Crawford v. Commissioner Social Security Administration
Opinion and Order - The Commissioner's opinion is supported by substantial evidence and free from harmful error. ALJ Michaelsen's opinion that Plaintiff is not disabled is AFFIRMED. Signed on 8/4/2017 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TONY ALLEN CRAWFORD,
Case No. 6:16-cv-748
OPINION AND ORDER
NANCY A. BERRYHILL,
Commissioner of Social Security,
Katherine L. Eitenmiller and Brent Wells, HARDER, WELLS, BARON & MANNING, P.C., 474
Willamette Street, Eugene, OR 97401 Of Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Janice E. Hébert, Assistant United States
Attorney, UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland,
OR 97204; Sarah Moum, Special Assistant United States Attorney, OFFICE OF GENERAL
COUNSEL, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA
98104. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Mr. Tony Allen Crawford seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying his application for
Supplemental Security Income (“SSI”) pursuant to the Social Security Act. For the following
reasons, the Commissioner’s decision is affirmed.
PAGE 1 – OPINION AND ORDER
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
PAGE 2 – OPINION AND ORDER
A. Plaintiff’s Application
Plaintiff filed an application for SSI on March 3, 2011, alleging disability beginning on
July 1, 2006. Administrative Record (“AR”) 177, 178.1 In Plaintiff’s application, he alleged
disabilities limiting his capacity for work, including illiteracy, a back injury, and foot pain.
AR 214. The Commissioner denied Plaintiff’s application initially on August 25, 2011, and on
reconsideration on February 9, 2012. AR 112; AR 120. On February 24, Plaintiff requested a
hearing, 2012, and Administrative Law Judge (“ALJ”) Alan Beall presided over a hearing on
April 3, 2013. AR 124; AR 34. The ALJ issued an unfavorable decision on May 20, 2013.
AR 15. Plaintiff requested a review of the ALJ’s decision by the Appeals Council, which denied
Plaintiff’s request on November 7, 2013. Plaintiff filed a complaint seeking review of the final
decision of the Commissioner before this Court on December 31, 2013. AR 521. Plaintiff and the
Commissioner subsequently stipulated that an ALJ would “update the medical record; develop
and evaluate the claimant’s education; obtain vocational expert (“VE”) testimony; and offer the
Plaintiff an opportunity for a new hearing” before issuing a decision. AR 513. Judge
Marco Hernández entered a judgment and order of remand to that effect on October 28, 2014. Id.
Plaintiff filed another application for SSI on July 1, 2014. AR 536. That claim was
approved on March 12, 2015. Id. On April 20, 2015, the Appeals Council informed Plaintiff that
the favorable determination had been reopened, good cause existed to find that the favorable
determination was made in error, and that the Appeals Council intended to combine the reopened
favorable determination with the unfavorable determination remanded by Judge Hernández for
further proceedings and a new decision by an ALJ. AR 554. The Appeals Council determined
Mr. Crawford had assistance with completing the application due to his difficulties with
reading and writing. See AR 227.
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that the favorable decision was not supported by substantial evidence because it relied on the
erroneous finding that Plaintiff did not have past relevant work. AR 555.
ALJ John Michaelsen presided over a hearing on Plaintiff’s application on December 23,
2015. AR 416. On February 24, 2016, ALJ Michaelsen denied Plaintiff’s claim. AR 394-406.
Although during the hearing ALJ Michaelsen referenced the Appeals Council’s decision
reopening the favorable decision based on Plaintiff’s July 1, 2014 application, in the ALJ’s
written decision, ALJ Michaelsen did not reference the July 1, 2014 application or the reopened
favorable decision based that application. ALJ Michaelsen instead focused only on the March 3,
2011 application and the unfavorable decision based on that application, which had been
remanded for further proceedings by Judge Hernández. The Court has jurisdiction to review ALJ
Michaelsen’s decision pursuant to 20 C.F.R. § 416.1484(d).
B. The Sequential Analysis
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 12 months[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
PAGE 4 – OPINION AND ORDER
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
PAGE 5 – OPINION AND ORDER
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
ALJ Michaelsen applied the sequential analysis described above. At step one, the ALJ
found that Plaintiff had not engaged in any substantial gainful activity since the application date
of March 3, 2011. AR 396. At step two, the ALJ found that Plaintiff had severe impairments of
borderline intellectual functioning with a reading and writing disorder, depression, obesity, and
mild left knee degenerative joint disease. AR 396. The ALJ acknowledged that there were other
symptoms and complaints in the record, but found that they did not persist for twelve months,
caused only mild symptoms, were well controlled by treatment, were not well-documented, or
caused no greater than minimal limitation to Plaintiff’s ability to perform work. AR 396-97. At
step three, the ALJ found that Plaintiff’s impairments did not meet the criteria of any listed
impairment singularly or in combination. AR 397. The ALJ found that the Plaintiff has moderate
restriction in activities of daily living, moderate difficulties in social functioning, and moderate
difficulties with concentration, persistence, or pace. AR 398.
PAGE 6 – OPINION AND ORDER
The ALJ found that Plaintiff has the RFC to perform medium work limited to simple,
routine, repetitive tasks requiring no more than occasional interaction with co-workers and the
general public. AR 400. At step four, the ALJ found that Plaintiff was unable to perform past
relevant work as a construction laborer. AR 405. At step five, the ALJ found Plaintiff capable of
performing jobs that exist in significant numbers in the national economy based on Plaintiff’s
age, education, work experience, and RFC. AR 405. Based on VE testimony, the ALJ identified
the Dictionary of Occupational Titles (“DOT”)-listed roles of janitor, sorter of small wood
products, and laundry worker II as possible jobs suited to Plaintiff’s criteria. AR 406. As a result
of the five-step analysis, the ALJ found Plaintiff “not disabled” from the filing of Plaintiff’s
application to the date of the hearing and rejected the application for SSI. AR 406.
Plaintiff argues that ALJ Michaelsen erred by: (a) finding that Plaintiff had past relevant
work and incorrectly categorizing Plaintiff as not disabled based on the Medical-Vocational
Guidelines; (b) discounting the medical opinion of Dr. Scott Alvord, Psy.D.; and (c) discounting
Plaintiff’s symptom testimony without providing clear and convincing reasons supported by
substantial evidence. The Court addresses each argument in turn.
A. Plaintiff’s Past Relevant Work and Classification under the Medical-Vocational
Plaintiff challenges ALJ Michaelsen’s finding that Plaintiff is capable of performing
work existing in significant numbers in the national economy on the grounds that his previous
work experience consisted of a series of brief and temporary jobs that were factually
misrepresented by the VE. Plaintiff asserts that, properly represented, these brief periods of
employment do not constitute substantial gainful activity. Plaintiff further contends that if the
PAGE 7 – OPINION AND ORDER
ALJ properly had found that Plaintiff had no substantial gainful activity, Plaintiff would be
classified as disabled under the Medical-Vocational Guidelines.
“Past relevant work is work that [a claimaint has] done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it.” 20
C.F.R. § 416.960. The duration of past relevant work “should have been sufficient for the worker
to have learned the techniques, acquired information, and developed the facility needed for
average performance in the job situation. The length of time this would take depends on the
nature and complexity of the work.” SSR 82-62 (1982) available at 1982 WL 31386, *2. “An
individual who has worked only sporadically or for brief periods of time during the 15-year
period, may be considered to have no relevant work experience.” Id.
The parties dispute the length of time Plaintiff performed past work and whether that
work qualifies as past relevant work. The ALJ’s decision found without discussion that Plaintiff
has past relevant work as a construction laborer, which the DOT classifies as very heavy
exertional work activity with a Specific Vocational Preparation (“SVP”) level of two. See DOT,
869.687-026 (4th ed. 1991) available at 1991 WL 687635. At the hearing, the ALJ stated that he
would follow the decision of the Appeals Council to consider Plaintiff’s construction work in
2005 as “past relevant work.” AR 418-19. The ALJ did not permit argument by Plaintiff’s
attorney to the contrary.2 The ALJ later stated that, based on the findings of the Appeals Council,
he felt he had no choice but to find that Plaintiff had relevant work experience. AR 421. The
Appeals Council reopened Plaintiff’s favorable decision because the Appeals Council found that
the VE reported Plaintiff worked for six months, from June 2005 through November 2005, and
ALJ: “I’m going to stop you right there, and I’ll answer that question. According to
what the Council said, it is past relevant work, and I’m going to go ahead and find that it is past
relevant work.” Plaintiff’s attorney then attempted to explain his position. The ALJ responded,
“Counsel, I don’t want to hear it. I flat out don’t want to hear it. Please move on.” AR 418-19.
PAGE 8 – OPINION AND ORDER
that the analysis of Plaintiff’s income during that time had been incorrectly calculated in the
favorable decision. AR 555-56. As a result, the Appeals Council found Plaintiff did have past
relevant work. Id.
Plaintiff asserts that he only worked in construction for three months and not the six
months found by the Appeals Council. Whether Plaintiff worked three or six months is not
dispositive. Assuming without deciding that Plaintiff worked only three months, his work at the
Ash Grove Cement Company could still qualify as past relevant work. Within the past fifteen
years, Plaintiff has performed substantial gainful activity long enough to learn the relevant work.
Plaintiff does not contest that he worked at Ash Grove in 2005 long enough to learn the task, and
his tenure exceeds the SVP level’s limitation to “[a]nything beyond short demonstration and up
to and including 1 month” for learning how to perform the work. See DOT 689.687-026 (listing
for construction laborer, including SVP level and definition).
Plaintiff contends that his work at Ash Grove does not count as substantial gainful
activity because of its limited tenure, but the Court does not find this argument persuasive.
“Ordinarily, work you have done will not show that you are able to do substantial gainful activity
if, after working for a period of 6 months or less, you were forced by your impairment to stop
working.” 20 C.F.R. § 416.974 (emphasis added). Plaintiff does not allege that he was forced to
stop working due to his impairment. Instead, Plaintiff testified that he was a “fill-in” or “temp”
for an injured worker in a position that was only intended to last until the injured worker
returned. AR 441, 457-58. Based on the evidence in the record, Plaintiff’s termination was
caused by the return of the injured worker Plaintiff was temporarily hired to replace, not his
impairment. Although Plaintiff may not have been able to sustain his employment at other jobs
due to his mental impairments and his limited reading and writing skills, the record does not
PAGE 9 – OPINION AND ORDER
reflect that any impairment led to his termination at Ash Grove. The ALJ’s conclusion that
Plaintiff’s construction labor qualified as past relevant work was a reasonable interpretation of
the record and is entitle to deference.
The cases Plaintiff cites in support of his claim that he does not have past relevant work
are distinguishable or inapposite. In Gatliff v. Comm’r Soc. Sec. Admin., the VE testified that the
plaintiff was “incapable of sustaining employment for a period longer than approximately two
months.” 172 F.3d 690, 691, 693 (9th Cir. 1999).3 There is no such similar testimony here. In
Slack v. Astrue, it was not the claimant’s tenure at her past relevant work at issue. 2011
WL 534049 (E.D. Cal. Feb. 14, 2011). Instead, the court found that there was no substantial
evidence that the plaintiff could perform her past relevant work because her allegedly disabling
condition might preclude her from that type of work. Id. at *4. There is no analogy to the present
case. Similarly, in Hayhurst v. Astrue, whether the plaintiff in that case had worked long enough
to constitute substantial gainful activity was not at issue. 2012 WL 5064783, *8 (C.D. Cal. Oct.
In sum, the ALJ’s opinion, taken in light of the Appeals Council’s decision and the
record as a whole, is supported by substantial evidence. As a result, ALJ Michaelsen did not err
in finding that Plaintiff had past relevant work and in applying the Medical-Vocational
B. Discounting an Examining Medical Source Opinion
Plaintiff argues that the ALJ improperly discounted the opinion of examining
psychologist Scott Alvord, Psy.D., and as a result incorrectly determined Plaintiff’s mental RFC.
The Commissioner responds that ALJ Michaelsen properly discounted Dr. Alvord’s opinion and
Plaintiff also quotes and cites Senko v. Astrue, 279 F. App’x 509, 511 (9th Cir. 2008),
but that citation is to a parenthetical quoting Gatliff.
PAGE 10 – OPINION AND ORDER
provided specific and legitimate reasons supported by substantial evidence for doing so. ALJ
Michaelsen gave the opinion of Dr. Alvord, an examining physician, no weight. AR 404. The
ALJ gave the opinion of Dr. Douglas Smyth, an examining physician, great weight, and the
opinion of Dr. Katie Ugolini, an examining physician, significant weight. Id. The ALJ also gave
significant weight to the non-examining psychological consultants Joshua J. Boyd, Psy.D., and
Dr. Dorothy Anderson, Ph.D. Id
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians’ opinions. Carmickle, 533 F.3d at 1164. The Ninth Circuit distinguishes
between the opinions of three types of physicians: treating physicians, examining physicians, and
non-examining physicians. Generally, “a treating physician’s opinion carries more weight than
an examining physician’s, and an examining physician’s opinion carries more weight than a
reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). If a treating
physician’s opinion is supported by medically acceptable techniques and is not inconsistent with
other substantial evidence in the record, the treating physician’s opinion is given controlling
weight. Id.; see also 20 C.F.R. § 404.1527(d)(2). A treating doctor’s opinion that is not
contradicted by the opinion of another physician can be rejected only for “clear and convincing”
reasons. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). If a treating doctor’s
opinion is contradicted by the opinion of another physician, the ALJ must provide “specific and
legitimate reasons” for discrediting the treating doctor’s opinion. Id.
In addition, the ALJ generally must accord greater weight to the opinion of an examining
physician than that of a non-examining physician. Orn, 495 F.3d at 631. As is the case with the
opinion of a treating physician, the ALJ must provide “clear and convincing” reasons for
rejecting the uncontradicted opinion of an examining physician. Pitzer v. Sullivan, 908 F.2d 502,
PAGE 11 – OPINION AND ORDER
506 (9th Cir. 1990). If the opinion of an examining physician is contradicted by another
physician’s opinion, the ALJ must provide “specific, legitimate reasons” for discrediting the
examining physician’s opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ may
reject an examining, non-treating physician’s opinion “in favor of a nonexamining, nontreating
physician when he gives specific, legitimate reasons for doing so, and those reasons are
supported by substantial record evidence.” Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995),
as amended (Oct. 23, 1995).
Specific, legitimate reasons for rejecting a physician’s opinion may include its reliance
on a claimant’s discredited subjective complaints, inconsistency with medical records,
inconsistency with a claimant’s testimony, and inconsistency with a claimant’s daily activities.
Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Andrews, 53 F.3d at 1042-43. An
ALJ effectively rejects an opinion when he or she ignores it. Smolen, 80 F.3d at 1286.
The opinions of Dr. Smyth and Dr. Ugolini both contradict the opinion of Dr. Alvord in
key aspects. Neither Dr. Smyth nor Dr. Ugolini found Plaintiff suffered any limitations greater
than the moderate level regarding his mental RFC. AR 689-90; AR 380. Dr. Alvord found that
Plaintiff was markedly limited in the ability to understand and remember detailed instructions,
the ability to carry out detailed instructions, the ability to work in coordination with or proximity
to others without being distracted by them, and the ability to set realistic goals or make plans
independently of others. AR 763-65. To reject Dr. Alvord’s opinion given these contradictions,
the ALJ must provide “specific, legitimate” reasons. See Lester, 831 F.3d at 830.
ALJ Michaelsen gave several reasons for according Dr. Alvord’s opinion no weight,
discussed below. The ALJ’s reasoning was difficult to follow because of the lack of clarity about
how or why elements of Dr. Alvord’s opinion highlighted in the decision should result in that
PAGE 12 – OPINION AND ORDER
opinion being discounted. Courts will, however, “uphold a decision of less than ideal clarity if
the agency’s path may reasonably be discerned.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The Commissioner has provided several
explanations in briefing of why the ALJ properly rejected Dr. Alvord’s opinion that do not have
a plausible basis in the ALJ’s written opinion. Because courts cannot affirm the Commissioner’s
decision on grounds the ALJ did not rely on in making his decision, those arguments are not
addressed. See Orn, 495 F.3d at 630.
In discussing the weight given to Dr. Alvord’s opinion, the ALJ first noted that
Dr. Alvord attributed Plaintiff’s anxiety to his childhood abuse and burns, but Dr. Alvord
reported Plaintiff’s mental status was fairly normal, his memory was intact, and his IQ scores
were in the borderline range. AR 404. At the outset, it is important to note that Dr. Alvord’s
opinion does not attribute all of the limitations faced by Plaintiff to his childhood trauma or his
anxiety. AR 760. Dr. Alvord diagnosed Plaintiff with persistent depressive disorder of mild to
moderate severity, anxiety disorder, borderline intellectual functioning, and a learning disorder
with impairment in reading, written expression, and mathematics. Id. Dr. Alvord does
specifically link some of Plaintiff’s depression and anxiety to his childhood trauma, AR 755, but
the opinion recognizes other underlying impairments affecting Plaintiff in combination. For
example, Dr. Alvord wrote that Plaintiff drew a connection between his learning disorder issues
and his anxiety and depression. AR 757. The ALJ’s decision on this point lacks the required
specificity to reject an examining doctor’s medical opinion. It is not clear from the record or the
ALJ’s opinion that Plaintiff’s anxiety caused by childhood abuse and injury should reasonably be
expected to produce abnormal mental status at the time of examination or memory problems.
Without a legitimate reason or basis in the record to draw those inferences, Dr. Alvord’s
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diagnosis is not necessarily inconsistent with these symptoms and it is not apparent why it should
be discounted. Similarly, the Court cannot discern the inference the ALJ has drawn from the
relationship between Plaintiff’s childhood trauma and his borderline IQ scores.
The ALJ also found that Plaintiff’s stated activities of daily living were “completely
inconsistent” with Dr. Alvord’s findings. AR 404. Plaintiff’s daily living activities include
keeping his studio apartment clean, going to the store occasionally, doing laundry, cooking, and
caring for his grandchildren for about four hours twice a week, without lifting them. AR 401402. Plaintiff has also testified that he needs to “spread out” his daily living activities due to
pain. AR 401.
Marked limitations preclude the ability to perform designated activities on a regular and
sustained basis, while moderate limitations “seriously interfere” with the ability to perform those
activities on a regular and sustained basis. See 20 C.F.R. § 416.920a(c)(4); AR 762. In addition
to numerous moderate limitations, Dr. Alvord found that Plaintiff was markedly limited in the
ability to understand, remember, and carry out detailed instructions; the ability to work in
coordination with or proximity to others without being distracted by them; and the ability to set
realistic goals or make plans independently of others. AR 763-65. The ALJ has not specifically
explained nor can the Court reasonably infer how the limitations diagnosed by Dr. Alvord are
exceeded by the modest activities of daily living described in the ALJ’s decision or how they are
In addition, the ALJ found that “there is nothing in the [Plaintiff]’s work history,
treatment history, or the doctor’s examination and testing results that would explain or provide a
basis for the significant limitations [Dr. Alvord] imposed.” AR 404. The ALJ’s interpretation of
the record is not supported by substantial evidence. As discussed above, Dr. Alvord’s
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determination of Plaintiff’s limitations rely on multiple diagnoses, including borderline
intellectual functioning, depression, anxiety, and a learning disorder with impairment in reading,
written expression, and mathematics. In Dr. Alvord’s opinion, objective medical evidence in the
form of diagnostic tests provides a basis for borderline intellectual functioning and a learning
disorder, including the Wechsler Abbreviated Scale of Intelligence (“WASI”) and the Wide
Range Achievement Test (“WRAT”). AR 754. Plaintiff received a borderline score in verbal
comprehension, perceptual reasoning, and IQ on WASI as well as a third-grade-equivalent rating
in reading and a fourth-grade-equivalent rating in spelling and arithmetic on the WRAT. AR 759.
Furthermore, during his evaluation with Dr. Alvord, Plaintiff was unable to count by seven, spell
the word world, or multiply five by nine. Id.
Testing by Dr. Smyth using the Wechsler Adult Intelligence Scale also revealed Plaintiff
to have borderline or lower mental functioning, although Dr. Smyth noted Plaintiff’s casual
effort attempting the exam may have underestimated his intelligence. AR 693-97. Dr. Smyth’s
diagnosis is similar to Dr. Alvord’s in many respects. AR 687. Dr. Katie Ugolini also noted
borderline intellectual functioning and learning disorders. AR 368. The ALJ’s assertion that there
is nothing that provides a basis for Dr. Alvord’s significant limitations is not supported by
The ALJ further found Dr. Alvord’s medical opinion should be discounted because
Plaintiff was able to find and maintain work for significant time. AR 404. The Court reasonably
infers from the ALJ’s opinion that the limitations described by Dr. Alvord would preclude
significant work experience and therefore evidence of past work demonstrates an inconsistency
with Dr. Alvord’s medical opinion. The Court addressed Plaintiff’s recent work history above
and concluded that the ALJ’s finding that Plaintiff had past relevant work is supported by
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substantial evidence. In addition, the record shows that Plaintiff earned income reported to the
Social Security Administration in all but four years from 1977 to 2005.4 AR 206-07.
Furthermore, Plaintiff worked intermittently for CDI Corp. from 1991-93 and Touch of Athens,
Inc., for portions of 1997-2000. AR 201-204. Plaintiff also reported to Dr. Smyth that Plaintiff
worked as a bouncer at the Sunset Club from 1986-2005. AR 683.5 At his hearing, Plaintiff also
testified that he “always worked two jobs” since moving to Oregon. Plaintiff’s prior work history
is inconsistent with Dr. Alvord’s marked and moderate limitations, and as a result the ALJ has
identified a specific and legitimate reason for discounting Dr. Alvord’s testimony.
C. Plaintiff’s Symptom Testimony
Plaintiff also argues that the ALJ failed to provide clear and convincing reasons,
supported by substantial evidence, for discrediting Plaintiff’s symptom testimony. The ALJ’s
decision first acknowledged that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms,” but found that Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of those systems are not entirely
credible. AR 401. In the ALJ’s opinion, the ALJ identified inconsistencies between Plaintiff’s
allegations and the medical record, as well as activities of daily living. AR 403. The ALJ also
found Plaintiff’s conservative treatment was not consistent with his alleged disability. Id. Finally,
Plaintiff’s recorded earnings in many years were minimal and sometimes below $100.
He made more than $1,000 in fifteen of the years from the same time period. There is no
recorded payment record, however, from his nineteen years of working as a bouncer at the
Sunset Club, where Plaintiff states he was paid “under the table.” AR 683. In the transcript,
Plaintiff indicates that his recorded payments from “Touch of Athens, Inc.” was for a job as a
bouncer, and possibly the same job as the Sunset Club, but Plaintiff also maintains that he was
paid under the table. AR 441. Plaintiff has recorded earnings from 1997-2001 from Touch of
Athens. AR 611-12.
Plaintiff’s tenure at the Sunset Club is unclear from the record. He told Dr. Alvord that
Plaintiff worked at the Sunset Club from “the late 90’s early 2000’s.” AR 756. In 2009, he told
Dr. Ugolini Plaintiff worked there from 1997 to 2001. AR 368.
PAGE 16 – OPINION AND ORDER
the ALJ found Plaintiff’s inconsistent reports of drug use and convictions of moral turpitude to
have negatively affected his credibility. Id.
There is a two-step process for evaluating a claimant’s testimony about the severity and
limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).
“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 v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting
Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant
need not show that her impairment could reasonably be expected to cause the severity of the
symptom she has alleged; she need only show that it could reasonably have caused some degree
of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
“Second, if the claimant meets this first test, and there is no 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.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons 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) (citing
Bunnell, 947 F.2d at 345-46).
Effective March 16, 2016, the Commissioner superseded Social Security Rule
(“SSR”) 96-7p governing the assessment of a claimant’s “credibility” and replaced it with a new
rule, SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the
PAGE 17 – OPINION AND ORDER
reference to “credibility,” clarifies that “subjective symptom evaluation is not an examination of
an individual’s character,” and requires the ALJ to consider of all of the evidence in an
individual’s record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The
Commissioner recommends that the ALJ examine “the entire case record, including the objective
medical evidence; an individual’s statements about the intensity, persistence, and limiting effects
of symptoms; statements and other information provided by medical sources and other persons;
and any other relevant evidence in the individual’s case record.” Id. at *4. The Commissioner
recommends assessing: (1) the claimant’s statements made to the Commissioner, medical
providers, and others regarding the claimant’s location, frequency and duration of symptoms, the
impact of the symptoms on daily living activities, factors that precipitate and aggravate
symptoms, medications and treatments used, and other methods used to alleviate symptoms;
(2) medical source opinions, statements, and medical reports regarding the claimant’s history,
treatment, responses to treatment, prior work record, efforts to work, daily activities, and other
information concerning the intensity, persistence, and limiting effects of an individual’s
symptoms; and (3) non-medical source statements, considering how consistent those statements
are with the claimant’s statements about his or her symptoms and other evidence in the file. See
id. at *6-7.
The ALJ’s credibility decision may be upheld overall even if not all of the ALJ’s reasons
for rejecting the claimant’s testimony are upheld. See Batson v. Comm’r of Soc. Sec. Admin., 359
F.3d 1190, 1197 (9th Cir. 2004). The ALJ may not, however, make a negative credibility finding
“solely because” the claimant’s symptom testimony “is not substantiated affirmatively by
objective medical evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
PAGE 18 – OPINION AND ORDER
The ALJ found that Plaintiff’s activities of daily living indicated a higher level of
function than alleged. AR 403. Daily activities may be used to discredit a claimant where they
either “are transferable to a work setting” or “contradict claims of a totally debilitating
impairment.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). The ALJ found that
Plaintiff’s activities of daily living showed Plaintiff was able “to perform adequate self-care,
prepare simple meals, do household chores and go out to the store.” Id. The ALJ also noted
Plaintiff watched his grandchildren for four hours, twice a week. Id. The record offers additional
details: Plaintiff uses a powered cart to shop for groceries, AR 684. He does not lift his
grandchildren while watching them. AR 435. He has to spread out two or three hours of
housework throughout the day due to pain. AR 401. The minimal daily living activities reflected
in the record are not inconsistent with the limitations alleged.
The ALJ’s also relied on the fact that Plaintiff had undergone only conservative treatment
for his conditions as casting doubt on Plaintiff’s allegedly disabling conditions. AR 403. As an
example, the ALJ noted that to treat Plaintiff’s knee pain, Plaintiff pursued only RICE (“Rest,
Ice, Compression, and Elevation”) therapy and anti-inflammatory medication. Id. The Ninth
Circuit has “long held that, in assessing a claimant’s credibility, the ALJ may properly rely on
unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of
treatment.” Molina, 674 F.3d at 1113 (quoting Tomasetti v. Astrue, 533 F.3d 1035, 1039 (9th
Cir. 2008)) (quotation marks omitted). The record reflects that Plaintiff received conservative
treatment for other alleged conditions. See AR 358, 734. Accordingly, the ALJ properly relied on
Plaintiff’s conservative course of treatment to discount Plaintiff’s symptom testimony.
The ALJ’s also discounted Plaintiff’s symptom testimony because his complaints of knee
pain are not supported by objective medical evidence in the record. AR 403. The lack of
objective medical evidence is a relevant factor a court may consider when evaluating the ALJ’s
PAGE 19 – OPINION AND ORDER
credibility determination, but alone it is an insufficient reason to reject a claimant’s subjective
symptom testimony. Id.; see also Burch, 400 F.3d at 681; Rollins v. Massanari, 261 F.3d 853,
857 (9th Cir. 2001).
There is little medical evidence in the record relating to Plaintiff’s left knee pain. On
April 13, 2015, Plaintiff reported to Dr. Vitus Nwaele that Plaintiff had experienced his left knee
“giving out,” pain at the knee joint, and stiffness. AR 738. He reported that the symptoms started
“a few months ago.” Id. Plaintiff’s imaging showed mild degenerative joint disease. AR 402. The
ALJ noted that in an October 2009 examination, Plaintiff had a normal gait, muscle strength,
sensation and reflexes. AR 403 (citing AR 358). The Court does not find the 2009 examination
relevant to Plaintiff’s allegations of knee pain beginning in 2015. The Court agrees, however,
that there is not objective medical evidence in the record of a disabling knee condition. Although
not a sufficient reason by itself to discount Plaintiff’s credibility, it is a factor the Court
considers, along with the ALJ’s reliance on Plaintiff’s conservative treatment.
Having found that the ALJ properly discounted Plaintiff’s symptom testimony on other
grounds, and in light of the Social Security Administration’s change in policy regarding general
credibility findings, the Court declines to address the ALJ’s reliance on Plaintiff’s purported
inconsistent reports of drug use or his prior criminal convictions.
The Commissioner’s opinion is supported by substantial evidence and free from harmful
error. ALJ Michaelsen’s opinion that Plaintiff is not disabled is AFFIRMED.
IT IS SO ORDERED.
DATED this 4th day of August, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 20 – OPINION AND ORDER
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