJ provided specific, clear and convincing
reasons supported by substantial evidence in the record, the ALJ' s dete1mination of the first two
issues is AFFIRMED. However, because Smith submitted new evidence on appeal that
unde1mines the ALJ' s findings on the record, the ALJ' s dete1mination that Smith is not disabled
is REVERSED and REMANDED in part for further proceedings consistent with this opinion.

1 - OPINION AND ORDER

PROCEDURAL AND FACTUAL BACKGROUND
Smith applied for SSI on June 25, 2009, alleging a disability onset date of July 30, 2002.
Tr. 311. 1 Her claims were denied initially, upon reconsideration, and in an unfavorable ALJ
decision dated June 20, 2011. Id at 137-62. Smith sought review of the initial ALJ decision by
the Appeals Council, which remanded the case for fi.uther proceedings on September 8, 2012. Id
at 163-65. Pursuant to the Appeals Council's order, Smith appeared before the Honorable Sue
Leise on June 3, 2013, id at 42-72, and again on December 18, 2013, id at 73-93. ALJ Leise
denied Smith's claims by written decision dated March 14, 2014. Id at 16--41. Smith again
sought review from the Appeals Council, which was subsequently denied, rendering the ALJ's
decision final. Id. at 1-8. During this second review, Smith submitted new evidence to the
Appeals Council, which the Appeals Council considered and incorporated into the administrative
record as pmt of its denial. Id. Smith now seeks judicial review.
On August 4, 2015, Smith was granted SSI as pmt of a subsequent application, with her
benefits retroactive to February 2015. Pl.'s Br., ECF. No 10-1. As a result, this decision solely
focuses on whether Smith was disabled between April 1, 2013, the date of her fiftieth birthday,
and January 31, 2015, the date preceding her later award of benefits.

STANDARD OF REVIEW
The reviewing comt shall affirm the Commissioner's decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.

See 42 U.S.C. § 405(g); Batson v. Comm 'r ofSoc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). To dete1mine whether substantial evidence exists, this Comt reviews the administrative

1

Citations to "Tr." refer to the page(s) indicated in the official transcript of.the administrative record filed herein as
ECFNo. JO.

2 - OPINION AND ORDER

record as a whole, weighing both the evidence that supp01is and that which detracts from the
ALJ' s conclusion. lvfartinez v. Heckler, 807 F .2d 771, 772 (9th Cir. 1986).
DISABILITY ANALYSIS FRAMEWORK
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof rests
upon the claimant to meet the first four steps. If a claimant satisfies his or her burden with
respect to those steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520.
At step five, the Commissioner bears the burden of demonstrating that the claimant is capable of
making an adjustment to other work after considering the claimant's residual functional capacity
(RFC), age, education, and work experience. Id. "If the Commissioner fails to meet this burden,
then the claimant is disabled. If, however, the Commissioner proves that the claimant is able to
perform work that exists in significant numbers in the national economy, then the claimant is not
disabled." Carroll v. Colvin, No. 6:12-cv-02176-MC, 2014 WL 4722218, at *2 (D. Or. Sept. 19,
2014).
DISCUSSION
Smith contends that the ALJ' s disability decision is not supported by substantial evidence
and is based on an application of inc011'ect legal standards. In patiicular, Smith argues that the
ALJ erred in rejecting the opinion of Dr. Gostnell, an examining psychologist, and in evaluating
Smith's credibility. Additionally, Smith contends that the Appeals Council etTed by finding the
ALJ' s decision to be suppotied by substantial evidence. I address each issue in turn.

I.

The ALJ's Rejection of Dr. Gostnell's Opinion
Smith first argues that the ALJ improperly rejected the medical opinion of Dr. Gostnell.

PL 's Br., ECF. No. 17, at 4. Smith contends that, although the ALJ purported to accept Dr.

3 - OPINION AND ORDER

Gostnell's opinion, the ALJ in fact rejected his opinion by not expressly incorporating each of
his medical conclusions into her RFC findings. Id. at 5. To support this argument, Smith points
to a medical source statement that Dr. Gostnell completed for Plaintiff in February 2011. Id.; see
tr. 604-05. After interviewing Smith and conducting a series ofpsychodiagnostic tests, id. at
588, Dr. Gostnell concluded that Smith had "moderate" limitations in the workplace. Id. at 60405. Relevant to Smith's contention, Dr. Gostnell specifically concluded that Smith's impairment
moderately affected her ability to interact appropriately with the public, supervisors, and
coworkers. Id. at 605. These opinions took the form of checkboxes in Dr. Gostnell's medical
source statement. Id. These opinions were not repeated elsewhere in Dr. Gostnell's
neuropsychological examination evaluation. See tr. 588-606. Dr. Gostnell's medical source
statement defined a "moderate" limitation as one creating "more than a slight limitation ... but
the individual is still able to function satisfactorily." Id. at 604 (emphasis added).

Next, Smith juxtaposes Dr. Gostnell's opinion regarding Smith's moderate workplace
limitations with the ALJ' s RFC findings. In her RFC findings, the ALJ determined that Smith
"cannot perform work that requires public contact" and "can have occasional contact with
coworkers, but cannot perform work that requires interaction with coworkers to complete
assigned job tasks." Id. at 25. However, the ALJ did not expressly incorporate Dr. Gostnell's
conclusion regarding Smith's supervisory interaction limitation into her RFC findings. See id.
Rather, the ALJ only addressed Smith's supervisory limitation in the explanation of her RFC
findings. Id. at 31 ("Dr. Gostnell assessed moderate limitations in [Smith's] ability to interact
appropriately with the public, supervisors, and coworkers .... ") (emphasis added). Although she
did not directly address Smith's supervisory interaction limitation in her RFC findings, the ALJ
did remark that she found "Dr. Gostnell' s opinion ... persuasive because it was based on his

4 - OPINION AND ORDER

observation of [Smith's] behavior during two evaluations, as well as the results of testing that
indicated poor social and communication skills." Id. Neve1iheless, Smith posits that, by not
assessing her supervisory interaction limitation as part of the RFC findings, the ALJ rejected Dr.
Gostnell's medical opinion. Pl.'s Br., ECF No. 17, at 5.
Although an ALJ must provide clear and convincing reasons for rejecting the
uncontradicted opinion of an examining physician, the clear and convincing standard does not
apply where an ALJ does not reject the physician's conclusions. Turner v. Comm 'r ofSocial
Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010). An ALJ does not reject a doctor's conclusions

when her findings are consistent with the physician's assessed limitations, even ifher findings
are not identical to them. See id.; see also Thomas v. Colvin, No. 3:14-cv-00667-CL, 2015 WL
4603376, at *5 (D. Or. July 29, 2015) (Clarke, J.). Moreover, an ALJ's RFC findings are not
required to address a physician's checked-box opinion regarding a moderate limitation, where
the ALJ notes this opinion and gives it great weight as a whole. Rounds v. Comm 'r Soc. Sec.
Admin., 807 F.3d 996, 1005 (9th Cir. 2015) (ALJ decision adequately incorporated moderate

supervisory limitation, despite omitting supervisory limitations from his RFC findings).
Here, I find the ALJ did not reject Dr. Gostnell's uncontradicted opinion. Per Turner,
RFC findings need not be carbon copies of a physician's opinion; they must simply be consistent
with the doctor's medical conclusions. The ALJ decision here easily meets this standard. First,
the ALJ broadly agreed with Dr. Gostnell's opinions regarding Smith's social functioning. Dr.
Gostnell concluded that Smith was moderately limited in her ability to interact with the public,
supervisors, and coworkers. The ALJ accepted this assessment, including Smith's limited ability
to interact appropriately with supervisors. Tr. 31. The ALJ also incorporated these limitations
into her RFC findings by detennining that Smith was limited to work that does not require

5 - OPINION AND ORDER

interaction with the public or coworkers to complete assigned tasks. Id at 25. These limitations
adequately accommodate Smith's social limitations. Second, although the ALJ did not expressly
incorporate Smith's supervisory limitation into her RFC findings, the ALJ decision is
nonetheless consistent with Dr. Gostnell's opinion. Dr. Gostnell found that Smith had a moderate
limitation interacting with supervisors, meaning she could still function satisfactorily. Id at 60405. While the ALJ's RFC findings do not directly duplicate this particular assessment, they do
not contradict the physician's opinion because Dr. Gostnell found that Smith could still
satisfactorily interact with supervisors. Third, as in Rounds, the ALJ properly evaluated Dr.
Gostnell's opinion by noting Smith's supervisory limitation and by giving the physician's entire
opinion great weight as a whole. The ALJ was not required to directly address Dr. Gostnell's
checked-box opinion in her RFC findings. For these reasons, the ALJ did not reject Dr.
Gostnell' s medical opinion and did not need to provide clear and convincing evidence with
respect to this issue. As a result, the ALJ did not err in assessing Dr. Gostnell's medical opinion. 2

II.

Smith's Testimony
Smith next argues that the ALJ erred by rejecting her subjective symptom testimony

regarding the impairment of her left knee. The administrative record indicates that Smith first
received medical treatment for her knee on September 13, 2013, when she saw Debbie Heybach,
a family nurse practitioner with the Multnomah County Health Department. Tr. at 782. Smith

2

To the extent Smith argues that the ALJ committed harmful enor, I disagree. In the Ninth Circuit, "an ALJ's enor
is harmless where it is inconsequential to the ultimate non-disability determination." Molina v. Astrue, 674 F.3d
1104, 1115 (9th Cir. 2012) (citations and quotations omitted). Smith contends that the ALJ committed harmful enor
because, as Smith interprets the opinion, Dr. Gostnell concluded that Smith "cannot interact with supervisors" and is
thus unemployable. Pl. 's Br., ECF No. 17, at 6. This asse1tion is irreconcilable with the record. Dr. Gostuell did not
opine that Smith is incapable of interacting with supervisors, but rather concluded that Smith can "satisfactorily"
interact appropriately with supervisors. Tr. 604-05. In this context, I find the only error to be in Smith's
interpretation of Dr. Gostnell's opinion.

6 - OPINION AND ORDER

stated that her left leg pain had sta1ted eight months prior, in January 2013, 3 but that she had not
sought medical attention earlier because she lacked transpottation. Id. Heybach noted that Smith
had swelling and pain in her knee and the back of her calf. Id. Heybach transferred Smith to the
Legacy Emanuel Emergency Room for fmiher evaluation. Id. At the emergency depattment,
Smith confirmed that she had suffered intermittent knee pain for eight months until falling and
exacerbating her injury a week prior. Id. at 729. Smith repotted that her knee pain "always
resolves spontaneously when it occurs," and that she had some decreased range of motion from
the pain, but that she was able to walk with a cane. Id. After diagnosing Smith with a left knee
sprain and contusion, the emergency room physician ordered her a leg brace, prescribed Vicodin,
recommended that she follow-up with the Legacy Bone Clinic, and discharged her. Id. at. 72729.
Robert Earl, a physician assistant at the Legacy Bone Clinic, evaluated Smith's left knee
on September 18, 2013. Tr. at 814. The examination revealed mild effusion, mild tenderness, and
a limited range of emotion. Id. at 813-14. Noting the long history of Smith's knee injury, Earl
recommended she undergo an MRI. Id. at 814. On September 20, 2013, Smith underwent an
MRI at Legacy Emanuel Medical Center, which showed joint effusion, bone bruising, a possible
partial ACL tear, areas of soft tissue contusion, and some degenerative changes. Id. at 857-58.
Multnomah County Public Health attempted to contact Smith to discuss her MRI results, but was
unsuccessful. Id. at 777.
On January 22, 2013, four months after her MRI, Smith discussed the results with
Physician Assistant Earl. Id. at 810. Earl noted that Smith had some degenerative joint disease,
recommended conservative care, and said she was welcome to return to the Bone Clinic if she
3

I note that, despite Smith's claim that she had had left leg pain since January 2013, she had an initial evaluation
with Nurse Practitioner Heybach on April 4, 2013. Tr. 786. Nurse Practitioner Heybach's notes from this visit make
no mention of a leg injury. Id

7 - OPINION AND ORDER

wanted a cortisone injection. Id. Smith followed up with Earl on February 4, 2013. Id. at 806.
Earl commented that Smith was "not responding to conservative care" and that Smith's "knee
still bothers her." Id. Smith received a co1tisone injection. kl There are no additional records of
Smith receiving treatment from Earl.
Nearly a year later, on January 7, 2014, Smith again saw Nurse Practitioner Heybach. Id.
at 906. Amongst other ailments, Smith said her left knee was painful and swollen. Id. Smith
stated that she had seen Earl for her knee before, "but did not want any further injections in her
knee." Id. The administrative record does not indicate that Heybach gave Smith any fuither knee
treatment. Two weeks later, on January, 21, 2014, Smith visited the Adventist Health Emergency
Department, where she "denie[d] any lower extremity pain or swelling." Id. at 911.
The Ninth Circuit relies on a two-step process for evaluating the credibility of a
claimant's testimony about the severity and limiting effect of the claimant's symptoms. See
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2008) (citing 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." Lingenfelter, 504 F.3d at 1035-36
(internal citations and quotation marks omitted). Second, absent evidence of malingering, "the
ALJ can only reject the claimant's testimony about the severity of the symptoms if she finds
specific clear and convincing reasons for the rejection." Vasquez, 572 F.3d at 591 (internal
citations and quotation marks omitted). However, this Comt "must uphold the ALJ's decision
where the evidence is susceptible to more than one rational interpretation." Andrews v. Shala/a,
53 F.3d 1035, 1039--40 (9th Cir. 1995) (citations omitted). In this case, the ALJ provided clear
and convincing reasons based on rational interpretations of the evidence to support her

8 - OPINION AND ORDER

credibility dete1mination. Those reasons can be summarized by three broad categories: a general
lack of credibility, failure to seek medical treatment, and inconsistency with daily activities.

1. Smith's General Lack of Credibility
The ALJ questioned Smith's credibility because of contradictory repo1is in the record
regarding Plaintiffs substance use. Tr. 30. An ALJ may discredit a plaintiffs subjective
symptom testimony if the plaintiff has a reputation for lying, has given prior inconsistent
statements, or has testified in ways that appear to be less than candid. Smolen v. Chafer, 80 F.3d
1273, 1284 (9th Cir. 1996). In particular, conflicting reports of drug and alcohol use may support
a finding that a plaintiff generally lacks credibility. Thomas v. Barnhart, 278 F.3d 947, 959 (9th
Cir. 2002). Here, because substantial evidence in the record demonstrates Smith's extensive
history of providing contradictory statements-patiicularly regarding her substance use-I
uphold the ALJ' s adverse credibility determination.
The ALJ gave specific, clear and convincing reasons for discounting Smith's testimony.
In her opinion, the ALJ noted that Smith "has made inconsistent reports and has not been
forthcoming regarding her substance use" and concluded that these conflicting statements
rendered Smith's "subjective statements less reliable" and generally undermined her credibility.
Tr. 30. The administrative record amply reflects this conclusion. Regarding Smith's drug use, for
instance, Smith rep01ied during a January 2010 examination with Dr. Gostnell that she had tried
crack cocaine in approximately 1992, but that it was not her "cup of tea." Id. at 565. In
September 2010, however, Smith told Keli Dean, a treating psychologist, that she regularly used
crack cocaine from approximately 1986 to 1995. Id. at 711-12. Plaintiff also reported to Dean
that she had relapsed and used crack cocaine steadily for a year in 1999, once in 2001, and for
two days in 2007. Id. Plaintiff stated that she had not used crack cocaine since 2007. Id. Despite

9 - OPINION AND ORDER

her 2007 relapse, Smith repotted to Anna Cox, a Life Works nurse practitioner whom Plaintiff
saw in June 2009, that she had not used crack cocaine since 1999. Id at 538. Plaintiff later
contradicted her 2007 clean date when, in November 2010, she told Dr. Ian Starr that she had last
used crack cocaine one year ago, in 2009. Id at 683. Just months earlier, however, in August
2010, Smith told a Life Warks therapist that she had not used crack cocaine for "years." Id. at
672. These conflicting reports of Smith's drug use are well-documented in the record and
suppo1t the ALJ's finding that Plaintiff generally lacked credibility.
Smith's history of providing contradictory repo1ts of her alcohol use is also wellsupported in the record. In February 2011, Smith denied any drug or alcohol use over the last
year to Dr. Gostnell. Id at 590. Dr. Gostnell noted that this denial was "contradicted by the
records." Id Smith's administrative file confirms this inconsistency. Six months before denying
all alcohol use to Dr. Gostnell, Smith reported to a LifeWorks therapist that she was "drinking
regularly." Id at 672. Similarly, in November 2010, Dr. Starr noted that Smith last drank alcohol
four days ago and would commonly consume two foity-ounce bottles of malt liquor. Id at 683.
These reports clearly contradict Smith's subsequent claim of abstinence.
For these reasons, the ALJ did not err in discounting Smith's subjective symptom
testimony due to her general lack of credibility.

2. Failure to Seek Medical Treatment
The ALJ also discredited Smith, in part, for failing to seek medical treatment for her left
knee injury. Id. at 30. When evaluating a plaintiffs credibility, an ALJ may properly consider
the plaintiffs "unexplained or inadequately explained failure to seek treatment." Smolen, 80 F.3d
at 1284. Here, substantial evidence suppo1ts the ALJ's consideration of Smith's treatment
history. First, Smith's medical records indicate that she has not received medical care for her

10- OPINION AND ORDER

knee since February 2013. Although Smith had a series of medical appointments for her knee
between late 2012 and early 2013, her last treatment record is from February 4, 2013, when she
received a cmtisone injection from Physician Assistant Earl at the Legacy Emanuel Bone Clinic.
Tr. 805-06. This treatment gap covers the entire time period at issue in this case-April 1, 2013,
to January 31, 2015---during which there is no evidence that Smith sought any direct medical
treatment for her left knee. Second, even where Smith discussed her knee with medical providers
during this twenty-two month window, her accounts are inconsistent with her claims regarding
the severity of her injury. For example, Smith complained of knee swelling and pain to Nurse
Practitioner Heybach on January 1, 2014. Id at 906. Despite these complaints, Smith told
Heybach that she did not want to continue receiving cortisone injections for her knee. Id. Just
two weeks later, Smith told another physician that she did not have any pain or swelling in her
lower extremities. Id at 911. This evidence does not corroborate Smith's claim that her knee
injury is so severe that she is completely unable to work.
Plaintiff contends that the ALJ failed to take into account her own explanations for her
sporadic knee treatment. Pl. 's Br., ECF No. 17, at 6. Specifically, Plaintiff cites her mental
impainnent, borderline intellectual fimctioning, and fear of needles as reasons for delaying and
avoiding medical care. Id. at 7-8. Social Security Ruling 96-7p provides that, before discrediting
a plaintiffs testimony for failure to seek medical treatment, the ALJ must first consider the
plaintiffs explanations for hrngular medical care. However, even where a plaintiff provides
mental impairment-related reasons for resisting treatment, an ALJ may reasonably conclude that
the level of treatment is inconsistent with the plaintiffs complaints if there is no medical
evidence that her resistance is attributable to her mental impairment rather than her own personal
preference.1'.Jolina, 674 F.3d at 1114. Moreover, a general finding that the claimant is not

11 - OPINION AND ORDER

credible is a sufficient reason to reject testimony regarding the severity of symptoms. See Light
v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) ("ALJ's finding that a claimant

generally lacked credibility is a permissible basis to reject excess pain testimony"). Here, there is
no evidence either in the record or specifically cited in Smith's briefs that her mental impainnent
impeded her ability to seek treatment for her knee; in fact, Smith's varying and inconsistent
explanations for delaying or stopping treatment underlie the ALJ' s rejection of Smith's
testimony. Coupled with the ALJ's general finding that Smith lacks credibility, Smith's
subjective symptom testimony provides no basis for reversing the ALJ's decision.
In this case, Smith's medical records do not show that her mental impaitment prevented
her from seeking medical care for her knee. First, Smith's medical files document a litany of
non-medical reasons for avoiding treatment, including procrastination, tr. 62, a fear of needles,
id., a general desire to avoid going to the doctor, id., and a lack of transportation, id. at 782.

These alternative justifications counter Smith's argument that her mental illness caused her to
resist treatment. No evidence in the record suggests that Smith's failure to seek medical care for
her knee is attributable to her mental impaitment rather than her own personal preference.
Second, Smith's medical files do not show that she is incapacitated by mental illness. The ALJ
concluded that Smith does not have a debilitating impairment, id. at 24, and that any of her
mental limitations are highly treatable, id. at 26-28. Smith contests neither of these findings.
Each of these conclusions is well-supported in the record, and together they rebut Smith's
explanation for failing to seek treatment. For these reasons, despite Smith's alleged mental
impai1ment, the ALJ did not err in discrediting her testimony.

12 - OPINION AND ORDER

3. Inconsistency with Daily Activities
Finally, contrary to Smith's claim of disability, the ALJ determined that Smith's capacity
to perfmm personal care, prepare meals, clean the house, care for her children, and use public
transportation served as evidence of Smith's ability to work. Id. at 30. An ALJ may discredit a
plaintiff's testimony where her daily activities contradict claims of a completely debilitating
impairment. Molina, 654 F.3d at 1113. Here, the ALJ found that Smith's daily activities "suggest
greater functioning" than Smith's allegation that "her impahments are so severe that they render
her totally unable to work." Tr. 30. The ALJ concluded that Smith's "activities are consistent
with the residual functional capacity for light, simple, routine tasks with additional social
limitations." Id.
This finding is not suppo1ted by substantial evidence in the record. Here, each piece of
daily activity evidence that the ALJ relied upon to discredit Smith's subjective knee testimony
not only falls outside of this case's relevant time window, but predates the alleged onset of
Smith's knee injury. This case centers on whether Smith was disabled between April 1, 2013,
and January 31, 2015. In her opinion, the ALJ relied upon three medical findings to discredit
Smith's claims of knee pain, but each of these reports are from early 2010, three years before
Smith alleges that she injured her knee. First, the ALJ pointed to a psychodiagnostic
examination perfo1med by Dr. Gostnell, in which Dr. Gostnell noted that Smith "showers every
two or three days," "occasionally cooks," and "travels by public transpo1tation." Id. at 30, 565.
However, because this report of Smith's daily activities is from January 27, 2010, it does not
discredit Smith's testimony regarding her 2013 knee injury. See id. at 565. The ALJ also refe!1'ed
to a psychiatric review performed on Smith by Dr. Sandra Lundblad, which documented Smith's
ability to care for herself and her children, cook, and take public transit. Id. at 30, 582. Again,

13 - OPINION AND ORDER

however, this review was perfonned on February 4, 2010, and is thus irrelevant to Smith's
functional abilities between 2013 and 2015. See tr. 570. Finally, the ALJ cited a LifeWorks
Progress Note which commented on Smith's child care and cooking responsibilities. Id at 30,
666. The Progress Note is dated January 6, 2010. Id at 666. Therefore, because none of the cited
evidence of Smith's daily activities postdates the onset of her alleged knee injury, the ALJ did
not meet her burden in discounting Smith's credibility. 4
Despite this error, I still uphold the ALJ's finding that Smith lacked credibility. An
ALJ's credibility determination may be upheld even if not all of the ALJ's rationales for
rejecting the plaintiffs testimony are upheld. See Carmickle v. Comm 'r Soc. Sec. Admin., 533
F.3d 1155, 1162-63 (9th Cir. 2008) (citing Batson, 359 F.3d at 1197). Here, the ALJ's credibility
determination is still valid, notwithstanding the erroneous analysis of Smith's daily activities.
First, the ALJ did not wholly reject Smith's testimony; instead, the RFC limitations-which take
into account Plaintiffs knee injury 5-are largely consistent with her testimony. Second, to the
extent the ALJ rejected Smith's subjective symptom testimony, this finding was based on
substantial evidence in the record: Smith's lengthy history of inconsistent testimony, as well as
her failure to seek medical treatment for her knee. On this record, the ALJ' s error regarding
Smith's daily activities is harmless and does not negate the substantial evidence supp01ting an
adverse credibility finding. See id. at 1163.

4

This finding is limited to the ALJ's opinion that Smith's alleged limitations are inconsistent with her daily
activities. I also note that the ALJ's opinion simply lists some of Smith's daily activities and characterizes them as
consistent with the RFC findings, but does not include any analysis or discussion of Smith's activities. See tr. 30.
Without more, this finding is insufficient to meet the ALJ's burden. Cantrell v. Colvin, No. 3: 13-cv-00934-PK, 2014
WL 4472690, at *10 (D. Or. Sep. 10, 2014) (Papak, J.).
5

These limitations include: (1) limiting standing or walking to two hours day; (2) occasional climbing of ramps and
stairs; (3) occasional balancing, stooping, kneeling, crouching, or crawling; and (4) a limitation to work that does not
require climbing ladders, ropes, or scaffolds. Tr. 25.

14- OPINION AND ORDER

III.

Appeals Council's Finding of Substantial Evidence Supporting the ALJ's Decision
Finally, Smith contests the Appeals Council's finding that the ALJ's decision was

suppotted by substantial evidence. Pl.'s Br., ECF No. 17, at 8. In particular, Smith argues that
new medical evidence of her severe carpal tunnel syndrome-which Smith submitted for the first
time on appeal-undermines the ALJ' s determination that Smith is not disabled. I agree. As is
relevant here, Plaintiff submitted an electrodiagnostic study perfotmed by Dr. Steven Andersen,
which was dated February 3, 2014. Tr. 901-02. Dr. Andersen's report was new evidence that
was submitted to the Appeals Council; it was not available to or considered by the ALJ when she
rendered her March 14, 2014, decision.
In the repott, Dr. Andersen concluded that Smith had "severe" carpal tunnel syndrome
with evidence of axonal disruption in her right hand and "moderate" carpal tunnel syndrome with
no evidence of axonal disruption in her left hand. Id at 901. He described Smith's nerve
conduction as "abnormal" and noted that her "right median motor distel latency was markedly
prolonged." Id. A needle examination also revealed fibrillations and abnormal motor units in
Smith's right hand. Id. Dr. Andersen recommended that Smith consult a surgeon. Id. at 902.
The Appeals Council considered Dr. Andersen's repott and made it part of the
administrative record. Id. at 2, 6. In denying Smith's request for review, the Appeals Council
concluded that Dr. Andersen's repott, amongst other records, did "not provide a basis for
changing the Administrative Law Judge's decision or dismissal." Id at 2. The Appeals Council
did not give a specific reason for this finding.
In her decision, the ALJ determined that there was insufficient medical evidence to
establish Smith's potential carpal tunnel as a severe impaitment. Jd. at 22-23. The ALJ noted
that Smith's complaints of hand pain were inconsistent "with the objective medical evidence,

15 - OPINION AND ORDER

which fail to contain significant findings." Id. at 23. The ALJ pointed to two medical records
which did not support severe limitations for Smith's hands: a September 2010 appointment in
which Dr. John Pham only recommended conservative care, and an April 2012 Multnomah
County Health Depmiment examination which revealed that Smith's hand symptoms were
unremarkable. Id.
New evidence considered by the Appeals Council is pmi of the administrative record and
must be taken into account when dete1mining whether an ALJ' s decision is supported by
substantial evidence. Brewes v. Comm 'r ofSoc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir.
2012). The court's inquiry does not focus on resolving conflicts or ambiguities in medical
testimony-which is the responsibility of the ALJ-but rather centers on weighing the evidence
that suppmis or detracts from the Commissioner's decision. Magallanes v. Bowen, 881 F.2d 747,
750 (9th Cir. 1989); Gardner v. Colvin, No.6:12-CV-00755-JE, 2013 WL 3229955, at *13-14
(D. Or. June 24, 2013) (Jelderks, J.). Here, in light of the new evidence, I conclude that the
ALJ' s decision is not supp01ied by substantial evidence.
In this case, Dr. Andersen's report contradicts other medical evidence in the record and
undermines the ALJ's determination. Unlike the records from Dr. Pham and the Multnomah
County Health Department, Dr. Andersen's electrodiagnostic study concludes that Smith suffers
from both severe and moderate carpal tunnel in her right and left hands, respectively. Although
the ALJ determined that no objective medical evidence supported the existence of significant and
persistent limitations, Dr. Andersen's subsequent diagnosis detracts from the Commissioner's
decision and substantially muddles her conclusion. Because resolving ambiguities is the
province of the ALJ, I reverse and remand this case for the Commissioner to assess the
additional evidence.

16- OPINION AND ORDER

The government contends that Dr. Andersen's study does not contradict the ALJ's
conclusion because it does not state that Smith's carpal tunnel will impair her ability to work.
Def.'s Br., ECF No. 23, at 6. However, the vocational expert testified that a person with only the
occasional ability to handle and finger objects would be precluded from any of the jobs available
to Plaintiff given her social and mental limitations. Tr. 91. An ALJ must consider the combined
effect of all a plaintiffs impairments on her ability to function, without regard to whether each
alone is sufficiently severe. Howard ex rel. Wo/jfv. Barnhart, 341F.3d1006, 1012 (9th Cir.
2003); see also 20 C.F.R. § 416.923. For this reason, I note without deciding that, ifthe ALJ
determines on remand that Smith's carpal tunnel is a severe impairment, then the record may
reflect that Smith's carpal tunnel impairs her ability to work.
CONCLUSION

For these reasons, the Commissioner's final decision is AFFIRMED in part with respect
to the ALJ's rejection of Dr. Gostnell's medical opinion and the ALJ's evaluation of Plaintiffs
credibility. However, because the Appeals Council erred in finding that the ALJ's decision was
suppmied by substantial evidence, despite the introduction of new objective medical evidence,
the Commissioner's final decision is REVERSED and REMANDED in part for further
proceedings. Upon remand, the ALJ shall consider the opinions and observations of Dr.
Andersen.
IT IS SO ORDERED.
DATED this I~ day of March 2016.

Michael J. McShane
United States District Judge

17 - OPINION AND ORDER