Hansen v. Commissioner Social Security Administration
OPINION and ORDER - The Commissioner's decision is AFFIRMED and this case is hereby DISMISSED. IT IS SO ORDERED. DATED this 21st day of April, 2017, by United States Magistrate Judge John V. Acosta. (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
ALAN STUART GRAF, P.C.
208 Pine Street
Floyd, VA 24091
Attorney for plaintiff
BILLY J. WILLIAMS
United States Attorney
District of Oregon
JANICE E. HEBERT
Assistant United States Attorney
1000 SW Third Ave., Suite 600
Portland, OR 97201-2902
KATHRYN A. MILLER
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Ave., Suite 2900 M/S 221A
Seattle, WA 98104-7075
Of Attorneys for defendant
Case No. 6:15-cv-01954-AC
OPINION AND ORDER
ACOSTA, Magistrate Judge:
Denise Hansen ("plaintiff') seeks judicial review of a final decision by the Commissioner
of Social Security ("Commissioner") denying her application for Disability Insurance Benefits
("DIB") under Title II of the Social Security Act ("Act"). This court has jurisdiction to review the
Commissioner's decision pursuant to 42 U.S.C. § 405(g). Based on a careful review of the record,
the Commissioner's decision is affomed. 1
Plaintiff applied for DIB on August 10, 2010, alleging disability as of October 1, 2008, due
to tail-bone injury, fatigue, depression, fibrous tumors, gall stones, and mood swings. (Tr. 125-26.)
Her application was denied initially and upon reconsideration. (Tr. 113, 125.) A hearing convened
on June 5, 2014, before an Administrative Law Judge ("ALJ"). (Tr. 42-111.) On June 17, 2014, the
ALJ issued a decision finding plaintiff not disabled. (Tr. 12-22.) Plaintiff timely requested review
of the ALJ' s decision and, after the Appeals Council denied review, plaintiff filed a complaint in this
court. (Tr. 1-3.)
Bom on March 25, 1959, plaintiff was 49 years old on the alleged onset date of disability and
and 54 years old on the date of the hearing. (Tr. 42, 126.) Plaintiff attended high school through the
eleventh grade and did not obtain a GED. (Tr. 49.) She did, however, attend a vocational school
and earned a veterinary tech ce1iificate. Id.
Nancy A. BeITyhill is now the Acting Commissioner of Social Security. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.
Page 2 - OPINION AND ORDER
The court must affirm the Commissioner's decision if it is based on proper legal standards
and the findings arn supported by substantial evidence in the record. Hammockv. Bowen, 879 F.2d
498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It 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) (citation and internal quotations omitted). The court must weigh
"both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez
v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either
a grant or a denial, [a court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue,
486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not less
than 12 months." 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 42 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First, the
Commissioner determines whether a claimant is engaged in "substantial gainful activity;" if so, the
claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b).
At step two, the Commissioner resolves whether the claimant has a "medically severe
impairment or combination ofimpairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c).
If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.
Page 3 - OPINION AND ORDER
At step three, the Commissioner evaluates whether the claimant's impairment meets or
equals "one of a number of listed impairments that the Secretary aclmowledges are so severe as to
preclude substantial gainful activity." Id.; 20 C.F.R. § 404.1520(d). If so, the claimant is presumed
disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant still can perfmm "past
relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. § 404. l 520(f). If the claimant can work, she
is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner.
Yuckert, 482 U.S. at 141.
At step five, the Commissioner must establish that the claimant can perform other work
existing in significant numbers in the national or local economy.
Id. at 142; 20 C.F.R. §
404. l 520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §
The ALJ's Findings
At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since the
alleged onset date. (Tr. 14.) At step two, the ALJ found plaintiff had the following severe
impairments: cervical and lumbar degenerative disc disease. (Tr. 15.)
At step three, the ALJ found that the plaintiff did not have an impaitment or combination of
impairments that met or medically equaled one of a number of impairments that are so severe as to
preclude substantial gainful activity. (Tr. 17.)
Accordingly, the ALJ continued the sequential evaluation process to determine how
plaintiffs medical limitations affected her ability to work. The ALJ resolved that plaintiff had the
following residual functional capacity ("RFC"):
Page 4 - OPINION AND ORDER
[She can] perform medium exe1tion work with lifting and canying of
50 pounds occasionally and 25 pounds frequently, standing and
walking six hours of an eight-hour workday, and sitting six hours of
an eight-hour workday. She is limited to frequent Imeeling,
crouching, and climbing of ramps and stairs. She is limited to
occasional stooping and kneeling. The claimant must avoid
concentrated exposure to operational control of moving machinery,
hazardous machinery, and unprotected heights.
At step four, the ALJ found plaintiff was capable of performing her past relevant work as a
caregiver. (Tr. 21.) Accordingly, the ALJ did not proceed to step five, but concluded instead that
plaintiff was not disabled under the Act. (Tr. 22.)
Plaintiff argues the ALJ erred by: (I) finding plaintiffs symptom testimony not credible; (2)
rejecting the opinion of examining physician Anthony Glassman, M.D.; (3) discrediting lay witness
testimony; and (4) finding plaintiff did not have a severe mental impairment at step two of the
sequential evaluation process.
I. Plaintiffs Testimony
The Ninth Circuit relies on a two-step process for evaluating the credibility of a claimant's
testimony about the severity and limiting effect of the stated symptoms. Vasquez v. Astrue, 572
F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 503 F.3d 1028, 1035-36 (9th Cir.
2007)). "First, the ALJ must determine whether the claimant has presented objective medical
evidence of an underlying impairment which could reasonably be expected to produce the pain or
other symptoms alleged." Lingenfelter, 503 F.3d at 1036 (citation and quotation marks omitted).
Second, absent evidence of malingering, "the ALJ can reject the claimant's testimony about the
severity of her symptoms only by offering specific, clear and convincing reasons for doing so."
Page 5 - OPINION AND ORDER
Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). Fruiher, anALJ "may consider ... ordinmy
techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent
statements concerning the symptoms, ... [orJ other testimony that appears less than candid .... "
Id. at 1284. However, a negative credibility finding made solely because the claimant's symptom
testimony "is not substantiated affirmatively by objective medical evidence" is legally insufficient.
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Nevertheless, the ALJ's credibility
finding may be upheld even if not all of the ALJ' s rationales for rejecting claimant testimony are
upheld. See Batson v. Comm 'r Soc. Sec. Admin., 359 F.3d 1193, 1197 (9th Cir. 2004).
At her administrative hearing, plaintiff testified that she was in pain most of the time, and
had been unable to work full-time since 2012. (Tr. 18, 59.) Plaintiff testified, however, that she
was seeing three clients as a caregiver, was allotted 31 honrs per week by her employer, and was
earning $10 anhonr. (Tr. 18, 71.) Plaintiff felt she was able to stand and walk for 3-4 hours per
8-hour workday, but that she could not work more than two consecutive 8-hour workdays. She
explained that she needed assistance lifting and transfening two of her clients. (Tr. 18, 71, 73-75.)
In her SSA disability application materials, plaintiff indicated she can walk a couple of
blocks and then rest for 5-10 minutes before resuming; can lift 5 pounds with her right arm, but
finds lifting more than 5 pounds ve1y painful; is able to prepare simple meals and perfonn some
housekeeping activities, albeit slowly; is able to drive; socializes with fmnily members; can follow
written or spoken instructions; and gets along "OK" with authority figures. See (tr. 282-87). She
expressed trouble handling stress, and sometimes feels very angry and "tired of eve1ything." Id.
The ALJ found plaintiffs statements "concerning the intensity, persistence, and limiting
effects" of her symptoms not entirely credible. (Tr. 19.) Plaintiff argues the ALJ ened in
Page 6 - OPINION AND ORDER
discrediting her mental impairment allegations as to her anger, inability to deal with others, and
feeling isolated. Plaintiffs Opening Brief ("PL' s Br.") 15. However, the ALJ addressed plaintiffs
alleged anger issues at step two of the sequential evaluation process, finding that they did not have
more than a minimal effect on her ability to perform basic work activities. (Tr. 16.) Specifically,
the ALJ noted that although plaintiffhas had difficulties engaging in appropriate social interactions
at times due to anger, it did not constitute more than a minimal limitation on her ability to work
based on a medically determinable impahment. Id
In support of her findings, the ALJ cited plaintiffs own testimony regarding her ability to
perfo1m her caregiver job which requires frequent, close interactions with her clients. (Tr. 17.) The
ALJ further noted plaintiff did not endorse any difficulties with social functioning in her function
report. Id Accordingly, the ALJ provided clear and convincing reasons to discredit plaintiffs
allegations of disabling anger, and conclude that any limitation was no more than mild. Although
plaintiff has an alternative interpretation of the evidence, the ALJ' s finding is upheld when, as here,
it is rational and supported by substantial evidence in the record. Batson v. Comm 'r ofSoc. Sec.
Admin., 359F.3dI190, 1193 (9th Cir. 2004) (citation omitted).
The ALJ also discredited plaintiffs allegations as to the functional impact of her physical
impairments. For example, the ALJ found plaintiffs ability to perfo1m work and work-like
activities was inconsistent with her allegation of being limited to lifting five pounds. (Tr. 18.)
Plaintiff argues the ALJ mischaracterized her allegation, citing a comment in plaintiffs function
report indicating it was ve1y painful to lift more than five pounds. (Tr. 287 .) While Plaintiff
contends her statement cannot properly be constrned in the manner it was by the ALJ, the relevant
exhibit also reflects plaintiff additionally alleged she can only lift "about 5 lbs with my right arm."
Page 7 - OPINION AND ORDER
(Tr. 282.) Moreover, the ALJ recognized that plaintiffs allegations were not consistent throughout
her function report, as plaintiff "alleged she could only lift five (or 10 per other pmis of the report)
pounds." (Tr. 18, 283 .) Although plaintiff asse1is that there was a "significant difference" between
plaintiffs allegations and the ALJ's findings, plaintiff does not explain how any difference was
significant. See Pl. 's Br. 15. However, even assuming the record is susceptible to more than one
rational interpretation, the Comi must uphold the ALJ's findings because they are supported by
inferences reasonably drawn from the record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.
2012) (citation omitted).
Plaintiff argues next that although she was able to engage in work during the relevant time
period, she was nonetheless hmnpered by pain, and as a result could not work full-time, and "her
hours varied greatly." (Tr. 19.) Regardless of the precise variation in plaintiffs work hours over
the adjudicative time period, the ALJ accurately found that she "had a substillltial amount of paid
work activity after the alleged onset date until the present." Id The ALJ explicitly addressed
plaintiffs argument, noting,"[w]hile her hours have vm·ied greatly, this work activity supports the
ultimate finding that she can sustain work within the residual functional capacity." Id Indeed, the
ability to maintain employment "with a fair amount of success" during an alleged period of
disability has been upheld as convincing evidence supporting a non-disability decision. Drouin v.
Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992).
The ALJ further explained that plaintiff lost her job due to missing a meeting Md refusing
to sign a contract rather thilll any functional impairment arising from a medically-determinable
condition, and indicated at the hearing that her hours were recently increased. Id That a claimant
leaves a job for reasons aside from a medically-determinable impairment are valid grounds to
Page 8 - OPINION AND ORDER
discredit plaintiff testimony. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). Indeed,
although plaintiff now suggests her employment ended due to her inability to get along with her
superiors at work, plaintiff testified that she essentially quit her caregiver job at Ashley Manor in
2013. (Tr. 15, 19, 63-65.) There is no indication in the record that her employment was to be
discontinued until she failed to show-up to work after collecting a paycheck. (Tr. 65.) Thereafter,
she was employed by History Makers beginning in January 2014 through June 2014, the date of the
decision; further, she was scheduled to increase her hours to 31 hours per week, and had three
clients at the time. (Tr. 18.) For the foregoing reasons, the ALJ rationally interpreted the record
and made specific findings with suppmied by the record; thus, plaintiffs alternate interpretation is
unavailing. Molina, 674 F.3d at 1111.
Plaintiff also contends the ALJ failed to adequately support the finding that plaintiffs
subjective pain allegations were inconsistent with the objective medical evidence. Plaintiff provides
medical imagining evidence and medical descriptions of her degenerative disc disease and facet
joint arthrosis, both of which, she argues, cause pain. Pl.'s Br. 15. However, as plaintiff
recognizes, pain is subjective, and an ALJ is not compelled to simply accept all of a plaintiffs pain
allegations. Dodrill v. Shala/a, 12 F.3d 915, 917 (9th Cir. 1993) (citation omitted). Here, the ALJ
provided other valid rationales in finding plaintiffs allegations not fully credible. See Rollins v.
Massanari, 261 F.3d 853, 857 (9th Cir. 2001) ("While subjective pain testimony cannot be rejected
on the sole ground that it is not fully corroborated by objective medical evidence, the medical
evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling
effects.") (citing 20 C.F.R. § 404.1529(c)(2)).
Moreover, the ALJ provided a thorough summary and analysis of the medical record, in
Page 9 - OPINION AND ORDER
which she found significant gaps between treatments. The ALJ pointed out that although the
adjudicative period in this case began in January 2010, plaintiff did not report back pain until
November 2010, where she had full range of motion with tenderness in her lumbar spine upon
examination. (Tr. 20, 367-68, 3 74-75.) Despite her allegedly disabling pain, she did not again seek
treatment for her back until May 2012. (Tr. 20, 354, 415-18.) Thereafter, there was a break in
treatment until January 2014. (Tr. 20, 458-62.) After thoroughly reviewing the medical record, the
ALJ determined that the "limited treatment record and lack of significant objective findings"
demonstrated plaintiff was not as limited as she alleged. (Tr. 20.) An" individual's statements may
be less credible if the level of frequency of treatment is inconsistent with the level of complaints."
Molina, 674 F.3d at 1114 (citation omitted). The ALJ's rationale is valid.
Finally, plaintiff argues the ALJ erred by evaluating her receipt of unemployment benefits.
Specifically, plaintiff asserts the record is unclear as to whether she held herself out as being able
to work full-time in order to receive benefits. The ALJ stated:
While she claims to be unable to sustain full time [work], receipt of
unemployment requires that during times her hours were reduced, she
was willing to accept other full time, pati time, or temporary work,
and that she was physically and mentally capable of performing such
work. Therefore, she was affirming that she would be able to work
additional hours to what she was already.
(Tr. 19.) Plaintiff agues her position is supp01ted by Carmickle v. Comm'r, Soc. Sec. Admin., 533
F.3d 155, 1161 (9th Cir. 2008), in which the Ninth Circuit panel found the record did not clearly
establish that Carmickle held himself out as able to perform full-time as opposed to merely patt-time
work. Id The Commissioner contends Carmickle is inapposite because in the instant case plaintiff
was working pait-time when she requested benefits, so arguably she was able to work more than
part-time. Def.' s Br. 13. Although the somewhat vague evidence suggests plaintiff was willing to
Page 10 - OPINION AND ORDER
work more than part-time, the evidence does not necessarily reflect plaintiff was willing to accept
full-time employment. Given that the record is vague on the issue, the ALJ's rationale does not meet
the clear-and-convincing legal standard.
Nonetheless, any etTor in evaluating plaintiffs receipt of unemployment benefits is harmless
in light of the other valid reasons the ALJ cited for impugning her symptom allegations. In other
words, despite the enor, the ALJ' s other findings remain supported by substantial evidence, and were
articulated with adequate clarity and specificity. The remainder of the ALJ's findings regarding the
credibility of plaintiffs allegations regarding her pain and functional limitations are, therefore,
upheld. Carmickle, 533 F.3d at 1162 (citing Batson, 359 F.3d at 1195-97).
Medical Opinion Evidence
Plaintiff assigns enor to the ALJ' s assessment of examining physician Anthony Glassman,
M.D. 2 An ALJ is responsible for resolving ambiguities and conflicts in the medical testimony.
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ must provide clear and
convincing reasons for rejecting the uncontradicted medical opinion of a treating or examining
physician, or specific and legitimate reasons for rejecting contradicted opinions, so long as they are
supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
Nonetheless, treating or examining physicians are owed deference and will often by entitled to the
greatest, if not controlling, weight. Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007) (citation and
The Court notes that plaintiff does directly contest the ALJ's evaluation of the medical
opinion of examining psychologist Allan R. Kirkendall, Ph.D in her written arguments. Because
the court declines to manufacture the argument, and instead will "review only issues which are
argued specifically and distinctly in a party's opening brief." Indep. Towers of Wash. v. Wash.,
350 F.3d 925, 929 (9th Cir. 2003) (quoting Greenwood v. Fed Aviation Admin., 28 F.3d 971,
977 (9th Cir. 1994)).
Page 11 - OPINION AND ORDER
internal quotation omitted). An ALJ can satisfy the substantial evidence requirement by setting out
a detailed summary of the facts and conflicting evidence, stating his interpretation, and making
findings. Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 1999). However,
"the ALJ must do more than offer his conclusions. He must set forth his own interpretations and
explain why they, rather than the doctors', are correct." Reddick, 157 F.3d at 725 (citation omitted).
On this record, Dr. Glassman's assessment was contradicted in part by the State agency medical
examiners. Accordingly, the ALJ's reasons for rejecting the doctor's opinion must be specific and
legitimate, and supported by substantial evidence. See Garrison, 759 F.3d at 1012.
Dr. Glassman, following a January 2011 musculoskeletal examination, opined that plaintiff
could stand and walk up to four hours per workday for no more than one hour at a time, and lift 20
to 35 pounds occasionally and 10 to 20 pounds frequently. (Tr. 20, 330.) The ALJ rejected the
extent of Dr. Glassman's limitation assessment, adopting instead the State agency doctors'
limitations of standing or walking six of eight hours, and lifting 50 pounds occasionally and 25
(Tr. 18, 21, 120-21, 134-35.) The ALJ explained that she rejected Dr.
Glassman's findings because they did not correlate to objective findings. (Tr. 20.) Indeed, Dr.
Glassman noted there were "no objective findings on examination thus subjective complaints do not
correlate with the exam." (Tr. 330.) The ALJ determined, therefore, that Dr. Glassman's physical
restrictions wananted only limited weight because they were not supported by objective medical
findings, although Dr. Glassman performed a widerangeofmusculoskeletal tests. (Tr. 330, 332-33.)
An ALJ is not required to accept any medical opinion that is brief, conclusory, or otherwise
inadequately supported by clinical findings. Bayliss, 427 F.3d at 1216. Both the ALJ and the State
agency doctors determined that Dr. Glassman's exertional limitations were, by the doctor's own
Page 12 - OPINION AND ORDER
reckoning, not supported by objective findings. The record substantiates the lack of objective
findings, as the results from Dr. Glassman's examination results all bear the same checkmark. See
(tr. 332-33). Dr. Glassman further noted that there was "no evidence of joint deformity, effusion,
erythema, or crepitus." (Tr. 330.) The doctor also observed full motor strength, nmmal gait, and
heel and toe walking without difficutly. Id Accordingly, there does not appear to be any objective
basis for Dr. Glassman's assessed limitations.
Plaintiff argues that subsequent medical imaging results revealed mild facet joint artlu·osis
at 14-5 and moderate naiTowing due to degenerative disc disease at 15-Sl. Nevertheless, the
imaging results do not change the fact that Dr. Glassman did not identify any range of motion
deficiencies despite exaininingvirtually all of plaintiffs bodily joints. (Tr. 332-33.) Moreover, Dr.
Glassman himself admitted that plaintiffs subjective pain complaints did not correlate to the absence
of objective findings. (Tr. 330.) As such, plaintiffs contention that Dr. Glassman "made his
physical exertional findings consistent with his examination" is not supported by the record. See
Pl.' s Br. 12. Instead, the A1J reasonably inferred Dr. Glassman assessed physical limitations despite
finding no objective evidence of physical limitations. (Tr. 330.) Thus, the A1J did not en-.
Plaintiff further ai·gues the A1J's analysis was deficient to the extent she failed to describe
how her findings, rather than Dr. Glassman's, were correct. Pl. 's Br. 12. However, the ALJ
explained that she chose to adopt the State agency doctors' functional assessment because it was
"consistent with the claimant's work history and her continued work that involves assisting clients
with transfers." (Tr. 21.) Accordingly, the limitations assessed by the A1J were not mbitrary.
Plaintiff additionally argues the ALJ erred by failing to account for Dr. Glassman' s opinion
that plaintiff would need occasional breaks during her six hours of sitting during the workday. Pl.' s
Page 13 - OPINION AND ORDER
Br. 12-13. However, the ALJ provided a specific and legitimate reason to disregard Dr. Glassman's
opinion, and regardless of the special deference accorded treating and examining physicians, an ALJ
is not required to accept any medical opinion that is not adequately supported by clinical findings.
Bayliss, 427 F.3d 1211, 1216 (9th Cir. 2005). For all of the foregoing reasons, the ALJ did not err
in rejecting Dr. Glassman's opinion.
Lay Witness Testimony
Plaintiff argues the ALJ erred by rejecting the lay witness testimony of her mother, Linda
Fabrazio, who completed a function report on December 9, 2010. See (tr. 274-81). Lay witness
testimony is competent evidence which an ALJ must take into account unless the ALJ provides a
germane reason to disregard it. Dodrill, 12 F.3d at 919; see also Bruce v. Astrue, 557 F.3d 1113,
1115 (9th Cir. 2009).
Here, the ALJ summarized Ms. Fabrazio's written testimony, which described that plaintiff
"was easily frustrated, couldn't malce change, and was in pain[,]" but found that "other evidence of
record does not support the mentally based assertions and there are few mentions ofphysically based
limitations .... " (Tr. 19.) Plaintiff argues the ALJ' s reasoning "is not supported by the medical
evidence," alleging the ALJ enoneously found plaintiff did not have a "severe" mental impairment
at step two of the sequential evaluation process. Pl.'s Br. 13-14. Plaintiff further argues "the ALJ's
assertions are not factually based." Id
Plaintiff's arguments are unpersuasive. The ALJ reasoned that plaintiff had been able to
maintain work despite her mental and physical limitations.
Specifically, the ALJ noted that
plaintiffs work "require[d] substantial interaction with clients for years." (Tr. 17 .) The ALJ also
pointed out that despite her allegations of severe mental limitation at the hearing, plaintiff did not
Page 14- OPINION AND ORDER
endorse significant problems in social functioning in her self-report. (Tr. 286-89.) Rather, she
indicated she did not have problems getting along with family, friends, neighbors or others; is good
at following spoken instructions; gets along "OK" with authority figures; and has never been fired
or laid off from a job because of problems getting along with other people. (Tr. 287.) Accordingly,
it was neither unreasonable nor factually e!Toneous for the ALJ to find Ms. Fabrazio's assertions
unsupported by the record, particularly considering plaintiffs testimonial evidence. Such an
inconsistency is routinely upheld as a valid, germane rationale in the Ninth Circuit. See Lewis v.
Apfel, 236 F.3d 503, 512 (9th Cir. 2001) (inconsistency between a lay witness and claimant
testimony is a germane reason to reject lay witness testimony); see also Bayliss, 427 F.3d at 1218
("The ALJ accepted the testimony ofBayliss's family and friends that was consistent with the record
... he rejected the p01iions of their testimony that did not meet this standard .... ").
Step Two Assignment ofE!Tor
Plaintiff argues the ALJ erred by declining to find a severe mental impairment at step two
of the sequential evaluation process. Here, the ALJ considered whether plaintiff had a medically
dete1minable mental impairment that significantly limited her ability to perform basic work
activities, and has lasted or is expected to last for at least 12 months. See 20 C.F.R. §
404.1520(a)(4)(ii), (c). Fmiher, the medically determinable mental impairment must result from
anatomical, physiological, or psychological abnormalities which can be shown by medically
acceptable clinical and laboratory techniques, not merely reported symptoms.
20 C.F.R. §
404.1528(a), (b). ALJ e!Tors of omission at step two are often harmless if the step is decided in a
claimant's favor. Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). When an ALJ considers
evidence oflimitations posed by all ofa claimant's impahments at step four, any error in omitting
Page 15 - OPINION AND ORDER
that impairment at step two is harmless. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
Here, the ALJ decided step two of the evaluation process in plaintiffs favor. (Tr. 15.)
Fmihermore, despite declining to find any mental impairments at step two, the ALJ nonetheless
considered and discussed whether plaintiff had any mental limitations that affected her residual
functional capacity. For example, the ALJ noted plaintiff denied having problems getting along with
others, despite her contradictmy allegations of severe anger issues. (Tr. 19, 287.) The ALJ also
considered that despite plaintiffs alleged mental limitations, she was neve1iheless able to engage
in "a substantial amoUllt of work and work-like activity throughout the alleged period of disability."
(Tr. 19.) The ALJ additionally observed that plaintiff indicated she stopped working in June 2010
due to moving to Oregon rather than due to any severe impairment, and described simply walking
away from her care-giver job at Ashley Manor after collecting a paycheck, rather than being
terminated for impairment-related reasons. (Tr. 19, 63-65.) Finally, the ALJ foUlld that plaintiff was
employed at the time of the hearing acting as a care-giver to three clients, and that her hours had
recently increased to 31 hours per week. (Tr. 19, 71.) As the ALJ indicated, plaintiffs job at the
time of the hearing constituted substantial gainful activity. (Tr. 15, 21.) For these reasons, the
record reflects the ALJ properly considered plaintiffs mental impairments at step four. Therefore,
any error at step two is necessarily harmless. Burch, 400 F.3d at 682; Lewis, 498 F.3d at 911.
Plaintiff contends that two Ninth Circuit cases illustrate the ALJ erred by not finding any
severe mental impairment at step two. First, plaintiff cites Edlund v. Massanari, 253 F.3d 1152,
115 8 (9th Cir. 2001 ), for the proposition that a step two error may not be harmless where the ALJ
omits a pariicular a severe impairment, but nonetheless decides the step in plaintiffs favor. Pl.' s Br.
8-9; Pl.'s Reply 4-5. However, in contrast to Burch, the ALJ's step two error in Edlund was not
Page 16 - OPINION AND ORDER
harmless because that ALJ failed to consider the effects of Edlund's mental impahment at
subsequent steps of the evaluation process. See Edlund, 253 F.3d at 1160 ("[T]he ALJ failed to
factor Edlund's mental impairments into her step 5 analysis .... "). Thus, Edlund does not stand for
the proposition that an ALJ' s en·or in finding an impairment non-severe at step two is harmful e1rnr
per se, even if the step was decided in plaintiffs favor. Rather, Edlund is distinguishable because
the ALJ in that case neglected to consider all of the impairments at subsequent steps, in contrast to
the step two en·or alleged in Burch, and that in the case at bar. Supra.
Plaintiff also asserts that Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005), requires
the Commissioner carry the burden of proof at step two to prove that plaintiffs alleged mental
impahment is de minimus. Pl. 's Reply 1-4. Plaintiff, however, misconstrnes the language in Webb.
The relevant passage states:
[AJn ALJ may find that a claimant lacks a medically severe
impairment or combination ofimpairments only when his conclusion
is "clearly established by medical evidence" ... applying our normal
standard of review to the requirements of step two, we must
determine whether the ALJ had substantial evidence to find the
medical evidence clearly established that Webb did not have a
medically severe impairment or combination of impairments.
Webb, 433 F.3d at 687. Plaintiff asserts that the passage stands for the proposition that the
Commissioner carries the burden of proving that each separate impairment at step two has no more
than a de minimus impact on the claimant's ability to work. Pl.' s Reply 2. This reading is erroneous.
First, the passage emphasizes that the Commissioner is "applying our normal standard of
review to the requirements of step two .... " Webb, 433 F.3d at 687. The normal standard ofreview
refe1Ted to in Webb is that the burden of proof rests on the claimant as to steps one through four, and
shifts to the Commissioner only at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999);
Page 17 - OPINION AND ORDER
accord Bustamante v. Massanari, 262 F.3d 949, 953 (9th Cir. 2001). Because the ALJ in Webb did
not find any severe impairments at step two, and did not proceed to subsequent steps in the
evaluation process, the circuit court had to determine if that finding was suppmied by substantial
evidence. Webb, 433 F.3d at 687. Whereas the plaintiff in Webb alleged the ALJ eJTed in finding
the claimant did not have "a severe impairment or combination of impairments[,]" here, plaintiff
contends the ALJ failed to find a specific impairment was severe. Id Plaintiffs reliance on Webb
is misplaced because here the ALJ subsequently considered the evidence of the impact of the
allegedly omitted impairment at later steps, nullifying the harm of the alleged error. See, e.g., Lewis,
498 F.3d at 911; Burch, 400 F.3d at 682; see also Bickellv. Astrue, 343 Fed.Appx. 275, 278 (9th Cir.
2009). Because the ALJ in Webb ended the inquiry after step two, and found Webb not disabled,
the error was harmful. See Stout v. Comm 'r, 454 F.3d 1050, 1054 (9th Cir. 2006).
Finally, plaintiff argues the ALJ found no severe mental impairment at step two because she
did not adequately consider medical records from Douglas County Mental Health. Pl. 's Reply 2-3.
However, for the reasons described above, even assuming the ALJ erred in failing to find a severe
mental impairment at step two, any error was harmless. Moreover, the record reflects that the ALJ
explicitly considered records from Douglas County Mental Health in determining whether plaintiffs
mental impaitment was severe. See (tr. 16 (citing tr. 442)).
This court's assessment of the Commissioner's decision is "a highly deferential standard of
review." Valentine v. Comm 'r Soc. Sec. Admin, 574 F.3d 685, 690 (9th Cir. 2009). For all the
reasons explained herein, the ALJ's decision comports with the record as a whole, and is based on
substantial evidence such that "a reasonable mind might accept it as adequate to support a
conclusion." Desrosiers v. Secretary of HHS., 846 F.2d 573, 575-76 (9th Cir. 1988) (internal
Page 18 - OPINION AND ORDER
For the reasons stated above, the Commissioner's decision is AFFIRMED and this case is
IT IS SO ORDERED.
DATED this 21st day of April 2017.
· ed States Magistrate Judge
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