The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
GLORIA J. U., 1
Plaintiff, Civ. No. 6:18-cv-01170-CL
v. OPINION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________
MARK D. CLARKE, Magistrate Judge.
Plaintiff Gloria J. U. (“Plaintiff”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration denying her claim for supplemental security
income (SSI) benefits under Title XVI of the Social Security Act. For the reasons provided
below, the Commissioner’s decision is AFFIRMED.2
1In 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.
2 The parties have consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. §
636(c)(1).
BACKGROUND
Plaintiff was born October 18, 1964. Tr. 197. Plaintiff dropped out of school after the
10th grade. Tr. 221. She attended community college later in life in an attempt to obtain her
GED, but was unsuccessful. Tr. 738. Plaintiff was married for 27 years and has four children.
Tr. 738. When her children were younger, Plaintiff was a stay-at-home parent. During the
fifteen years prior to her application for benefits, her only employment was in 2007-2008, when
she worked in a compact disc manufacturing facility through a temporary agency. Tr. 205. She
explained in her application for benefits that she stopped working at this position “[d]ue to her
conditions.” Tr. 220. Plaintiff was diagnosed with genotype 1A hepatitis C in 1997. Tr. 404.
She was diagnosed with pancreatitis in 2008. Tr. 404. A liver biopsy performed in October 2011
disclosed chronic hepatitis C with moderate to severe activity and early cirrhosis. Tr. 406.
Plaintiff has a history of alcohol and opiate addiction. Tr. 739. Her excessive alcohol
use was largely confined to her teenage years. Tr. 41. She was introduced to heroin by her
husband and used heroin for approximately a year and a half while in her thirties. Tr. 40, 478,
739. She has been on daily methadone treatment since 1997 (Tr. 404, 739) and undergoes
weekly alcohol and drug testing. Tr. 70. She attends weekly counseling sessions in conjunction
with her methadone therapy. Tr. 68.
Plaintiff applied for SSI benefits in 2014. Tr. 197-200. She alleged disability beginning
January 1, 2009. Tr. 197. Her claim was denied initially in and upon reconsideration. Tr. 109,
117. Plaintiff timely filed a request for hearing on February 3, 2015. Tr. 120. A hearing was
held before ALJ Rauenzahn on November 2, 2016, in Eugene, Oregon. Tr. 56. Plaintiff
appeared and testified at the hearing and was represented by an attorney. According to Plaintiff,
the ALJ determined it was necessary to continue the hearing at a later date in order to allow for a
consultative neuropsychological evaluation to be performed in the interim. Tr. 77. However,
according to the ALJ’s opinion, the hearing was continued because the vocation expert (“VE”)
was not prepared to testify. Tr. 13.
The ALJ reconvened the hearing on May 31, 2017. Tr. 33. Plaintiff provided additional
testimony at the hearing. An independent VE also testified at the reconvened hearing. The ALJ
issued her decision denying Plaintiff’s claim for SSI benefits on June 15, 2017. Tr. 13-32. The
Appeals Council denied Plaintiff’s request for review. Tr. 1-6. As a result, the ALJ’s decision
became the final decision of the Commissioner. Plaintiff now appeals that final decision.
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:
1. Is the claimant performing “substantial gainful activity”? 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay or
profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such
work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
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)(ii);
416.920(a)(4)(ii). 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. Id. at 954. The
Commissioner bears the burden of proof at step five. Id. 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
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
Applying the five-step analysis, the ALJ made the following findings:
1. Plaintiff has not engaged in substantial gainful activity since the application date. Tr.
15.
2. Plaintiff has the following severe impairments: hepatitis C; cirrhosis; cervical
degenerative disc disease; depression; posttraumatic stress disorder (PTSD); opiate
dependency and alcoholism in remission; mild neurocognitive disorder; anxiety
disorder, not otherwise specified; and chronic headaches v. migraines. Tr. 15.
3. Plaintiff does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Tr. 16.
4. Plaintiff has the RFC to perform a reduced range of light work. She can lift, carry,
push, and pull 20 pounds occasionally and 10 pounds frequently. She can stand
and/or walk for about 6 hours in an 8-hour workday, and she can sit for 6 hours in an
8-hour workday. She can occasionally climb ramps and stairs, and she can never
climb ladders, ropes, or scaffolds. She can never balance without support. She can
occasionally crawl, stoop, and crouch. She can occasionally overhead reach
bilaterally. She can understand, remember, and carry out simple, routine, and
repetitive instructions that can be learned in 30 days or less. She can have occasional
public contact but cannot work directly with the public. She can have occasional
supervisor contact and occasional direct coworker interaction with no group tasks.
She cannot perform math skills greater than GED reasoning level 2. She is limited to
occasional changes in work setting and work duties. She cannot perform conveyor
belt paced work. She can have no exposure to moving mechanical parts and
unprotected height hazards as defined by the Dictionary of Occupational Titles
(DOT). Tr. 18-19.
5. Plaintiff is unable to perform any past relevant work. Tr. 26.
6. Transferability of job skills is not an issue in this case because Plaintiff’s past relevant
work is unskilled. Tr. 26.
7. Considering Plaintiff’s age, education, work experience, and RFC, there are jobs that
exist in significant numbers in the national economy that Plaintiff can perform
(laundry sorter, small products assembler, and marker/tagger). Tr. 26-27.
Consequently, the ALJ concluded Plaintiff was not disabled as defined by the Social
Security Act since April 8, 2014, the date the application was filed. Tr. 27.
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
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. Id. 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 presents the following issues for review: (1) whether the ALJ provided sufficient
reasons to discount Plaintiff’s subjective symptom testimony; and (2) whether remand for the
immediate calculation and award of benefits is warranted. The Court finds the ALJ gave legally
sufficient reasons for discounting Plaintiff’s symptom testimony and any error in misstating the
record was harmless. The ALJ’s overall conclusion of no disability is clearly explained and
supported by substantial evidence.
I. The ALJ provided clear and convincing reasons supported by substantial
evidence for discounting Plaintiff’s subjective symptom complaints.
When deciding whether to accept the subjective symptom testimony of a claimant, the
ALJ must perform a two-stage analysis. In the first stage, the claimant must produce objective
medical evidence of one or more impairments which could reasonably be expected to produce
some degree of symptom. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The
claimant is not required to show that the impairment could reasonably be expected to cause the
severity of the symptom, but only to show that it could reasonably have caused some degree of
the symptom. Id.
In the second stage of the analysis, the ALJ must consider the intensity, persistence, and
limiting effects of the alleged symptoms based on the entire record. SSR 16-3p at *7-8. The
ALJ will consider the “[l]ocation, duration, frequency, and intensity of pain or other symptoms”
reported by the claimant, any medical sources, and any non-medical sources. Id. The ALJ’s
decision must contain “specific reasons for the weight given to the individual’s symptoms, be
consistent with and supported by the evidence, and be clearly articulated so the individual and
any subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms.”
Id. Additionally, the evidence upon which the ALJ relies must be substantial. See Reddick, 157
F.3d at 724; Holohan v. Massinari, 246 F.3d 1195, 1208 (9th Cir. 2001); Sullivan, 947 F.2d 341,
345-46 (9th Cir. 1991). The ALJ must also “state specifically which symptom testimony” is
being rejected and what facts lead to that conclusion. Smolen v. Charter, 80 F.3d 1273, 1284 (9th
Cir. 2009) (citing Dodrill, 12 F.3d at 918). In rejecting claimant’s testimony about the severity
of her symptoms, the ALJ must give “specific, clear and convincing reasons for doing so.”
Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Lingenfelter v. Astrue, 504
F.3d 1029, 1036 (9th Cir. 2007)).
In this case, the ALJ applied the requisite two-step framework and cited specific, clear,
and convincing reasons for discounting portions of Plaintiff’s subjective symptom testimony.
First, The ALJ determined that Plaintiff’s testimony regarding her vision was not supported by
the objective evidence of record. Tr. 19. Lack of objective evidence is a valid, clear-and-
convincing rationale for finding a plaintiff’s testimony not fully credible. Burch v. Barnhart, 400
F.3d 676, 681 (9th Cir. 2005). When asked why she was unable to perform work involving
primarily sitting with the ability to change positions as needed, Plaintiff testified she could not
work due to poor vision, as well as diminished cognition and concentration. Tr. 19. The ALJ
discounted Plaintiff’s testimony regarding her vision impairment because “the medical evidence
of record contains no objective evidence of vision impairment, nor were such allegations made to
the claimant's medical providers.” Tr. 19. Plaintiff points out that the medical records do show
some complaints from Plaintiff of blurred vision. However, after review of the evidence, the
Court agrees that the record lacks objective medical evidence of a severe vision impairment. At
most, an eye exam revealed that Plaintiff had 20/25 vision in her left eye and her doctor made a
note that her difference in vision from left to right eye and the use of single reading glasses
“could worsen her headaches.” Tr. 776. Based on this minor evidence of a vision impairment, it
was reasonable for the ALJ to conclude that the medical evidence was inconsistent with
Plaintiff’s testimony that her vision would hinder her ability to work.
Second, the ALJ found that Plaintiff’s daily activities contradicted her testimony
regarding the limiting effects of her symptoms. An ALJ may use activities of daily living to
discredit a claimant’s testimony where the activities (1) meet the threshold for transferable work
skills or (2) contradict the claimant’s testimony. Orn, 495 F.3d at 639. The ALJ reasoned that
Plaintiff “alleged that she performed no household chores or shopping due to fatigue. Yet, she
attended several support groups and went to the methadone clinic daily.” Tr. 19. The ALJ
further explained later in the decision that although Plaintiff testified that she did not engage in
activities other than attending her medical appointments and support groups, the record shows
that she “prepares simple meals, washes laundry, cleans her bathroom, washes dishes, dusts,
reads, shops, manages her finances, goes for walks, hikes, exercises, goes out for coffee, attends
church, and cares for her grandchildren. At times, she also cared for her pets and her teenage
children, and she attended college courses.” Tr. 22. Plaintiff should not be penalized for
funneling the majority of her energy into maintaining her sobriety. However, it was reasonable
for the ALJ to consider these daily activities in combination with other evidence in the record
and conclude that such activities undermine or contradict Plaintiff’s assertions related to the
intensity, persistency, and limiting effects of her symptoms.
Third, the ALJ noted inconsistencies between Plaintiff’s testimony and the medical
records regarding Plaintiff’s history of headaches. Tr. 19-20. The ALJ stated that Plaintiff
“alleged an 8-year history of headaches, but admitted her symptoms were adequately treated with
two Tylenol a day.” Tr. 19-20. The ALJ further reasoned,
At the May 2017 hearing, the claimant continued to report an eight-year history of
headaches. However, contrary to her testimony in November 2016, she now alleged
that her headaches rendered her bedridden for three to four days at a time before
they resolved. When asked when her headaches had worsened, the claimant alleged
that her headaches have always been severe and rendered her bedridden. When
asked about the discrepancy between her earlier testimony, she explained there
must have been a "misunderstanding" at the earlier hearing. However, the
November 2016 hearing record shows no such misunderstanding. Nor are the
claimant's allegations at the May 2017 hearing supported by the medical evidence
of record. Rather, the medical evidence shows no mention of headaches until 2015,
and even then, her headaches are rarely mentioned. At the hearing, the claimant
also alleged that her headache medication provided only an hour of relief from her
headaches. However, this is also inconsistent with her contemporaneous treatment
notes showing that her headaches are effectively managed with medication (Ex.
21F/1 ).
Tr. 20.
Plaintiff argues that the ALJ misinterpreted and misstated the record here. Plaintiff argues
that she did not testify at the November 2016 hearing that her symptoms were adequately
controlled with two Tylenol a day, and explains that she instead testified that her headaches were
“really bad” and she had taken Advil for her headaches in the past (implying that the Advil had
at least helped to some degree), but she was no longer able to take such medication because of
her liver condition. Tr. 69-70. Therefore, she was limited to taking two Tylenol for her
headaches. Moreover, Plaintiff points out that she reported morning headaches to Dr. Kelley
while obtaining treatment from him in 2011 and 2012 (Tr. 391, 402), and a record from 2014
shows that Dr. Khaleeq noted a past medical history of headaches (Tr. 476). Accordingly, the
ALJ’s underlying finding that Ulbricht did not report headaches until 2015 is not supported by
substantial evidence. However, the Court finds harmless error here. The ALJ was ultimately
correct that Plaintiff takes two Tylenol a day as her treatment for headaches. Plaintiff points to
no other method of treatment for headaches. The medical records cited by Plaintiff regarding her
headaches prior to 2015 are brief, and the records after 2015 do not support Plaintiff’s testimony
that her headaches rendered her bedridden on such a frequent basis that she could not work. The
example cited by Plaintiff from 2016 reveals that her headaches were described as “dull.” Tr.
568. The doctor opined that her headaches could be caused by her Zoloft medication and
recommended that she reduce the strength of her medication and undergo an eye exam. Id.
Another example cited by Plaintiff from 2015 to support her history of headaches reveals that her
headaches seemed to be connected to other symptoms that indicate a viral or bacterial infection.
Tr. 620. The record states that Plaintiff was seen for chest congestion, sore throat, cough,
sweating, sinus congestion, and “over the past 2 days she has started to develop a severe
headache and neck pain and stiffness.” Id. Other records cited by Plaintiff do mention a history
of headaches, but are consistent with the ALJ’s statements that the headaches are rarely
mentioned and seem to be treated by medication. Tr. 402, 476, 520, 778. The Court finds no
harmful error here.
Fourth, the ALJ noted discrepancies between the medical evidence and Plaintiff’s alleged
onset date. The ALJ stated,
“There is no evidence of any significant exacerbation in her medical or mental
health conditions that would support her assertion that she quit [working in 2008]
for medical reasons. In fact, there are no medical records even remotely close to the
claimant's alleged onset date. Rather, the most proximal records are from almost
three years later in August 2011 when the claimant sought treatment due to a history
of hepatitis C dating back to 1997 (Ex. 3F/23). Notably, the fact the claimant's
allegedly disabling hepatitis was present at approximately the same level of severity
prior to the alleged onset date and did not prevent her from working or raising her
four children suggests those impairments would not currently prevent work.”
Tr. 20. Plaintiff disputes this finding by arguing that her health turned much worse in 2008 when
she was diagnosed with pancreatitis. However, Plaintiff did not point to any medical records
from 2008 that show what symptoms or limitations corresponded with her pancreatitis diagnosis.
Plaintiff then explains that three years later, she underwent a liver biopsy, which revealed that
her chronic hepatitis C was resulting in moderate to severe activity and early cirrhosis. Plaintiff
further explains that “it is not the hepatitis itself that matters so much to [Plaintiff]’s health as it
is the resulting liver damage from the chronic hepatitis.” Pltf. Br. at 16 (#20). This explanation
seems to confirm the ALJ’s conclusion that her most proximal records regarding her hepatitis C
are from 2011, three years after her alleged onset date. Therefore, Plaintiff has failed to explain
how the ALJ erred in making this finding.
Finally, the ALJ cited Plaintiff’s history of purportedly “conservative and routine”
treatment to discount the intensity, persistence, and limiting effects of Plaintiff’s symptoms and
conditions. Allegations of severe pain may be impugned if a claimant requires non-prescription
medications to alleviate symptoms, or receives relief from minimal treatment. Parra v. Astrue,
481 F.3d 742, 751 (9th Cir. 2007); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).
The ALJ stated,
Notably, the record reveals she received only conservative and routine treatment.
There were periods during which her medications were refilled without change, and
there is no evidence of significant medication side effects. Moreover, the medical
records reveal that her various treatment modalities have been relatively effective
in resolving her hepatitis C and controlling her symptoms of neck pain and
headaches. Additionally, the claimant was never hospitalized for any significant
period, and her impairments have not received or required more aggressive forms
of treatment, such as surgery. This level of treatment suggests the claimant's
impairments do not result in significant functional limitation that preclude her from
engaging in basic work activity.
Tr. 21-22. Plaintiff disputes this finding and argues that the treatment she received for her
hepatitis C condition—particularly her first course of triple therapy with boceprevir, pegylated
interferon and ribavirin—is hardly conservative and routine treatment. She claims that she went
through these therapies only because it was crucial to her long-term health and halting the liver
damage. However, there is nothing in the record that allows the Court to conclude what is
considered “routine treatment” for hepatitis C. Moreover, Plaintiff concedes that the most
current medical evidence indicates that Plaintiff’s hepatitis C has resolved. Therefore, the ALJ’s
conclusion that “her various treatment modalities have been relatively effective in resolving her
hepatitis C” appears to be accurate.
Considering all of these reasons provided by the ALJ for why she discounted Plaintiff’s
symptom testimony, the Court concludes that the ALJ provided clear and convincing reasons
supported by the record to conclude that Plaintiff’s symptoms were not as limiting as alleged.
Accordingly, the Court affirms.
ORDER
Based on the foregoing, the decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
DATED this 17th day of June, 2020.
/s/ Mark D. Clarke
MARK D. CLARKE
United States Magistrate Judge