# Gaston v. Commissioner Social Security Administration

> District Court, D. Oregon · January 10, 2020

URL: https://www.frixlaw.com/law-library/cases/10391587

## Case

- **Court:** District Court, D. Oregon
- **Decided:** January 10, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

VERONICA G.,} .
Plaintiff, Civ. No. 3:17-cv-02038-CL
v. OPINION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MARK D. CLARKE, Magistrate Judge.
: Plaintiff Veronica G. seeks judicial review of the final decision of the Commissioner
denying her applications for SSI and SSDIB under the Social Security Act. The parties have |
consented to magistrate jurisdiction. For the reasons below, the Commissioner’s decision is
AFFIRMED.

'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 or parties in this case.
Page 1 of 19 -OPINION AND ORDER

BACKGROUND?
Plaintiff, who is now 50 years old, has applied for disability-related benefits four times.
On February 12, 1998, she filed an application for supplemental security income (“SSI”), but the
application was denied. On September 15, 2000, she filed applications for disability insurance
benefits (DIB) and SSI, claiming disability since January 1, 1995, but these were also denied.
Plaintiff's third set of applications for benefits were filed on March 7, 2007, and these were
granted. Tr. 419, 423, Plaintiff was in pay status from 2007 to 2010. Tr. 18. She was then
notified that her disability had ceased due to a finding of medical improvement, based in part on
an investigation by the Cooperative Disability Investigations Unit (CDIU). The initial
determination was made July 21, 2010, and the reconsideration dated April 14, 2011 came to the
same conclusion.
On September 21, 2011, Plaintiff filed her fourth and most recent set of applications for a
period of disability, DIB and SSI. In both applications, Plaintiff alleges disability beginning
October 1, 2010, the date of the cessation of her benefits due to medical improvements. These
applications were denied initially and upon reconsideration. Tr. 213, 242. A hearing was held
before Administrative Law Judge (ALJ) Kelly Wilson on May 22, 2015 and a supplemental
hearing was held on March 22, 2016. Tr.71, 115.
On September 28, 2016, the ALJ found Plaintiff not disabled because she found Plaintiff
could perform the jobs of mail sorter, storage facility rental clerk, and price marker, with a
residual functional capacity that limited plaintiff to between the full range of sedentary work and
less than the full range of light work. Tr. 35, 60-61. Plaintiff's residual functional capacity
(“RFC”), according to the ALJ, is largely the result of degenerative disc disease of the spine and
? The following recitation constitutes a summary of the pertinent evidence within the Administrative
Record and does not reflect any independent finding of fact by the Court. Citations to “Tr.” refer to the
page(s) indicated in the official transcript of the administrative record filed herein as Docket No. 14.
Page 2 of 19 -OPINION AND ORDER

idiopathic hypersomnia. Tr. 35-52. The Appeals Council of the Social Security Administration
(AC) denied Plaintiffs appeal of the ALJ’s decision on October 19, 2017. Tr. 1-3. The record
does not include the content of Plaintiff's AC appeal other than noting additional medical records
were submitted. /d. Plaintiff timely filed a Complaint for Review of Decision of Commissioner
of Social Security before this Court pursuant to 42 USC §405(g) on December 22, 2017.
DISABILITY 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). 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:
l. Is the claimant performing “substantial gainful activity’? 20 C.F.R.
§§ 404.1520(a)(4)(i);_ 416.920(a)(4)G). 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.
§§ 404,1520(a)(4)G); 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2. 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). Unless
expected to result in death, an impairment 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). This impairment must have lasted
or must 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)Gi);

Page 3 of 19 -OPINION AND ORDER

416.920(a)(4)qii). If the claimant has a severe impairment, the analysis
proceeds to step three.
3. 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 proceeds to the “residual functional
capacity” (“RFC”) assessment.

a. The ALJ must evaluate medical and other relevant evidence to assess
and determine the claimant’s 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.
4. 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.
5. 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, 954-55 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. /d. at 954. The
Commissioner bears the burden of proof at step five. Jd. at 953-54. 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.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing “work
Page 4 of 19 -OPINION AND ORDER

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 954-55;
Tackett, 180 F.3d at 1099.
THE ALJ’S FINDINGS
The ALJ made the following findings:
1. Plaintiff met the insured status requirements of the Social Security Act through
September 30, 2014. Tr. 21.
2. Plaintiff not engaged in substantial gainful activity from the alleged onset date of
October 1, 2010. Tr. 21.
3. Plaintiff has the following severe impairments: morbid obesity, degenerative disc
disease of the lumbar, thoracic, and cervical spine, and idiopathic hypersomnia. Tr.
21.
4, Plaintiff does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments. Tr. 35.
5. Plaintiff has the RFC to perform the exertional and non-exertional demands of light
work, which is defined in 20 CFR 404.1567(b) and 416.967(b) as work that involves
lifting and carrying 20 pounds occasionally and 10 pounds frequently, except that she
is able to perform standing and/or walking for up to 2 hours in an 8-hour workday.
She is able to perform frequent stooping, kneeling, crouching, crawling, and climbing
of ramps and stairs, but no climbing of ladders, ropes, scaffolds. She is able to
perform simple and detailed tasks, but more complex tasks would be difficult to
maintain consistently due to the effects of idiopathic hypersomnia. Tr. 35.
6. Plaintiffis unable to perform any past relevant work. Tr. 59.
7. Plaintiff was born on March 11, 1969 and was 41 years old, which is defined as a
younger individual, on the alleged onset date. Tr. 60.
8. Plaintiff has at least a high school education and is able to communicate in English.
Tr. 60.
9. Considering Plaintiff's age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that
Page 5 of 19 - OPINION AND ORDER

she can perform, including mail sorter, storage facility rental clerk, and price marker.
Tr. 60 — 61.
Consequently, the ALJ concluded Plaintiff was not disabled as defined by the Social
Security Act from October 1, 2010, through September 28, 2016. Tr. 61.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the legal findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Batson v. Comm’r Soc, Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); 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,’ or more clearly stated, ‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Bray v.
Comm’r Soc, Sec. Admin., 554 F.3d 1219, 1222 (9th Cir, 2009) (quoting Andrews v. Shalala, 53
F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner’s alleged errors, this Court □

must weigh “both the evidence that supports and detracts from the [Commissioner’s]
conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations
of the evidence are insignificant if the Commissioner’s interpretation is rational. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
Where the evidence before the ALJ is subject to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d
at 1041). “However, a reviewing court must consider the entire record as a whole and may not
affirm simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a
reviewing court “‘cannot affirm the [Commissioner’s] decision on a ground that the
[Administration] did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 454

Page 6 of 19 - OPINION AND ORDER

F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse an ALJ’s
decision on account of an error that is harmless. Jd. at 1055-56. “[T]he burden of showing that
an error is harmful normally falls upon the party attacking the agency’s determination.” Shinseki
v. Sanders, 556 U.S. 396, 409 (2009).
Even where findings are supported by substantial evidence, “the decision should be set
aside if the proper legal standards were not applied in weighing the evidence and making the
decision.” Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42
U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript
record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or
without remanding the case for a rehearing.
DISCUSSION
Plaintiff's main theory in support of her contention that substantial evidence does not
support the ALJ’s decision is that the ALJ failed to fully and fairly develop the administrative
record or ignored information in the record. To that end, Plaintiff presents the following issues:
1. Did the ALJ properly evaluate the medical opinions of DDS non-examining
physicians and Plaintiff's treating physician?
2. Did the ALJ properly assess the combination of severe and non-severe impairments at
Step Two and in the RFC?
3. Did the ALJ properly evaluate Plaintiff's ability to stoop or bend at the waist in the
RFC?
4, Did the ALJ properly evaluate Plaintiffs mental health limitations in the RFC?
The ALJ fully and fairly developed the record and properly evaluated that record. The
decision is supported by substantial evidence and is therefore affirmed.
I, The ALJ properly evaluated the medical opinions in the record and
translated their findings into work-related limitations.

Page 7 of 19 - OPINION AND ORDER

In social security cases, there are three categories of medical opinions: those that come □

from treating, examining, and non-examining doctors. Holohan, 246 F.3d at 1201. “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.” Jd. at 1202.
Opinions supported by explanations are given more authority than those that are not, as are
opinions of specialists directly relating to their specialties. Jd.
“If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion,
an ALJ may only reject it by providing specific and legitimate reasons that are supported by
substantial evidence.” /d. (quoting Bayliss, 427 F.3d at 1216); see also Reddick, 157 F.3d at 725
(“[The] reasons for rejecting a treating doctor’s credible opinion on disability are comparable to
those required for rejecting a treating doctor’s medical opinion.”). ““The ALJ can meet this
burden by setting out a detailed and thorough summary of the facts and conflicting clinical
evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881
F.2d 747, 751 (9th Cir. 1989) (citation omitted).
When the record contains conflicting evidence, “it is the ALJ’s role to determine
credibility and resolve the conflict.” Allen v. Heckler, 749 F.2d 577, 579 (oth Cir. 1984), And,
“(w]here the evidence is susceptible to more than one rational interpretation, one of which
supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278
F.3d 947, 954 (9th Cir. 2002).
a. Non-examining DDS consultants
Non-examining medical consultants Drs. Jensen, Meyers, and Alley opined that Plaintiff
could lift and carry 20 pounds occasionally, 10 pounds frequently, and stand and / or walk for a

Page 8 of 19 - OPINION AND ORDER

total of two hours, among other limitations. Tr. 222-23, 256-58, 4644-51. The ALJ adopted the
lifting, carrying, standing, and walking limitations of all three of these doctors. Tr. 53; see Tr. 35
(residual functional capacity assessment limiting Plaintiff to “lifting and carrying 20 pounds
occasionally and 10 pounds frequently, except that she is able to perform standing and/or
walking for up to 2 hours in an 8-hour workday.”). Plaintiff contends that these doctors actually
assessed even more restrictive exertional limitations and limited Plaintiff to “sedentary work,”
and that the ALJ rejected this limitation without explanation. As the Commissioner points out,
however, “Plaintiff does not identify a lifting, carrying, standing, or walking limitation that the
ALJ rejected; rather, she seeks to conflate state agency vocational worksheets and vocational
summaries with medical opinion.” Def. Brief (#20) at 9, The Court agrees that Plaintiff's
argument is without merit, as she bases her argument not on the work-related limitations
assessed by the doctors, but upon a vocational translation of those limitations. Tr. 224, 261,
4651. Physicians do not have the expertise of a vocational expert, McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011), and the doctors in this case did not specify exertional limitations that
are more restrictive than those assessed by the ALJ in the RFC.
b. Treating physician, Dr. Toffler
Plaintiff's treating physician, William L. Toffler, M.D., rendered a number of opinions, *
including that Plaintiff would miss more than four days of work per month due to her

3 The ALJ provided ten specific and legitimate reasons for rejecting Dr. Toffler’s opinions that Plaintiff
does not challenge. Tr, 53-56. Specifically, the ALJ rejected Dr. Toffler’s opinions because: (1) they
addressed issues reserved to the Commissioner, (2) they were based on Plaintiffs self-report of
symptoms; (3) they were based on transient conditions not symptomatic for twelve months; (4) they were
based on conditions that were well controlled or had no functional impact, such as a bee sting allergy; (5)
they were based on symptoms Plaintiff did not consistently report to treatment providers; (6) they were
internally inconsistent; (7) they included limitations more restrictive than Plaintiff alleged; (8) they were
inconsistent with Plaintiff's activities; (9) they were inconsistent with objective findings; and (10) they
were not always well explained, as Dr. Toffler responded “N/A” more than once when asked what
medical findings supported portions of his opinion. Tr. 53-56.
Page 9 of 19 - OPINION AND ORDER

impairments or treatment.’ Tr. 3707. This opinion is contradicted by the opinions of Drs. Jensen,
Meyers, and Alley. Tr. 222-23, 256-58, 4644-51. Elsewhere in her brief, Plaintiff challenges the
ALJ’s finding that the reason for Plaintiffs frequent medical appointments was for a “disability
focus” rather than medical necessity. Both overlapping issues are addressed here.
The ALJ provided a specific and legitimate reason for rejecting Dr. Toffler’s opinion
regarding missed work-days for medical appointments. Tr. 56. As discussed below, the ALJ
rejected this opinion because Plaintiff's use of medical treatment and allegations of symptoms to
health care providers was inconsistent with her need for treatment based on the objective medical
findings. Tr. 56. In other words, Plaintiffs excessive and unnecessary medical treatment
undermined Dr. Toffler’s opinion and created a “disability focus” for her appointments.
Therefore, the ALJ properly rejected an absenteeism limitation in the Plaintiff's RFC.
When considering how much weight to give a medical opinion, an ALJ considers not _
only whether the opinion is consistent with the record, 20 C.F.R. § 404.1527(c)(4), but also “any
factors ... of which [she is] aware, which tend to support or contradict the medical opinion,” Jd.
at § 404.1527(c)(6). Here, the ALJ cited a May 18, 2013 examination as an illustration of why
Dr. Toffler’s opinion about absenteeism was contradicted by the record. Tr. 56 (citing Tr. 2772).
On that day, Plaintiff sought emergency room treatment “complaining of swelling in her neck
and fever.” Tr. 2772. The examining doctor, Daniel Hubbard, M.D., noted that not only was
there “no clinical evidence . . . that she has either of these problems,” but also that “she often
presents with multiple complaints that are not substantiated on exam and that she finds multiple
avenues to avoid discharge.” Tr. 2772. And, as the ALJ noted elsewhere, another health care

‘Plaintiff also argues that the ALJ should have considered the length and extent of Dr. Toffler’s
relationship with Plaintiff. However, the ALJ explicitly discussed the fact that Dr. Toffler treated
Plaintiff since at least 2010, (Tr. 39), repeatedly noted that Dr. Toffler was Plaintiffs treatment provider,
(see, e.g., Tr. 40, 42-43, 45), and discussed the sequence of examinations and opinions rendered by Dr.
Toffler over a multiyear period (Tr. 53-56).
Page 10 of 19 - OPINION AND ORDER .

professional found that Plaintiffs report of symptoms and requests for treatment demonstrated
“significant narcotic seeking behavior.” Tr. 1599; see Tr, 52. This is a specific and legitimate
reason for rejecting the physician’s opinion that Plaintiff would be absent for frequent medical
appointments.
Regarding the evaluation of this issue in the RFC, Plaintiff argues that the ALJ should
have calculated how many days each month she visited a health care facility to determine how
often her impairments and treatment would have caused her to miss work. The Court can find no
authority to support this contention. In Avel/o, the ALJ counted the plaintiff's medical
appointments on a chart and concluded the plaintiff would not miss work as often as was opined
by a health care provider. Avel/o v. Colvin, 2014 WL 5506746, at *25 (D. Nev. Sept. 16, 2014),
report and recommendation adopted, 2014 WL 5514198 (D. Nev. Oct. 31, 2014)). The court
found that the ALJ’s analysis was erroneous, as the inquiry needed to be more nuanced than
merely counting medical appointments and should take into account work Plaintiff would miss
because of “impairments or treatment.” Jd. Here, the ALJ engaged in the nuanced analysis that
the Court in Avello found was missing in that case. Instead of merely counting medical
appointments, the ALJ considered the characterization of the medical necessity of those
appointments by Plaintiff's treatment providers. Tr. 56. And, as discussed by the ALJ, the record
shows that Plaintiff sought care from treatment providers by alleging symptoms that did not exist □□□
and that she repeatedly tried to avoid discharge even after treatment providers determined that
there was no basis for her visit.> Tr. 1599, 2772; see Tr. 52, 56.

> The Court also acknowledges that this pattern of behavior is similar to what was observed in the fraud
investigation that was performed after the last time SSA awarded Plaintiff disability benefits. See Tr.
4150-51. In 2010, the fraud investigators inquired as to why Plaintiff was living in an adult foster home
facility. Tr. 4150. A witness explained that:
The doctor that last qualified [Plaintiff] for adult foster care is now
unable to explain why he did that. Each time the facility re-evaluates
Page 11 of 19 □ OPINION AND ORDER

Plaintiff concedes that the ALJ provided examples of unnecessary medical appointments
in order to discount the opinion of Dr. Toffler, but she argues that Plaintiff's long and
complicated medical history required the ALJ to consider each and every appointment’s medical
necessity and assess how many days of work Plaintiff would actually need to miss for necessary
medical appointments. The Court disagrees. The ALJ engaged in the proper analysis to
determine the weight to give Dr. Toffler’s opinion, and the ALJ also assessed the record as a
whole to determine that Plaintiff's excessive medical treatment is not a legitimate limitation as
far as her residual functional capacity is concerned.
II. The ALJ properly assessed the combination of severe and non-severe
impairments at Step Two and in the RFC.
a. Step Two
In social security cases, the ALJ must determine whether an impairment is a medically
determinable impairment. An impairment is medically determinable when it results from
“anatomical, physiological, or psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must
be established by medical evidence of signs, symptoms, and laboratory findings,” not just
reported symptoms. 20 C.F.R §§ 404.1521, 416.921. Once an impairment is deemed to be
medically determinable, then the ALJ must determine if the impairment is a severe or not severe
impairment. An impairment (or combination of impairments) is considered severe when it
“significantly limits [a person’s] physical or mental ability to do basic work activities.” 20 C.F.R.
§§ 404.150(c), 416.920(c). Conversely, an impairment (or combination of impairments) is
considered not severe if it “does not significantly limit [a person’s] physical or mental abilities to
[Plaintiff's] status and notifies the doctor that she has reached the
function level for transfer to independent living, [Plaintiff] is able to find
another reason / condition to necessitate her staying in the foster care
program. Tr. 4150-4151.
Page 12 of 19 - OPINION AND ORDER

do basic work activities.” 20 C.F.R §§ 404.1521(a), 416.921(a). Moreover, the severe
impairment must have lasted or be expected to last at least twelve months. 20 C.F.R. §§
404.1509, 416.909. If an impairment is determined to be severe, then the sequential analysis
proceeds and the ALJ must continue to consider all the claimant’s limitations, regardless of
whether they are severe. SSR 96-9p, 1996 WL 374184 (July 2, 1996).
The Ninth Circuit has held that an ALJ’s finding at step is “merely a threshold
determination meant to screen out weak claims.” Buck v. Berryhill, 869 F.3d 1040, 1048 (9th
Cir. 2017). Ifan ALJ decides step two in a claimant’s favor, any alleged error is to which
impairments the ALJ found severe or non-severe is, at most, harmless and “cannot be the basis
for remand.” /d. at 1049. Here, Plaintiff claims that the ALJ erroneously failed to find
incontinence, neurofibromatosis, fibromyalgia, and somatoform disorder severe impairments at □
step two of the sequential evaluation. However, the ALJ decided step two in Plaintiff's favor
and proceeded all the way to step five of the sequential evaluation. Tr. 21, 60-61. Therefore,
Plaintiff identifies no harmful error in the ALJ’s step two finding.
b. Residual Functional Capacity assessment
In the Residual Functional Capacity (RFC) assessment, the ALJ is required to consider all
of the limitations imposed by the claimant's impairments, even those that are not severe.
Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) citing Social
Security Ruling (“SSR”) 96-8p (1996). Even though a non-severe “impairment[ ] standing alone
may not significantly limit an individual's ability to do basic work activities, it may—when
considered with limitations or restrictions due to other impairments—be critical to the outcome
of aclaim.” /d. Here, Plaintiff challenges the ALJ’s assessment of Plaintiff's claimed
incontinence, neurofibromatosis, fibromyalgia, and somatoform disorders. However, the Plaintiff

Page 13 of 19 - OPINION AND ORDER

identifies no error in how the ALJ considered these impairments, but merely asks this Court to
reweigh the evidence and come to a different conclusion.
i. Incontinence
The ALJ properly addressed Plaintiff's incontinence by reviewing the medical history of
her complaints, the treatment and surgical history, and the potential impact on her work
limitations, Tr. 28. Contrary to Plaintiffs claim, the ALJ did not merely suggest that Plaintiff
use protective undergarments to entirely solve the issue, but mentioned the fact that Plaintiff
herself stated that she wears such undergarments as a factor in his consideration of the
impairment as nonsevere. Tr. 29. The ALJ also considered her inconsistent reports of the
impairment, her inconsistent reports of the efficacy of her surgery in 2015, and her failure to
follow treatment recommendations, such as cutting her liquid intake by half and avoiding coffee,
and pelvic floor rehabilitation. Tr. 28-29.
Plaintiff claims that the ALJ “failed to discuss the relationship between incontinence and
somatization disorder as pointed out by Plaintiff.” However, the only “relationship” between
these two impairments in the record is Plaintiffs Prehearing Memorandum, which merely states,
“Incontinence is a typical symptom of somatization disorder.” Tr. 536. Plaintiff points to no
medical evidence or even subjective symptom testimony to connect these two impairments. The
ALJ properly assessed Plaintiff's incontinence and found that it did not significantly limit her
physical or mental abilities to do basic work activities.
ii. Fibromyalgia
Plaintiff argues that the ALJ improperly rejected her allegations that fibromyalgia often
caused her to stay in bed all day with a heating pad. Tr. 159. An ALJ must evaluate whether a
claimant’s alleged symptoms are consistent with the evidence in the record. 20 C.F.R. §

Page 14 of 19 - OPINION AND ORDER

404.1529(a). An ALJ properly rejects a claimant’s subjective testimony about her symptoms and
limitations by providing clear and convincing reasons for doing so. Valentine v. Comm'r Soc.
Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009). An ALJ may consider whether a claimant failed
to seek treatment when evaluating alleged limitations. Molina v. Astrue, 674 F.3d 1104, 1113-14
(9th Cir. 2012). Here, the ALJ reasonably rejected Plaintiffs allegation that she had to stay in
bed all day with a heating pad because the alleged limitation was inconsistent with her failure to
seek treatment for fibromyalgia during much of the period under review. Tr. 29.
Plaintiff cites medical records to refute the ALJ’s reasoning (PIf. Brief 13), but the
records she cites either don’t discuss fibromyalgia (Tr. 1190), precede the period under
consideration (Tr. 2163, 2198, 2222-23, 2230), cite fibromyalgia as a condition that Plaintiff
reported to a neuropsychologist (Tr. 3123), merely identify the fact that Plaintiff was diagnosed
with fibromyalgia in 2008 (Tr. 4652), or show only that Plaintiff took medication (Tr. 1476,
4428). Plaintiff has not shown that the ALJ mischaracterized the record by finding that her use of
medical treatment during the time period under review was inconsistent with her allegedly
debilitating fibromyalgia symptoms.
iii. Neurofibromatosis
The ALJ discussed Plaintiff's medical and treatment history regarding neurofibromatosis,
including the “history of multiple excisions, which were mostly performed in the office and were
therefore not major surgeries and dd not require extended recovery times.” Tr. 23. The ALJ also
noted treatment notes discussing Plaintiffs condition as stable, and the fact that Plaintiff had
previously had neurofibromas removed without complications. Jd.
iv. Somatoform Disorder

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“When evaluating psychiatric impairments such as somatization disorder . . ., the ALJ □

must follow a ‘special psychiatric review technique . .. .” to determine if an impairment is
severe. Chaudhry v. Astrue, 688 F.3d 661, 670 (9th Cir. 2012). When an ALJ concludes that a
claimant has no more than a “mild limitation in any functional area and no episodes of
decompensation, a conclusion that a plaintiff's mental impairments are not severe is generally
appropriate. 20 C.F.R. § 404.1520a(d)(1) (effective Jun 13, 2011 to January 16, 2017).
Here, the ALJ followed the special psychiatric review technique, (Tr. 33-35), and
appropriately concluded that none of Plaintiff's mental impairments were severe because
Plaintiff had no more than a “mild” limitation in any functional area and no episodes of
decompensation. Tr. 34. Additionally, the ALJ found no evidence of a somatoform disorder in
the record, other than a diagnosis by DDS consultants, Tr. 57, Plaintiff points toacomment by __
Paul Stoltzfus, Psy.D., which stated: “Index for Somatoform Disorder was significantly elevated
and indicates a strong tendency to develop physical symptoms in response to psychological
stress.” Tr. 3123. In the “DSM-V Diagnosis” section of his report, Dr. Stoltzfus listed
“Somatization Disorder Traits.” /d. The Court finds this brief comment to be vague and
insufficient to outweigh the ALJ’s analysis of the rest of the medical record and assessment of
Plaintiff's mental impairments. Plaintiff does not challenge any of the findings of the special
psychiatric review technique. Based on these findings and the evidence in the record, the ALJ
properly considered this impairment and found that it did not significantly limit her ability to do
work activities.
c. Cumulative Limitations
Finally, Plaintiff argues that “the ALJ must describe the cumulative limitations of the
severe and non-severe limitations, not individual assessments of each impairment.” Pf. Brief

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11. However, Plaintiff herself does not state what the cumulative effects of these limitations are,
or how they are different or more limiting than what the ALJ determined. The ALJ properly
considered all of the limitations imposed by Plaintiffs impairments, and, ultimately the ALJ’s
determinations are adequately supported by substantial evidence in the record.
I. The ALJ properly evaluated Plaintiff's ability to stoop or bend at the waist.
An ALJ must provide a “narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g.
daily activities, observations).” SSR 96-8p, available at 1996 WL 374184, at 7. Here, the ALJ
provided a 23-page narrative describing how the evidence supported each conclusion contained
within the residual functional capacity. Tr. 36-59.
For vocational purposes, “occasionally” means one-third of the work day, while
“frequently” means two-thirds of the work day. Selected Characteristics of Occupations Defined
in the Revised Dictionary of Occupational Titles, U.S. Dept. of Labor, 1993, Appendix C
(Physical Demands). In the residual functional capacity, the ALJ stated that Plaintiff could
engage in frequent stooping, that is, that Plaintiff could stoop for up to two-thirds of the
workday. Tr. 35. In her explanation of the RFC, the ALJ stated that Plaintiff had an “occasional
limitation” in this activity — that is, that a limitation lasting one-third of the day would prevent
her from engaging in the activity. Tr. 57. Thus, in the residual functional capacity, the ALJ
quantified the amount of the day Plaintiff could engage in the activity (two-thirds of a workday),
while in the narrative, the ALJ quantified the amount of the day Plaintiff could not engage in the
activity (one-third of the workday). There is no inconsistency in the ALJ’s quantifications of
Plaintiff's limitation in stooping.
IV. The ALJ properly assessed Plaintiff’s mental limitations in the RFC.

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Plaintiff argues that the ALJ erred by failing “include [mental health] limitations such as
the ability to do math.” PIf. Brief 15. In particular, Plaintiff claims that the ALJ failed to accept
Dr. Stoltzfus’s opinion that Plaintiff would have difficulty performing math.
When a medical report does not assign any specific work-related limitations, an ALJ need
not provide reasons for rejecting the report because none of its conclusions were actually
rejected, Turner v. Comm’r of Soc, Sec, Admin., 613 F.3d 1217, 1223 (9th Cir. 2010), Here, Dr,
Stoltzufs rendered no opinion as to what work-related math limitations Plaintiff might have. Tr.
3124. Instead, Dr. Stoltzfus found, without comment, that while Plaintiff's reading and writing
skills were at the upper high school and college level, her math skills were at the fifth-grade level

met the criteria for a learning disorder. Tr. 3123- 24. The ALJ discussed these findings and
noted that “[d]espite diagnosing a learning disorder, Dr. Stotlzfus concluded that the claimant
functioned in the average range intellectually,” and had “no significant problems with
neurocognitive functioning.” Tr. 32, 3123-24.’ The ALJ did not reject this opinion, but
concluded that the learning disorder diagnosed by Dr. Stotlzfus would not have a significant
effect on Plaintiff's functioning and found it non-severe. Tr. 32. Plaintiff has not demonstrated
any error with this reasoning, and it is supported by substantial evidence in the record.
ORDER
Based on the foregoing, the decision of the Commissioner is AFFIRMED, pursuant to
“sentence four” of 42 U.S.C. § 405(g): “The court shall have power to enter... a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing.” Garrison v, Colvin, 759 F.3d 995, 1009 (9th Cir.
2014),
It is so ORDERED and DATED this iO. day of January, 2020.

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ARK D. CLARKE
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10391587. Public record. Not legal advice.