Upham v. Commissioner Social Security Administration
OPINION AND ORDER - The decision of the Commissioner is reversed. This action is remanded to the Commissioner under sentence four of 42 U.S.C. § 405(g) for rehearing. Signed on 2/2/2017 by Judge Garr M. King. (See attached 22-page Opinion and Order). (pg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
Case No. 3:15-cv-01644-KI
RANDY ALLEN UPHAM,
OPINION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Sara L. Gabin, P.C., Attorney at Law
14523 Westlake Drive
Lake Oswego, OR 97035-7700
Attorney for Plaintiff
Billy J. Williams
United States Attorney
District of Oregon
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.
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Janice E. Hebert
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902
Thomas M. Elsberry
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
Plaintiff Randy Allen Upham brings this action pursuant to section 205(g) of the Social
Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the
Commissioner denying Upham’s application for supplemental security income benefits (“SSI”).
I reverse the decision of the Commissioner and remand for further proceedings.
Upham filed an application for SSI on May 17, 2011, alleging disability onset as of July
1, 2009. The application was denied initially and upon reconsideration. After a timely request
for a hearing, Upham, represented by counsel, appeared and testified before an Administrative
Law Judge (“ALJ”) on July 16, 2013.
On July 24, 2013, the ALJ issued a decision finding Upham was not disabled within the
meaning of the Act and therefore not entitled to benefits. This decision became the final decision
of the Commissioner when the Appeals Council declined to review the decision of the ALJ on
July 2, 2015.
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The Social Security Act (the “Act”) provides for payment of disability insurance benefits
to people who have contributed to the Social Security program and who suffer from a physical or
mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security
income benefits may be available to individuals who are age 65 or over, blind, or disabled, but
who do not have insured status under the Act. 42 U.S.C. § 1382(a).
The claimant must demonstrate an inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be expected to
cause death or to last for a continuous period of at least twelve months. 42 U.S.C.
§§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will be determined to be disabled only if his
physical or mental impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) and
The Commissioner has established a five-step sequential evaluation process for
determining if a person is eligible for either DIB or SSI due to disability. The evaluation is
carried out by the ALJ. The claimant has the burden of proof on the first four steps. Parra v.
Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ
determines whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R.
§§ 404.1520(b) and 416.920(b). If the claimant is engaged in such activity, disability benefits are
denied. Otherwise, the ALJ proceeds to step two and determines whether the claimant has a
medically severe impairment or combination of impairments. A severe impairment is one
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“which significantly limits [the claimant’s] physical or mental ability to do basic work
activities[.]” 20 C.F.R. §§ 404.1520(c) and 416.920(c). If the claimant does not have a severe
impairment or combination of impairments, disability benefits are denied.
If the impairment is severe, the ALJ proceeds to the third step to determine whether the
impairment is equivalent to 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)
and 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is
conclusively presumed to be disabled. If the impairment is not one that is presumed to be
disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the
claimant from performing work which the claimant performed in the past. If the claimant is able
to perform work she performed in the past, a finding of “not disabled” is made and disability
benefits are denied. 20 C.F.R. §§ 404.1520(f) and 416.920(f).
If the claimant is unable to perform work performed in the past, the ALJ proceeds to the
fifth and final step to determine if the claimant can perform other work in the national economy
in light of his age, education, and work experience. The burden shifts to the Commissioner to
show what gainful work activities are within the claimant’s capabilities. Parra, 481 F.3d at 746.
The claimant is entitled to disability benefits only if he is not able to perform other work. 20
C.F.R. §§ 404.1520(g) and 416.920(g).
STANDARD OF REVIEW
The court must affirm a denial of benefits if the denial is supported by substantial
evidence and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
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adequate to support a conclusion” and is more than a “mere scintilla” of the evidence but less
than a preponderance. Id. (internal quotation omitted). The court must uphold the ALJ’s
findings if they “are supported by inferences reasonably drawn from the record[,]” even if the
evidence is susceptible to multiple rational interpretations. Id.
THE ALJ’S DECISION
The ALJ identified the following impairments as severe: right rotator cuff tear, antisocial personality disorder and alcohol dependence/abuse in reported remission. The ALJ found
these impairments, either singly or in combination, did not meet or medically equal the
requirements of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The
ALJ concluded Upham retained the residual functional capacity (“RFC”) to perform modified
light work. Specifically, although he has no limitations in standing, walking or sitting, he is able
to lift up to 20 pounds occasionally and ten pounds frequently with the left upper extremity.
Further, Upham can only use his right dominant arm as a guide for those weights. He can lift up
to ten pounds occasionally and less than ten pounds frequently with his right arm. He cannot lift
his upper right arm above horizontal level. He can only occasionally handle, finger, and feel with
his right upper extremity. He can never climb ladders, ropes or scaffolding, and may never
crawl. He can never work in teams and he can only have incidental public contact.
Based on this RFC, and relying on the testimony of a vocational expert (“VE”), the ALJ
concluded Upham could not perform his past work but could perform other work in the national
economy, such as paper sorter/recycler and price marker. As a result, the ALJ concluded Upham
was not disabled under the terms of the Act.
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I incorporate the facts relevant to Upham’s arguments in my analysis below.
Upham challenges the ALJ’s failure to include diabetic neuropathy and ADHD as severe
impairments, believes the ALJ should have found his impairments equaled a listing, and argues
the ALJ erred in his evaluation of medical opinions and in his evaluation of Upham’s symptom
testimony. Upham asserts that as a result of these errors the ALJ’s RFC was flawed. Finally,
Upham relies on medical records he submitted to the Appeals Council as further support for the
severity of his neuropathy, inability to use his right arm, and the development of other
Upham asserts that his diabetic neuropathy and ADHD are severe impairments. A
medically determinable impairment must be established through signs, symptoms, and medically
acceptable clinical or laboratory findings but under no circumstances can be established through
symptoms, namely the individual’s own perception of the impact of the impairment, alone.
Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). Additionally, in order to constitute a
“severe” impairment, the impairment must have “more than a minimal effect on the person’s
physical or mental ability(ies) to perform basic work activities.” SSR 85-28, 1985 WL 56856, at
*3 (January 1, 1985); see also SSR 96-3p, 1996 WL 374181, at *1 (July 2, 1996) (restating
policy that “an impairment(s) is considered ‘not severe’ if it is a slight abnormality(ies) that
causes no more than minimal limitation in the individual’s ability to function independently,
appropriately, and effectively in an age-appropriate manner”).
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Here, the ALJ did not identity ADHD as an impairment at all, and rejected diabetic
neuropathy as a severe impairment because it “caused only transient and mild symptoms and
limitations, or [is] otherwise not adequately supported by the medical evidence in the record.”
The ALJ summarized and evaluated the evidence indicative of diabetic neuropathy at
length. Specifically, the ALJ found:
[I]n August 2012, on examination, he had no sensory deficits or problems with his
feet. His coordination was normal. In fact, there is no mention in the record of
these complaints until January 2013, and even at that time he was not using or in
need of an assistive device, and he had a normal gait. Then in March 2013, there
is no mention of diabetes or any diabetic neuropathy complaints including any
complaints of pain, numbness or tingling in his feet. The first time the claimant
actually treated for his alleged foot condition was not until April 2013. He then
reported his symptoms had only been bad for about two months.
When the claimant did treat for his foot complaints, they were described as mild
and he has not undergone any EMG studies to confirm his complaints. He
underwent a neurology consultation in June 2013, with Greg Zarelli, MD. He had
decreased sensation to pinprick, light touch and temperature from the right ankle
distally and from the left mid foot distally, but there was no evidence of any
weakness in his legs or feet and his gait was slightly wide-based, but otherwise
normal. Dr. Zarelli felt the claimant had “mild” peripheral neuropathy affecting
his feet almost certainly due to his pre-diabetes. He was told to work with his
primary care physician to bring his blood sugars down to help reduce his risk of
worsening neuropathy. He also was provided a new medication regimen. Dr.
Zarelli also reported telling the claimant generally that people with peripheral
neuropathy often have difficulty walking on uneven surfaces and reported he also
suggests they use a walking stick for stability. However, he did not specifically
prescribe the claimant use of a cane.
Tr. 130 (internal citations to the record omitted).
Upham relies on the examination of Upham in January 2013 by Gene Paek, M.D., as well
as the April 2013 examination by Joel Simasko, M.D., and the June 2013 examination performed
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by Greg Zarelli, M.D. However, both Dr. Simasko and Dr. Zarelli discussed use of a cane in
June 2013–and Dr. Zarelli merely recommended a cane–just one month before the ALJ’s
decision. Upham himself testified that he only sometimes used the cane. None of his physicians
noted a problem with Upham’s gait or strength, and Dr. Zarelli described the neuropathy as
“mild.” Further, for the reasons I discuss below, the ALJ properly rejected Dr. Simasko’s letter
in which he opined Upham was unable to work, in part, due to neuropathy. In sum, at the time
he made his decision, substantial evidence supported the ALJ’s determination that the medical
evidence did not support diabetic neuropathy as a medically severe impairment. See 20 C.F.R.
§§ 41.920(a)(4)(ii), (c) (requiring severe medically determinable impairment to have lasted or be
expected to last for a continuous period of at least 12 months).
The ALJ included anti-social personality disorder and alcohol dependence/abuse in
reported remission. He then noted “[t]he nature and severity of the claimant’s mental
impairments and resulting limitations are discussed in further detail at a later point in this
decision. The above listed impairments appear to cause more than minimal functional
limitations and are considered severe impairments.” Tr. 127.
Upham points out that Daniel L. Scharf, Ph.D., diagnosed Upham with ADHD in his
August 2011 report and that the ALJ gave “great weight” to Dr. Scharf’s findings. In support of
his conclusion about the severity of Upham’s mental impairments, the ALJ noted Dr. Scharf’s
conclusion that Upham’s antisocial personality disorder was his main impairment. Indeed, Dr.
Scharf opined Upham had the ability to understand and remember instructions and sustain
concentration and attention. He felt only that Upham “may” have difficulties with persistence.
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Tr. 474. The equivocal nature of the statement is an insufficient basis to find error in the ALJ’s
assessment of Upham’s severe impairments. Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d
685, 691 (9th Cir. 2009) (recommended conditions are neither a diagnosis nor a statement of
Upham contends the ALJ failed to explain his decision finding Upham did not meet or
equal a listing. Upham believes his shoulder, personality disorder, and ADHD combine in some
fashion to equal a listing he does not identify. Alternatively, he argues the ALJ should have
called a medical expert to testify on the issue of equivalency.
The listings set out at 20 CFR pt. 404, Subpart. P, App. 1 are “descriptions of various
physical and mental illnesses and abnormalities, most of which are categorized by the body
system they affect.” Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990). For a claimant to show
that his impairment matches one of those listed, the impairment must meet all of the specified
medical criteria. Id. at 530. Alternatively, a claimant may show that his unlisted impairment is
“equivalent” to a listed impairment, but to do so she must present medical findings equal in
severity to all the criteria for the one most similar listed impairment. Id. at 531. Equivalence is
determined on the basis of a comparison between the “symptoms, signs and laboratory findings”
about the claimant’s impairment, as evidenced by the medical records, “with the medical criteria
shown with the listed impairment.” 20 C.F.R. § 404.1526. “Medical equivalence must be based
on medical findings.” Id. “A generalized assertion of functional problems is not enough to
establish disability at step three.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If a
claimant’s impairment matches or is equivalent to a listed impairment, she is presumed unable to
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work and is awarded benefits without a determination whether she can actually perform prior
work or other work. Sullivan, 493 U.S. at 532.
Upham bears the burden of proving he has an impairment that meets or equals the criteria
of an impairment listed in Appendix 1 of the Commissioner’s regulations. Burch v. Barnhart,
400 F.3d 676, 683 (9th Cir. 2005) (“An ALJ is not required to discuss the combined effects of a
claimant’s impairments or compare them to any listing in an equivalency determination, unless
the claimant presents evidence in an effort to establish equivalence.”). Upham has failed to meet
his burden. The ALJ did not err.
According to Upham, the ALJ erred in his evaluation of the opinions of Kim Webster,
M.D., Dr. Paek, Dr. Simasko, and Dr. Scharf. The weight given to the opinion of a physician
depends on whether the physician is a treating physician, an examining physician, or a
nonexamining physician. More weight is given to the opinion of a treating physician because the
person has a greater opportunity to know and observe the patient as an individual. Orn v. Astrue,
495 F.3d 625, 632 (9th Cir. 2007). If a treating or examining physician’s opinion is not
contradicted by another physician, the ALJ may only reject it for clear and convincing reasons.
Id. (treating physician); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006) (examining
physician). Even if it is contradicted by another physician, the ALJ may not reject the opinion
without providing specific and legitimate reasons supported by substantial evidence in the record.
Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. The opinion of a nonexamining physician, by
itself, is insufficient to constitute substantial evidence to reject the opinion of a treating or
examining physician. Widmark, 454 F.3d at 1066 n.2.
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Dr. Webster and Dr. Paek
Dr. Webster and Dr. Paek examined Upham on one occasion each, at the agency’s
request. The ALJ gave great weight to Dr. Webster’s opinion but only some weight to Dr. Paek’s
Upham’s main dispute with the ALJ is his interpretation of Dr. Webster’s opinion;
Upham contends the doctor did not segregate the right arm from the left arm when restricting the
weight Upham could lift. As a result, Upham reads the opinion to mean he cannot lift or carry
more than ten pounds with either his left or his right arm, in contrast to the ALJ’s RFC which
found Upham could lift up to 20 pounds occasionally and ten pounds frequently with his left arm,
could use his right arm to guide the left, could lift up to ten pounds occasionally and less than ten
pounds frequently with his right arm, and could push and pull with his right arm with those same
weight limits. Additionally, Upham is unhappy with the ALJ’s decision to give “some weight”
to Dr. Paek’s opinion, when the ALJ appeared to adopt Dr. Paek’s functional limitations and not
the functional limitations identified by Dr. Webster.
Contrary to Upham’s assertion, the ALJ properly interpreted and implemented Dr.
Webster’s opinion respecting right extremity lifting limitations. The focus of the doctor’s
“Comprehensive Musculoskeletal Evaluation” was Upham’s “right shoulder pain.” Tr. 464.
Upon examination, the doctor identified “full range of motion in the left” shoulder joint, but
limitations in abduction, adduction, extension and flexion in the right shoulder. Tr. 467.
Additionally, he described decreased strength in the right shoulder and decreased grip strength in
the right versus the left. Dr. Webster diagnosed “right elbow pain”–the ALJ believed this to be a
typographical error–explaining it was the “most dramatic examination of shoulder structural
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impairment an degeneration that I have ever seen with many positive tests suggesting a wide
variety of internal disruption of the joint capsules and ligaments and tendons around the joint
itself.” Tr. 469. Finally, Dr. Webster opined, “Because of the multitude of significant findings
in the right shoulder, I would limit lifting and carrying to less than 10 pounds occasionally, less
than 10 pounds frequently.” Further, Dr. Webster limited postural limitations–he could not
climb, he could not crawl, he could pull only with the left hand or arm. The doctor also felt
Upham should have “appropriate manipulative restrictions.” Tr. 469. Thus, it is apparent from
the limitation itself, as well as the context of the entire examination, that Dr. Webster’s lifting
limitations were directed at Upham’s right extremity. As a result, the ALJ’s conclusion that Dr.
Webster’s opinions as to Upham’s lifting limitations were relevant only to the right arm was a
rational interpretation of the opinion.
The ALJ also properly relied on Dr. Paek’s examination findings of Upham several years
later, in January 2013, to conclude Upham could lift 20 pounds occasionally and 10 pounds
frequently with his left extremity. Dr. Paek diagnosed a frozen shoulder, noting Upham had “no
use of that right arm above the elbow. He is still able to grip things; however, he has some
diminished sensation in the fingers bilaterally as well as some weakness.” Tr. 600. Dr. Paek felt
Upham could lift up to 20 pounds occasionally and ten pounds frequently. To the extent Upham
disputes the ALJ’s decision to give only “some weight” to Dr. Paek’s opinion, the ALJ was clear
that he accepted Dr. Paek’s functional limitations (although he imposed a lighter lifting
restriction for Upham’s right arm), but did not accept his diagnoses of diabetic neuropathy and
emphysema as being based on Upham’s statements. Notably, Dr. Paek only “suspected” diabetic
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neuropathy, and even despite such a suspicion, did not limit his standing, walking or sitting
capacity, nor find he needed a cane. The ALJ’s reasoning is supported by the record.
In sum, the ALJ’s decision to synthesize the two opinions in setting lifting limitations is
supported by the language of both opinions. Thus, there is no support for Upham’s conclusion
that, at least with respect to the lifting limitations, the ALJ improperly relied on his own
“notions” rather than the medical opinions.
I do note, however, the lack of support in the record for the ALJ’s conclusion that Upham
can push and pull with his right arm up to ten pounds occasionally and less than ten pounds
frequently. To the contrary, as the ALJ himself recognized, Dr. Webster (whose opinion
received “great weight”) concluded Upham could not pull with his right arm. Tr. 132. Similarly,
the State agency consultants (whose opinions also received “weight”) felt Upham could never
push or pull with his right upper extremities. Tr. 198, 213. There is no support in the record to
find Upham capable of pushing or pulling with his right extremity.
Upham also disagrees with the ALJ’s treatment of Dr. Simasko’s opinion. Dr. Simasko
wrote a short note in April 2013 that Upham is “currently unable to work due to his shoulder
injury and unable to use the right arm for any type of heavy work and nerve problem with his feet
that significantly limits his walking.” Tr. 881. The ALJ gave little weight to this opinion
because the doctor saw Upham on one occasion, just three months before the hearing, and
because he relied on Upham’s reports which the ALJ found not reliable.
Since Dr. Simasko’s opinion is contradicted by Dr. Webster, Dr. Paek, and the state
agency consultants, the ALJ was required to give specific and legitimate reasons to reject his
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opinion. While the limited treating relationship is irrelevant in this context–where all of the
physicians on whom the ALJ relied saw Upham once or not at all–a physician’s opinion of
disability may be rejected if it is “based to a large extent on a claimant’s self-reports that have
been properly discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.
2008). Here, multiple physicians found Upham capable of working despite his right shoulder
injury and findings of neuropathy, based on their examinations of Upham’s physical abilities and
not based on his reports alone. An ALJ is not required to accept the opinion of a physician, even
a treating physician, if the opinion is “ conclusory, brief, and unsupported by the record as a
whole[.]” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). The ALJ
did not err.
Upham finally asserts the ALJ erred in, again, giving “great weight” to an opinion
without including all of the functional limitations outlined in the opinion. The ALJ gave Dr.
Scharf’s opinion “great weight” but neglected to include any limitation reflecting Dr. Scharf’s
opinion that Upham may have difficulties with persistence. As I indicated above, the equivocal
nature of the statement is an insufficient basis to find error in the ALJ’s assessment of Upham’s
RFC. Valentine, 574 F.3d at 691 (recommended conditions are neither a diagnosis nor a
statement of functional capacity).
Upham testified that he had not worked since he injured his shoulder in 2009. He also
testified that he had been in jail since he last worked, and that he was currently on probation. He
had been sober since December 22, 2011. He could not use his right arm, his feet hurt, and he
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thought he could lift a gallon of milk (about 8 pounds) with his left arm, depending on how his
feet felt that day. He did not know if he could lift more as he had not tried. He never used his
right arm to support the bottom of a load he was carrying with his left arm. He spent his days
watching television and getting some fresh air outside. He could do laundry. He testified he no
longer did the housework he reported he could do in 2011 because of his right arm and feet. He
clarified an earlier report about getting all A’s in mechanical engineering at Mt. Hood
Community College meant that really he was getting A’s in easy classes. While he initially
testified his food stamps were his only income, he later testified he received money in the form of
loans and grants exceeding the cost of tuition.
The ALJ rejected his testimony on several grounds. As an initial matter, the ALJ pointed
out Upham’s lengthy criminal record raised the question whether “his continuing unemployment
is actually due to medical impairments[.]” Tr. 129. Indeed, Upham had been unable to obtain
surgery on his shoulder because he had been in and out of jail. The ALJ also noted Upham’s
inconsistent statements regarding the reason for his job ending, his inability to drive, his
purported inability to use his right arm at all, and the length of time he suffered from neuropathy.
Upham also reported no past substance abuse difficulties to the Dr. Scharf. The ALJ found
Upham’s testimony to be evasive and inconsistent; for example, he never explained how much
weight he could lift with his left arm, made questionable statements about his inability to do
housework, failed to explain his good grades at community college, and gave incomplete
information about his sources of income. Finally, the ALJ thought Upham’s daily activities were
inconsistent with his reports of totally disabling symptoms and limitations.
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When deciding whether to accept the subjective symptom testimony of a claimant, the
ALJ must perform a two-stage analysis. In the first stage, the claimant must produce objective
medical evidence of one or more impairments which could reasonably be expected to produce
some degree of symptom. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The
claimant is not required to show that the impairment could reasonably be expected to cause the
severity of the symptom, but only to show that it could reasonably have caused some degree of
the symptom. In the second stage of the analysis, the ALJ must assess the credibility of the
claimant’s testimony regarding the severity of the symptoms. Id. The ALJ “must specifically
identify the testimony she or he finds not to be credible and must explain what evidence
undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001).
General findings are insufficient to support an adverse credibility determination and the ALJ
must rely on substantial evidence. Id. “[U]nless an ALJ makes a finding of malingering based
on affirmative evidence thereof, he or she may only find an applicant not credible by making
specific findings as to credibility and stating clear and convincing reasons for each.” Robbins v.
Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).2
Upham argues the ALJ considered his criminal history and inconsistent testimony on
subjects other than his impairments in contravention of Social Security Ruling 16-3p. That
ruling, however, became effective as of March 28, 2016. See SSR 16-3p, available at 2016 WL
1119029, 2016 WL 1237954, at *1 (updating effective date). Upham offers no authority for the
proposition that the Commissioner may make rulings retroactive. See Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 208, 213-15 (1988) (discussing Medicare and noting “[r]etroactivity
is not favored in the law”). Some courts consider SSR 16-3p, however, to be a clarification of a
policy, rather than a new policy. See Mesecher v. Colvin, 6:14-cv-01578-JE, 2016 WL 6666800,
at *4 (D. Or. Nov. 10, 2016). I do not decide the issue because even avoiding evidence no longer
permissible under SSR 16-3p, the ALJ gave a number of clear and convincing reasons supported
by substantial evidence to question Upham’s testimony. Further, even if the ALJ gave reasons
now impermissible under SSR 16-3p that does not mean the ALJ’s entire credibility assessment
is improper. Batson, 359 F.3d at 1197.
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The ALJ noted that Upham gave inconsistent reports about why he left his job, saying at
one point it ended because of his shoulder injury, and at another point that his job ended because
it was temporary. Tr. 337, 472, 497; Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001)
(proper consideration is that the claimant left his job for reasons other than his alleged
impairment). Additionally, Upham reported he did not drive because of his shoulder problems,
when in reality he did not have a license because of his criminal record. Tr. 348, 485. Similarly,
Upham told Dr. Scharf he could not move his right arm at all, but then he reached into his pocket
with his right arm to take out his phone. Tr. 471. He showed no pain with this movement.
These are all good reasons to question the veracity of Upham’s testimony about the extent of his
shoulder injury. See Tommasetti, 533 F.3d at 1039 (prior inconsistent statements concerning
symptoms is a valid credibility factor).
With regard to Upham’s testimony about his neuropathy, the ALJ was wrong in his report
that Upham testified he had experienced neuropathy for over one year. While Upham initially
testified that the pins and needles in his feet “probably progressed from . . . for about the last
year,” he clarified that it was not the same as a year before and that he “probably didn’t really pay
a whole lot of attention to it a year ago.” Tr. 155-56. Accordingly, contrary to the ALJ’s
conclusion, a contemporaneous examination from a year ago is actually consistent with Upham’s
testimony. Specifically, in August 2012, Upham exhibited normal strength and no sensory
deficit. Tr. 778. Nevertheless, Upham’s testimony about the extent of his limitations–that he
cannot walk at all, or only a few blocks–is inconsistent with the objective medical record and his
only very recent complaints about the pain in his feet. Specifically, even though Upham
complained about neuropathy in January 2013, he had a normal gait at that time. He did not
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mention the problem in March 2013, but in April 2013 (the first time he sought treatment for the
problem) he said his symptoms had been “especially bad” for two months. Tr. 889. In June
2013, although his gait was “slightly wide-based” it was “otherwise normal” and Dr. Zarelli
referred to the diagnosis as “mild peripheral neuropathy affecting the feet.” Tr. 905, 906. Dr.
Zarelli then gave general advice applicable to “persons with a peripheral neuropathy” including
walking in the dark, on uneven surfaces, when closing their eyes in the shower, and walking up
and down stairs. Upham fell a few weeks later, about a month before the hearing, and Dr.
Simasko recommended he use a cane. Tr. 908. Upham testified a month later to only sometimes
using a cane. Tr. 148. Although the ALJ cannot reject subjective pain testimony solely because
it was not fully corroborated by objective medical evidence, medical evidence is still a relevant
factor in determining the severity of the pain and its disabling effects. Rollins v. Massanari, 261
F.3d 853, 857 (9th Cir. 2001); Tommasetti, 533 F.3d at 1039 (9th Cir. 2008) (unexplained failure
to seek treatment is a credibility factor).
Finally, while I am not overly convinced that Upham’s daily activities are so substantial
as to equate to an ability to work, Orn, 495 F.3d at 639, his attendance at NA and AA meetings,
community support groups, community college classes, and use of public transportation do tend
to show Upham is capable of being around people despite his antisocial personality disorder.
Thus, the ALJ’s reliance on these activities was a clear and convincing reason to question
Upham’s function report about his inability to be around people.
In sum, the ALJ gave clear and convincing reasons supported by substantial evidence in
the record to question Upham’s testimony about the intensity, persistence and limiting effects of
Page 18 - OPINION AND ORDER
Hypothetical questions posed to a vocational expert must specify all of the limitations and
restrictions of the claimant. Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001). The
vocational expert’s opinion about a claimant’s residual functional capacity has no value if the
assumptions in the hypothetical are not supported by medical evidence in the record. Magallanes
v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). “The limitation of evidence in a hypothetical
question is objectionable only if the assumed facts could not be supported by the record.” Id. at
756-57 (citations and quotations omitted).
Although Upham complains the ALJ’s RFC is internally inconsistent with respect to the
lifting limitations, I find the ALJ was sufficiently specific as to glean his meaning. Upham may
lift more weight with his left arm (up to 20 pounds occasionally and ten pounds frequently), may
use his right arm only as a guide to help the left with that amount of weight, and may lift with his
right arm up to ten pounds occasionally and less than ten pounds frequently.
Nevertheless, the ALJ did not explain how he gave “great weight” to Dr. Webster’s
opinion when Dr. Webster specifically concluded, “Pulling he could not do because of problems
in the right shoulder, unless you are just talking about pulling with the left hand or arm.” Tr.
469. The ALJ allowed pulling with the right arm up to ten pounds occasionally and less than ten
pounds frequently. Dr. Paek, whose opinion the ALJ gave “some weight,” did not opine as to
pulling limitations at all, but did indicate Upham could hold things with only his left hand.
Further, the state agency consultants, whose opinions the ALJ gave “weight,” also concluded
Upham could not push or pull with his right upper extremity. Tr. 198, 213.
Page 19 - OPINION AND ORDER
Evidence Provided to the Appeals Council
Upham repeatedly refers to medical records he provided to the Appeals Council
subsequent to the issuance of the ALJ’s decision. The Commissioner contends my consideration
of these records is limited to the materiality and good cause requirements contained in 42 U.S.C.
§ 405(g). The Commissioner notes that although the Appeals Council received the additional
evidence, it did not consider the evidence and did not make the medical evidence a part of the
record. See Tr. 2 (“This new information is about a later time. Therefore, it does not affect the
decision about whether you were disabled beginning on or before July 24, 2013.”).
A claimant may submit “any new and material evidence . . . that relates to the period on
or before the date of the administrative law judge hearing decision.” 20 C.F.R. § 416.1476(b)(1).
Further, “[i]f you submit evidence that does not relate to the period on or before the date of the
administrative law judge hearing decision, the Appeals Council will explain why it did not accept
the additional evidence and will advise you of your right to file a new application.” Id. Evidence
the Appeals Council declines to consider does not become part of the administrative record. See
Bates v. Comm’r of Soc. Sec., 3:14-cv-01553-HZ, 2015 WL 5686884, at *3 (D. Or. Sept. 25,
2015); Barrington v. Colvin, No. 1:13-cv-01512-JO, 2014 WL 5342371, at *8 (D. Or. Oct. 20,
2014); Asbury v. Colvin, 3:14-cv-01425-BR, 2015 WL 6531325, at *4 (D. Or. Oct. 28, 2015).
Here, the Appeals Council explicitly declined to make the new medical evidence part of the
record. Tr. 2. Instead, it placed the evidence in Upham’s electronic file to use in a new claim.
Accordingly, I agree with the Commissioner that my review of the new material is limited to the
materiality and good cause criteria of 42 U.S.C. § 405(g).
Page 20 - OPINION AND ORDER
This court may remand a proceeding “upon a showing that there is new evidence which is
material and that there is good cause for the failure to incorporate such evidence into the record
in a prior proceeding.” 42 U.S.C. § 405(g). To be material, the new evidence offered must bear
directly and substantially on the matter in dispute. Burton v. Heckler, 724 F.2d 1415, 1417 (9th
Cir. 1984). The records consist of Upham’s prison treatment records largely from 2014 and
2015, after the relevant period which ended July 24, 2013. The earliest treatment record
discussing his neuropathy is from December 2013, six months after the ALJ’s decision, in which
Upham reports “neuropathy in his feet that hurts and burns and gives him trouble walking if he
doesn’t get his gabapentin.” Tr. 11. This new evidence post-dated the ALJ’s decision and is not
based on treatment that occurred during the relevant disability period. As a result, I do not find
the materiality element met.
The court has the discretion to remand the case for additional evidence and findings or to
award benefits. McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). The court has
discretion to credit evidence and immediately award benefits if the ALJ failed to provide legally
sufficient reasons for rejecting the evidence, there are no issues to be resolved before a
determination of disability can be made, and it is clear from the record that the ALJ would be
required to find the claimant disabled if the evidence is credited. Garrison v. Colvin, 759 F.3d
995, 1020 (9th Cir. 2014). Alternatively, the court can remand for further proceedings “when the
record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the
meaning of the Social Security Act.” Id. at 1021.
Page 21 - OPINION AND ORDER
Remand for further hearing is necessary here where the ALJ included a limitation in the
RFC that is not supported by the evidence. The VE did not testify about whether the jobs he
identified would remain as options knowing Upham could not push or pull with his right
The decision of the Commissioner is reversed. This action is remanded to the
Commissioner under sentence four of 42 U.S.C. § 405(g) for rehearing to further develop the
record as explained above. Judgment will be entered.
Dated this 2nd day of February, 2017.
/s/ Garr M. King
Garr M. King
United States District Judge
Page 22 - OPINION AND ORDER
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