The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
CHERYL R.,1
Plaintiff, Case No. 6:18-cv-01531-MK
v. OPINION AND ORDER2
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
KASUBHAI, Magistrate Judge:
INTRODUCTION
Cheryl R.3 (“Plaintiff”) seeks judicial review of a final decision by the Commissioner of
Social Security (“Commissioner”) denying her claim for Title II disability and disability
1 In the interest of privacy, this Opinion and Order uses only the first name and the initial of the
last name of the non-governmental party in this case.
2 Both parties consented to full jurisdiction by a U.S. Magistrate Judge. ECF No. 5. Pursuant to
Standing Order 06-mc-9130, the United States consented to jurisdiction by a U.S. Magistrate
Judge. Id.
3 The ALJ opinion in this matter referred to Plaintiff by her first name and prior last name, which
was identified as beginning with the letter “E.” Tr. 55. The ALJ opinion referenced a Social
Security Number in this matter, (id.), of which the last four digits match the Social Security
Number referenced in Plaintiff’s complaint, Compl. 2, ECF No. 1. Plaintiff’s complaint
identifies Plaintiff’s last name as beginning with the letter “M,” but Plaintiff does not argue that
the ALJ opinion refers to the wrong Plaintiff. Id. at 1. The Court construes that the Plaintiff in
the ALJ opinion and in Defendant’s filings is the Plaintiff identified in Plaintiff’s complaint,
despite the difference in last names and the lack of instruction from counsel.
insurance benefits, and Title XVI Supplemental Security Income (“SSI”) under 42 U.S.C. §§
1381a and 1382c(a)(3)(A). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and §
1383(c)(3). For the reasons set forth below, the Commissioner’s decision is affirmed.
ADMINISTRATIVE HISTORY
Plaintiff applied for a period of Disability and Disability Insurance Benefits (“DIB”)
under Title II on November 19, 2013, and for supplemental security income under Title XVI on
November 19, 2013, alleging disability beginning October 22, 2010. Tr. 554; Pl. Br. 1, ECF No.
17. The agency denied the claims both initially and upon reconsideration, and Plaintiff requested
a hearing. Tr. 55. Plaintiff appeared for a hearing before Administrative Law Judge (“ALJ”)
Katherine Weatherly on April 6, 2017. Id. At the hearing, the Plaintiff amended her alleged onset
date of disability to October 22, 2013. Id. On January 17, 2018, the ALJ issued a decision
denying both of Plaintiff’s claims for benefits. Tr. 65.
Plaintiff requested review of the hearing decision with the Appeals Council. Pl. Br. 5,
ECF No. 17. Plaintiff obtained new counsel, and the Appeals Council allowed additional time for
Plaintiff to submit new evidence. Id. Plaintiff submitted a Walmart pharmacy log tracking her
prescriptions from January 1, 2013 through November 7, 2017 (Tr. 12-17); a medical opinion
letter and medical source statement from Richard Browning, PMHNP completed January 9, 2018
(Tr. 18-24); and a Psychological Evaluation dated October 25, 2017 (Tr. 24-30) and a medical
source statement dated May 25, 2018 (Tr. 31-34) provided by examining psychologist Scott
Alvord. Id. The Appeals Council denied Plaintiff’s request for review on June 15, 2018. Tr. 1-6.
The Appeals Council stated that it “did not consider and exhibit [Plaintiff’s additional] evidence”
4 “Tr.” Refers to the Transcript of Social Security Administrative record provided by the
Commissioner.
because the Council found that the evidence did “not show a reasonable probability that it would
change the outcome of the decision.” Pl. Br. 5-6, ECF No. 17.
Thus, the ALJ’s decision became the final decision of the Commissioner. Compl. 2, ECF
No. 1.
FACTUAL HISTORY
Plaintiff was born October 25, 1966. Tr. 247 Plaintiff’s records describe a history of
childhood and adult physical, emotional, and sexual abuse. See, e.g. Tr. 415, 471, 528, 531.
Plaintiff graduated from high school. Tr. 86. Plaintiff worked in various jobs over the years,
including as a cashier and as a deli clerk. Tr. 88. After losing her job in 2010, Plaintiff attempted
to return to college from 2011-2012, but could not complete her course work because she
struggled to “make it to classes with [her] health.” Tr. 87. Plaintiff then consulted a doctor about
her mental health issues. Tr 93.
Plaintiff lives in Eugene, Oregon with a cousin during the week, and stays with her ill
mother in Drain, Oregon on weekends. Tr. 84. Plaintiff performs general house chores and some
caretaking of her mother, although her mother can generally care for herself when alone. Tr. 85-
86. About twice a month while at her mother’s home, Plaintiff contacts her aunt to help, because
both Plaintiff and Plaintiff’s mother need assistance. Tr. 96. Plaintiff reported that she often
remains at her mother’s house longer than the weekend because Plaintiff experiences her own
health problems and stays until she feels better. Id.
Plaintiff fell from a height of approximately six feet onto her right knee in 2007 or 2008,
Tr. 91; Pl. Br. 8, ECF No. 17. She underwent arthroscopic knee surgery in November 2016, and
a post-surgery steroid injection in December 2016, both with Jeffrey Tuman, M.D. Tr. 803, 784.
At the hearing, Plaintiff testified that she continued to use crutches for walking, and motorized
carts when in stores, although Plaintiff did not use the crutches on the date of the hearing. Tr. 83,
94.
Plaintiff began treatment in October 2012 with Dr. Chaplin at PeaceHealth Medical
Group for hypertension, fibromyalgia, and headaches. Tr. 458. Dr. Chaplin’s notes report that
Plaintiff was on psychiatric medications prescribed by a prior doctor at Oregon Medical Group,
and had been for about three years, for anxiety and panic attacks, depression, and possibly
bipolar disorder. Tr. 460. Dr. Chaplin diagnosed Plaintiff with anxiety state, unspecified; bipolar
disorder with depression, panic disorder without agoraphobia; unspecified essential
hypertension; asthma exacerbation, and insomnia on March 26, 2014. Tr. 479-89.
Kriz Topaz, LMFT, QMHP at Options Counseling, performed Plaintiff’s Mental Health
Assessment on November 21, 2014. Tr. 534-35. Plaintiff continued to receive counseling
through Options for complaints of cycles of elevated mood, binge eating, racing thoughts,
decreased need for sleep, and increased talkativeness and distractibility alternating with
depressed mood, decreased interest in activities, fatigue, feelings of hopelessness and
worthlessness, and inability to concentrate. Tr. 534. Plaintiff’s depressive symptoms culminated
in her complaints of “wanting to go to sleep and not wake up,” on March 7, 2017. Tr. 771.
Richard Browning, PMHNP at Options, managed Plaintiff’s multiple psychotropic medications
starting in January 2016. Tr. 727. Pl. Br. 10, ECF No. 17. Plaintiff continued to attend counseling
at Options as of the date of her Administrative Hearing on April 6, 2017. Tr. 91.
DISABILITY ANALYSIS
The ALJ engages in a five-step sequential inquiry to determine whether a claimant is
disabled within the meaning of the Act. 20 C.F.R. § 416.920(a). The five-step sequential
inquiry is summarized below, and as described in Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th
Cir. 1999).
Step One: The Commissioner determines whether the claimant is engaged in substantial
gainful activity. A claimant who is engaged in such activity is not disabled. If the claimant is
not engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant’s
case under step two. 20 C.F.R. § 416.920(b).
Step Two: The Commissioner determines whether the claimant has one or more severe
impairments. A claimant who does not have any such impairment is not disabled. If the
claimant has one or more severe impairment(s), the Commissioner proceeds to evaluate the
claimant’s case under step three. 20 C.F.R. § 416.920(c).
Step Three: Disability cannot be based solely on a severe impairment; therefore, the
Commissioner next determines whether the claimant’s impairment “meets or equals” one of the
presumptively disabling impairments listed in the Social Security Administration (“SSA”)
regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that
meets a listing is presumed disabled under the Act. If the claimant’s impairments are not
equivalent to one of the enumerated impairments, between the third and fourth steps the ALJ is
required to assess the claimant’s residual functional capacity (“RFC”), based on all the relevant
medical and other evidence in the claimant’s record. See 20 C.F.R. § 416.920(e). The RFC is an
estimate of the claimant’s capacity to perform sustained, work-related physical and/or mental
activities on a regular and continuing basis, despite limitations imposed by the claimant’s
impairments. See 20 C.F.R. § 416.945; see also SSR 96-8p, 1996 WL 374184.
Step Four: The Commissioner determines whether the claimant is able to perform work
he or she has done in the past. A claimant who can perform past relevant work is not disabled.
If the claimant demonstrates he or she cannot do past relevant work, the Commissioner’s
evaluation of claimant’s case proceeds under step five. 20 C.F.R. §§ 416.920(e), 416.920(f).
Step Five: The Commissioner determines whether the claimant is able to do any other
work. A claimant who cannot perform other work is disabled. If the Commissioner finds
claimant is able to do other work, the Commissioner must show that a significant number of jobs
exist in the national economy that claimant is able to do. The Commissioner may satisfy this
burden through the testimony of a vocational expert (“VE”), or by reference to the Medical-
Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner
demonstrates that a significant number of jobs exist in the national economy that the claimant is
able to perform, the claimant is not disabled. If the Commissioner does not meet the burden, the
claimant is disabled. 20 C.F.R. § 416.920(g).
At steps one through four of the sequential inquiry, the burden of proof is on the
claimant. Tackett, 180 F.3d at 1098. If the claimant satisfies his burden with respect to the first
four steps, the burden then shifts to the Commissioner regarding step five. 20 C.F.R. §
416.920(g). At step five, the Commissioner’s burden is to demonstrate that the claimant can
make an adjustment to other work after considering the claimant’s RFC, age, education, and
work experience. Id.
THE ALJ’S FINDINGS
The ALJ found that Plaintiff met the insured status requirements of the Act through
March 31, 2014. Tr. 57.
At step one of the sequential analysis, the ALJ determined that Plaintiff had not
engaged in substantial gainful activity since October 22, 2013, the alleged onset date. Id.
At step two, the ALJ found the following severe impairments: morbid obesity,
obstructive sleep apnea; asthma; RLS; bipolar disorder; unspecified anxiety disorder; panic
disorder, migraines; fibromyalgia; type II diabetes; and status post right knee arthroscopy. Id.
At step three, the ALJ found that none of those severe impairments met or equaled any
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 58. The ALJ next assessed
Plaintiff with a RFC to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the
following limitations. The claimant can lift/carry 10 pounds frequently and 20
pounds occasionally. She can sit for about six hours out eight hours and stand/walk
about six out of eight hours with regular breaks. She can occasionally climb ramps
and stairs, balance, stoop, and crouch. She can never climb ladders, ropes, or
scaffolds, kneel, or crawl. She must avoid concentrated exposure to pulmonary
irritants as well as workplace hazards such as machinery and heights. The claimant
can understand, remember, and carry out simple, routine, repetitive tasks and have
occasional contact with the general public.
Tr. 59.
Proceeding to step four, the ALJ found that Plaintiff is unable to perform any past
relevant work experience. Tr. 63.
At step five, the ALJ found Plaintiff “capable of making a successful adjustment to other
work that exists in significant numbers in the national economy,” such as Photocopy Machine
Operator, Marker, and Collator Operator. Tr. 64. The ALJ then found that Plaintiff had not been
under a disability as defined by the Act, from October 22, 2013, the alleged onset date, through
June 16, 2017, the date of the ALJ’s unfavorable decision. Tr. 64-65.
DISCUSSION
Plaintiff seeks review of the Commissioner’s decision on the grounds that the decision is
based on an insufficiently developed record, arguing that the Appeals Council improperly failed
to consider her additional evidence. Pl. Br. 2, ECF No. 17. Plaintiff also argues that the ALJ’s
opinion is not supported by substantial evidence and is premised on errors of law. Id. Plaintiff
asks that the Court reverse and remand for immediate calculation of benefits, or alternatively, for
reconsideration in light of the new evidence submitted by Plaintiff to the Appeals Council. Id.
First, Plaintiff’s argues that the Appeals Council committed legal error in refusing to
consider additional evidence submitted by Plaintiff after the ALJ’s decision. Pl. Br. 13, ECF No.
17. Plaintiff argues that because the Appeals Council improperly rejected Plaintiff’s additional
evidence, the Court can now consider that evidence to determine whether the ALJ decision was
supported by substantial evidence and free from legal error. Id. at 15. Plaintiff argues that, were
the Court to consider the additional evidence, the Court would find that the ALJ’s decision was
not supported by substantial evidence, nor free from error. Plaintiff posits that the Court should
then either remand the case for immediate calculation of benefits, or remand for further
development of the record. Id. at 15-19.
Second, Plaintiff argues that the ALJ improperly credited the state medical doctors’
opinions and discredited the Plaintiff’s subjective testimony. This Court finds that the Appeals
Council properly reviewed the Plaintiff’s additional evidence and determined it would not review
the ALJ decision. Thus, the ALJ’s opinion became the final decision of the Commissioner. That
decision is affirmed for the reasons discussed below.
I. APPEALS COUNCIL DENIED REVIEW OF THE ALJ DECISION.
The Appeals Council had authority to decline review of the unfavorable ALJ decision
and this Court may not review that decision.
A. APPEALS COUNCIL STANDARD
20 C.F.R. § 404.970, entitled “Cases the Appeals Council will review,” states that the
Appeals Council will review a case if, inter alia, it receives additional evidence that is new,
material, relates to the period prior to the hearing decision, and there is a reasonable probability
that the additional evidence would change the outcome of the decision. 20 C.F.R.
§ 404.970(a)(5).
The Appeals Council may look at, or alternatively, consider, additional evidence a
plaintiff submits after the ALJ issues an unfavorable decision. Ruth v. Berryhill, Case No. 1:16-
CV-0872-PK, 2017 WL 4855400, at *9 (D. Or. Oct. 26, 2017). The term “consider” is a term of
art in the context of an Appeals Council denial for a request for review. Id. Evidence that the
Appeals Council considers is incorporated into the administrative record. Id. Evidence that the
Appeals Council looks at or reviews does not become part of the record, although the Appeals
Council conducts a threshold evaluation to determine whether the evidence is relevant. Id.
(internal citation omitted). This Court may not review additional evidence that the Appeals
Council declines to consider and incorporate into the administrative record. Id.
Only when the Appeals Council fails totally to acknowledge the new evidence in
accordance with the relevant regulations is remand to the ALJ appropriate. Id. at *10 (citing
Taylor, 659 F.3d 1228, 1233 (9th Cir. 2011)). If the Appeals Council reviews a plaintiff’s
additional evidence but ultimately declines to review the ALJ decision, the ALJ’s decision
becomes the final decision of the Commissioner, subject to the substantial evidence review based
on the record as a whole. Ruth, 2017 WL 4855400, at *8. Federal courts may not review Appeals
Council decisions regarding plaintiff’s requests for an Appeals Council review of an ALJ
decision. Taylor, 659 F.3d at 1231.
B. ANALYSIS
The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision after
declining to consider Plaintiff’s additional evidence, finding there was no reasonable probability
that the additional evidence would change the outcome of the decision. Tr. 1-2. The Appeals
Council did not err when it determined it would not consider Plaintiff’s additional evidence after
reviewing the evidence in accordance with applicable regulations. Because the Court may not
review the Appeals Council decision, the ALJ decision became the final decision of the
Commissioner.
Plaintiff argues that the Appeals Council erred in following the applicable regulations
when reviewing plaintiff’s new evidence. Pl. Br. 13, ECF No. 17. Plaintiff argues that she
received a letter from the SSA dated March 24, 2017 regarding changes to ALJ hearing
procedures. Pl. Br. 13. The letter notified Plaintiff that new rules regarding ALJ hearings would
apply to hearings pending after May 1, 2017 or later. Tr. 72-73. Plaintiff’s argues that because
Plaintiff’s hearing occurred prior to May 1, 2017, Plaintiff is subject to hearing rules in place as
of April 6, 2017, not the newer rules that would apply to hearings after May 1, 2017. Id. Plaintiff
then argues that, based on the SSA letter, prior rules concerning Appeals Council reviews should
also be followed by this Court in considering whether the Appeals Council improperly rejected
Plaintiff’s evidence. Id. at 13-14 (citing 20 C.F.R. § 404.970(b) prior to its amendment on
January 16, 2017).
Prior to January 16, 2017, 20 C.F.R. § 404.970(b) required the Appeals Council to
consider additional evidence so long as the evidence was new, material, and related to the period
on or before the date of the ALJ’s decision. Under that version of the regulation, remand to the
ALJ was appropriate if the Appeals Council failed to consider the evidence. Edgecomb v.
Berryhill, Case No. 16-35990 (9th Cir., July 18, 2018) (quoting Taylor, 659 F.3d at 1233).
Further, the Appeals Council was not permitted to decline consideration of the new evidence
based on a finding that the new evidence showed no reasonable probability of changing the
outcome of the decision. 20 C.F.R. § 404.970(b) (prior to January 16, 2017 amendment). Only
after the regulation’s amendment became effective on January 16, 2017 was the Appeals Council
permitted to review additional evidence to determine whether or not it presented a reasonable
probability of changing the outcome of the ALJ’s decision. See 20 C.F.R. § 404.970(b) (as
amended).
Plaintiff conflates the SSA’s new rules regarding ALJ hearings with the amended
regulations to Appeals Council procedures. The SSA letter Plaintiff references states “[w]e are
changing our regulations to make our Administrative Law Judge (ALJ) hearing procedures
consistent nationwide. These rules apply to all hearing requests pending on May 1, 2017.” Pl. Br.
13; Tr. 72. The new rules regarding ALJ hearings are distinct from the rules that apply to the
Appeals Council. Plaintiff is subject to 20 C.F.R. § 404.970(b), as amended on January 16, 2017.
Thus, the Appeals Council had authority to decline consideration of the additional evidence after
determining that the evidence had no probability of changing the outcome of the decision. This
Court can not review the Appeals Council decision. The ALJ’s decision properly became the
final decision of the Commissioner.
II. THE ALJ BASED HER DECISION ON SUBSTANTIAL EVIDENCE.
The ALJ’s decision is affirmed because the ALJ based her decision on substantial
evidence in the record. The ALJ did not err in crediting the state’s medical experts’ opinions nor
in discounting Plaintiff’s subjective testimony.
A. STANDARD OF REVIEW OF ALJ DECISIONS
This Court must affirm the Commissioner’s decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Hammock v.
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); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen,
881 F.2d 747, 750 (9th Cir. 1989). “The court must consider both evidence that supports and
evidence that detracts from the ALJ’s conclusion; it may not affirm simply by isolating a specific
quantum of supporting evidence.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing
Vidal v. Harris, 637 F.2d 710, 712 (9th Cir. 1981); Day v. Weinberger, 522 F.2d 1154, 1156 (9th
Cir. 1975)). “Where the evidence as a whole can support either a grant or a denial, [this Court]
may not substitute [its] judgment for the ALJ’s.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th
Cir. 2007) (citation omitted).
B. ANALYSIS
1. Medical provider opinions
a. Additional opinions of Dr. Alvord and Richard Browning, PMHNP
First, Plaintiff argues that the additional opinions of Dr. Scott Alvord and Richard
Browning, PMHNP, both submitted by Plaintiff after the ALJ issued her decision, establish that
the ALJ’s decision is not supported by substantial evidence. Pl. Br. 15, ECF No. 17. However,
for the reasons discussed above, those opinions are not part of the record. Therefore, this Court
does not consider them.
b. Other Medical Sources and Agency Experts
As discussed above, the Court does not consider Mr. Browning’s opinion offered after
the ALJ decision. Mr. Browning supplies no opinion in the record regarding Plaintiff’s disability.
“In addition to considering the medical opinions of doctors, an ALJ must consider the
opinions of medical providers who are not within the definition of ‘acceptable medical sources.’”
Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017); see 20 C.F.R. § 416.902(a),(d). Relevant
statements from “other” medical sources are competent evidence that can not be disregarded
without comment. Tobeler v. Colvin, 749 F.3d 830, 833-34 (9th Cir. 2014). The opinion of a
treating provider who does not qualify as an acceptable medical source may nonetheless be given
greater weight than the opinion of a treating provider who does so qualify, depending on an
evaluation of certain factors. Revels v. Berryhill, 874 F.3d at 655 (outlining factors identified in
20 C.F.R § 416.927(f)(1)). Those factors include the length of treating history, the number of
times the provider treated the claimant, if the treating medical source provided better evidence
and explanation for her opinion, or an opinion more consistent with the evidence of the record as
a whole, and whether the treating medical source provided a specialist opinion. Id. To reject
“other” medical source statements, the ALJ must provide germane reasons supported by
substantial evidence in the record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
Although Mr. Browning, PMHNP, “was in charge of [Plaintiff’s] psychotropic
medication management for more than a year prior to the hearing,” the record contains only
cursory references to Mr. Browning prescribing Plaintiff’s medication. See, e.g., Tr. 697. No
narrative notes from Mr. Browning are present in the record. Mr. Browning provides no
treatment notes, and thus there is no opinion from Dr. Browning that conflicts with the state
agency expert Megan Nicoloff, Psy.D. See, e.g., Tr. 697. While Mr. Browning signed Plaintiff’s
treatment notes every month, his entries in the record do not conflict with the Dr. Nicoloff’s
opinion that Plaintiff retains the capacity to understand and remember instructions for basic
tasks, can sustain concentration and persistence in completing basic tasks at a steady pace, and
can complete predictable routines and cope with the usual demands and changes in such a
setting. Tr. 62. The ALJ found Dr. Nicoloff’s uncontradicted opinion consistent with the
Plaintiff’s mental health records as a whole and gave it great weight. Id.
Additionally, Plaintiff argues that the state’s medical expert, Peter Bernardo, M.D., was
improperly afforded great weight by the ALJ because Dr. Bernardo did not have access to critical
information when he issued his opinion April 20, 2015. Pl. Br. 16, ECF No. 17; Tr. 169.
Specifically, Plaintiff states that Dr. Bernardo rendered his opinion before Plaintiff’s knee
surgery in November 2016. Plaintiff argues that Dr. Tuman’s surgical findings “strongly support
[Plaintiff’s] ongoing lower extremity complaints.” Id. Plaintiff acknowledges that the ALJ had
access to Dr. Tuman’s notes and that the ALJ reviewed Plaintiff’s June 2016 knee X-Ray. Pl. Br.
16, n. 5, ECF No. 17.
The ALJ does note that Plaintiff’s treatment records during the adjudicatory period show
that Plaintiff complained of flare ups of knee pain. Tr. 61. The ALJ recounts that Plaintiff’s June
2016 preoperative knee X-ray showed mild degeneration, and that Plaintiff reported decreased
pain and increased functioning with physical therapy in November 2016. Id. The ALJ notes that
the record contained no opinion supporting greater limitations than those suggested by Dr.
Bernard, who opined Plaintiff could perform at a light exertional level. Tr. 63. The ALJ did not
err in relying on the record and the uncontradicted opinion of Dr. Bernardo.
2. Plaintiff’s Subjective Testimony
The ALJ did not err in discounting Plaintiff’s subjective testimony. The agency employs
a two-step process to evaluate a claimant’s symptoms. Molina v. Astrue, 674 F.3d at 1112. “First,
the ALJ must determine whether there is objective medical evidence of an underlying
impairment which could reasonably be expected to produce the pain or other symptoms alleged.”
Id. (internal citations and quotations omitted). The Plaintiff need only show that her impairment
could cause some degree of the symptom; she need not prove the severity or degree of the
symptom. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ may not reject
Plaintiff’s subjective testimony as to the degree of symptoms as long as some objective evidence
is produced of an underlying impairment. Id.
If a Plaintiff presents objective evidence of impairment, the ALJ must next find either
affirmative evidence of malingering, or give specific, clear and convincing reasons in order to
reject the claimant's testimony about the severity of the symptoms. Id. (internal citations and
quotations omitted). “This is not an easy requirement to meet: ‘The clear and convincing
standard is the most demanding in Social Security cases.’” Garrison v. Colvin, 759 F.3d at 1015
(quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
The ALJ found that Plaintiff did provide objective evidence of mental health
impairments. Tr. 60. The ALJ did not find evidence of malingering. See Tr. 59-60. Thus, the ALJ
must provide specific, clear and convincing reasons for rejecting claimant’s testimony.
Plaintiff argues that the ALJ improperly discounted Plaintiff’s subjective symptoms
concerning her mental limitations when the ALJ opined that Plaintiff responded positively to
counseling and medications. Pl. Br. 17, ECF No. 17. Plaintiff contends that the ALJ chose
isolated statements from the record, at times when Plaintiff “clearly was attempting to adopt a
positive attitude,” and that the record as a whole shows Plaintiff suffers significant, ongoing
mental health issues. Id.
To the extent that the ALJ discounts Plaintiff’s subjective testimony, she provides clear
and convincing evidence for doing so. Tr. 59-61. The ALJ’s opinion does not rest on isolated
findings that Plaintiff only suffers from mild symptoms. See id. Rather, the ALJ provides clear
and convincing reasons for finding that the Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of her mental symptoms are not entirely consistent with the
medical and other evidence. While the record shows Plaintiff does suffer from multiple mental
health issues, the ALJ found that the record indicates that the Plaintiff’s symptoms are generally
mild to moderate and improve with treatment. Tr. 60. The ALJ provides a detailed, chronological
recounting of Plaintiff’s mental health symptoms, medical and psychological therapies, and the
Plaintiff’s responses to those therapies. Tr. 60-61. For instance, the ALJ notes
[t]he record documents that the claimant's mental impairment symptoms increase
at times but also that these increases related to situational stressors (such as the
break-up of an intimate relationship) and that the claimant [is] able to manage her
symptoms and return to baseline. (Ex. 5F-20). For example, although the claimant
reported significant mental and physical symptoms in February 2014, she had also
been without health insurance and had not had any medical treatment since
around April 2013. (Ex. 3F-4). January 2015 office chart notes indicate that the
claimant was stressed due to "having to put her ex-boyfriend in jail several days
ago" but that her mental health counseling at Options was "very helpful." (Ex. SF-
3). At that time, she also reported that an increase in medication (Effexor)
improved her symptoms. (Ex. SF-4). In February 2015 she reported that is [sic]
was "somewhat difficult to function" but also that her PHQ-9 score was only 10
out of 27. (Ex. 8F-5). At that time, she reported that her depression and anxiety
were a 4 on a scale of 1 to 10 and that she was not crying as often. (Ex. 5F-12, -
13).
Id.
The ALJ’s opinion is comprehensive in relating Plaintiff’s subjective mental health
complaints and comparing them to treatment modalities and objective findings in the chart, such
as Plaintiff’s self-report that by February 2016 she only used anxiety medication “very
infrequently.” Tr. 61.
The ALJ’s clear and convincing reasons provide legally sufficient bases for discounting
Plaintiff’s subjective testimony. The ALJ properly considered the Plaintiff’s testimony and
issued an opinion based on substantial evidence.
CONCLUSION
For the reasons set forth above, the Court finds that the ALJ’s opinion was the final
decision of the Commissioner. The ALJ based her opinion on substantial evidence and this Court
AFFIRMS the Commissioner’s final decision.
IT IS SO ORDERED.
DATED this 19th day of November 2019.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge