Montavono v. Commissioner Social Security Administration

Filing 25

OPINION AND ORDER. The ALJ's decision is supported by substantial evidence and any error is harmless. For the reasons stated above, the Commissioner's decision is AFFIRMED. Signed on 2/26/2018 by Magistrate Judge John Jelderks. (jtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ALISIA ISABELLA MONTAVONO,
Plaintiff,

v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

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Case No.: 3:16-cv-01491-JE
OPINION AND ORDER

Merrill Schneider
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, OR 97293
Attorney for Plaintiff
Billy J. Williams, United States Attorney
Renata A. Gowie, Assistant United States Attorney
1000 S.W. 3rd Avenue, Suite 600
Portland, OR 97204-2902
Martha A. Boden
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 5th Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security on January 20, 2017,
and is therefore substituted as the Defendant in this action pursuant to Fed. R. Civ. P. 25(d).

OPINION AND ORDER -- 1

JELDERKS, Magistrate Judge:
Plaintiff Alisia Isabella Montavono2 (Plaintiff) brings this action pursuant to 42 U.S.C. §§
405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of Social
Security (the Commissioner) denying her application for Supplemental Security Income (SSI)
under the Social Security Act (the Act). All parties have consented to allow a Magistrate Judge
to enter final orders and judgment in this case in accordance with Fed. R. Civ. P. 73 and 28
U.S.C § 636(c). For the reasons that follow, the Commissioner’s decision is affirmed.
Procedural Background
Plaintiff protectively filed her application for SSI on February 7, 2013, alleging disability
beginning April 15, 2012. Tr. 16, 211. The Commissioner denied her application initially and on
reconsideration. Tr. 141, 149. Plaintiff timely requested a hearing before an Administrative Law
Judge (ALJ). Tr. 155-63. The hearing was held on May 19, 2015 before ALJ Sue Leise. Tr. 16.
Plaintiff and Robert Gaffney, a vocational expert (VE), testified. Tr. 36-79. Plaintiff was
represented by counsel. In a decision dated June 26, 2015, the ALJ found Plaintiff was not
disabled within the meaning of the Act. Tr. 13-29. The ALJ’s decision became final on June 13,
2016, when the Appeals Council denied Plaintiff’s request for review. Tr. 1-4. Plaintiff now
timely appeals the Commissioner’s final decision.
Factual Background
Plaintiff was born in 1964 and was 47 years old on the date she alleges she became
disabled. Tr. 211. She attended special education classes beginning in the first grade and
completed the tenth grade. Tr. 275, 416. Plaintiff attended beauty school and completed a
bartending certificate. Tr. 416. She has past work as an unloader/material handler. Tr. 27.
2

The administrative record contains medical records and prior disability claims for Lisa Inez Hopt, a person with the
same social security number and date of birth as Plaintiff. The Court sua sponte confirmed that Plaintiff legally
changed her name to Alisia Isabelle Montavono in In the Matter of Lisa Inez Hopt, 140100561 (Or. Cir. Ct. 2014).

OPINION AND ORDER -- 2

Disability Analysis
The ALJ engages in a five-step sequential inquiry to determine whether a claimant is
disabled within the meaning of the Act. 20 C.F.R. § 416.920(a). The five step sequential inquiry
is summarized below, as described in Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 1999).
Step One. The Commissioner determines whether the claimant is engaged in substantial
gainful activity. A claimant who is engaged in such activity is not disabled. If the claimant is not
engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant’s
case under Step Two. 20 C.F.R. § 416.920(b).
Step Two. The Commissioner determines whether the claimant has one or more severe
impairments. A claimant who does not have any such impairment is not disabled. If the claimant
has one or more severe impairment(s), the Commissioner proceeds to evaluate the claimant’s
case under Step Three. 20 C.F.R. § 416.920(c).
Step Three. Disability cannot be based solely on a severe impairment; therefore, the
Commissioner next determines whether the claimant’s impairment “meets or equals” one of the
presumptively disabling impairments listed in the Social Security Administration (“SSA”)
regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that
meets a listing is presumed disabled under the Act. If the claimant’s impairment does not meet or
equal an impairment in the listings, the Commissioner’s evaluation of the claimant’s case
proceeds under Step Four. 20 C.F.R. § 416.920(d).
Step Four. The Commissioner determines whether the claimant is able to perform work
he or she has done in the past. A claimant who can perform past relevant work is not disabled. If
the claimant demonstrates he or she cannot do past relevant work, the Commissioner’s
evaluation of claimant’s case proceeds under Step Five. 20 C.F.R. § 416.920(e), (f).

OPINION AND ORDER -- 3

Step Five. The Commissioner determines whether the claimant is able to do any other
work. A claimant who cannot perform other work is disabled. If the Commissioner finds
claimant is able to do other work, the Commissioner must show that a significant number of jobs
exist in the national economy that claimant is able to do. The Commissioner may satisfy this
burden through the testimony of a vocational expert (VE), or by reference to the MedicalVocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner
demonstrates that a significant number of jobs exist in the national economy that the claimant is
able to do, the claimant is not disabled. If the Commissioner does not meet the burden, the
claimant is disabled. 20 C.F.R. § 416.920(g)(1).
At steps one through four of the sequential inquiry, the burden of proof is on the
claimant. Tackett, 180 F.3d at 1098. At step five, the burden shifts to the Commissioner to show
the claimant can perform jobs that exist in significant numbers in the national economy. Id.
ALJ’s Decision
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since February 7, 2013, the date she protectively filed her application for SSI. Tr. 18.
At step two, the ALJ determined that Plaintiff had the following severe impairments:
degenerative disc disease, status post cervical surgery; asthma; early degenerative changes to the
left knee; glaucoma; anxiety; migraines; and edema. Tr. 18. The ALJ noted that although she did
not determine Plaintiff’s conditions of hip bursitis and spot on lung to be severe, she
accommodated for them in the residual functional capacity formulation. Tr. 18-19.
At step three, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or equaled a presumptively disabling impairment as set out
in the Listings, 20 C.F.R. Part 404, Subpart P, App.1. Tr. 19-20.

OPINION AND ORDER -- 4

Next, the ALJ found that Plaintiff had the residual functional capacity (RCF) to perform
light work, except that she could lift or carry 20 pounds occasionally and ten pounds frequently.
Plaintiff can stand and/or walk for six hours in an eight-hour day, and can sit for six hours in an
eight-hour day, with the need to alternate sitting and standing. Plaintiff can occasionally climb
ramps or stairs but cannot climb ladders, ropes, or scaffolds. She can occasionally balance, stoop,
and kneel, and perform overhead reaching bilaterally. She should avoid exposure to dust, fumes,
odors, and gases. She should also avoid hazards, unprotected heights, and dangerous machinery.
Plaintiff can have occasional, superficial interaction with the public, and can work in proximity
to coworkers but cannot engage in teamwork. Tr. 20. In making her determination, the ALJ
found that Plaintiff’s claims regarding the intensity, persistence, and limiting effects of her
symptoms were not entirely credible. Tr. 21.
At step four, based on testimony by the VE, the ALJ found that Plaintiff was unable to
perform past work as an unloader/material handler. Tr. 27.
At step five, based upon testimony by the VE, the ALJ determined that Plaintiff could
perform work as a photocopy machine operator or as an office helper, both of which exist in
significant numbers in the national economy. Tr. 28. Accordingly, the ALJ found that Plaintiff
had not been under a disability within the meaning of the Act since February 7, 2013. Tr. 29
Standard of Review
A claimant is disabled if he or 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 twelve months.” 42 U.S.C.
§ 1382c(3)(A). Claimants bear the initial burden of establishing disability. Roberts v. Shalala, 66
F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The Commissioner bears the

OPINION AND ORDER -- 5

burden of developing the record, DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991), and of
establishing that a claimant can perform “other work” at step five of the disability analysis
process. Tackett, 180 F.3d at 1098.
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.” Andrews, 53
F.3d at 1039. 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, 771 (9th Cir. 1986). The
Commissioner’s decision must be upheld if “the evidence is susceptible to more than one rational
interpretation.” Andrews, 53 F.3d at 1039–40.
Discussion
Plaintiff alleges the ALJ erred by: 1) failing to recognize certain impairments as “severe”
at step two; 2) failing to properly weigh and consider medical opinion evidence; 3) improperly
discrediting Plaintiff’s subjective symptom allegations; 4) improperly discrediting lay witness
statements; and 5) posing an “incomplete hypothetical” to the VE at step five.
A.

Step Two Determinations
Plaintiff argues that the ALJ erred by failing to find the following impairments as

“severe” at step two: bursitis causing hip pain; nodule on lung; post-traumatic stress disorder
(PTSD); panic disorder with agoraphobia; anemia; restless leg syndrome interfering with sleep;
arthritis, right elbow; and bilateral knee and hip pain.
The Commissioner argues that Plaintiff’s challenge is legally insufficient and therefore

OPINION AND ORDER -- 6

constitutes a waiver. In support, the Commissioner cites Sekiya v. Gates, 508 F.3d 1198, 1200
(9th Cir. 2007), which addressed briefing requirements under the Rules of Appellate Procedure,
and McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2007), which involved a party raising an
issue at oral argument before an appellate panel that she failed to raise in her opening brief.
Despite the cases cited by the Commissioner, the Court finds that Plaintiff's allegations
sufficiently make a short and plain statement of her claim for relief. Fed. R. Civ. P. 8(a)(2).
Alternatively, the Commissioner argues that even if Plaintiff raised sufficient step two
claims, the ALJ’s findings are supported by substantial evidence. Moreover, the Commissioner
argues that even if the ALJ erred, the error is harmless because the ALJ accounted for Plaintiff’s
non-severe conditions in formulating the RFC, and Plaintiff has not demonstrated how finding
any of these additional impairments “severe” at step two would have changed the outcome of her
case. After a thorough review of the record, the Court agrees that any error was harmless.
A medically determinable impairment or combination of impairments is considered
“severe” at step two if it has lasted or can be expected to last for a continuous period of at least
12 months and significantly limits a claimant’s mental or physical ability to perform basic work
activities. 20 C.F.R. §§ 416.909, 416.921, 416.922(a). Existence of a medically determinable
impairment “must be established by objective medical evidence from an acceptable medical
source;” a claimant’s statements about symptoms, diagnoses, or opinions are not considered. 20
C.F.R. § 416.921. Basic work activities “mean the abilities and aptitudes necessary to do most
jobs,” such as walking, standing, sitting, pushing, pulling, reaching, carrying, handling,
understanding and carrying out simple instructions, dealing with changes in a routine work
setting, and responding appropriately to supervision, co-workers, and typical work situations. 20
C.F.R. § 416.922(b). “[A]n impairment(s) is considered “not severe” if it is a slight

OPINION AND ORDER -- 7

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.” SSR 96-3p
1996 WL 374181.
Restless Leg Syndrome
The only evidence of Plaintiff’s restless leg syndrome are her own self-reports. Given the
absence of any supporting medical evidence of record, the ALJ did not commit error by failing to
include the condition as a severe impairment at step two. 20 C.F.R. § 416.921.
Hip Bursitis
The record shows that Plaintiff complained of hip pain in February 2014, although a
physical exam revealed full range of motion and 5/5 strength without pain. Tr. 719. Subsequent
medical imaging revealed no arthritis or other abnormalities. Tr. 614, 862. In March 2014,
Plaintiff received an anti-inflammatory injection in her left hip, and one month later, received an
injection in her right hip. Tr. 713, 703. Plaintiff’s discomfort appears to have resolved following
the injection treatments, as there is no other evidence in the record regarding hip pain. Thus, the
record reveals that, at most, Plaintiff suffered a three-month period of hip discomfort absent
objective clinical findings, meeting neither the medical evidence nor the twelve-month duration
requirements for step two. Nonetheless, in the RFC, the ALJ included postural limitations (e.g.,
lifting, kneeling and crawling) to “account for any limitations caused by bursitis.” Tr. 18; see
SSR 96-8p (ALJ must consider all impairments in formulating RFC, even those that are nonsevere).
Arthritis, right elbow
In May 2013, Plaintiff complained of right elbow pain. Courtney Nall, M.D., Plaintiff’s
primary care provider, conducted a physical exam that revealed a full range of motion, no

OPINION AND ORDER -- 8

swelling, and “mild TTP over lateral epicondyle and muscle bulk.” Tr. 543. Dr. Nall diagnosed
likely tendonitis or tennis elbow and recommended a forearm brace. Id. X-rays were
unremarkable. Tr. 550. This discrete objective finding does not appear to meet the duration
requirement, and even if it did, Plaintiff does not allege any limitations beyond the RFC. As
such, any error is harmless.
Bilateral knee pain
The ALJ found Plaintiff had the severe impairment of “early degenerative changes of the
left knee.” Tr. 18. Although Plaintiff complained of right knee pain in May and July 2013 and
reported that taking naproxen helped her pain, the record lacks any evidence indicating a
medically determinable impairment in the right knee. In February 2014, Plaintiff reported
increased knee pain following a motor vehicle accident the previous month. Tr. 719.
Consequently, in April 2014, Dr. Nall administered a Lidocaine injection for “relief from
osteoarthritis pain in right knee.” Tr. 702. In May 2014, Plaintiff complained of right knee pain
and swelling. Tr. 694. The corresponding physical exam revealed “obvious effusion” but normal
range of motion, no instability, and negative anterior/posterior drawer. Tr. 695. She was advised
to ice her knee for 15 to 20 minutes every two to three hours for the next 48 hours, to elevate her
knee and to wrap it in an elastic bandage, and to take ibuprofen or Aleve for anti-inflammatory
purposes. Tr. 695. Thus, the record shows only discrete, sporadic complaints of right knee pain
that do not appear to meet the duration requirement. In addition, Plaintiff does not allege any
limitation beyond the RFC based on right knee impairment. Accordingly, any error is harmless.
Spot on Lung
On March 17, 2015, Plaintiff was suffering from respiratory distress and underwent a CT
angiogram which detected a three-millimeter nodule on the medial aspect of the right upper lobe

OPINION AND ORDER -- 9

of her lung. Tr. 618. Plaintiff was advised to have a follow-up exam in 12 months if there was a
history of risk factors for lung cancer. Tr. 619. Two days later, after finishing a prednisone burst
and using an Advair inhaler, Plaintiff had an “improving, normal lung exam.” Tr. 640. Dr. Nall
surmised that Plaintiff’s recent asthma-like symptoms had likely been caused by an upper
respiratory infection. Tr. 640. There are no additional medical findings regarding the lung spot in
the record. Thus, the ALJ appropriately concluded that “there is no evidence regarding whether
this condition will cause more than mild functional limitations for the 12-month duration
required by the regulations” and found the condition to be nonsevere. Tr. 19. Notably, however,
the ALJ included asthma among Plaintiff’s severe impairments at step two and accommodated
for this in the RFC by limiting her exposure to dust, fumes, odors, and gases. Tr. 18, 20.
PTSD and Panic Disorder with Agoraphobia
In March and April 2012, Plaintiff attended three individual counseling sessions at
LifeWorks NW; as part of the intake interview, she was presumptively diagnosed with PTSD.
Tr. 358-379. Records from the counseling sessions contain little objective information, although
her therapist indicated that Plaintiff appeared “active and engaged.” Tr. 363, 365. In August
2012, Donna J. Johns, Psy.D., conducted a consultative psychological examination consisting of
a clinical interview and review of Plaintiff’s medical and counseling records. Dr. Johns’
“diagnostic impression” was that Plaintiff suffered from PTSD and Panic Disorder with
Agoraphobia.3 Tr. 416-19. The remaining record is silent as to any formal mental health
assessments or treatment recommendations related to PTSD or Panic Disorder with

3

Agoraphobia is defined as a “mental disorder characterized by the irrational fear of leaving the
familiar setting of home, or venturing into the open, so pervasive that a large number of external
life situations are entered into reluctantly or are avoided; often associated with panic attacks.”
Stedman’s Medical Dictionary 40 (28th Ed.).
OPINION AND ORDER -- 10

Agoraphobia; therefore, the record does not support a finding at step two that these conditions
are severe impairments.
Notably, however, the ALJ included anxiety4 among Plaintiff’s severe impairments. Tr.
18. In the ALJ’s discussion of whether Plaintiff’s severe impairments meet or equal a listing, the
ALJ found that Plaintiff had “moderate difficulties in social functioning related to anxiety” but
that she was able to use public transportation, shop in stores, attend church regularly, “all of
which entail some public contact.” Tr. 19. The ALJ found that Plaintiff had, at most, mild
limitations in concentration, persistence, or pace, given that she performed well on mental status
exams and was able to engage in watching television, reading, and driving. Tr. 19-20.
Additionally, the ALJ noted that Plaintiff had not “experienced any episodes of decompensation
of extended duration,” and had never “required hospitalization or significantly intensified
treatment for her condition.” Tr. 20. Accordingly, it appears the ALJ interpreted Dr. Johns’
assessed conditions under the umbrella of “anxiety.” Regardless, any error in omitting PTSD or
panic disorder with agoraphobia from the list of severe impairments at step two is harmless
because neither condition meets the duration requirement, and because Plaintiff has not alleged
functional limitations beyond those attributed to her anxiety impairment.
Anemia
The evidence of record indicates Plaintiff has the medically-determinable impairment of
anemia which has lasted or could be expected to last continuously for 12 months. In May 2013, a
blood test revealed that Plaintiff was “slightly anemic” and she was advised to restart iron
4

Anxiety is defined as “[e]xperience of fear or apprehension in response to anticipated internal,
or external danger accompanied by some or all of the following signs: muscle tension,
restlessness, sympathetic (autonomic) hyperactivity (e.g., diarrhea, palpitation, rapid breathing,
or jitteriness), or cognitive signs and symptoms (e.g., hypervigilance, confusion, decreased
concentration, or fear of losing control). It may be transient or adaptive or pathological in
intensity and duration.” Stedman’s Medical Dictionary 114 (28th Ed.).

OPINION AND ORDER -- 11

tablets. Tr. 816. In July 2014, blood tests indicated Plaintiff was anemic. Tr. 581-82. Likewise,
blood tests in January, March, and April 2015, showed that Plaintiff was anemic and she was
advised to take iron supplements twice per day. Tr. 596, 599, 640-41, 755. However, there is no
evidence in the record that Plaintiff’s anemia by itself, or in combination with other impairments,
limits her ability to function. Moreover, the record indicates Plaintiff’s anemia is managed with
vitamin supplements. See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir.
2006) (“Impairments that can be controlled effectively with medication are not disabling” under
the Act.). Thus, the ALJ properly found anemia causes no more than a minimal impact on
Plaintiff’s ability to work.
B.

Evaluation of Medical Evidence
Plaintiff raises challenges to the weight the ALJ accorded to the opinions of examining

psychologist, Donna Johns, Psy.D., and non-examining state agency psychologist, Bill Hennings,
Ph.D. Plaintiff also argues that the ALJ committed error by failing to address the opinion of nonexamining state agency psychologist Vincent Gollogly, Ph.D.
1) Donna Johns, Psy.D.
Plaintiff argues that the ALJ erroneously rejected the Dr. Johns’ August 2012 opinion
that Plaintiff would be unable to “engage in sustained work activities at this time as a result of
continuing problems with panic experiences, and symptoms of untreated PTSD.” Tr. 419. The
Commissioner argues that the ALJ reasonably concluded that evidence in Dr. Johns’ notes was
inconsistent with Dr. Johns’ opinion and that the discrepancy between Dr. Johns’ own notes and
opinion is a clear and convincing reason to not rely on Dr. Johns’ opinion regarding Plaintiff’s
functional limitations.
“There are three types of medical opinions in social security cases: those from treating

OPINION AND ORDER -- 12

physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc.
Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citing Lester v. Chater, 81 F.3d 821, 830 (9th
Cir. 1995)). The uncontradicted opinion of an examining physician can be rejected only for
“clear and convincing” reasons while an opinion contradicted by another doctor can be rejected
only for specific and legitimate reasons that are support by substantial evidence in the record.
Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). However, “[t]he ALJ need not accept the
opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and
inadequately supported by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d
1219, 1228 (9th Cir. 2009); see also 20 C.F.R. § 416.927(c)(3) (“The more a medical source
presents relevant evidence to support a medical opinion . . . the more weight we will give that
medical opinion. The better an explanation a source provides for a medical opinion, the more
weight we will give that medical opinion.”) Evidence is inconsistent when it conflicts with other
evidence or contains an internal conflict. 20 C.F.R. § 416.920b.
During the mental status exam, Dr. Johns observed that Plaintiff was dressed in
appropriate attire, was well-groomed, and did not exhibit any evidence of psychomotor agitation.
Tr. 417. Plaintiff was interpersonally cooperative and behaviorally appropriate, making frequent,
non-hesitant eye contact. Id. Plaintiff exhibited frequent “tangentiality,” but responded well to
redirection. Tr. 418. Plaintiff’s affect was “labile ranging from mirth to marked tearfulness.” Id.
Plaintiff was fully oriented to person, time, place, and purpose and she exhibited no impairment
of remote memory as she was able to recall three out of three items after a five minute delay, and
successfully completed a six-numeral digit span forward and a five-numeral digit span
backwards. Id. She showed no evidence of impairment in concentration as she counted
backwards with serial three’s with mild latency and successfully spelled “world” backwards

OPINION AND ORDER -- 13

without any latency. Id. She properly interpreted a proverb, showing no impairment of abstract
thinking. Id.
Dr. Johns found that Plaintiff’s “judgment seemed moderately impaired by history of
interpersonal difficulties,” however there was no evidence of impairment of insight. Id.
Plaintiff’s activities of daily living included engaging in daily hygiene and grooming, preparing
meals, taking care of “all household chores,” managing her personal finances, and caring for the
two family dogs. Id. Dr. Johns found that there was no evidence of impairment in day-to-day
activities as evidenced by Plaintiff’s cooking meals without prompting and “no indication of
impairment in her persistent concentration as seen in her ability to engage in sustained activities
with her pets, her daughter, and her boyfriend.” Id.
At the conclusion of the exam, Dr. Johns’ assigned a GAF score of 53 and formed the
“diagnostic impression” that Plaintiff suffered from PTSD and panic disorder with agoraphobia.
Tr. 419. Without further explanation, Dr. Johns opined that while Plaintiff was “capable of
average levels of reasoning, it is not likely she will be able to engage in sustained work-related
activities at this time as a result of continuing problems with panic experiences and symptoms of
untreated PTSD.” Id.
The ALJ did not give great weight to Dr. Johns’ opinion regarding Plaintiff’s ability to
engage in sustained work activity, concluding that Dr. Johns’ exam notes conflict with her
ultimate opinion and noting that “there is nothing in Dr. Johns’ report to support the vague
limitation regarding sustaining work activity.” Tr. 27. Indeed, Plaintiff performed well on the
objective tests for remote memory, concentration, and abstract reasoning, and was behaviorally
appropriate during the exam. While her affect “ranged from mirth to tearfulness,” it is important
to note that Plaintiff discussed painful memories with Dr. Johns in addition to completing the

OPINION AND ORDER -- 14

objective tests; tearfulness while discussing past traumas, by itself, does not provide support for
Dr. Johns’ opinion that Plaintiff’s ability to sustain work activities is significantly impaired.
Regardless, Dr. Johns did not explain the discrepancy between the objective examination
findings and her conclusion. The unexplained internal inconsistency is a clear and convincing
reason to discount the doctor’s opinion.
The Commissioner also argues that Dr. Johns’ opinion conflicted with the record as a
whole, which showed that Plaintiff’s mental health symptoms improved with medication and
Plaintiff’s own reports that she was able to care for her daughter, drive, shop, and attend church
regularly. Indeed, the record indicates Plaintiff reported medication alleviated her anxiety
symptoms and that Plaintiff even stopped taking the medication because she was “feeling better.”
Tr. 546, 717. The record also indicates that Plaintiff continued to be able to care for her own
personal hygiene, manage her finances, shop, and attend regular medical appointments where she
was behaviorally appropriate. Tr. 287, 417-18, 504, 543, 581. Thus, the ALJ properly accorded
little weight to Dr. Johns’ opinion based on conflict with the record as a whole. Tr. 25-26; Batson
v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190 (9the Cir. 2004).
The Commissioner argues that Dr. Johns’ opinion was inconsistent with the opinions of
non-examining state agency psychologists, Bill Hennings, Ph.D., and Dorothy Anderson, Ph.D.
However, the ALJ did not rely on the opinions of state agency psychologists in deciding how
much weight to give to Dr. Johns’ opinion, and the Court cannot affirm on grounds the ALJ did
not invoke. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).
2)

Bill Hennings, Ph.D.
Plaintiff asserts that the ALJ erred by rejecting the opinion of non-examining state

agency consulting psychologist, Bill Hennings, Ph.D., that Plaintiff should be limited to “simple

OPINION AND ORDER -- 15

work.” The Commissioner argues that the ALJ’s findings were reasonable because they were
supported by the record as a whole, but even if the ALJ committed error, it is harmless because
all of the jobs identified by the ALJ at step five are classified as unskilled work.
In June 2013, Dr. Hennings reviewed Plaintiff’s claim for SSI and concluded that
Plaintiff was moderately limited in her ability to carry out detailed instructions and maintain
attention and concentration for extended periods. Tr. 103. Dr. Hennings opined that, based on
Plaintiff’s independence in her activities of daily living (ADLs) -- ability to manage her own
finances, shop, cook, and complete basic tasks -- she was capable of carrying out short and
simple instructions. Id. Dr. Hennings opined that Plaintiff was moderately limited in ability to
interact with the general public and that, based on her anxiety symptoms, should have only
occasional contact with the general public and co-workers, although there was no need for
special supervision, and no indication of distracting behavior. Id. Accordingly, Dr. Hennings
opined that Plaintiff could perform unskilled work.5 Tr. 105.
The ALJ rejected this limitation to simple work, noting that Plaintiff “independently
engages in various activities of daily living without documented difficulty.” Tr. 27. Moreover,
the ALJ observed, Dr. Johns’ report did not document any deficiencies in concentration,
memory, persistence, or pace. Tr. 26-7. However, although the ALJ concluded that the limitation
to “simple work” was not supported by the record and did not include that limitation in the RFC
formulation in her written opinion (Tr. 20), in the hypothetical question she posed to the VE, she
included a limitation to “SVP6 1 or 2.” Tr. 73. Therefore, because the VE identified unskilled

5

Unskilled work is defined as “work which needs little or no judgment to do simple duties that can be learned on the
job in a short period of time.” 20 C.F.R. § 416.968(a). A person can usually learn to perform a job classified as
unskilled work in 30 days, with little specific vocational preparation and judgment required. Id.
6
“SVP” stands for “specific vocational preparation” and is used by the Dictionary of Occupational Titles (DOT) to
describe the “amount of lapsed time required by a typical worker to learn the techniques, acquire the information,
and develop the facility needed for average performance in a specific job-worker situation.” DOT Appendix C.

OPINION AND ORDER -- 16

work that the Plaintiff could perform, Plaintiff cannot demonstrate harm. See Stout v. Comm’r,
454 F.3d 1050, 1054 (9th Cir. 2006).
3)

Vincent Gollogly, Ph.D.
Plaintiff argues that the ALJ erred when she failed to address the September 2012 opinion

of state agency psychologist, Vincent Gollogly, Ph.D. The Commissioner notes that Dr.
Gollogly’s opinion predates Plaintiff’s current SSI application, and therefore argues that the
opinion is not relevant. Alternatively, the Commissioner argues, even if failure to consider Dr.
Gollogly’s opinion was error, the error was harmless because the ALJ’s RFC accounted for the
doctor’s assessment by limiting Plaintiff to occasional, superficial interaction with the public,
and no teamwork.
Medical opinions that predate the alleged onset of disability are of limited relevance. See
Carmickle v. Comm’r, 533 F.3d 1155, 1165 (9th Cir. 2008). Nevertheless, although ALJs are “not

required to adopt any prior administrative medical findings . . . they must consider this
evidence.” 20 C.F.R. § 416.913a(b)(1). The court may not, however, reverse an ALJ’s decision
on account of an error that is harmless. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
“[A]n ALJ’s error is harmless where it is inconsequential to the ultimate nondisability
determination.” Id. at 1115. [T]he burden of showing that an error is harmful normally falls upon
the party attacking the agency’s determination.” Id. at 1111 (quoting Shinseki v. Sanders, 556
U.S. 396, 409 (2009)).
Here, the ALJ failed to mention Dr. Gollogly’s opinion anywhere in her opinion and thus
committed error. However, the ALJ vicariously addressed Dr. Gollogly’s opinion through her
discussion of the weight she accorded Dr. Johns’ opinion and the opinions of “state agency

“SVP 1” means a worker would need a “short demonstration only” to perform the job; “SVP 2” means anything
beyond a short demonstration up to and including one month. Id.

OPINION AND ORDER -- 17

psychologists,” Dr. Hennings and Dorothy Andersen, Ph.D. Tr. 25-27
Notably, Dr. Gollogly determined that Plaintiff was not significantly limited in her ability
to carry out even detailed instructions or in her ability to maintain attention and concentration for
extended periods of time – lesser findings than those of than Drs. Hennings and Andersen. Tr.
89, 103, 116. To the extent Plaintiff argues that Dr. Gollogly’s assessment supports Dr. Johns’
opinion that Plaintiff may have difficulty maintaining employment due to her mental health
symptoms, as discussed above, the ALJ properly discredited Dr. Johns’ opinion. Moreover, Dr.
Gollogly explained that his assessment was less restrictive than that of, Dr. Johns, because Dr.
Johns’ “opinion relies heavily on the subjective report of symptoms and limitations provided by
the individual, and the totality of the evidence does not support the opinion.” Tr. 90-1.
Ultimately, Dr. Gollogly endorsed a non-disability finding, determining that Plaintiff was not
significantly limited in her ability to perform activities within a schedule, maintain regular
attendance, or be punctual within customary tolerances. Tr. 89, 92-3.
In sum, Plaintiff does not explain, nor can the Court deduce, how consideration of Dr.
Gollogly’s opinion and non-disability finding would have altered the ALJ’s decision.
Accordingly, the error was harmless.
C.

Subjective Symptom Allegations
Plaintiff alleges error in the ALJ’s assessment of her subjective symptom allegations.
1) Applicable Standard
When a claimant has medically documented impairments that could reasonably be

expected to produce some degree of the symptoms complained of, and the record contains no
affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the
severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.”

OPINION AND ORDER -- 18

The Commissioner’s assertion that the clear-and-convincing standard does not apply to the
ALJ’s credibility findings is foreclosed by the Ninth Circuit’s holding in Burrell, supra, 775 F.3d
at 1136-37 (citations omitted). See Def.’s Br. 15 n.3; Garrison v. Colvin, 759 F.3d 995, 1014-15
(quoting Smolen, 80 F.3d at 1281). “The clear and convincing standard is the most demanding
required in Social Security cases.” Id. at 1015 (citations omitted). Therefore, an ALJ “may not
discredit the claimant’s testimony as to the severity of symptoms merely because they are
unsupported by objective medical evidence.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998).
At the time of the ALJ’s decision, Social Security Ruling (“SSR”) 96-7p, available at
1996 WL 374186 (July 2, 1996), was in effect and provided that ALJs were to make a finding on
the credibility of a claimant’s statements about pain or other symptoms and its functional effects,
and listed relevant factors that were to be considered. In March 2016, that ruling was superseded
by SSR 16-3p, available at 2016 WL 1119029 (Mar. 16, 2016). Under SSR 16-3p the term
“credibility” was eliminated from the Agency’s sub-regulatory policy, and ALJs were no longer
tasked with making an overarching credibility determination. Id. Instead, ALJs are to “limit their
evaluation to the individual’s statements about his or her symptoms and the evidence in the
record that is relevant to the individual’s impairments.” Id. at *10. Further, it is “not sufficient
for our adjudicators to make a single, conclusory statement that ‘the individual’s statements
about his or her symptoms have been considered . . . .’” Id. at *9. Rather, the ALJ’s decision
“must contain specific reasons for the weight given to the individual’s symptoms, be consistent
with and supported by the evidence, and be clearly articulated so the individual and any
subsequent review can assess how the adjudicator evaluated the individual’s symptoms.” Id.
Thus, “[t]he focus of the evaluation of an individual’s symptoms should not be to determine

OPINION AND ORDER -- 19

whether he or she is a truthful person.” Id. at *10.
The ALJ’s decision in this case was issued before SSR 16-3p became effective, and the
Ninth Circuit has not expressly ruled on whether SSR 16-3p applies retroactively. This Court has
previously held that SSR 16-3p is a clarification of sub-regulatory policy rather than a new
policy and thus was appropriately applied retroactively. See, e.g., Hanson v. Colvin, No. 3:15-cv01974-JE, 2017 WL 2432159, at *7 (D. Or. May 2, 2017) (applying SSR 16-3p retroactively);
Andre v. Colvin, No. 6:14-cv-02009-JE (D. Or. Oct. 13, 2016) (same). The Ninth Circuit recently
stated that SSR 16-3p “makes clear what our precedent already required: that assessments of an
individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence of
symptoms after the ALJ finds that the individual has a medically determinable impairment(s)
that could reasonably be expected to produce those symptoms,’ and not to delve into wideranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo v. Berryhill, 871
F.3d 664, 678 n.5 (9th Cir. 2017) (as amended) (quoting SSR 16-3p) (brackets omitted). After
the Ninth Circuit issued its decision in Trevizo, SSR 16-3p was republished, changing the prior
version’s “effective date” term to “applicable date,” and explaining that it was not intended that
Agency adjudicators apply SSR 16-3p to determinations made before March 29, 2016. SSR 163p, available at 2017 WL 5180304 at *1 (Oct. 25, 2017).
The relevant factors an ALJ must consider are essentially the same under either ruling:
when evaluating a claimant’s subjective symptom testimony, an ALJ must consider the entire
record, including the claimant’s activities of daily living (“ADLs”); the location, duration,
frequency, and intensity of the claimant’s pain or other symptoms; medications taken and their
effectiveness; treatment other than medication; measures other than treatment used to relieve
pain or other symptoms; and “other factors concerning the individual’s functional limitations and

OPINION AND ORDER -- 20

restrictions due to pain or other symptoms.” 20 C.F.R. §416.929(c); SSR 96-7p; SSR 16-3p.
An ALJ may not reject a Plaintiff’s subjective symptom claims “solely because [they are]
not substantiated affirmatively by objective medical evidence.” Robbins v. Social Sec. Admin,
466 F.3d 880, 883 (9th Cir. 2006). However, the lack of objective medical evidence or objective
medical evidence that conflicts with a Plaintiff’s subjective symptom allegations, is a clear and
convincing reason to discount a Plaintiff’s claims regarding the intensity and persistence of her
impairments when combined with other factors – such as conflicts between Plaintiff’s claimed
limitations and her ADLs, the effective control of symptoms with conservative treatment, or
Plaintiff’s unexplained failure to comply with treatment – are present. Thomas v. Barnhart, 278
F.3d 947 (9th Cir. 2002); 20 C.F.R. § 416.929.
Based on the guidance set forth in the republished version of SSR 16-3p, this Court will
not find automatic error in cases decided on or before March 28, 2016, solely because an ALJ’s
assessment of subjective symptom statements speaks in terms of “credibility.” SSR 16-3p.
However, findings that are premised exclusively on a claimant’s apparent character for
truthfulness, rather than the listed factors, may constitute error. Trevizo, 871 F.3d at 678 n.5; see
Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (general credibility findings are insufficient)
(citations omitted). And, as has long been the rule, if substantial evidence supports the ALJ’s
determination, it may be upheld even if some of the reasons cited by the ALJ are erroneous.
Carmickle, supra, 533 F.3d at 1162.
2) Analysis
Migraines
The ALJ discounted Plaintiff’s claims regarding the intensity, frequency, and persistence
of her migraine headaches, reasoning that medical evidence shows Plaintiff’s migraines are

OPINION AND ORDER -- 21

controlled with medication. Tr. 24. Plaintiff testified that even if she gets rest, she still suffers
five or six migraines per month. Tr. 65.
The record shows that in September 2012, Plaintiff complained to Dr. Nall of worsening
migraine headaches that seemed to be triggered by poor sleep. Tr. 489. Dr. Nall prescribed
nortriptyline. Tr. 491. In March 2013, Plaintiff reported that nortriptyline caused her to be more
stimulated and that increased insomnia was leading to increased migraines per week. Tr. 492.
Plaintiff declined a daily prophylactic medication but agreed to try Imitrex. Tr. 495. In May
2013, Plaintiff reported that Imitrex “really helped” with her migraines and that if she takes it
within the first 30 minutes, it will stop the headache. Tr. 541. Plaintiff again declined any
prophylactic treatment. Tr. 543. Thus, Plaintiff’s testimony regarding the frequency of her
migraines is belied by the medical records which show that Plaintiff’s complaints of frequent
migraine headaches subsided with medication. Tr. 65.
Moreover, Plaintiff also testified that Imitrex stops her migraines if she is able to take it
right away when she feels a migraine beginning; Plaintiff’s testimony supports the ALJ’s
conclusion that Plaintiff’s migraines are controlled with medication. Tr. 60. Finally, Plaintiff
related that she purposefully does not always keep the medication with her and confirmed that
she declined her doctor’s suggestion for a daily migraine prevention medication because she
does not like being on medications and prefers to take as little medication as possible. Id.
Plaintiff’s poor compliance with treatment and unwillingness to even try conservative treatment
of daily medication further support the ALJ’s conclusion.
Thus the record shows both limited complaints and successful conservative treatment of
Plaintiff’s migraine headaches. Accordingly, the ALJ provided clear and convincing reasons to
discount Plaintiff’s claims regarding the debilitating effects of migraines.

OPINION AND ORDER -- 22

Edema
The ALJ found that the record is not consistent with Plaintiff’s claims of significant
edema. Tr. 24. In February 2014, Dr. Nall observed no clubbing, cyanosis, or edema upon
physical exam. Tr. 719. The record shows that Plaintiff reported to the emergency department for
bilateral leg swelling in July 2014. Tr. 579. A Doppler ultrasound revealed no deep venous
thrombosis. Tr. 581. Plaintiff appeared calm and cooperative, reporting “some discomfort” when
her legs become “particularly swollen.” Tr. 579, 581. She was advised to elevate her legs and
continue her iron therapy. Potassium and Lasix were also recommended. Tr. 582. In January
2015, Dr. Nall observed bilateral “trace edema” and approved Plaintiff’s continued use of Lasix
noting that it had been helpful. Tr. 676-77. In March 2015, Plaintiff reported to Dr. Nall that she
only takes Lasix for leg swelling and that she is not taking it very often. Tr. 665. In two separate
physical exams that same month, physicians noted no edema. Tr. 586, 639. Thus, Plaintiff’s
reports of frequent, painful edema requiring days of leg elevation (Tr. 66) are belied by the lack
of supporting objective medical evidence, Plaintiff’s own reports to physicians regarding the
level of discomfort caused by the edema events, and Plaintiff’s own reports of infrequent need to
take medication to treat edema. These are clear and convincing reasons to discount Plaintiff’s
subjective symptom testimony regarding edema. Accordingly, the ALJ did not err.
Musculoskeletal Pain
Plaintiff testified that she spends most of her day in bed due to pain. Tr. 51, 284. The ALJ
found that “the record documents the existence of musculoskeletal impairments, but shows
improvement with treatment and fails to corroborate the extent of the symptoms and limitations
alleged by the claimant.” Tr. 21. Indeed, the record fails to support the extent of Plaintiff’s
claims of debilitating pain in her back, knees, hips, and shoulder. The record indicates her pain

OPINION AND ORDER -- 23

symptoms were generally managed with icing and elevation, medication, and one-time injection
interventions. Tr. 541, 543, 621, 695, 713,702, 703. Moreover, the record indicates that Plaintiff
repeatedly exhibited a reluctance to comply with doctor recommendations for conservative
treatments other than medication – such as physical therapy or wearing a hard neck collar. Tr.
489, 495, 621. Furthermore, Plaintiff’s ability to participate in cleaning her apartment, shopping,
and engaging in daily hygiene without assistance, conflicts with her subjective symptom
allegations of debilitating pain. Tr. 256-63, 284-90, 418. Accordingly, the ALJ provided clear
and convincing reasons for discounting Plaintiff’s musculoskeletal symptom allegations.
Vision
The ALJ found that the record revealed Plaintiff’s glaucoma is “well controlled when she
complies with treatment” and fails to corroborate Plaintiff’s eyesight impairment allegations. Tr.
23.
In March 2012, Plaintiff sought treatment from ophthalmologist James Waldman, M.D.,
for complaints of decreased vision in both eyes, limiting her ability to read, and see road signs
and captions. Tr. 411. Dr. Waldman noted 20/40 visual acuity in both eyes but diagnosed
glaucoma and prescribed Latanoprost drops. Tr. 414. In subsequent exams, Dr. Waldman
observed that Plaintiff’s glaucoma was stable and controlled with medication; however, Plaintiff
was frequently in poor compliance with her medication. Tr. 407, 409, 428, 879, 884, 889.
Despite her poor compliance, Plaintiff’s visual acuity generally remained within the 20/40 range
and in December 2013, although Plaintiff’s visual field test was suspicious for glaucoma, her
optical coherence tomography test was within normal limits. Tr. 428, 886-87, 889. In January
and March 2014, Dr. Waldman again noted Plaintiff’s poor compliance with medication. Tr. 884,
879. In February 2015 Plaintiff requested a referral to a different eye doctor, reporting that she

OPINION AND ORDER -- 24

felt her glaucoma was worsening; however, there is no evidence in the record regarding a
subsequent eye exam. At the hearing, Plaintiff testified that she had stopped using the drops for
her eyes for a “little bit” and noticed that her eyesight had worsened. Tr. 54. Thus, the record
supports the ALJ’s determination that Plaintiff’s vision impairments are well controlled with
medication.
The record also indicates that Plaintiff is able to participate in activities that belie her
symptom allegations -- driving, reading, watching television, paying her bills, and counting
change. Tr. 287, 417-18. Accordingly, the objective medical evidence, coupled with Plaintiff’s
lack of compliance with medication and ability to engage in activities that conflict with her
claims, provide clear and convincing reasons to discount her allegations regarding the severity of
her vision impairment.
Anxiety
The ALJ found that the record showed “largely unremarkable mental status examination
findings primarily limited to anxious affect and pressured speech but shows the claimant was
consistently coherent and redirectable.” Tr. 26. Concluding that the evidence does not support
debilitating limitations in concentration or attention, the ALJ noted that Plaintiff has required
only minimal treatment and has consistently interacted appropriately with her healthcare
providers. Id.
In addition to Dr. Johns’ consultative exam in August 2012, detailed above, the record
shows Plaintiff attended three individual counseling sessions in March and April 2012. In two of
the sessions, the therapist described Plaintiff as “active and engaged” during treatment. Tr. 363,
365. Plaintiff regularly exhibited an “anxious affect” and “pressured speech” in her visits with
Dr. Nall. Tr. 504, 491, 494, 508, 543. In March 2013, upon Plaintiff’s complaint of anxiety and

OPINION AND ORDER -- 25

request to try medication, Dr. Nall began prescribing anti-anxiety medications. Tr. 494. After
trying a couple of medications over a five-month period, Plaintiff reported that Paxil improved
her symptoms. Tr. 492-94, 541, 543, 546. In February 2014, Plaintiff reported that she had
stopped taking her anxiety medication “a while back” because she was “feeling better” but that
she was beginning to feel more anxious again because her daughter was going to New York to
interview for schools. Tr. 717. Plaintiff agreed to restart her medication. Tr. 720. About one year
later, in February 2015, Plaintiff reported that she had not been taking Paxil; Dr. Nall observed
that Plaintiff had a “mildly anxious affect” and encouraged her to restart Paxil. Tr. 639, 641, 665,
667.
In sum, the record reflects Plaintiff’s mental health symptoms were alleviated by
medication and even abated for periods of time so that she decided to stop taking the medication
altogether. The record reflects that she was able to engage in activities such as regular church
attendance, shopping in stores, and taking public transportation, all of which conflict with her
claims that that anxiety prevents her from leaving home or interacting with other people. See Tr.
259, 286-7, 417. Accordingly, the ALJ provided clear and convincing reasons to discredit
Plaintiff’s subject mental health allegations.
D.

Lay Witness Statements
1) James Dowd
Plaintiff argues that the ALJ improperly discredited the Third Party Function Report

submitted by Plaintiff’s stepfather, James Dowd.
“In determining whether a claimant is disabled, an ALJ must consider lay witness
testimony concerning a claimant’s ability to work.”

Stout, supra, 454 F.3d at 1053.

“Descriptions by friends and family members in a position to observe a claimant’s symptoms and

OPINION AND ORDER -- 26

daily activities have routinely been treated as competent evidence.” Sprague v. Bowen, 812 F.2d
1226, 1232 (9th Cir. 1987). Indeed, the regulations expressly permit the ALJ to consider
evidence regarding the severity of a claimant’s impairments from non-medical sources such as
parents, spouses, siblings, caregivers, and other relatives. 20 C.F.R. § 416.913. When an ALJ has
properly discredited a claimant’s subjective claims based on “well-supported clear and
convincing reasons,” the ALJ may properly reject lay witness testimony that merely reiterates the
claimant’s claims. Molina, 674 F.3d at 1121.
The ALJ gave no weight to Mr. Dowd’s report for the same reasons she discredited the
severity of Plaintiff’s subjective symptom allegations -- the medical evidence did not corroborate
the extent of the limitations alleged. Mr. Dowd completed the Third Party Function report in
April 2013, stating that Plaintiff spends most of her time in bed due to pain. Tr. 306. As noted
above, the ALJ properly found Plaintiff’s pain allegations to be unsupported by the medical
records and in conflict with Plaintiff’s ADLs. Mr. Dowd reported that Plaintiff watches the news
on television everyday and can drive a car, although she does not like to drive unless necessary
due to her impaired vision. Tr. 308. Mr. Dowd indicated that Plaintiff’s poor eyesight impaired
her ability to count change, see the difference between paper currency bills, and follow simple
instructions like a recipe. Tr. 308-10. As discussed above, the ALJ provided clear and convincing
reasons based on substantial evidence in the medical records to discredit Plaintiff’s claims of
visual impairment. The conflicts between the objective medical records and Mr. Dowd’s reports
are germane reasons to discount his statements. Accordingly, the ALJ did not err.
2) Pamela Springer, Disability Adjudicator
Plaintiff argues that the ALJ erred by failing to address the determination made by a state
agency disability adjudicator in 2012 that Plaintiff could perform only sedentary work. See Tr.

OPINION AND ORDER -- 27

92. The Commissioner responds that state claim adjudicators are not medical professionals, and
therefore any opinion by a claims adjudicator is not a “medical opinion” and need not be
considered. The Commissioner also argues that the opinion is not relevant because it was
rendered with regard to Plaintiff’s prior claim and therefore predates the protective filing date in
this matter.
Whether the ALJ was required to consider and address a nonmedical source opinion from
a prior SSI claim is unclear, however, it appears unlikely. An ALJ is not required to explain the
weight she gave to prior administrative medical findings in a claim if she gives controlling
weight to a treating source’s medical opinion. 20 C.F.R. § 416.927(e). And while an ALJ
“generally should explain the weight given to” nonmedical opinion sources, she is not compelled
to do so by mandatory language in the statute. 20 C.F.R. § 416.927(f)(2). Moreover, for claims
filed after March 27, 2017, “[f]indings made by a State agency disability examiner made at a
previous level of adjudication about a medical issue, vocational issue, or the ultimate
determination about whether you are disabled” are expressly deemed “neither valuable nor
persuasive” to the issue of disability and “will not be analyzed.” 20 C.F.R. § 416.920b.
However, assuming without deciding that failure to address a prior agency finding
limiting Plaintiff to sedentary work was error, the Court finds that any error was harmless. Two
subsequent agency determinations found that Plaintiff could perform light work, with some
modifications. Tr. 105,118. In contrast to the 2012 determination, the more recent determinations
were made with the benefit of a complete medical record. Moreover, the 2012 determination was
not consistent with the record as a whole. As such, any error is harmless.
E.

Step Five Analysis
Plaintiff argues that the ALJ erroneously based her conclusion that Plaintiff can perform

OPINION AND ORDER -- 28

jobs that exist in the national economy on an “incomplete” hypothetical posed to the VE that
failed to include the “impact of the limitations noted by Dr. Johns, Dr. Hennings, and Dr.
Gollogly.”
An ALJ may rely on the testimony of a VE to determine whether a claimant retains the
ability to perform other work in the national or regional economy at step five. See Osenbrock v.
Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). The ALJ is required to include only those limitations
which are supported by substantial evidence in any hypotheticals posed to a vocational expert.
See id. at 1163-65. “Conversely, an ALJ is not free to disregard properly supported limitations,”
including improperly discredited symptom testimony provided by the claimant or a lay witness.
Robbins, supra, 466 F.3d at 886.
As discussed supra, Section B, the ALJ properly discredited medical opinion evidence
suggesting Plaintiff might have difficulty maintaining employment due to mental health
symptoms. Having concluded such a limitation was not supported by substantial evidence, the
ALJ was not required to include it in the hypothetical. Also discussed in Section B, supra, the
ALJ rejected the limitation to simple work yet incorporated the limitation to unskilled work into
the hypothetical posed to the VE. Accordingly, the ALJ’s step five findings must be affirmed.
CONCLUSION
The ALJ’s decision is supported by substantial evidence and any error is harmless. For
the reasons stated above, the Commissioner’s decision is AFFIRMED.

DATED this 26th day of February, 2018.

/s/John Jelderks
John Jelderks
United States Magistrate Judge
OPINION AND ORDER -- 29