Martinez v. Commissioner Social Security

Filing 24

Opinion and Order: Because substantial evidence exists within the record as a whole to support the Commissioner's decision, this Court affirms the Commissioner's decision. Signed on 1/12/2018 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JENNIFER MARTINEZ,
Plaintiff,
v.

Civ. No. 3:16-cv-01580-MC
OPINION AND ORDER

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security
Administration,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff Jennifer Martinez brings this action for judicial review of a final decision of the
Acting Commissioner of Social Security denying her application for Supplemental for Title II
disability insurance benefits (DIB) and Title XVI supplemental security income (SSI). The Court
has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
Because the Commissioner’s decision is based on proper legal standards and supported
by substantial evidence, the Commissioner’s decision is AFFIRMED.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff filed an application for disability insurance benefits and supplemental security
income on February 4, 2013, alleging disability onset on January 2, 2012. Tr. 18. Both
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applications were denied initially and upon reconsideration. Id. A hearing was held on November
2, 2015. On December 3, 2015, the ALJ issued a decision finding plaintiff was not disabled. Tr.
18-32. The Appeals Council denied the request for review, making the ALJ’s decision the final
decision of the Commissioner. Tr. 1. This appeal followed.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence on the record.
42 U.S.C. § 405(g); Batson v. Comm’r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). “Substantial evidence is ‘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.’”
Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978,
980 (9th Cir. 1997)). To determine whether substantial evidence exists, this Court reviews the
administrative record as a whole, weighing both the evidence that supports and that which
detracts from the ALJ’s conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
The Commissioner's findings are upheld if supported by inferences reasonably drawn
from the record; if evidence exists to support more than one rational interpretation, the court
must defer to the Commissioner's decision. Batson, 359 F.3d at 1193; Aukland v. Massanari, 257
F.3d 1033, 1034-35 (9th Cir. 2000) (when evidence can rationally be interpreted in more than
one way, the court must uphold the Commissioner's decision). A reviewing court, however,
“cannot affirm the Commissioner's decision on a ground that the Administration did not invoke
in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)
(citation omitted). A court may not reverse an ALJ's decision on account of an error that is

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harmless. Id. at 1055–56. “[T]he burden of showing that an error is harmful normally falls upon
the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
The ALJ need not discuss all evidence presented, but must explain why significant
probative evidence has been rejected. Stark v. Shalala, 886 F. Supp. 733, 735 (D. Or. 1995). See
also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (in interpreting the
evidence and developing the record, the ALJ need not discuss every piece of evidence).
THE ALJ’S FINDINGS
The Social Security Administration uses a five step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520; 416.920. The initial burden of proof rests
upon the claimant to meet the first four steps. If claimant satisfies his or her burden with respect
to the first four steps, the burden shifts to the Commissioner at step five. 20 C.F.R. § 404.1520.
At step five, the Commissioner’s burden is to demonstrate the claimant is capable of making an
adjustment to other work after considering the claimant’s residual functional capacity, age,
education, and work experience. Id.
At step one of the sequential analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity (SGA) since the alleged onset date. Tr. 20. At step two, the ALJ
found Plaintiff suffered from the following severe impairments: osteoarthritis, obesity, bipolar
disorder, diabetes mellitus, fibromyalgia, anxiety disorder not otherwise specified, and
depressive disorder not otherwise specified. Id. At step three, the ALJ found that none of
Plaintiff’s impairments, alone or in combination, met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Between steps three and four, the
ALJ determined Plaintiff had the residual functional capacity to perform sedentary work as
defined in 20 C.F.R. 404.1567(a) and 416.967(a) except with the following limitations: lift or

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carry 10 pound occasionally and less than 10 pounds frequently; stand or walk for about two
hours in an eight-hour workday and can sit for about six hours in an eight-hour workday.
Plaintiff can perform work that does not require her to climb ladders, ropes, or scaffolds. She can
occasionally stoop, kneel, crouch, crawl, and climb ramps or stairs. Plaintiff can perform simple
routine, repetitive tasks. Tr. 23.
At step four, the ALJ found that Plaintiff is unable to perform her past relevant work
because of her RFC’s non-exertional limitations. Tr. 30. The ALJ then determined that there
were jobs that Plaintiff was capable of performing that existed in significant numbers in the
national economy, specifically identifying the representative occupations of telemarketer and
document preparer. Tr. 30-31.
DISCUSSION
Plaintiff contends that the ALJ erred in establishing an RFC that did not include a finding
that the Plaintiff needed to elevate her legs when sitting for a prolonged period of time due to
lower extremity edema. Plaintiff contends, specifically, that the ALJ erred in improperly
discrediting Plaintiff’s subjective testimony that she needed to elevate her legs and in ignoring
the medical opinion evidence that Plaintiff needed to elevate her legs. Plaintiff also contends that
the ALJ failed to give proper weight to the psychological consultant’s opinions, thereby resulting
in an RFC finding that does not reflect the Plaintiff’s social function limitations.
I. Plaintiff’s Testimony
Plaintiff asserts the ALJ wrongfully discredited her subjective symptom testimony
concerning the severity of her impairments. At the hearing, plaintiff testified that because her
feet swelled and ached, and her knees hurt, she spent most of her time in a recliner to keep her
feet elevated. Tr. 55-56, 294-295. Plaintiff testified that due to swelling she could not sit with her

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legs and feet down for longer than 20 minutes. Tr. 57, 253, 286, 296. Because of the need to
elevate her legs, Plaintiff argues that her appropriate RFC is limited to less than sedentary. Pl.’s
Br. 3, ECF No. 16.
The ALJ found that the claimant has a history of obesity, chronic pain due to
fibromyalgia and osteoarthritis, and mental health impairment, along with diabetes without
mention of complication. Tr. 24. The ALJ also found that “. . . the claimant’s medically
determinable impairments could reasonably be expected to cause the alleged symptoms;
however, the claimant’s statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely credible for the reasons explained in this decision.” Id.
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.”
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). The ALJ’s
decision is required to “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 reviewer can assess how the adjudicator evaluated the individual’s
symptoms.” SSR 16-3p, available at 2016 WL 1119029, at *9. In other words, a general
assertion that the claimant is not credible is insufficient; the ALJ must “state which . . . testimony
is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala,
12 F.3d 915, 918 (9th Cir. 1993).
Here, the ALJ cited to twelve medical exhibits in support of his conclusion that Plaintiff
had “little if any edema (swelling) or tenderness” in her lower extremities to support her reported

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need to elevate her legs. Tr. 26. Plaintiff argues that the ALJ’s reasoning amounts to insufficient
“general findings” because the medical exhibits cited by the ALJ encompass hundreds of pages.
For examples, the exhibits cited by the ALJ: 12F, 14F, 18F, 25F, 5F, 9F, 10F contain,
respectively, pages Tr. 610-682 (72 pages), 713-776 (63 pages), 777-843 (66 pages), 875-1074
(199 pages), 1109-1170 (61 pages), 1325-1538 (213 pages), and 1666-1766 (100 pages). An
ALJ’s “vague allegation” that a claimant’s testimony is “not consistent with the objective
medical evidence,” without “specific findings in support” of that conclusion is insufficient for
the Court’s review. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir.
2014).
Additionally, plaintiff cites to a number of pages in the medical record which contain
multiple objective findings of swelling and tenderness which arguably contradict the ALJ’s
assertion that Ms. Martinez experiences “little if any edema or tenderness.” For example, in 12F:
Left knee “medial and posterior edema,” antalgic gait, pain when palpated at the medial and
anterior jointline, and over the patella (Mar. 14, 2012) (Tr. 878); pain when palpated on the
dorsum of the left foot; a mass is palpable in the dorsal midfoot (Jan. 6, 2012) (Tr. 887); positive
for pedal edema (mild) (Sep. 27, 2011) (Tr. 900); presents with edema and extremity pain;
degree of edema has been getting better (Aug. 15, 2011) (Tr. 909-910); presented with edema
present for 1-2 days, primarily in the lower legs and with associated extremity pain at rest, on
physical examination 2+ pedal edema noted; degree of edema has been getting worse recently
(Aug. 9, 2011) (Tr. 911-913); edema noted in the hands bilaterally, with tenderness in the left
knee, no lower extremity edema (Dec. 29, 2010) (Tr. 931); nonpitting edema in the lower
extremities (Apr. 8, 2010) (Tr. 1045).

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See also Exhibit 14F: mild 1+ pitting edema bilaterally about the ankles (Dec. 10, 2012)
(Tr. 1152; also at Ex. 13F, Tr. 1105); Ex. 18F: non-pitting edema in extremities (Mar. 14, 2013)
(Tr. 1392), 2+ pitting edema in extremities (Feb. 6, 2013) (Tr. 1419; also at Ex. 15F, Tr. 1174);
22F: left knee tenderness to palpation (Tr. 1642); 25F: Leftfoot tender to palpation, abnormal
gait, favors right foot (Tr. 1694); moderate edema (Tr. 1700)).
Despite Plaintiff’s assertion that the ALJ’s review of the medical record was cursory and
failed to account for the above findings, the ALJ made specific findings to support its decision,
pointing sufficiently to the record for this court to discern the ALJ’s reasoning. See Alaska Dep’t
of Entl. Conservation v. E.P.A., 540 U.S. 461, 497 (2004). In addition, a number of the medical
records referenced by plaintiff in support of her condition pre-date the alleged disability onset
date of January 2, 2012, i.e. Tr. 900, 909, 931. Others notated only mild edema. Tr. 1152. Others
still document the absence of edema, even after the alleged disability onset date. Tr. 806, 808,
886-87, 1422, 1507-08, 1849-50, 2082. Numerous records document a normal gait. 14F (Tr.
1115, 1118, 1121, 1124, 1127, 1133); 25F (Tr. 1666, 1672, 1677, 1700, 1703, 1708, 1712, 1716,
1719, 1722, 1726, 1730, 1740, 1745, 1750, 1755, 1762); 30F (Tr. 1900, 1908, 1913); 35F (Tr.
2071). Some records document Ms. Martinez’s ability to exercise. Tr. 1192, 1575 1618, 1630,
1632, 1642.
Here, the ALJ’s decision is supported by substantial evidence, which “means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The administrative record
contains 2,172 pages. From those pages, there may and likely will be evidentiary conflicts for an
ALJ to resolve. If “there is more than one rational interpretation of the evidence, the ALJ’s
conclusion must be upheld.” Allen v. Sec’y of Health & Human Servs., 726 F.2d 1470, 1473 (9th

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Cir. 1984) (citing Richardson, 402 U.S. at 399); Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.
2012).
In addition to the medical evidence, the ALJ also provided other reasons for discounting
Martinez’s subject complaints. Because the ALJ provided multiple reasons for discounting
Martinez’s subjective complaints, an error as to one or more reasons is harmless if a valid reason
remains. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2009).
For instance, the ALJ noted that Martinez demonstrated a capability to exercise with
some regularity which undermines her allegations of disabling pain. Tr. 1192 (losing 15 lbs),
1575, 1618, 1630, 1632, 1642; see also Tr. 1580, 1582, 1586, 1620, 1636, 1680, 1683, 1693,
1848, 2081, 8092, 2098.
The ALJ also reasonably discounted Martinez’s alleged physical limitations because
Martinez failed to comply with conservative treatment. Molina, supra, 674 F.3d at 1113-14. The
record shows a reluctance to diet and lifestyle changes needed to reduce Martinez’s weight in
order to reduce alleged pain. Tr. 1741 (“I feel that diet and lifestyle changes are greatly needed in
[Martinez’s] life but she is reluctant to do too much, which I feel we need to continue to push at
every visit.”), 1745 (same), 1751 (same), 1756 (same), 1763 (same); see also Tr. 1398.
A reluctance to follow conservative treatment, coupled with drug-seeking behavior,
supports a reasonable inference that Martinez is not as disabled as she alleged. From an
examination in March 2012, the physician noted that a drug monitoring query revealed a recent
prescription and that Martinez made inconsistent statements about her access to such drugs. Tr.
844. Subsequent treatment providers suspected drug-seeking behavior. Tr. 1465-66, 1588, 1590,
1594, 1717, 1789, 1894.

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The ALJ considered plaintiff’s synovitis (inflammation around her knee joint) in
establishing the RFC. Medical records do show a finding of lower extremity synovitis. Treating
rheumatologist Rebecca Callis, M.D. noted complaints of intermittent swelling in the lower
extremities, and knee synovitis on physical examination. Tr. 997, 1000-1001, 1086-1087, 10901091, 1094, 1095-1096, 1101, 1102, 1156-1157. The ALJ found though that Martinez’s synovitis
is contained in treatment notes from March 2012 to October 2012, when Martinez “ha[d]
significant improvement of her synovitis especially about her knees.” Tr. 1094. The treatment
notes continues: “Unfortunately she still has persistent synovitis above her knees worse on the
right as compared to the left.” “Regarding her other health, she is doing well.” Id. The ALJ also
noted that Martinez’s gait was consistently normal notwithstanding her synovitis. Tr. 25-26.
II. Medical source opinions
Plaintiff asserts that the ALJ simply ignored certain medical opinions and, in doing so,
failed to provide specific and legitimate reasons for rejecting them. See Lingenfelter v. Astrue,
504 F.3d 1028, 1038 n 10 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir. 1996)
(“By disregarding those opinions [of treating and examining physicians] and making contrary
findings, he [the ALJ] effectively rejected them. His failure to offer reasons for doing so was
legal error.”). Plaintiff points to an emergency department record from March 13, 2012. Tr. 844.
Plaintiff presented with left knee pain due to “a long car ride” four days earlier. Id. Plaintiff
denied any injury, but said she “may have twisted it.” Id. She felt that her knee was swollen and
was using ibuprofen without relief. Id. The examining physician notated that the “left knee
appears normal when compared to the right but her legs are extremely obese. [The physician] did
not appreciate any significant effusion.” Id. The physician observed painful range of motion,
diffuse tenderness, and a palpable popping sensation. The physician also notated:

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“After review of the Oregon prescription drug monitoring query, the patient has
received 120 Percocet tablets for the last month, including 60 prescribed on
February 29th. When the patient was confronted with this, she states that she “lost
her prescription on the soccer field”. Initially, when I first entered the room, the
patient apologized for her dazed appearance by saying ‘I just took my
pain…sleeping medication.’ ”
Tr. 844.
“I offered the patient an Ace wrap, and recommended ice, elevation, rest
continued ibuprofen therapy and following up with her primary care physician for
any further narcotics.”
Id.
Plaintiff contends that she was prescribed leg “elevation and rest” to relieve her
symptoms, and that this goes to the credibility of plaintiff’s statement that she needs to elevate
her legs to waist level when sitting in order to avoid swelling and pain. Pl.’s Br. 10, ECF No. 16.
Plaintiff argues that the treating provider’s opinion that Plaintiff should elevate her legs to relieve
lower extremity swelling should be incorporated into her RFC. Id. Otherwise, the ALJ must
explain why “significant probative evidence has been rejected.” Vincent on Behalf of Vincent v.
Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984).
Defendant responds that the ALJ did discuss this examination in its decision. See Tr. 25,
citing Tr. 844 (11F1), 878 (12F4). Defendant argues that the physician only “recommended ice,
elevation, rest” after noting a drug monitoring query revealed a recent prescription and that
Martinez made inconsistent statements about her access to such drugs. The ALJ subsequently
noted that Martinez’s different treatment providers suspected drug-seeking behavior which
undermined her claim for disability. Tr. 28, 1465-66, 1588, 1590, 1594, 1717, 1789, 1894. At the
second appointment, Martinez was prescribed rest “until the pain subsides, then gradually
increase the use of the injured area as you are able to” for her left knee strain. Tr. 878. The ALJ
noted subsequent objective imaging documented only “mild” osteoarthritis. Tr. 25, 982, 1107-08,
1362, 1626-27, 2094. Subsequent exams documented a normal gait. See Tr.25-26, 806

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(“ambulating well”), 1750 (“gait normal”), 1762 (“gait normal”), 2071 (“normal gait and
station”). The ALJ also noted improvement with treatment. Tr. 25, 1095, 1104. This other
evidence demonstrates that the March 2012 notes do not support long-term limitations.
The December 2012 note is a generic print-out discharge form pertaining to “Edema,”
generally. Tr. 1865. The form describes what edema is in general terms and provides general
ways to treat it. The generic form is neither significant nor persuasive. The ALJ’s failure to
discuss the form is not error.
The March 2012 and December 2012 recommendations do not contain concrete
limitations. See Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 691 (9th Cir. 2009 (Mere
recommendations are not an opinion that the claimant “is incapable of working except under the
recommended conditions”), see also Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601
(9th Cir. 1999) (Medical sources did not explain that characteristics would preclude claimant’s
work activity). In addition, the ALJ’s assessment of the medical evidence is supported by the
opinion of Martin Kehrli, M.D., Tr. 30, 94-95.
III Psychological opinion evidence
Plaintiff contends that the RFC fails to reflect any social function limitations and that the
ALJ erred in weighting the psychological consultants’ opinion. Pl.’s Br. 22, ECF No. 16; citing
Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009).
Here, the state psychology consultants found that Plaintiff is “able to perform solitary
work, though this work has occasional contact with the general public.” Tr. 29. They opined that
Plaintiff had social interaction limitations, and was moderately limited in ability to interact
appropriately with the public. Tr. 96-97.

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The ALJ may reasonably discount medical opinions to the extent that they conflict with
other evidence in the record. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). Because the two
were non-examining psychologists, the ALJ could reasonably reject their opinions “by reference
to specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir.
1998).
Here, the ALJ discounted the opinions to the extent that they restricted Martinez to
solitary work that required no more than occasional contact with the public. Tr. 29, 97, 128, 13233. The ALJ reasoned that “the overall medical evidence of record,” Plaintiff’s “activity level,”
and reported “improvement” did not support a limitation to “solitary work” or work which
involved only occasional contact with the general public. Tr. 29-30. In the alternative, Defendant
argues that any error is harmless, because the ALJ found that Martinez could work as a
document preparer, DOT#249.587-018, available at 1991 WL 672349, Tr. 31, where contact
with people is “N – Not Significant.”
First, in discounting their opinions, the ALJ found that Martinez engaged in social
activities, including attending her children’s soccer games, participating in group therapy, and
going out with friends. Tr. 27, 1211 (soccer), 1188-1302 (group therapy), 1962 (going out with
friends); see also Tr. 819, 1189, 1194, 1228m 1256, 1262, 1606, 1776, 1781.
Second, the ALJ found that Martinez’s mental health improved with medication in 2012
(Tr. 26, 1148), and thereafter, mental status exams revealed normal mood and affect. Tr. 26-28,
1557, 1559, 1562, 1575, 1578, 1797, 2065-66, 1132. The records document normal mood/affect
or appropriate/cooperative behavior. Here, the ALJ’s interpretation of the record is reasonable.
Molina, supra 674 F.3d at 1111.
CONCLUSION

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Because substantial evidence exists within the record as a whole to support the
Commissioner’s decision, this Court AFFIRMS the Commissioner’s Decision.
IT IS SO ORDERED.

DATED this 12th day of January, 2018.

____/s/Michael J. McShane______
Michael J. McShane
United States District Judge

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