Aguirre v. Commissioner Social Security Administration
Opinion and Order. Signed on 10/19/2017 by Judge Malcolm F. Marsh. (ma2)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SANDRA L. AGUIRRE,
COMMISSIONER SOCIAL SECURITY
ROBERT A. BARON
Harder Wells Baron & Manning, PC
474 Willamette Street, Suite 200
Eugene, OR 97401
Attomeys for Plaintiff
BILLY J. WILLIAMS
United States Attomey
District of Oregon
JANICE E. HEBERT
Assistant United States Attomey
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
1 - OPINION AND ORDER
Case No. 6:16-cv-01333-MA
OPINION AND ORDER
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900
Seattle, WA 98104
Attorneys for Defendant
Plaintiff Sandra L. AguhTe seeks judicial review of the final decision of the Commissioner
of Social Security denying her applications for a period of disability, disability insurance benefits
("DIB"), and child's disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401403, and application for Supplemental Security Income ("SSI") disability benefits under Title XVI
of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, the Coutt affirms the Commissioner's
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff protectively filed DIB, SSI, and child's disability benefit applications on December
12, 2012, alleging disability beginning September 1, 2009, due to generalized anxiety disorder, post
traumatic stress disorder ("PTSD"), chronic depression, nausea, bipolar disorder, back and shoulder
pain, and abdominal pain. Tr. Soc. Sec. Admin. R. ("Tr.") 116, 305, ECF Nos. 9 & 10. Plaintiffs
claims were denied initially and upon reconsideration. Plaintiff filed a request for a hearing before
an administrative law judge ("ALJ"). The ALJ held a hearing on November 6, 2014, at which
Plaintiff appeared with her attorney and testified. A vocational expert, Jeffrey F. Tittelfitz, also
2 - OPINION AND ORDER
appeared at the hearing and testified. On December 12, 2014, the ALJ issued unfavorable decisions. 1
The Appeals Council denied Plaintiffs request for review, and therefore, the ALJ' s decisions
became the final decisions of the Commissioner for purposes of review.
Plaintiff was born in 1988, and was 21 years old on the alleged onset of disability date, and
26 years old at the time of the ALJ's decision. Plaintiff has a high school education and completed
cosmetology school, has past no relevant work, and has worked part-time in a fast food restaurant
and as a cashier at a craft store. Tr. 68, 291, 306.
THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920.
Each step is potentially dispositive. The claimant bears the burden of proof at steps one through
four. See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett
v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner
to show that the claimant can do other work that exists in the national economy. Hill v. Astrue, 698
F.3d 1153, 1161 (9th Cir. 2012).
The ALJ found that Plaintiff meets the insured status requirements through September 30,
2011. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since
Plaintiffs applications for DIB, SSI, and child's disability benefits were consolidated
for hearing purposes, but the ALJ issued a separate written decision for the child's disability
benefits. See Tr. 41-50. The ALJ's decisions are substantively the same, but the child disability
application covers the time from Plaintiffs alleged onset date of September 1, 2009 through the
date she attained the age of22 in 2010. 42 U.S.C. § 402(d)(l)(B)(ii) (noting that to be eligible
for disabled child's benefits, the claimant must have a disability that began before attaining age
22). For ease of analysis, the Court refers to the decision pertaining to Plaintiffs DIB and SSI
applications. Tr. 20-30.
3 - OPINION AND ORDER
September 1, 2009. At step two, the ALJ found that Plaintiff had the following severe impairments:
carpal tunnel syndrome, migraines, post-traumatic stress disorder ("PTSD"), and generalized anxiety
disorder. At step three, the ALJ found that Plaintiffs impairments, or combination ofimpairments,
did not meet or medically equal a listed impairment.
The ALJ assessed Plaintiff with a residual fi.mctional capacity ("RFC") to perform a range
of light work with additional limitations:
[Plaintiff] is further limited to tasks involving no more than frequent climbing of
ramps or stairs, and no more than occasional climbing ofladders, ropes, or scaffolds.
She is limited to no more than occasional exposure to workplace hazards, such as
unprotected heights and moving mechanical parts. She can perfo1m simple, routine,
and repetitive tasks consistent with unskilled work, as defined by the Dictionaiy of
Occupational Titles (DOT). She is limited to goal-oriented work, such as office
cleaning work, but she is unable to perfo1m production rate pace work, such as
assembly line work. She can tolerate occasional interaction with supervisors, but
only superficial interaction with co-workers in the public (superficial defined as
casual or perfunctmy).
At step four, the ALJ found that Plaintiff has no past relevant work. At step five, the ALJ
found that considering Plaintiffs age, education, work experience, and RFC, there are jobs that exist
in significant numbers in the national economy that she can perform, such as small products
assembler, electronics worker, and gaiment smier. Accordingly, the ALJ concluded that Plaintiff
has not been under a disability under the Social Security Act from September 1, 2009 through the
date of the decision.
ISSUES ON REVIEW
On appeal to this Court, Plaintiff contends the following enors were committed: ( 1) the ALJ
improperly evaluated her testimony; and (2) the ALJ failed to account for all of her social limitations
4 - OPINION AND ORDER
in the hypothetical to the Vocational Expert ("VE") and RFC determination, resulting in an en·or at
step five. The Commissioner argues that the ALJ' s decision is supported by substantial evidence
and is free of legal error. Alternatively, the Commissioner contends that even if the ALJ erred,
Plaintiff has not demonstrated harmful error.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is
more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Hill, 698 F.3d at 1159 (internal quotations
omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether it suppmis or
detracts from the Commissioner's decision. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014);
1vfartinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be
upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v.
Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence suppmis the
Commissioner's conclusion, the Commissioner must be affamed; "the comi may not substitute its
judgment for that of the Commissioner." Edlundv. iVfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001 );
Garrison, 759 F.3d at 1010.
The ALJ Did Not Err in Discounting PlaintifPs Credibility
To dete1mine whether a claimant's testimony regarding subjective pain or symptoms is
credible, an ALJ must perform two stages of analysis. 20 C.F.R. §§ 404.1529, 416.929. The first
5 - OPINION AND ORDER
stage fa a threshold test in which the claimant must produce objective medical evidence of an
underlying impaitment that could reasonably be expected to produce the symptoms alleged. 1'1!0/ina
v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. As true, 533 F.3d 1035, 1039 (9th Cir.
2008). At the second stage of the credibility analysis, absent affomative evidence of malingering,
the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony
regarding the severity of the symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d
1155, 1166 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
The ALJ must make findings that are sufficiently specific to pennit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763
F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors the ALJ may consider when
making such credibility determinations include the objective medical evidence, the claimant's
treatment history, the claimant's daily activities, inconsistencies in testimony, and effectiveness or
adverse side effects of any pain medication.2 Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at
At the hearing, Plaintiff testified that she has carpal tunnel in her left mm and occasionally
wears a wrist brace. Tr. 65-66. Plaintiff is left handed. Tr. 65. Plaintiff testified that she is
employed by a craft store as a cashier and works between 10 and 12 hours per week. Tr. 68.
The Court observes that on March 28, 2016, Social Security Ruling ("SSR") 16-3p
became effective, and it eliminated the use of the term "credibility." The ALJ's decision in this
case was issued December 12, 2014. The CoUli has previously determined that SSR 16-3p does
not apply retroactively because 42 U.S.C. § 405(g) does not contain any express authorization
from Congress allowing the Commissioner to engage in retroactive rulemaking. Smith v. Colvin,
No. 6:15-cv-01625-MA, 2017 WL 388814, at *4 n.2 (D. Or. Jan. 27, 2017). See, e.g., Wright v.
Colvin, No. 15-cv-02495-BLF, 2017 WL 697542, *9 (N.D. Cal. Feb. 22, 2017) (holding SSR 163p does not apply retroactively); Thayer v. Colvin, No. 2: l 6-cv-00545-DWC, 2017 WL 132450,
at *7 (W.D. Wash. Jan. 13, 2017) (same). The Court adheres to that rationale here.
6 - OPINION AND ORDER
Plaintiff stated that she has been employed for a little over 12 months. Tr. 69. Plaintiff testified that
she is scheduled to work between two and four days per week, and that her employer occasionally
calls her in to work. Tr. 70. Plaintiff stated that she sometimes misses work due to her anxiety. Tr.
70. Plaintiff testified that in a three week period, she may call in sick three or four times. Tr. 92.
Plaintiff stated that more than two times per month, she will call her manager to let her know she
can not make it. Tr. 92. Plaintiff testified that her employer is aware of her conditions, and has been
very understanding in letting her miss work without disciplining her. Tr. 71. Plaintiff further
testified that her manager did complain that she has been calling in sick a lot. Tr. 93. Plaintiff
explained that when she is working and her atndety and depression get to her, she will finish the
order on which she is working, close her cashier lane, and move any remaining customers to another
check-out line. Tr. 72. Plaintiff also testified that two or three times a week when working, she
needs to take a rest to calm herself down, and that it can take five minutes to a half an hour. Tr. 96.
Plaintiff also testified that approximately five times in a two month period, she will need to go home
instead of returning to her shift. Tr. 97. Plaintiff testified that her job at the craft store is "way more
suppotiive than any of the other jobs that I had." Tr. 97.
Plaintiff testified that after working, her left wrist is sore, and that she will use ice or
ibuprofen to treat it. Tr. 74. Plaintiff testified that she also suffers occasional migraine headaches.
Tr. 75. Plaintiff stated that her migraines have been better since she increased her potassium. Tr.
76. Plaintiff stated that she also has occasional abdominal pain. Tr. 76. Plaintiff testified that when
her abdominal pain is bothering her, she "just h[as] to suck it up" because she needs to go to work.
Tr. 76-77. Plaintiff testified that she may have itTitable bowel syndrome and that her abdominal
pain is worse when she is stressed. Tr. 78. Plaintiff testified that she feels she can not work full-
7 - OPINION AND ORDER
time because she is barely able to work pmi-time due to her depression, anxiety, and nausea. Tr. 87.
Plaintiff testified that she smokes marijuana once or twice a month for her nausea. Tr. 89-90.
Plaintiff testified that she lives with her boyfriend, and her boyfriend's mother and stepfather. Tr. 82. Plaintiff stated that she and her boyfriend rarely go out, and if so, they will watch a
movie or go bowling. Tr. 82.
Plaintiff testified that she stopped attending group counseling sessions at Douglas County
Mental Health because she was not receiving the help she needs. Tr. 95. Plaintiff testified that she
has had conflicts with supervisors in her previous jobs. Tr. 97. Plaintiff also stated that she had
problems with her mental health in high school, and was disciplined for hitting, and talking back.
In a Janumy 7, 2013 Disability Repo1i-Adult, Plaintiff reported that she stopped working in
March 2010 because she could not work the night shift due to her medications, and was terminated.
Tr. 305. In a work history report, Plaintiff indicated that she has worked in the past in fast food
restaurants full-time and as a child care provider in a day care center for six hours a day, six days a
week. Tr. 315. In a Function Rep01i - Adult, Plaintiff provided that her anxiety makes it hard to deal
with rude or difficult customers, her depression and PTSD make it hard to handle criticism, and her
nausea makes it difficult to be near smells. Tr. 320. Plaintiff described that in a typical day, she
vomits upon waking, takes her medications with breakfast, then will vomit again. Tr. 321. Plaintiff
stated she spends most of her day in her room alone, and rarely leaves the house. Plaintiff stated she
takes a sleeping pill at night so she can rest. Tr. 321. Plaintiff does not always shower, but
otherwise does not have trouble with personal care. Tr. 322. Plaintiff does not cook because she
lives with others, but can do laundry, vacuum, and tidy her room. Tr. 323. Plaintiff indicated she
8 - OPINION AND ORDER
can drive, go shopping, has no hobbies, and leaves the house to attend counseling, group therapy,
and pick up prescriptions. Tr. 324. Plaintiff stated that her impairments affect her ability to lift,
reach, talk, hear, remember, complete tasks, concentrate, understand, and get along with others. Tr.
325. Plaintiff estimated she can walk for one hour, pay attention for 15 to 20 minutes, has trouble
with written instructions, but can attend to spoken instructions, and has been fired because she had
difficulty with her manager. Tr. 325. Plaintiff stated she cannot handle stress or changes in routine
due to her anxiety and depression. Tr. 326.
Plaintiff argues that the ALJ failed to identify clear and convincing reasons for discounting
her credibility. The Court disagrees. In the decision, the ALJ provided several reasons for
discounting Plaintiffs credibility, including: (1) her ability to work part-time; (2) lack of objective
medical evidence to support the severity of her claims; and (3) inconsistencies reported to her
A claimant's ability to work during a period of claimed disability can support an adverse
credibility determination. See Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (ALJ provided
clear and convincing reasons for rejecting claimant's subjective testimony, including claimant
continuing to work "under the table" after his date last insured); see also Goffv. Barnhart, 421 F.3d
785, 793 (8th Cir. 2005) (claimant's work as a pait-time kitchen helper during period of claimed
disability diminished her credibility since "[w]orking generally demonstrates an ability to perform
a substantial gainful activity"). "[I]f a claimant engages in numerous daily activities involving skills
that could be transferred to the workplace, the ALJ may discredit the claimant's allegations upon
making specific findings relating to those activities." Burch v. Earhart, 400 F .3d 676, 681 (9th Cir.
2005) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The dete1minative issue is whether
9 - OPINION AND ORDER
the claimant's part-time work is inconsistent with the limitations asserted. Compare Sweeney v.
Barnhart, 163 Fed.Appx. 580, 581 (9th Cir. 2006) (upholding an ALJ's adverse credibility finding
when the Plaintiffs alleged limitations were inconsistent with her part-time work for several months
after surge1y for carpal tunnel syndrome); with Forester v. Colvin, 22 F.Supp.3d 1117, 1124-25 (D.
Or. 2014) (finding that an ALJ erred in discrediting the Plaintiff when her part-time work from home
with flexible hours was consistent with her assertion that she could only engage in sporadic activity).
In this case, the ALJ thoroughly discussed that Plaintiff contended that she was unable to
work full-time due the effects of her depression and anxiety, shoulder pain, and stomach issues and
that she had been te1minated because she could not work the night shift due to drowsiness from her
medication regimen. Tr. 26. The ALJ fu1iher discussed that at the hearing, Plaintiff admitted to
returning to the workforce, working 10 to 12 hours each week. The ALJ noted that Plaintiff reported
that she takes unscheduled breaks due to her anxiety or pain issues. Upon inquhy by the ALJ about
Plaintiffs symptoms and abilities, Plaintiff stated she just has to "suck it up" sometimes and go to
work, and admitted that sometimes she is able work through the stress. Tr. 26, 76, 80. The ALJ
found that based on Plaintiffs testimony and her ability to persist in a cashier job on a part-time
basis despite that "it exacerbates her pain and mental symptoms suggest she may be able to sustain
less-demandingjobs in the national economy on a regular and continuous basis." Tr. 26. The ALJ's
finding is suppo1ied by substantial evidence, and the ALJ could reasonably discount Plaintiffs
credibility on this basis. Here, the ALJ thoroughly explained the basis for the adverse credibility
determination and why Plaintiffs allegations are inconsistent with her demonstrated ability to work
part-time. Although Plaintiff disagrees with the ALJ's interpretation of the record, "[w]hen the
evidence before the ALJ is subject to more than one rational interpretation, we must defer to the
10-0PINION AND ORDER
ALJ's conclusion." Batson, 359 F.3d at 1198. Based on the above facts, it was reasonable for the
ALJ to discount Plaintiffs Plaintiffs credibility based on her ability to work for an extended
duration as a cashier despite her alleged anxiety and stomach issues after the alleged disability onset
Plaintiff contends that she is only able to sustain part-time work because she has an
extraordinarily supportive employer. At the hearing, Plaintiff testified that her employer permits her
to take unscheduled breaks when she has difficulty with pain or anxiety. Tr. 26, 72, 79-80. The
ALJ found Plaintiffs testimony that she has never been disciplined to remain at the cash register her
entire shift "simply unbelievable." Tr. 26. The ALJ found that it is more likely that Plaintiff"only
takes breaks when scheduled or approved rather than unscheduled." Tr. 26. Plaintiff argues the
ALJ's finding is not suppo1ied by substantial evidence, but instead is based purely on speculation.
The Commissioner responds that the ALJ's finding is not speculative, but instead is based on
testimony from the VE.
This paliicular finding by the ALJ is troublesome. As the Commissioner correctly notes, at
the hem'ing, the ALJ inquired of the VE about what happens when the employer is required to cover
for an employee who does not report for work. Tr. 108. The VE testified that if such behavior
persisted, the employer usually te1minates the employee. Tr. 108-09. However, the VE' s testimony
alone does not, on the record before the Comi, amount to substantial evidence to unde1mine
Plaintiffs testimony that she was never disciplined for taking mi extra break or absenteeism.
After the hearing, Plaintiffs employment records from the craft store were submitted and
accepted by the Appeals Council, and now are pa1i of the administrative record. See Brewes v.
Comm 'r Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) (evidence submitted to the Appeals
11 - OPINION AND ORDER
Council for the first time must be considered by the district court to determine whether substantial
evidence supports ALJ's decision). Plaintiffs January 13, 2015 Performance Discussion Record
indicates that on one occasion before November 6, 2014 hearing, and on six occasions following
hearing, Plaintiff called in sick to the craft store, and she appears to have received a written warning.
Tr. 378. And, a March 9, 2015 Performance Discussion Record shows that Plaintiff again received
a written warning for calling in sick five additional times. Tr. 379. Based on this evidence, the ALJ
could have infe!1'ed that Plaintiffs employer did, in fact, discipline Plaintiff for failing to confo1m
to attendance norms. However, this evidence was not before the ALJ; rather this was new evidence
submitted to the Appeals Council. The Court may not affom an adverse credibility decision based
on evidence not invoked by the ALJ. Huffinan v. Colvin, Case No. 1:14-cv-00861-AC, 2015 WL
10353671, *5 (D. Or. Feb. 22, 2016); see Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014)
(holding the court may not affirm an adverse decision based on specific inconsistencies raised by the
Commissioner post hoc); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ("We are
constrained to review the reasons the ALJ asse1is. "). Therefore, the Court concludes that the ALJ' s
finding that Plaintiffs testimony about extra breaks was "simply unbelievable" is not supp01ied by
substantial evidence, and the ALJ erred in discounting her credibility on this pmiicular basis.
In the decision, the ALJ also discredited Plaintiff based on the lack of objective medical
evidence to support the severity of her symptoms. Contradiction with the medical record is a
relevant consideration in discounting a claimant's credibility. Carmickle, 533 F.3d at 1161; see also
Burch, 400 F .3d at 681 (holding that ALJ may consider lack of medical evidence but it cannot be the
only factor supporting an adverse credibility finding); Rollins v. 1vfassanari, 261F.3d853, 857 (9th
Cir. 2001) ("While subjective ... testimony cannot be rejected on the sole ground that it is not fully
12 - OPINION AND ORDER
corroborated by objective medical evidence, the medical evidence is still a relevant factor in
dete1mining the severity of the claimant's symptoms and their disabling effects." (citing 20 C.F.R.
The ALJ discussed that Plaintiffs complaints of numbness and pain in her left foreann, wrist
and hand were unsupported by objective findings. Tr. 26. As the records cited by the ALJ indicate,
Plaintiff complained on several occasions of numbness and pain in her left foremm, and she sought
emergency room treatment for her wrist pain. Tr. 417, 419, 422, 634. In records cited by the ALJ,
Plaintiffs primmy care physician John Powell, M.D., instructed Plaintiff to wear a wrist brace on
her left arm to alleviate her symptoms and noted that there was a "functional overlay" to her carpal
tunnel syndrome, but refe1Ted Plaintiff for nerve conduction studies. Tr. 466. Plaintiff did not
always comply with the recommendation to wear the wrist brace. Tr. 634. To be sure, as one
emergency room provider complained, "There is a distinct lack of therapeutic compliance here." Tr.
634. As the ALJ correctly found, on examination, Plaintiff demonstrated no diminished strength in
her hands and grip, or extremities, and the nerve conduction study of her upper left extremity was
normal. Tr. 26, 466-67, 478, 637 (a repeat of 478). The ALJ's findings in this regard are wholly
supported by substantial evidence in the record. Based on the largely benign examination findings
and negative nerve conduction study, the ALJ reasonably could infer that the severity of Plaintiffs
subjective limitations m·e not supp01ied by the objective medical evidence and appropriately
discounted her credibility on this basis. Carmickle, 533 F.3d at 1169; Imel v. Comm 'r Soc. Sec.
Admin., Case No. 6:16-cv-00560-MA, 2017 WL 3238230, *5 (D. Or. July 31, 2017) (upholding
ALJ' s adverse credibility determination where claimant's limitations not fully supp01ied by medical
13 - OPINION AND ORDER
Furthermore, the record before the CoUli reveals additional substantial evidence supp01iing
the ALJ' s findings concerning Plaintiffs alleged limitations from carpal tunnel syndrome. Plaintiff
submitted additional medical evidence to the Appeals Council, which the Council accepted and
considered when denying review. See Brewes, 682 F.3d at 1163. In February 2015, Plaintiff
repo1ied to her treating provider Clyde A. Keys, M.D., that she was continuing to have carpal tunnel
syndrome symptoms, with numbness and pain radiating up her arm. Tr. 1339-40. Dr. Keys
scheduled her for a nerve conduction study, commenting that he was certain it would show carpal
tunnel syndrome. Tr. 1339. In March 2015, the nerve conduction study was perfo1med, and again
the results were negative for carpal tunnel syndrome. Tr. 1338. At a June 2015 examination, Dr.
Keys info1med Plaintiff that she does not have carpal tunnel syndrome, and encouraged her to
continue exercises for relief from the discomf01i in her arm. Tr. 1338. Dr. Keys' treatment notes
provide further substantial evidence demonstrating the lack of objective medical evidence to supp01i
the degree of limitations alleged by Plaintiff from her carpal tunnel syndrome. Thus, the ALJ
findings are backed by substantial evidence in the record as a whole. Conger v. Benyhill, Case No.
3: 16-cv-01850-BR,2017 WL3016163, *4 (D. Or. July?, 2017) (finding medical evidence submitted
to Appeals Council supp01ied ALJ' s finding that claimant not disabled).
Plaintiff argues that the ALJ erred in discounting Plaintiff on this basis, contending that
Plaintiffs diagnosis of carpal tunnel syndrome is supported by the objective findings of a positive
Tine!' s sign, positive Phalen' s test, and positive Finkelstein' s test. The Court disagrees. The tests
identified by Plaintiff are screening tests that rely upon Plaintiffs subjective rep01iing of pain or
tingling. More importantly, Plaintiffs contention misses the point - the ALJ did not disagree with
Plaintiffs carpal tunnel diagnosis. To be sure, the ALJ found carpal tunnel syndrome a severe
14- OPINION AND ORDER
impahment at step two. Tr. 23. Rather, the ALJ found that based on the normal nerve conduction
study and full strength in her hands and grip, the objective medical evidence did not support the
degree of physical limitations Plaintiff alleges result from her carpal tunnel syndrome. The ALJ's
findings are fully backed by substantial evidence, are a reasonable interpretation of the record as a
whole, and will not be disturbed. 1\folina, 674 F.3d at 1111.
Additionally, the ALJ found that Plaintiffs allegations of severe back pain are not fully
supported by the objective medical evidence. As the ALJ discussed, despite allegations of severe
back pain, causing limitations with movement, standing and sitting, in a May 18, 2010 examination,
Dr. Powell assessed a low back strain with decreased flexibility, and that Plaintiff had a "n01mal"
range of motion, with no spasms or tenderness. Tr. 455. As the ALJ correctly observed, numerous
treatment notes show no deficits in Plaintiffs sensation, reflexes, or ambulation, she retained full
motor strength, and her supine and seated straight leg tests were negative for radiculopathy. Tr. 26,
463-65. And, in the treatment notes cited by the ALJ, Dr. Powell indicated a "[s]ignificant
functional overlay contributes to [Plaintiffs] presentation" and he recommended Plaintiff try
stretching and warm compresses for relief. Tr. 456. The ALJ's finding that Plaintiffs allegations
of severe back pain are not as limiting as alleged is fully supported by substantial evidence, and the
ALJ appropriately discounted her credibility on this basis.
Plaintiff highlights that her treatment notes in Januaty, Februaty and March of2010 show
some low back tenderness along the paraspinus muscles. See Tr. 459, 461-65. Contraty to
Plaintiffs suggestion, these records do not undermine the ALJ's finding that the objective medical
evidence does not suppott the severity of Plaintiffs alleged limitations from her low back pain. To
be sure, the records cited by Plaintiff similarly show full range of motion, full motor strength,
15- OPINION AND ORDER
negative straight leg testing, with Dr. Powell diagnosing a lumbar strain and recommending that
Plaintiff stretch. Tr. 461, 465-66. To be sure, the objective medical evidence concerning Plaintiffs
back pain reflects minimal functional limitations at best, with episodic pain that improved over time.
The ALJ reasonably concluded that Plaintiffs pain symptoms related to her back were inconsistent
with the objective medical evidence. Although Plaintiff offers a different conclusion, the ALJ's
interpretation is rational, and will not be disturbed. },;Jolina, 674 F.3d at 1111.
In the decision, the ALJ found that inconsistencies reported to Dr. Powell undermined
Plaintiffs credibility. An ALJ may consider prior inconsistent statements concerning symptoms and
"other testimony by [Plaintiff! that appears less than candid in weighing Plaintiffs credibility."
Tommasetti, 533 F.3d at 1039. The ALJ noted thatinMay2010, Plaintiff reported to Dr. Powell that
she had lost 20 pounds in the previous couple of weeks, but Dr. Powell observed that Plaintiff had,
in fact, gained one pound over the previous two months. Tr. 26, 454. The ALJ found this specific
inconsistency unde1mined the veracity of Plaintiffs subjective pain complaints. Tr. 26. The ALJ' s
finding is suppmied by substantial evidence in the record. To be sure, Dr. Powell's treatment notes
reflect that Plaintiff stopped taking Zyprexa due to weight gain concerns, but her weight had
increased by a pound. Although Plaintiff now proposes a different interpretation of Dr. Powell's
treatment notes, in the context of the record as a whole, the ALJ' s interpretation is reasonable and
will not be disturbed. i'vfolina, 674 F.3d at 1111.
Finally, Plaintiff suggests that the ALJ cherry-picked the medical evidence pe1iaining to her
alleged mental symptoms limitations, and provided a curso1y recitation of the medical evidence.
Pl.'s Br. at 11-12. As the ALJ correctly observed, none of Plaintiffs treating providers have
endorsed the conclusion that her alleged limitations preclude employment, and the only medical
16- OPINION AND ORDER
opinions in the record are those from nonexamining agency physicians. Tr. 28. This is notewo1ihy
given the voluminous 1,347-page record in this case. Moreover, aside from one specific social
limitation addressed below, Plaintiff fails to challenge the ALJ's evaluation of the medical evidence.
Although the ALJ erred in discounting Plaintiffs credibility on the basis of her being able
to take unscheduled breaks, the enor is harmless. The ALJ's remaining reasons (Plaintiffs ability
to work pmi-time, lack of objective medical evidence, and inconsistencies reported to her treating
physician), when taken together, constitute specific, clear and convincing support for the ALJ's
adverse credibility determination on the record before the Court. Bray v. Comm 'r Soc. Sec. Admin.,
554 F.3d 1219, 1227 (9th Cir. 2009) (despite that one reason for discounting claimant's testimony
was enor, remaining independent bases were supported by ample record evidence and provided clear
and convincing support); Carmickle, 533 F.3d at 1163 (despite enors, ALJ's remaining reasons
adequately supported adverse credibility finding). The ALJ's findings are sufficiently specific to
permit the Court to conclude that Plaintiffs credibility was not arbitrm·ily discredited.
Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). The ALJ did not en'.
Tile ALJ Did Not Err in Evaluting Plaintiffs RFC or Step Five Finding
The RFC is the most a claimant can do on a sustained, regular and continuing basis, despite
his or her functional limitations. See 20 C.F.R. §§ 404. l 545(a)(l ), 4 I 6.945(a)(I ). In determining
the RFC, the ALJ must consider limitations imposed by all of a claimant's impairments, even those
that are not severe, and evaluate all of the relevant medical and other evidence, including the
claimant's testimony. See Valentine, 574 F.3d at 690; Social Security Ruling ("SSR") 96-8p,
available at 1996 WL 374184. The ALJ is responsible for resolving conflicts in the medical
17 - OPINION AND ORDER
testimony and "translating and incorporating clinical findings into a succinct RFC." Rounds v.
Comm 'r Soc. Sec. Admin, 807 F.3d 996, 1006 (9th Cir. 2015) (citing Stubbs-Danielson v. Astrue,
539 F.3d 1169, 1174 (9th Cir. 2008)). All limitations supported by substantial evidence must be
incorporated into the RFC and, by extension, the dispositive hypothetical question posed to the VE.
Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). The ALJ, however, need not
incorporate limitations identified through testimony that the ALJ permissibly discounted. Batson,
359 F.3d at 1197.
At step five, the Commissioner must show that the claimant can do other work that exists in
the national economy. Andrews v. Shala/a, 53 F.3d 1035, 1043 (9th Cir. 1995). The Commissioner
can satisfy this burden by eliciting the testimony of a vocational expett with a hypothetical question
that sets forth all the limitations of the claimant. Id The hypothetical posed to a vocational expert
must only include those limitations supported by substantial evidence. Robbins, 466 F.3d at 886
(citing Osenbrock, 240 F.3d at 1163-65). "Conversely, an ALJ is not free to disregard properly
suppo1ted limitations." Id.
Plaintiff argues that despite assigning great weight to the opinion of nonexamining agency
psychologist Sanda L. Lundblad, Psy. D., the ALJ failed to include Dr. Lundblad's assessed
limitation that she should do no work requiring public contact into the RFC. Plaintiff appears to
suggest that the ALJ improperly inserted his own lay opinion for that of Dr. Lundblad. Pl.s' Br. at
13, ECF No. 14. Plaintiff contends the hypothetical posed to the VE is defective because it failed
to include the no public contact limitation and therefore the step five findings are not supported by
substantial evidence. The Comi disagrees.
18- OPINION AND ORDER
On March 4, 2013, Dr. Lundblad completed a Mental Residual Functional Capacity
Assessment ("MRFC"), in which she rated Plaintiffs social interaction limitations. Tr. 139. Dr.
Lundblad opined that Plaintiff is "moderately limited" in her ability to interact with the general
public, and is "moderately limited" in her ability to accept and respond to criticism from supervisors,
but otherwise is not significantly limited in other areas of social interaction, including her ability to
"get along with co-workers without being distracting or exhibiting behavioral extremes." Tr. 139.
In the nmwtive p01iion of the MRFC, Dr. Lundblad explained that Plaintiff "should not perform
work requiring public contact. No indication of a need for special supervision or of distracting
behavior." Tr. 139. On August 12, 2013, Dr. Lundblad's opinion was affomed on reconsideration
by Bill Hennings, Ph.D. Tr. 168.
In the RFC, the ALJ found that Plaintiff"can tolerate occasional interaction with supervisors,
but only superficial interaction with co-workers in the public (superficial defined as casual or
perfunctory)." Tr. 25. Similm·ly, the ALJ propounded a hypothetical to the VE in which the
individual is limited to superficial interaction with co-workers and the public. Tr. 103. Contrmy to
Plaintiffs contention, the ALJ gave two reasons for not incorporating Dr. Lundblad's limitation of
no public contact into the RFC: (1) it is inconsistent with Plaintiffs hearing testimony, and (2) it
is inconsistent with Plaintiffs medical record.
First, the ALJ found that Plaintiffs more recent testimony at the hearing "reasonably suggests
she can tolerate at least superficial contact with co-workers or the general public." Tr. 27. Here, the
ALJ did not simply substitute his medical opinion for that of Dr. Lundblad, but instead found this
portion of Dr. Lundblad's opinion inconsistent with the record as a whole. As discussed at length
above, at the hearing Plaintiff testified that she has been able to maintain pmi-time work as a cashier,
19 - OPINION AND ORDER
a job she held for almost a year at the time of the hearing. Tr. 66-69. Additionally, Plaintiff obtained
and sustained her cashier job at a craft store after Dr. Lundblad offered her opinion. See also Tr. 385
(noting Plaintiffs dates of employment from August 7, 2013 to December 24, 2015). As the ALJ
f01md when considering Plaintiffs credibility, Plaintiffs ability to persist in the cashier job for over
a year, despite her allegations that the cashier job exacerbates her mental health symptoms,
demonstrates an ability to work at a less-demanding job on a regular basis. Tr. 26. As noted above,
the ALJ properly rejected Plaintiffs testimony, and the overwhelming substantial evidence in the
record as a whole suppo1is the ALJ's finding that she can tolerate superficial interaction with the
public. See Osenbrock, 240 F.3d at 1164-65 (restrictions not supported by substantial evidence may
be freely accepted or rejected by ALJ).
Second, the ALJ discussed that Plaintiffs mental health symptoms appeared to be improving
as evidenced by her ability to maintain employment as a cashier. Tr. 27. The ALJ discussed that
in an August 2012 diagnostic interview for obtaining mental health counseling, Plaintiff was
described as pleasant and cooperative, and that her appearance, speech, memory, perception, and
intellectual functioning were all within nonnal limits. Tr. 576-77. And, the ALJ noted that despite
Plaintiff appearing depressed and agitated, she was nevertheless "active and alert." Tr. 444. Indeed,
as the ALJ indicated, Plaintiff requested to be discharged from mental health treatment in Januaiy
2013 and noted improvement in her anxiousness. Tr. 590-93.
Here, Plaintiff argues that the ALJ failed to identify specific medical evidence to support the
partial rejection of Dr. Lundblad's opinion that Plaintiff have no public contact. Plaintiff contends
that the ALJ discusses only two medical records showing improvement, and that her when her
mental health records are viewed more broadly, they reveal waxing and waning symptoms. See
20 - OPINION AND ORDER
Garrison, 759 F.3d at 1009 (noting court may not affom ALJ's decision by isolating a specific
quantum of evidence, but must consider record as a whole). Although the Court agrees with Plaintiff
that the ALJ's discussion of her mental health symptoms was brief, Plaintiff has not demonstrated
Furthermore, even if the ALJ erred in failing to include the limitation to no public contact,
the eirnr would be haimless. lvfolina, 674 F.3d at 1115 (stating the district court may not reverse an
ALJ's decision on account of an eirnr that is harmless). Here, the VE and ALJ identified three jobs
that Plaintiff could perform: small products assembler II (DOT 739.687-030, available at 1991 WL
680180, with 227,477 jobs nationally and 3,515 jobs in Oregon); electronics worker (DOT 726.687010, available at 1991 WL 679633, with 225,632 jobs nationally and 3,611 jobs in Oregon); and
garment smier (DOT 222.687-014, available at 1991 WL 672131, with 131,201 jobs nationally and
1,615 jobs in Oregon). None of the jobs identified require public contact and Plaintiff does not
contend otherwise. See Lichtner v. Colvin, Case No. SA CV 14-1504-SP, 2016 WL 1274089, *5
(C.D. Cal. Mar. 31, 2016) (noting that if claimant was limited to no public contact, he could perform
work as small products assembler and error was haimless); Wilson v. Astrue, Case No. 3:10-cv01195-PK, 2011WL4828998, *3-4 (D. Or. Oct. 11, 2011) (noting small products assembler II job
does not require public contact or co-worker interaction, finding error harmless at step five); see also
Kennedyv. Colvin, Case No. 3:14-cv-04256-LB, 2015 WL 5693731, *16 (N.D. Cal. Sept. 29, 2015)
(VE testified that where RFC included no public or employee contact, claimant could perfo1m work
as garment sorter). Additionally, review of the DOT descriptions of the three jobs identified by the
VE does not reveal interactions with the public. Therefore, even if the ALJ had posed a hypothetical
to the VE including a limitation to "no public contact," the Commissioner has still identified jobs
21 - OPINION AND ORDER
that exist in significant numbers that Plaintiff could perfo1m, and the ALJ's ultimate non-disability
dete1mination would remain unchanged. See Gutierrez v. Comm 'r Soc. Sec. Adm in., 740 F.3d 519,
527-29 (9th Cir. 2014) (holding "25,000 jobs meets the statut01y standard" for jobs in the national
economy); Tommasetti, 533 F.3d at 1042 (finding enor at step four harmless due to alternative
findings at step five, and thus error was inconsequential to nondisability determination).
Consequently, because Plaintiff has not established harmful e1TOr, the ALJ's decision is affomed.
For the reasons set forth above, the Commissioner's final decisions denying benefits to
Plaintiff are AFFIRMED.
IT IS SO ORDERED.
DATED this __Li_ day of OCTOBER, 2017.
Malcolm F. Marsh
United States District Judge
22 - OPINION AND ORDER
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