Otto v. Commissioner Social Security Administration

Filing 20

OPINION & ORDER: The Commissioner's decision is Affirmed and this case is Dismissed. Signed on 3/6/25 by Magistrate Judge Jolie A. Russo. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PAMELA O., 1

Case No. 3:24-cv-00458-JR
Plaintiff,

OPINION AND ORDER

v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
RUSSO, Magistrate Judge:
Plaintiff Pamela O. brings this action for judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying her application for Title II Disability
Insurance Benefits under the Social Security Act. All parties have consented to allow a Magistrate
Judge enter final orders and judgement in this case in accordance with Fed. R. Civ. P. 73 and 28
U.S.C. § 636(c). For the reasons set forth below, the Commissioner’s decision is affirmed, and this
case is dismissed.

1

In the interest of privacy, this opinion uses only the first name and initial of the last name of the
non-governmental party or parties in this case. Where applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member.
Page 1 – OPINION AND ORDER

BACKGROUND 2
Born in July 1959, plaintiff alleges disability beginning July 30, 2014 – which coincides
with the end of her work contract – due to chronic neck, back, and shoulder pain, chronic
headaches, thyroid disorder, and sleep issues. Tr. 221, 228. Her application was denied initially
and upon reconsideration. On October 18, 2022, a hearing was held before an Administrative Law
Judge (“ALJ”), wherein plaintiff was represented by counsel and testified, as did a vocational
expert (“VE”). Tr. 44-71. On October 31, 2022, the ALJ issued a decision finding plaintiff not
disabled. Tr. 32-43. After the Appeals Council dismissed her request for review, plaintiff filed a
complaint in this Court. Tr. 1-5.
THE ALJ’S FINDINGS
At step one of the five step sequential evaluation process, the ALJ found plaintiff had not
engaged in substantial gainful activity “from her alleged onset date of July 30, 2014 through her
date last insured of December 31, 2016.” Tr. 34. At step two, the ALJ determined “claimant did
not have a severe impairment or combination of impairments” and concluded that plaintiff was not
disabled during the relevant dates. Tr. 35, 39.
DISCUSSION
Plaintiff argues the Appeals Council erred by (1) dismissing her request as untimely; (2)
concluding plaintiff did not have a severe medically determinable impairment or combination of
impairments; and (3) discrediting plaintiff’s subjective symptom statements.

2

The record before the Court is approximately 700 pages, but with multiple incidences of
duplication. Where evidence occurs in the record more than once, the Court will generally cite to
the transcript pages on which that information first appears in its entirety.
Page 2 – OPINION AND ORDER

I.

Timeliness
Plaintiff contends the Appeals Council erred in dismissing as untimely plaintiff’s request

for review of the ALJ’s unfavorable decision. On December 18, 2023, the Office of Appellate
Operations notified plaintiff that her request for review was filed late and instructed plaintiff to
send a statement and any evidence explaining why plaintiff did not timely file the request for
review. Tr. 6. In this letter, the Office of Appellate Operations stated that it would not act for 30
days to allow plaintiff to submit such evidence. Tr. 7. The letter continued: “if we do not hear from
you within 30 days, we will assume that you do not want to send us more information” and will
therefore dismiss the request for review. Id. Plaintiff did not submit additional information within
the provided timeframe, and on January 30, 2024, the Appeals Council dismissed plaintiff’s
request for review. The Appeals Council’s reasonable dismissal of plaintiff’s request for review is
affirmed as plaintiff failed to explain her untimely request for review as instructed.
II.

Severity
Plaintiff next alleges the ALJ erred at step two by finding that none of plaintiff’s

impairments were severe, either together or in combination. An impairment is severe if it
“significantly limit[s]” claimant’s ability to do basic work activities, which are defined as “abilities
and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1520(c); SSR 85-28, available at 1985
WL 56856. The step two threshold is low; the Ninth Circuit describes step two as a “de minimus
screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.
1996) (citing Bowen v. Yuckert, 482 U.S. 153–54 (1987)). Accordingly, “an ALJ may find that a
claimant lacks a medically severe impairment or combination of impairments only when [her]
conclusion is ‘clearly established by medical evidence.’” Webb v. Barnhart, 433 F.3d 683, 687
(9th Cir. 2005) (quoting SSR 85-28, available at 1985 WL 56856).

Page 3 – OPINION AND ORDER

Here, the ALJ’s decision meets this narrower standard by citing to medical evidence in the
record that clearly establish her conclusion that plaintiff “did not have an impairment or
combination of impairments that significantly limited the ability to perform basic work-related
activities for 12 consecutive months.” Tr. 35. Notably, plaintiff stated that she stopped working
because her contract ended and was laid off. Tr. 221. Plaintiff elaborated that her impairments did
not cause her to make changes in her work activity. Tr. 222. These statements are supported by the
lack of significant or persistent medical issues around the time plaintiff alleges her disability began.
Tr. 461-487.
At an annual wellness examination in April 2014 – three months before plaintiff’s alleged
onset of disability – plaintiff noted headaches and dizziness but reported that overall “she [was]
doing well” other than experiencing some stress at work. Tr. 461-462. Plaintiff did not discuss the
frequency or symptoms and was described by her doctor as “alert, cooperative, no distress.” Id.
During the dates at issue, plaintiff did not report issues with chronic headaches to her medical
providers and showed no signs of distress or other pain behavior associated with chronic headaches
while seeing medical providers. Tr. 303-25, 377-379. Plaintiff also reported “no frequent
headaches” at a medical examination for sudden onset vertigo in September 2016. Tr. 378.
Plaintiff did not report dizziness or vertigo between her April 2014 annual appointment
and her September 2016 medical examination to address plaintiff’s sudden onset vertigo
symptoms. Tr. 303-326. At the September 2016 appointment, plaintiff was assessed with benign
positional vertigo 3 and was instructed to do the Epley maneuver at home until symptoms resolved.
Tr. 303-306. Plaintiff reported the Epley maneuver successfully resolved her symptoms. Tr. 296.
In 2017 and 2018, plaintiff had 20 encounters with her medical providers and complained only of

3

Plaintiff’s doctor noted that plaintiff had a history of “no prior vertigo.” Tr. 303-306.

Page 4 – OPINION AND ORDER

one reoccurrence of vertigo. Tr. 286-288, 290-293, 296-300, 302-303. On May 16, 2018, plaintiff
called her clinic to complain of mild vertigo and ask whether it would be safe to do the Epley
maneuver at home because it worked for her two years earlier when she suffered the same
symptoms. Tr. 296. Plaintiff was instructed that it would be safe to do the Epley maneuver at home,
and that she should call and make an appointment if her vertigo did not resolve; plaintiff never
made a follow up appointment. Tr. 297. Plaintiff’s statements that the Epley maneuver resolved
her vertigo – and that there is only one report of a reoccurrence of vertigo in the two years that
followed – indicate that plaintiff’s symptoms resolved within 12 months of their onset and would
not have more than a minimal effect on plaintiff’s ability to work.
Federal appellate review of SSA disability cases is limited; review is deferential to the final
non-disability decision of the Commissioner. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d
1090, 1099 (9th Cir. 2014). Within the Ninth Circuit, the Commissioner’s decision must be upheld
unless the decision “contains legal error or is not supported by substantial evidence.” Ford v. Saul,
950 F.3d 1141, 1154 (9th Cir. 2020) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
2008)). 4 “Substantial evidence ‘is more than a mere scintilla,’ and means only ‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Ford, 950 F.3d
at 1154 (quoting Biestek v. Berryhill, 587 U.S. 97, 103 (2019)) (ellipses omitted). “Under the
substantial-evidence standard, a court looks to an existing administrative record and asks whether
it contains sufficient evidence to support the agency’s factual determinations.” Biestek, 587 U.S.

4

“For highly fact-intensive individualized determinations like a claimant’s entitlement to
disability benefits, Congress ‘places a premium upon agency expertise, and, for the sake of
uniformity, it is usually better to minimize the opportunity for reviewing courts to substitute their
discretion for that of the agency.’” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2017)
(quoting Treichler, 775 F.3d at 1099).
Page 5 – OPINION AND ORDER

at 102 (citation and internal quotations omitted). “[T]he threshold for such evidentiary sufficiency
is not high.” Id.
In sum, because the ALJ cited clearly established medical evidence, supported by
substantial evidence, her decision is affirmed as to her finding of no severe impairment or
combination of impairments. Therefore, even if the Appeals Council’s dismissal was improper,
this Court affirms the ALJ’s decision finding that plaintiff was “not under a disability, as defined
in the Social Security Act, at any time from July 30, 2014, the alleged onset date, through
December 31, 2016, the date last insured.” Tr. 39.
III.

Plaintiff’s Testimony
Plaintiff contends the ALJ erred by discrediting her testimony concerning the extent of her

impairments. 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 80 F.3d at 1281 (internal citation omitted). A general assertion 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). The reasons
proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did
not arbitrarily discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir.
1995) (internal citation omitted). In other words, the “clear and convincing” standard requires an
ALJ to “show [her] work.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).
Thus, in formulating her decision, the ALJ is not tasked with “examining an individual’s
character” or propensity for truthfulness, and instead assesses whether the claimant’s subjective

Page 6 – OPINION AND ORDER

symptom statements are consistent with the record as a whole. SSR 16-3p, available at 2016 WL
1119029. If the ALJ’s finding on the claimant’s subjective symptom testimony is “supported by
substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted). The question is not whether
the ALJ’s rationale convinces the court, but whether the ALJ’s rationale “is clear enough that it
has the power to convince.” Smartt, 53 F.4th at 499.
At her 2022 hearing, plaintiff testified she stopped working after 2014 because she did not
feel well, e.g. “I had headaches, dizziness. I don’t sleep well. I have chronic pain . . . it was difficult
for me to do things when I needed to do them.” Tr. 53. This testimony directly contradicts
plaintiff’s 2019 statements on her disability report that she stopped working because her “contract
ended and . . . [she] was laid off” and that her conditions did not cause her to make changes in her
work activity. Tr. 221-222. Plaintiff continued to testify at her ALJ hearing that she was having
headaches in 2014 and 2015 so severe she would be too dizzy to drive and that it was “very, very,
difficult” for her to get home. Tr. 53. Plaintiff’s hearing testimony is also inconsistent with her
medical record which reflect four encounters with medical providers in 2014 and 2015, only one
of which concerned dizziness and headaches. Tr. 451, 454, 457, 461-463, 465, 469, 472, 476. 5
Plaintiff further testified she “could barely stand up,” was “crawling around [her] house,”
and “pretty much got headaches every day” during 2015 and 2016. Tr. 57, 60. As explained in
Section II, this testimony is inconsistent with plaintiff’s medical record at the time which showed
no issues of headache or dizziness except for plaintiff’s one instance of vertigo reported in

5

At her appointment on 4/18/2014 – three months before the alleged onset date – plaintiff
reported having dizziness and headaches. Tr. 462-463. At plaintiff’s appointments on 3/17/2014,
3/9/2015, and 5/6/2015 however, plaintiff complained of other medical issues, did not complain
of dizziness or headaches, and was assessed: well nourished and exhibiting no distress. Tr. 451,
454, 457, 465, 469, 472, 476.
Page 7 – OPINION AND ORDER

September 2016. Tr. 303-326. Despite testifying she “could barely stand up” during 2015 and
2016, 6 plaintiff reported to her medical provider in August 2015 that plaintiff “went on vacation
and [her] back pain went away.” Tr. 57, 316.
The ALJ did not improperly discount plaintiff’s subjective symptoms testimony. The ALJ
explained how plaintiff’s testimony at the hearing conflicted with plaintiff’s earlier statements and
the objective medical evidence. Tr. 36-37. “When objective medical evidence in the record is
inconsistent with the claimant's subjective testimony, the ALJ may indeed weigh it as undercutting
such testimony.” Smartt 53 F.4th at 498 (emphasis omitted). Similarly, the ALJ explained how
plaintiff’s testimony of being unable to work due to headaches, dizziness, and chronic pain was
inconsistent with the medical record and plaintiff’s earlier explanation that she stopped working
because her contract ended – and that her physical impairments had no impact on her work
abilities. Tr. 36-37, 53, 221-222. The ALJ explained further inconsistencies in plaintiff’s testimony
such as plaintiff denying frequent headaches when meeting with her healthcare provider in
September 2016 and not reporting to her medical providers during the period at issue any of the
symptoms she later claimed at the hearing. Tr.53-61, 303-326, 377-379.
In sum, because the ALJ cited at least one legally sufficient reason, supported by
substantial evidence, her decision is affirmed as to plaintiff’s subjective symptom testimony. See
Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ’s evaluation of

6

While patient’s recollection of medical symptoms is inconsistent with the medical record for
the adjudicative period, plaintiff later complains of increased pains and headaches in 2019, 2020,
and 2022. Any new symptoms that emerged after December 2016 – such as chronic pains,
dizziness, or headaches – are simply not the proper subjects of this appeal. See O’Neal v. Astrue,
2010 WL 4386937, *4 (D. Or. Oct. 29, 2020) (reversal was not warranted where “the only
suggestion of [a particular impairment] arises after plaintiff’s date last insured”); Clara Ann K. v.
Saul, 2020 WL 5658720, *1 n.3 (S.D. Cal. Sept. 22, 2020) (“the relevant adjudicatory period for
determining social security benefits is the period after the alleged onset and before the date last
insured”).
Page 8 – OPINION AND ORDER

the claimant’s subjective symptom testimony may be upheld even if all the reasons proffered are
not valid).
CONCLUSION
For the reasons stated above, the Commissioner’s decision is AFFIRMED, and this case is
DISMISSED.
IT IS SO ORDERED.
DATED this 6th day of March, 2025.

/s/ Jolie A. Russo
Jolie A. Russo
United States Magistrate Judge

Page 9 – OPINION AND ORDER