Crain v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

GERALDINE C. 1 Case No. 3:20-cv-00289-AC

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

___________________________________

ACOSTA, Magistrate Judge:

Plaintiff Geraldine C. (“Plaintiff”) filed this action under section 205(g) of the Social

Security Act (“Act”) as amended, 42 U.S.C. § 405(g), to review the final decision of the

Commissioner of Social Security (“Commissioner”) who denied her social security disability

insurance benefits (“DIB”) and supplemental security income (“SSI”) (collectively “Benefits”).

1 In the interest of privacy, this Opinion uses only the first name and the initial of the last name of

the non-governmental party in this case.

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The court finds the ALJ provided clear and convincing reasons for discounting Plaintiff’s

testimony, offered proper justification for finding medical opinion evidence unpersuasive, and did

not have a duty to obtain additional medical evidence with respect to Plaintiff’s physical

limitations. Accordingly, the Commissioner’s final decision is supported by substantial evidence

in the record and is affirmed.2

Procedural Background

On or about September 29, 2017, Plaintiff filed an application for Benefits alleging an onset

date of February 28, 2017.3 The application was denied initially, on reconsideration, and by

Administrative Law Judge Cynthia D. Rosa (“ALJ”) after a hearing. The Appeals Council denied

review and the ALJ’s decision became the final decision of the Commissioner.

Factual Background

Plaintiff is sixty-two years old. She completed the eleventh grade. Her past relevant work

experience includes certified nurse assistant and home health care worker. Plaintiff has not been

involved in a successful work attempt since February 28, 2017. She initially alleged disability

because of arthritis in both knees and degenerative disc disorder and later included mental health

issues. Plaintiff meets the insured status requirements entitling her to DIB through December 31,

2022.

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2 The parties have consented to jurisdiction by magistrate judge in accordance with 28 U.S.C. §

636(c)(1).

3 Plaintiff subsequently amended her “alleged onset date of disability to the filing date of her

application 09/27/2017,” which is after she “stopped looking for work and shortly before she

established primary care in October 2017.” (Admin. R. at 205.)

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I. Testimony

Plaintiff completed a function report in late October 2017 (“Report”), in which she

described her daily activities as “wake up take bath eat watch TV.” (Tr. of Social Security

Administrative R., ECF No. 13 (“Admin. R.”), at 217.) She maintained her personal care and

grooming without assistance, prepared food daily (sandwiches and frozen dinners), completed

household chores (ironing, laundry), drove a car twice a week, and shopped for food, clothes, and

personal items in stores for up to twenty minutes at a time. (Admin. R. at 218-19.) Plaintiff talked

on the telephone every day and attended church every other Sunday but did not like socializing

because her son was “murdered”4 and it “hurt” her to see others enjoying their families and

children. (Admin. R. at 220-21.) She had no difficulty paying bills, counting change, handling a

savings account, or using a checkbook or money orders. (Admin. R. at 220.)

In the Report, Plaintiff indicated her knee and back pain limited her ability to squat, bend,

stand, reach, sit, kneel, and climb stairs. (Admin. R. at 221.) She could lift twenty pounds with

her right hand and walk for twenty-five minutes before needing to rest for ten minutes. (Admin

R. at 221.) She followed both written and spoken instructions well but had difficulty getting along

with authority figures and handling stress and changes in routines. (Admin. R. at 221-22.) Plaintiff

reported difficulty sleeping and standing for extended periods due to knee and back pain. (Admin.

R. at 217-18.)

At the April 24, 2019 Hearing before the ALJ (“Hearing”), Plaintiff testified she now lived

with her husband who works as a laborer and spends her days in her bed watching television and

4 On October 16, 2017, Plaintiff reported her “son was murdered nearly 20 years ago.” (Admin.

R. at 277.)

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crying. (Admin. R. at 41, 47, 49.) She reported she did not leave the house much to “socialize”

as she did not want to be “bothered with” or “around” people,” but drove about once a week to the

grocery store or a doctor’s appointment and attended church weekly. (Admin. R. at 41-42, 48-50.)

Plaintiff did not do her own grocery shopping because she was unable to stand for very long.

(Admin. R. at 48, 50.) Rather, her husband shopped from a list she provided while she sat in the

car. (Admin. R. at 48, 50.) Except for loading the dishwasher, which Plaintiff could handle,

Plaintiff’s husband took care of the housework, including the cleaning, vacuuming, mopping, and

laundry. (Admin. R. at 48-49.)

Plaintiff worked for twenty-five years as a care provider in a nursing home and

occasionally provided in-home care for her aunt and sister. (Admin. R. at 44.) Plaintiff initially

testified she stopped working in early 2017 because of “too much wear and tear on my body . . .

my knees and back . . . [are] giving out on me” but then admitted she “was not able to work []

because my nursing license was suspended . . . and that’s all the work I ever did in my life.”

(Admin. R. at 44-45.) She explained she “can’t pass the background check, so I can’t work,” and

additionally claimed she could no longer work because of back and knee pain and her “mental

state is not there anymore.” (Admin. R. at 47-48.) Plaintiff believed she could stand for fifteen-

to-twenty minutes, sit about thirty minutes, and lift and carry a gallon of milk. (Admin. R. at 53.)

She explained her son died and she missed him so much she was unable to function or turn her

mind off. (Admin. R. at 54.) She did not “want to socialize with people because of holidays and

stuff . . . they got their kids, and then mine is not around” so “I don’t want to be bothered with

anybody.” (Admin. R. at 54.)

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II. Medical Evidence

A. Medical Providers

1. Physical Health

On October 16, 2017, Plaintiff initiated care with Rebecca Glaseroff Lindsay, M.D. (“Dr.

Lindsay”), for complaints of chronic knee pain and arthritis of the back. (Admin. R. at 277.)

Plaintiff reported pain with motion and tenderness in her left low back and buttocks during the

examination, but Dr. Lindsay’s observations were otherwise unremarkable. (Admin. R. at 278.)

Dr. Lindsay prescribed a muscle relaxant and pain medication and referred Plaintiff to physical

therapy and a spine center. (Admin. R. at 297, 299.)

On December 4, 2017, Plaintiff began physical therapy with Daniel Howard Cooper,

D.P.T. (“Cooper”). (Admin. R. at 428-31.) Plaintiff indicated she suffered from low-back pain

for five years and knee pain for twenty years. (Admin. R. at 429.) She claimed she could not stand

for more than fifteen-to-twenty minutes or walk for more than fifteen-to-forty-five minutes without

the onset of pain. (Admin. R. at 429-30.) Cooper noted Plaintiff had some limitations in

exercising, walking, standing, and sleeping with a low complexity level, opined Plaintiff “will

benefit from skilled PT intervention to reduce symptoms and optimize functional movement in

order to resume pain free [activities of daily living] and walking,” and recommended twelve

additional visits over the next three months. (Admin. R. at 431.) The following week, Maura R.

Gabriel, P.T. (“Gabriel”), added limitations in lifting, described Plaintiff’s complexity as high, and

recommended seven additional appointments, but also opined Plaintiff would benefit from

physical therapy to resume normal activities and walking. (Admin. R. at 423-25.) Gabriel

indicated Plaintiff’s “decreased range of motion, decreased strength, decreased motor control,

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decreased postural awareness, decreased awareness of body mechanics, decreased balance,

abnormal gait pattern and pain is/are impairing patient’s ability to walk[] and mov[e] around.”

(Admin. R. at 476.) Later that month, Dr. Lindsay added medications for nerve pain and referred

Plaintiff to a chronic pain program. (Admin. R. at 373-75.)

In early January 2018, Plaintiff consulted with Melissa L. Hockett, M.S.W. (“Hockett”), a

provider at a pain management clinic. (Admin. R. at 418-19.) Plaintiff reported she has had “all

over body pain” and back and knee pain for years which she occasionally treats with a pain pill,

icy hot spray, and a heating pad. (Admin. R. at 418.) Hockett described Plaintiff to have normal

cognition and verbal presentation with relaxed, calm, open, and interested behavior. (Admin. R.

at 419.)

Michael Peter Lamore, L.C.S.W. (“Lamore”), also evaluated Plaintiff for pain management

in January 2018. (Admin. R. at 413-18.) Plaintiff reported pain at an average level of nine which

she described as aching, burning, dull, throbbing, sharp, shooting, electric, pressure, constant,

numbness, tingling, and pins and needles. (Admin. R. at 415.) She claimed her pain increased

when she moved, stood, and reclined and she did not sleep well due to achy legs, burning heels,

and bad dreams. (Admin. R. at 415.) Plaintiff described her strengths to include her capacity to

tolerate painful emotions, flexibility in thinking and behavior, expressive language and

communication skills, openness, and empathy but admitted she needed to address her traumatic

childhood experiences and the murder of her son. (Admin. R. at 414.) Lamore described Plaintiff

as alert and oriented with fair eye contact, normal psychomotor activity and speech, good mood

with a sad and flat affect, and good cognition, judgment, and insight. (Admin. R. at 417.) He

recommended Plaintiff participate in various coping classes, physical therapy, biofeedback,

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alternative therapies such as acupuncture, massage, anti-inflammatory diet, and mental health

counseling. (Admin. R. at 414.)

Dr. Lindsay examined and provided care for medical issues unrelated to Plaintiff’s knee

and back pain, such as diarrhea, hypertension, diabetes, night sweats, weight loss, and sexual

dysfunction, from March to August 2018. (Admin. R. at 497-98, 519, 554-71, 583-86, 594-96.)

In May 2018, Plaintiff reported she is “doing well overall now that her husband is back and she

has housing” and her “depression [was] improving.” (Admin. R. at 561-62.) Dr. Lindsey

consistently described Plaintiff as “alert, well appearing, [and in] no acute distress” and did not

note any limitations due to Plaintiff’s knee and back pain. (Admin. R. at 556, 562, 565, 584, 594.)

On at least one occasion, Dr. Lindsay noted Plaintiff had a history of “no shows and rescheduled

visits” and was “very reluctant to take medications and do follow-up visits with other providers,”

and specifically indicated in August 2018, Plaintiff “has not see[n] psych yet for med

consultation.” (Admin. R. at 498, 557, 584.)

In August 2018, Kelli Unzicker, L.C.S.W. (“Unzicker”) evaluated Plaintiff for pain

management. (Admin. R. at 589.) Plaintiff reported constant all over pain, described herself as

“independent,” indicated she is able to drive, and explained she “sometimes goes out with her

husband but on a typical day doesn’t go anywhere.” (Admin. R. at 590.) Unzicker observed

Plaintiff was oriented x 3 and relaxed and calm with a normal verbal presentation. (Admin. R. at

591.) Plaintiff expressed an interest in individual pain-coping sessions but was not interested in

the recommended pain education group, stating “groups are difficult for her and she feels

‘agitated.’” (Admin. R. at 589-90.)

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The following month Plaintiff sought treatment from Dr. Lindsay for chronic muscular

pain and knee braces for sleeping. (Admin. R. at 603.) Plaintiff reported she stopped taking

prescribed medication due to side effects and was using “topicals” for pain. (Admin. R. at 604.)

Dr. Lindsay recommended Plaintiff try acupuncture and provided bilateral knee immobilizers.

(Admin. R. at 604, 607.) In an October 4, 2018 telephone call, Plaintiff requested resubmission

of the acupuncture referral for back and knee pain, reporting her pain level at eight. (Admin. R. at

611.) A month later, Plaintiff reported the acupuncture was “really helping,” she was “sleeping

better, feels more relaxed, doing well” and “is really happy with how she feels.” (Admin. R. at

614.) Dr. Lindsay again described Plaintiff as “alert, well appearing, no acute distress” as well as

“cheerful” with “no feelings of depression. (Admin. R. at 615.) Dr. Lindsay approved Plaintiff’s

request for more acupuncture visits. (Admin. R. at 614-15.) On November 15, 2018, Plaintiff

again stated acupuncture helped and indicated she “easily falls asleep, sleeps through the night and

feels rested upon awakening.” (Admin. R. at 618, 624.)

2. Mental Health

On October 16, 2017, Plaintiff participated in a mental health consultation with Heidi Hunt

Travis, L.P.C. (“Travis”), who diagnosed Plaintiff with major depressive disorder, recurrent

episode, severe, and referred Plaintiff to Cascadia Mental Health (“Cascadia”). (Admin. R. at

275.) Cascadia provider Tyler Boyer, Q.M.H.P. (“Boyer”) evaluated Plaintiff on November 6,

2017. (Admin. R. at 318-25.) Plaintiff indicated her primary goal was “to be able to look at a

picture of my son without it hurting so much and come to terms with the fact that he’s gone” and

reported additional stressors, including her sister’s recent death, homelessness, lack of income,

diabetes diagnosis, and her husband’s upcoming release from prison. (Admin. R. at 318.) Plaintiff

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stated she “would like to focus on vocational goals while in treatment,” was “going to PCC trying

to get her GED right now,” and stated her strength is “knowing I’m strong and I’ve held up all

these years. I am a strong person and I can overcome things.” (Admin. R. at 321.) Boyer noted

Plaintiff’s appearance, speech, and tone were appropriate; she was friendly, oriented to person,

place, time, and circumstances, with a goal-directed thought process and average intellectual level;

and displayed signs of a good attention span, intact memory, and fair judgment. (Admin. R. at

323-24.) Boyer diagnosed Plaintiff with “Adjustments Disorders; Persistent (chronic); With

depressed mood” and recommended individual and group counseling and medication services to

help with sleep. (Amin. R. at 325.)

Plaintiff initiated treatment with Kent Kreiselmaier, M.A., Q.M.H.P., another Cascadia

provider (“Kreiselmaier”),5 in mid-November 2017. (Admin. R. at 542.) Plaintiff’s stated goals

of treatment were to learn skills to cope with her symptoms, come to terms with her son’s death,

and obtain housing, and she described a successful outcome as: “Be myself again. Support myself

again. Cook for people again. Get my life back, and be independent again.” (Admin. R. at 542-

43.) Kreiselmaier described Plaintiff as friendly, cooperative, and oriented to person, place, time,

and circumstance but tearful when talking about her son. (Admin. R. at 543.) He recommended

individual and group counseling as well as assistance connecting with community resources.

(Admin. R. at 542-43.) Kreiselmaier described Plaintiff as “significantly distressed” on November

27, 2017, because she had just received notice her claim for Benefits was denied and was

concerned her lack of income would complicate her applications for housing. (Admin. R. at 538.)

5 Plaintiff refers to Kreiselmaier as her “treating provider.” (Pl.’s Mem. in Supp. of the Pet. for

Review, ECF No. 14 (“Pl.s’ Mem.”), at 9.)

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Plaintiff provided Keiselmaier a Mental Capacity Assessment form that her lawyer wanted him to

complete in support of her appeal of the denial of Benefits. (Admin. R. at 538.) Keiselmaier

provided Plaintiff a packet of websites and phone numbers for community resources and discussed

ways for Plaintiff to cope with and regulate her anxiety and distress, which he believed “solved”

the problem. (Admin. R. at 538.)

On December 14, 2017, Kreiselmaier “spent the entire session gathering information about

client’s work history and MY-related problems encountered on the job in order to be able to fill

out the Mental Capacity Assessment form provided by her SSDI lawyer” and noted Plaintiff

“described a long history of conflict, insubordination, and even physical fighting at past CNA jobs

that have resulted in her being fired” and “anger problems, lack of concentration, and lack of affect

regulation” which Plaintiff related to her “ongoing depression and PTSD6 symptoms.” (Admin.

R. at 532.)

On December 28, 2017, Cascadia provider Kathleen Sullivan-Conger, P.M.H.N.P.

(Sullivan-Conger”), performed a psychiatric assessment of Plaintiff. (Admin. R. at 526-29.)

Sullivan-Conger noted Plaintiff described symptoms of PTSD from as young as nine years old due

to exposure to violence and loss of loved ones, including severe nightmares and disrupted sleep

patterns, but that she denied muscular problems or skeletal pain. (Admin. R. at 526, 528.)

Sullivan-Conger observed Plaintiff had a steady gait, appropriate eye contact, linear and organized

thought process, intact memory, and good focus, but appeared tired with a depressed mood.

(Admin. R. at 528.) Sullivan-Conger diagnosed Plaintiff with “Adjustment Disorders; Persistent

6 “PTSD” stands for post-traumatic stress disorder.

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(chronic); With depressed mood,” prescribed medication for depression and sleep issues, and

recommended individual and group counseling for depressed mood, racing thoughts, and grief.

(Admin. R. at 526.) Kreiselmaier provided counseling services later that day. (Admin. R. at 530.)

Kreiselmaier noted Plaintiff enjoyed her Christmas holiday, appeared more tired, but was still

euthymic and had a positive frame of mind. (Admin. R. at 530.) Kreiselmaier also offered a PTSD

diagnosis and provided education on the symptoms and nature of PTSD. (Admin. R. at 530.)

On January 8, 2018, Kreiselmaier completed the Mental Capacity Assessment form

indicating the degree to which Plaintiff was limited by psychological factors only (“Assessment”).

(Admin. R. at 407-09.) In the Assessment, Kreiselmaier indicated Plaintiff suffered from an

adjustment disorder, persistent, with depressed mood, and then addressed the four areas of mental

health limitations. (Admin. R at 407-09.)

With respect to understanding, remembering, or applying information, Kreiselmaier did

not know if Plaintiff was limited in her ability to follow one- or two-step oral instructions but

found her moderately limited in her ability to recognize a mistake and correct it, identify and solve

problems, sequence multi-step activities, and use reason and judgment to make work-related

decisions. (Admin. R at 407.) He then expressly noted these limitations are based on Plaintiff’s

description of her abilities: “Per self-report, client describes a pattern of cognitive-attentional

impairments that appear to relate to depressive and trauma-related symptoms and events. Per her

report, these cognitive impairments have affected her memory and performance at work.” (Admin.

R at 407.)

Kreiselmaier indicated Plaintiff was markedly limited in her ability to ignore or avoid

distractions while working, sustain an orderly routine, maintain regular attendance at work, and

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work a full day without needing more than the allotted number or length of rest periods; moderately

limited in her ability to initiate and perform a task she knows how to do and work at an appropriate

and consistent pace, or complete tasks in a timely manner; and mildly limited in her ability to work

close to or with others without interrupting or distracting them. (Admin. R at 408.) Kreiselmaier

again specifically noted: “Client described a history of concentration impairments likely related

[to] her depressive symptoms and trauma-related events. Her cognitive concentration and

perseverance impairment has negatively affected her performance at work, resulting in

reprimands.” (Admin. R at 408.)

In the area of adapting or managing oneself, Kreiselmaier reported Plaintiff was markedly

limited in her ability to manage psychologically based symptoms; mildly limited in her ability to

set realistic goals; and not limited in her ability to adapt to changes, distinguish between acceptable

and unacceptable work performance, make plans independently of others, maintain personal

hygiene and attire appropriate to a work setting, be aware of normal hazards, and take appropriate

precautions. Kreiselmaier commented: “Client denied most adaptation management difficulties

during assessment. Work impairments do not appear to have resulted from these type of

symptoms.” (Admin. R at 408.)

Kreiselmaier relied, at least in part, on his own observation of Plaintiff in identifying

limitations interacting with others, explaining: “Client has exhibited a pronounced lack of affect

and anger regulation capacity multiple times during therapy sessions. These include intense anger

and verbal pronouncements and exhortations.” (Admin. R. at 409.) However, Kreiselmaier also

offered Plaintiff’s self-reports as support, noting: “Client also detailed a severe history of anger

and physical violent outbursts at work, resulting in termination and legal problems.” (Admin. R

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at 409.) He opined Plaintiff had extreme limitations in her ability to handle conflicts with others

and keep social interactions free of excessive irritability, sensitivity, argumentativeness, or

suspiciousness and markedly limited in her ability to cooperate with others, ask for help when

needed, understand and respond to social cues, and respond to requests, suggestions, criticism,

correction, and challenges. (Admin. R at 409.)

Sullivan-Conger met with Plaintiff for a medication review on January 17, 2018. (Admin.

R. at 524.) Plaintiff complained of “feeling drowsy all day,” explaining she took her medication

at 8:00 p.m., stayed up until 2:00 a.m., woke up at 4:00 a.m., and then slept during the day,

indicated improvement in her depression and anxiety, but reported little change in her pain level.

(Admin. R. at 524.) Other than depression, Sullivan-Conger observed no abnormalities in her

mental health evaluation. (Admin. R. at 524.) Sullivan-Conger instructed Plaintiff on proper sleep

habits and made a change in her medication. (Admin. R. at 524.)

From February to July 2018, Cascadia reached out to Plaintiff encouraging her to schedule

an appointment. (Admin. R. at 655-57.) Kreiselmaier authored a discharge plan for Plaintiff on

November 2, 2018, noting Plaintiff sought treatment “to treat her grief and posttraumatic stress

symptoms and to acquire housing,” “attended 4 individual therapy session[s], and no showed 2

sessions,” and “left [treatment] against professional advice.” (Admin. R. at 654.) Kreiselmaier

indicated Plaintiff’s prognosis was fair based on some insight into her symptoms and long history

of employment, but acknowledged the existence of negative factors, including history of abuse,

anger outbursts, and involvement in the criminal justice system. (Admin. R. at 654.)

On January 8, 2019, Plaintiff called Cascadia to report she was out of medication and

seeking a change in medication. (Admin. R. at 653.) She claimed she was upset and “restraining

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herself” from engaging in a physical fight with a girl who refused to return Plaintiff’s personal

property to her. (Admin. R. at 653.)

B. Reviewing Physicians

Neal E. Berner, M.D. (“Dr. Berner”), reviewed Plaintiff’s medical records and on

November 17, 2017, opined Plaintiff suffered from the non-severe impairments of dysfunction of

major joints and personality and impulse-control disorders. (Admin. R. at 67.) He noted her

“functional limitations are not consistent with evidence” as the “Xray of [her] knees shows only

mild changes which would not cause the exten[t] of her limitations” and Plaintiff is “able to drive,

goes to stores for food, clothes and personal items taking 10-20 minutes to shop, does some light

household chores, manages money, goes to church, talks with family, has supportive spouse.”

(Admin. R. at 66.) On the same date, Susan M. South, Psy.D. (“Dr. South”), found Plaintiff was

only mildly limited in her ability to concentrate, persist, or maintain pace and not limited in her

ability to understand, remember, apply information, interact with others, or adapt or manage

herself. (Admin. R. at 68.) Dr. Berner found Plaintiff was not disabled through November 20,

2017. (Admin. R. at 79.)

In a report dated January 12, 2018, Thomas W. Davenport, M.D. (“Dr. Davenport”),

another reviewing physician, agreed with the diagnoses and conclusions of Dr. Berner. (Admin.

R. at 85-87.) Similarly, Winifred C. Ju Ph.D. (“Dr. Ju”), concurred in the limitations identified by

Dr. South. (Admin. R. at 87-88.)

C. Test Results

X-rays of Plaintiff’s knees taken on October 16, 2017, revealed possible “mild narrowing

of the medial and lateral joint spaces” with intact osseous structures and no osteophyte formation

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or other acute finding. (Admin. R. at 282-83.) A January 28, 2018 MRI of Plaintiff’s lumbar spine

showed no fractures or destructive lesions and normal alignment but “chronic multilevel

degenerative changes throughout the lumbar spine, causing mild spinal canal and neural foraminal

narrowing at all lumbar levels.” (Admin. R. at 515.) The reviewing physician opined “asymmetric

disc and spur complex and left neural foramen at the L5-S1 level potentially could be a source of

radicular symptoms.” (Admin. R. at 515.)

III. Vocational Evidence

Patricia V. Ayerza, M.B.A., C.R.C., A.B.V.E., a vocational rehabilitation counselor

(“Ayerza”), appeared by telephone at the Hearing and indicated Plaintiff’s past relevant work of

nurse aide and home health worker as performed ranged from heavy- to light-level work. (Admin.

R. at 56-59.) The ALJ asked Ayerza if a hypothetical individual of Plaintiff’s age, education, and

work experience able to perform medium work with additional restrictions of occasional climbing

of ropes, ladders, and scaffolds; frequent stooping, crawling, and kneeling; and limited exposure

to fumes, gases, dust, odors and other pulmonary irritants could perform Plaintiff’s past work.

(Admin. R. at 60.) Ayerza testified such an individual would be able to perform Plaintiff’s past

work as a home attendant nurse aide. (Admin. R. at 60.)

IV. ALJ Decision

The ALJ acknowledged Plaintiff had not engaged in substantial gainful activity since the

alleged onset date of February 28, 2017. (Admin. R. at 18.) She then found Plaintiff suffered from

the severe impairments of “mild osteoarthritis of the knees; degenerative changes of the lumbar

spine; history of asthma; [and] obesity” but that her “medically determinable impairments of

posttraumatic stress disorder [and] adjustment disorder with depressed mood, considered singly

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and in combination, do not cause more than minimal limitation in the claimant’s ability to perform

basic mental work activities and are therefore nonsevere.” (Admin. R. at 19.) While conceding

Plaintiff’s physical impairments limited her ability to perform basic work activities, the ALJ found

such impairments did not meet or equal the severity of any listed impairment. (Admin. R. at 18,

21-22.) As a result of her impairments, the ALJ considered Plaintiff capable of performing work

at a medium7 exertional level, including frequent stooping, crawling, and kneeling; but of only

occasional climbing of ropes, ladders, or scaffolds; and of limited exposure to fumes, gasses, dust,

odors, and other pulmonary irritants. (Admin. R at 22.) The ALJ deemed Plaintiff capable of

performing her past relevant work as a nurse aide and home health care worker. (Admin. R. at

26.) Consequently, she found Plaintiff not disabled from February 28, 2017, through the date of

the June 12, 2019 decision. (Admin. R. at 26-27.)

The ALJ found Plaintiff’s “medically determinable impairments could reasonably be

expected to cause the alleged symptoms; however, the claimant’s statements concerning the

intensity, persistence and limiting effects of these symptoms are not entirely consistent with the

medical evidence and other evidence in the record for the reasons explained in this decision.”

(Admin. R. at 23.) The ALJ discounted Plaintiff’s testimony on the limiting effects of her

“disabling symptoms.” (Admin. R. at 23.) The ALJ explained Plaintiff “has some restrictions,

but the allegations concerning her incapacity are not borne out by the objective evidence of record,

the well-considered medical opinions, or the consistency of her own reported and demonstrated

functional ability.” (Admin. R. at 23.)

7 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying

of objects weighing up to 25 pounds.” 20 C.F.R. 404.1567(c) (2020).

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The ALJ noted Plaintiff testified at the Hearing “that, due to her mental health issues, she

does nothing all day but stay in bed, watch television, and smoke two packs of cigarette per day”

and also reported “her mind does not shut off, she cannot focus, she cries all of the time, and . . .

she does not want to be around other people.” (Admin. R. at 19.) The ALJ then found these

“extreme limitations” not supported by Plaintiff’s own statements and testimony. (Admin. R. at

19.) Specifically, the ALJ identified Plaintiff’s reports she was in the process of getting her GED;

attended church every week; accompanied her husband on errands; regularly watched television;

prepared her own meals; was able to pay bills, count change, handle a savings account, and use a

checkbook or money orders; talked with people on the phone every day; and did not need

reminders to take care of her personal needs, maintain her grooming, or take medication as contrary

to Plaintiff’s reported limitations. (Admin. R. at 19.) The ALJ commented on Plaintiff’s failure

to report any “difficulties with her mental abilities such as memory, completing tasks,

concentration, understanding, following instructions, using hands, and getting along with others”

in the Report and her identification of her strengths during a January 2018 referral appointment as:

“Capacity to tolerate painful emotions, Flexibility in thinking and behavior, Good expressive

language and communication skills, Capacity for openness, [and] Good capacity for empathy.”

(Admin. R. at 19.) Additionally, the ALJ noted Plaintiff “stopped working not because of her

alleged impairment but, rather, because her nursing license had been suspended,” and that she

testified “she would have continued to work at her prior job” had she not lost her license. (Admin.

R. at 19-20.)

The ALJ also found Plaintiff’s reported limitations in her mental functioning were not

supported by the medical record. (Admin. R. at 20.) The ALJ found the opinions offered by Dr.

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South and Dr. Ju that Plaintiff’s mental health impairments were not severe “very persuasive

because they are consistent with and supported by the claimant’s medical record.” (Admin. R. at

20.) The ALJ expressly relied on mental status examinations of Plaintiff from November 2017,

December 2017, January 2018, and August 2018, all of which were unremarkable and “suggest[]

that her mental health issues do not cause significant impact on her mental functioning.” (Admin.

R. at 20.) She expressly found “the claimant has no limitation in her ability to understand,

remember, or apply information, interact with others, concentrate, persist, or maintain pace, and

adapt or manage oneself.” (Admin. R. at 21.)

The ALJ acknowledged Kreiselmaier, Plaintiff’s treatment counselor, submitted the

Assessment in January 2018 indicating “the claimant was markedly limited in her capacity for

concentration, persistence, and pace; not significantly limited in her capacity for adapting or

managing herself; moderately limited in her ability to understand, remember, and apply

information; and markedly to extremely limited in her capacity for social interaction.” (Admin.

R. at 21.) However, the ALJ found that opinion unpersuasive because Kreiselmaier “repeatedly

indicated that all of the responses provided were based on the claimant’s self report, rather than on

Mr. Kreiselmaier’s own independent determination,” and that “the claimant is not a reliable source

of information regarding the extent of her functional limitations.” (Admin. R. at 21.) The ALJ

also found “the moderate to extreme functional limitations set forth therein are simply inconsistent

with [] the claimant’s typically normal status examinations.” (Admin. R. at 21.)

Standard of Review

The Act provides for payment of DIB to people who have contributed to the Social Security

program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1) (2020). In

PAGE 18 - OPINION AND ORDER

addition, under the Act, SSI may be available to individuals who are age sixty-five or over, blind,

or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1382(a) (2020). The

burden of proof to establish a disability rests upon the claimant. Gomez v. Chater, 74 F.3d 967,

970 (9th Cir.), cert. denied, 519 U.S. 881 (1996) (DIB); Drouin v. Sullivan, 966 F.2d 1255, 1257

(9th Cir. 1992) (SSI). To meet this burden, the claimant must demonstrate an inability to engage

in any substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to cause death or to last for a continuous period of at least

twelve months. 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A) (2020). An individual will be

determined to be disabled only if there are physical or mental impairments of such severity that

the individual is not only unable to do previous work but cannot, considering his or her age,

education, and work experience, engage in any other kind of substantial gainful work which exists

in the national economy. 42 U.S.C. §§ 423(d)(2) (A) and 1382c(a)(3)(B) (2020).

The Commissioner has established a five-step sequential evaluation process to use for

determining whether a person is eligible for either DIB or SSI because he or she is disabled. 20

C.F.R. §§ 404.1520 and 416.920 (2020); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995)

(DIB); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989) (SSI). First, the

Commissioner determines whether the claimant is engaged in “substantial gainful activity.” If the

claimant is engaged in such activity, Benefits are denied. Otherwise, the Commissioner proceeds

to step two and determines whether the claimant has a medically severe impairment or combination

of impairments. A severe impairment is one “which significantly limits [the claimant’s] physical

or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c) and 416.920(c). If the

claimant does not have a severe impairment or combination of impairments, Benefits are denied.

PAGE 19 - OPINION AND ORDER

If the impairment is severe, the Commissioner proceeds to the third step to determine

whether the impairment is equivalent to one of the specifically listed impairments that the

Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R.

§§ 404.1520(d) and 416.920(d). If the impairment meets or equals one of the listed impairments,

the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed

to be disabling, the Commissioner proceeds to the fourth step to determine whether the impairment

prevents the claimant from performing work which the claimant has performed in the past. If the

claimant can perform work which he or she has performed in the past, a finding of “not disabled”

is made and Benefits are denied. 20 C.F.R. §§ 404.1520(e) and 416.920(e).

If the claimant is unable to do work performed in the past, the Commissioner proceeds to

the fifth and final step to determine if the claimant can perform other work in the national economy

considering his or her age, education, and work experience. The burden shifts to the Commissioner

to show what gainful work activities are within the claimant’s capabilities. Distasio v. Shalala, 47

F.3d 348, 349 (9th Cir. 1995) (DIB); Drouin, 966 F.2d at 1257 (SSI). The claimant is entitled to

Benefits only if he or she is not able to perform other work. 20 C.F.R. §§ 404.1520(f) and

416.920(f).

When an individual seeks either DIB or SSI because of disability, judicial review of the

Commissioner’s decision is guided by the same standards. 42 U.S.C. §§ 405(g) and 1383(c)(3).

The reviewing court must affirm the Commissioner’s decision if the Commissioner applied proper

legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. §

405(g) (2020); Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

“Substantial evidence” means “more than a mere scintilla, but less than a preponderance.” Robbins

PAGE 20 - OPINION AND ORDER

v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). It is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Tylitzki v. Shalala, 999 F.2d 1411, 1413

(9th Cir. 1993).

The reviewing court may not substitute its judgment for that of the Commissioner.

Robbins, 466 F.3d at 882; Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Thus, where

the evidence is susceptible to more than one rational interpretation, the ALJ’s conclusion must be

upheld, even where the evidence can support either affirming or reversing the ALJ’s conclusion.

Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The ALJ is responsible for determining

credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v.

Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). In determining a claimant’s residual functioning

capacity, an ALJ must consider all relevant evidence in the record, including, inter alia, medical

records, lay evidence, and “the effects of symptoms, including pain, that are reasonably attributed

to a medically determinable impairment.” Robbins, 466 F.3d at 883, citing SSR 96-8p, 1996 WL

374184, at *5; 20 C.F.R. §§ 404.1 545(a)(3), 416.945(a)(3); Smolen v. Chater, 80 F.3d 1273, 1281

(9th Cir.1996). However, the reviewing court must consider the entire record as a whole, weighing

both the evidence that supports and detracts from the Commissioner’s conclusion, and may not

affirm simply by isolating a specific quantum of supporting evidence. Lingenfelter v. Astrue, 504

F.3d 1028, 1035 (9th Cir. 2007).

Discussion

Plaintiff asserts the ALJ erred by failing to properly weigh medical evidence in finding

Plaintiff did not have a severe mental impairment at step two and failing to rely on proper opinion

evidence when assessing her residual functional capacity (“RFC”). Plaintiff asks the court to

PAGE 21 - OPINION AND ORDER

remand the matter for further administrative proceedings, including a de novo hearing and

decision. The Commissioner contends the ALJ properly considered the evidence in accordance

with the terms of the Act and related regulations and the decision should be affirmed.

I. Severe Mental Impairment

At step two, a claimant is not disabled if the Commissioner determines the claimant does

not have any medically severe impairment or combination of impairments. Stout v. Comm’r, Soc.

Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); Murray v. Comm’r Soc. Sec. Admin., 226 F.

Supp. 3d 1122, 1129 (D. Or. 2017); 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A severe

impairment “significantly limits” a claimant’s “physical or mental ability to do basic work

activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment is not severe “when [the]

medical evidence establishes only a slight abnormality or combination of slight abnormalities

which would have no more than a minimal effect on an individual’s ability to work.” Social

Security Ruling (SSR) 85-28, available at 1985 WL 56856, at *3. The step two threshold is low;

“[s]tep two is merely a threshold determination meant to screen out weak claims.” Buck v.

Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.

1996) (noting step two is a “de minimus screening device to dispose of groundless claims.”). The

Plaintiff has the burden to show that she has a medically severe impairment or combination of

impairments at step two. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999).

Where a claimant presents a colorable claim of mental impairments, the ALJ must

determine whether the claimant has a medically determinable mental impairment and rate the

degree of functional limitation in four areas utilizing the “psychiatric review technique” or the

“paragraph B” criteria. Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011)

PAGE 22 - OPINION AND ORDER

(citing 20 C.F.R. § 404.1520a). Effective March 27, 2017, the Social Security Administration

(“SSA”) revised the paragraph B criteria for assessing mental functioning. 20 C.F.R. § 404.1520a

(2020). Under the new paragraph B criteria, evaluators examine a claimant’s ability to:

“understand, remember, or apply information; interact with others; concentrate, persist, or

maintain pace; and adapt or manage oneself.” 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). The

degree of functional limitation in these four areas is rated utilizing a five-point scale – none, mild,

moderate, marked, and extreme – with “none” or “mild” typically resulting in the ALJ finding the

mental impairments are not severe. 20 C.F.R. §§ 404.1520a(c)(4), 404.1520a(d)(1),

416.920a(c)(4), 416.920a(d)(1).

Plaintiff asserts the ALJ erred at step two by overruling diagnoses, treating source opinions,

and positive clinical findings to conclude that Plaintiff did not have a severe mental impairment.

The ALJ expressly acknowledged Plaintiff suffered from the “medically determinable

impairments” of PTSD and adjustment disorder. He then rated Plaintiff’s functional limitations

under the proper paragraph B criteria, determined she was not limited in any of the four relevant

areas of mental functioning, and found Plaintiff’s mental impairments not severe at step two.

Consequently, the ALJ considered Plaintiff’s mental impairment under the relevant standard.

However, according to Plaintiff, the ALJ failed to properly consider medical evidence of her

depression, PTSD, or adjustment disorder, the opinion of Kreislemaier contained in the

Assessment, and Plaintiff’s testimony describing her limitations when rating her functional

limitations. The Commissioner contends the ALJ’s step two findings are supported by substantial

evidence and should not be disturbed.

\ \ \ \ \

PAGE 23 - OPINION AND ORDER

A. Plaintiff’s Testimony

Plaintiff argues the ALJ erred by failing to identify specific, clear, and convincing reasons

supported by substantial evidence in the record to discount her subjective symptom testimony with

respect to her mental health limitations.8 To determine whether a claimant’s testimony regarding

subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. Trevizo v.

Berryhill, 871 F.3d 664, 678 (9th Cir. 2017); 20 C.F.R. § 416.929 (20209). The first stage is a

threshold test in which the claimant must produce objective medical evidence of an underlying

impairment that could reasonably be expected to produce the symptoms alleged. Molina v. Astrue,

674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).

At the second stage, absent affirmative evidence the claimant is malingering, the ALJ must provide

clear and convincing reasons for discrediting the claimant’s testimony regarding the severity of

the symptoms. Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008);

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ must make sufficiently

specific findings to permit the reviewing court to conclude the ALJ did not arbitrarily discredit the

claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). Factors the

ALJ may consider when making such credibility determinations include the objective medical

evidence, the claimant’s treatment history, the claimant’s daily activities, and inconsistencies in

testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039.

“Credibility determinations are the province of the ALJ” and the court may not “second-

guess” the ALJ’s determination if they have made specific findings that are supported by

8 The ALJ also offered reasons for discounting Plaintiff’s subjective symptom testimony with

respect to her physical health limitations. Plaintiff does not challenge those reasons or that finding.

PAGE 24 - OPINION AND ORDER

substantial evidence in the record. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). The overall

credibility decision may be upheld even if not all of the ALJ’s reasons for rejecting a claimant’s

testimony are upheld. Batson, 359 F.3d at 1197. An ALJ needs only one valid reason for rejecting

a claimant’s subjective testimony with respect to symptoms and resulting limitations. See Batson v.

Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ’s decision to discredit

symptom testimony may be upheld where specific justification not upheld if ALJ provided other valid

rationale).

The ALJ acknowledged Plaintiff’s medically determinable mental impairments of PTSD

and adjustment disorder with depressed mood, impliedly found they could cause some limitation

in Plaintiff’s ability to perform basic mental work activities, and did not identify any evidence to

establish Plaintiff was malingering. (Admin. R. at 18.) Consequently, the ALJ was required to

offer clear and convincing reasons for rejecting Plaintiff’s testimony with respect to the limitations

supported by objective evidence. To meet this standard, “[t]he ALJ must specify what testimony

is not credible and identify the evidence that undermines the claimant’s complaints – ‘[g]eneral

findings are insufficient.’” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005), (quoting Reddick

v, Chater, 157 F.3d 715,722 (9th Cir. 1998)); Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir.

1991) (en banc.) (“[A] reviewing court should not be forced to speculate as to the grounds for an

adjudicator’s rejection of a claimant’s allegations of disabling pain.”)

1. Inconsistent Testimony

An ALJ may consider a range of factors in assessing credibility, including prior

inconsistent statements concerning symptoms and other testimony by the claimant that appears

less than candid. Ghanim v. Colvin, 763 F.3d at 1163 (9th Cir. 2014) (citing Smolen v. Chater, 80

PAGE 25 - OPINION AND ORDER

F.3d 1273, 1284 (9th Cir. 1996). Plaintiff argues the ALJ improperly relied on Plaintiff’s statement

she stopped working as a nurse assistant because she lost her license, as evidence Plaintiff

remained mentally capable of performing the duties of her past relevant work. Plaintiff asserts the

ALJ ignored Plaintiff’s other testimony that at the time she stopped working, she was deteriorating

to the point she felt she would not be able to continue working and her mental state “was not there

anymore.” (Pl.’s Mem. of Law, ECF No. 14 (“Pl.’s Mem.”), at 10.) First, Plaintiff did not initially

claim Benefits due to mental health issues. She first identified her mental health issues in late

2017, providing support for the ALJ’s conclusion Plaintiff was not limited by her mental health

issues at the time she stopped working. Second, Plaintiff’s testimony she was deteriorating and

unable to continue working related solely to an injury to her back and arthritis in her knees causing

her to sit down on the job, not to limitations resulting from her mental health. Third and finally,

Plaintiff testified at the hearing her mental state then prevented her from working full-time, which

testimony is not necessarily contrary to the ALJ’s finding Plaintiff’s mental health was not a factor

in Plaintiff’s inability to work in early 2017.

Additionally, the ALJ found Plaintiff’s description of her “strengths” in early 2018, which

included “good expressive language skills” and good capacity for “openness” and “empathy,” and

her failure to list difficulties with memory, completing tasks, understanding, and following

instructions in the Report, were contrary to her description of her extreme limitations. The ALJ’s

reliance on Plaintiff’s inconsistent testimony of the reason she no longer was able to work as a

nurse assistant, and her strengths, as well as her failure to list various issues in the Report, is

supported by the record, particularly when considered in the context of Plaintiff’s mental health

limitations.

PAGE 26 - OPINION AND ORDER

2. Reported Daily Activities

The ALJ found Plaintiff’s description of her daily activities to be inconsistent with her

testimony regarding her mental health limitations. An ALJ may use a claimant’s daily activities

to reject her subjective symptom testimony on either of two grounds: (1) if the reported activities

contradict the claimant’s other testimony; or (2) if the activities meet the threshold for transferable

work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The ALJ was justified in

discrediting Plaintiff’s subjective testimony as contradictory of limitations resulting from her

mental impairments.

Plaintiff testified she spent her days in bed, watching television and smoking, and had

difficulty concentrating and interacting with others. The ALJ found Plaintiff’s reports she attended

church weekly, talked on the phone with people every other day, and accompanied her husband

on errands to be inconsistent with her lack of desire to socialize or difficulty dealing with others.

With respect to her inability to concentrate, the ALJ identified Plaintiff’s statement she was in the

process of getting her GED and her claim she watched television all day as evidence contradictory

to Plaintiff’s reported limitation.

The ALJ specifically identified daily activities which she believed were inconsistent, at

least to some degree, with Plaintiff’s testimony regarding limitations resulting from her mental

impairments which she claims prevent her from working. While one could view Plaintiff’s reports

of her daily living activities as somewhat consistent with the limitations she describes, the evidence

also supports a finding to the contrary. The ALJ is responsible for determining credibility and

where evidence exists to support the ALJ’s finding, the court may not substitute its own judgment

or second-guess the ALJ. The court finds the ALJ properly discounted Plaintiff’s testimony on

PAGE 27 - OPINION AND ORDER

her inability to interact with others or concentrate as inconsistent with her description of her

activities of daily living.

3. Inconsistent with Medical Records

The ALJ also discounted Plaintiff’s testimony based, in part, on medical evidence she

considered inconsistent with the claimed severity of Plaintiff’s limitations. As explained above,

the ALJ may engage in ordinary techniques of assessing a witness’s credibility “such as weighing

inconsistent statements regarding symptoms by the claimant.” Smolen, 80 F.3d 1284. Thus, it is

not legally impermissible to give a claimant’s testimony reduced weight because that testimony

contradicts the objective medical evidence in the record. Id. However, the ALJ may not “make a

negative credibility finding ‘solely because’ the claimant’s symptom testimony ‘is not

substantiated affirmatively by objective medical evidence.’” Stockwell v. Colvin, No. 3:13–cv–

01220–HZ, 2014 WL 6064446, at *3 (D. Or. Nov. 11, 2014).

The ALJ specifically found Plaintiff’s “medical record does not support that her mental

health conditions significantly restricted her mental functioning.” (Admin. R. at 20.). The ALJ

relied on Dr. South and Dr. Ju’s opinions Plaintiff’s “alleged mental health impairments were not

severe,” finding the opinions “very persuasive because they are consistent with and supported by

the claimant’s medical record.” (Admin. R. at 20.) The ALJ noted the November 2017 mental

status examination was “unremarkable” and consistent with other mental health examinations

assessing Plaintiff’s mental functioning to be “within normal limits with regard to her thought

process and content, her orientation, her memory, her fund of knowledge, her concentration, her

abstract thought, and her insight and judgment.” (Admin. R. at 20.)

\ \ \ \ \

PAGE 28 - OPINION AND ORDER

Plaintiff asserts the ALJ erred by ignoring medical records showing she repeatedly suffered

from an abnormal mood and affect, hallucinations, and suicidal ideation. However, Plaintiff’s

citations to the record do not entirely support this assertion. For example, Plaintiff cites to

Lamore’s January 2018 evaluation and notes which indicate Plaintiff reported hallucinations and

occasional suicidal thoughts and had a “sad and flat,” but also noted Plaintiff’s mood and insight

were “good,” her cognition was “alert, intact, and good,” her judgment was “good/socially

appropriate,” and she had a linear thought process and was oriented with fair eye contact. (Admin.

R. at 417, 492-93.) Similarly, Plaintiff relies on a January 2018 service note from Cascadia which

described her as depressed but also indicate “no abnormalities present throughout” the “mental

status examination.” (Admin. R. at 524-25.) The December 2017 assessment by Cascadia

reported Plaintiff appeared tired, with a flat affect, and a depressed mood while also observing

Plaintiff denied suicidal ideation, was alert, oriented and future focused, and had appropriate eye

contact and a linear thought process, (Admin. R. at 528.)

The medical records relied on by both the ALJ and Plaintiff reveal that while Plaintiff had

some issues with depression and occasional thoughts of suicide or hallucinations, they were not

pervasive and did not limit her to the degree she described. As a result, Plaintiff’s testimony

regarding the severity of her mental limitations is inconsistent with the medical records and clinical

findings cited by the ALJ and, to some degree, those Plaintiff herself cited. Consequently, the ALJ

did not err in relying on such medical evidence as a reason for discounting Plaintiff’s testimony.

B. The Assessment

Plaintiff also argues the ALJ erred in failing to adopt the degree of limitations identified

by Kreiselmaier in the Assessment. Plaintiff filed her application for Benefits in September 2017.

PAGE 29 - OPINION AND ORDER

“For claims filed on or after March 27, 2017, Federal Regulation 20 C.F.R. 416.920c governs how

an ALJ must evaluate medical opinion evidence.” Tyrone W. v. Saul, No. 3:19-cv-01719-IM, 2020

WL 6363839, at * 6 (D. Or. Oct. 28, 2020) (citing Revisions to Rules Regarding the Evaluation of

Medical Evidence (“Revisions to Rules”), 2017 WL 168818, 82 Fed. Reg. 5844, at *5867-68 (Jan.

18, 2017)); see also Linda F. v. Saul, No. C20-5076-MAT, 2020 WL 6544628, at *2 (W.D. Wash.

Nov. 6, 2020) (“Because plaintiff filed her applications after March 27, 2017, new regulations

apply to the ALJ’s evaluation of medical opinion evidence.”). The new regulations provide the

Commissioner “will not defer or give any specific evidentiary weight, including controlling

weight, to any medical opinion(s) . . . , including those from your medical sources.” See 20 C.F.R.

§ 404.1520c(a) (2020). Instead, the Commissioner must consider all medical opinions and

“evaluate the persuasiveness” of such opinions using the factors specified in the regulations. 20

C.F.R. § 404.1520c(b) (2020). Those factors include “supportability,” “consistency,”

“relationship with the claimant,” “specialization,” and “other factors.” 20 C.F.R. § 404.1520c(a).

The factors of “supportability” and “consistency” are “the most important factors” in the

evaluation process. 20 C.F.R. §§ 404.1520c(a), 404.1520c(b)(2).

The regulations require ALJs to “articulate . . . how persuasive [they] find all of the medical

opinions” and “explain how [they] considered the supportability and consistency factors.” 20

C.F.R. §§ 404.1520c(b). The ALJ is not required to explain how he or she considered the

secondary factors unless he or she finds that two or more medical opinions about the same issue

are equally well-supported and consistent with the record but not identical. 20 C.F.R. §§

404.1520c(b)(3). The court must, however, continue to consider whether the ALJ’s analysis has

PAGE 30 - OPINION AND ORDER

the support of substantial evidence. See 42 U.S.C. § 405(g); see also Hammock, 879 F.2d 498,

501 (9th Cir. 1989).

The ALJ found Kreiselmaier’s opinion unpersuasive because it was based on Plaintiff’s

reports, not Kreiselmaier’s independent observations. (Admin. R. at 21.) Plaintiff argues the

Assessment was based on Kreiselmaier’s findings that Plaintiff exhibited “a pronounced lack of

affect and anger regulatory capacity multiple times during therapy sessions,” exhibited by intense

anger, verbal pronouncements, and explosions. (Pl.’s Mem. at 11.)

It appears from the record Kreiselmaier met with Plaintiff three times before he completed

the Assessment. The first meeting was the initial assessment, the second was after Plaintiff’s

application for Benefits was denied and she was concerned about her lack of income and housing,

and the third was spent gathering information from Plaintiff to complete the Assessment. In the

Assessment, Kreiselmaier makes very clear he is relying on Plaintiff’s self-reports to evaluate her

limitations in the areas of understanding, remembering or applying information; concentration,

persistence, or maintaining pace; and adapting and managing oneself. (Admin. R. at 407-08.) He

does appear to rely to some degree on his own observations of Plaintiff’s ability to interact with

others but also identified Plaintiff’s detailed and severed history of anger and violent outbursts at

work as evidence to support his finding of marked or extreme limitation in this area. (Admin. R.

at 409.)

The court has found the ALJ properly discredited Plaintiff’s description of her limitations

resulting from her mental health impairments. Consequently, to the extent Kreiselmaier relied on

Plaintiff’s self-reports in assessing her limitations, his opinion is also suspect. The ALJ’s finding

Kreiselmaier’s opinion is unpersuasive is supported by the record.

PAGE 31 - OPINION AND ORDER

Additionally, the ALJ found Kreiselmaier’s opinion unpersuasive because it was

inconsistent with Plaintiff’s “typically normal mental status examinations.” (Admin. R. at 21.)

Plaintiff again argues the ALJ failed to “acknowledge any of the positive clinical findings in the

record of Plaintiff’s mental impairment.” (Pl.’s Mem. at 11.) The court has addressed this

argument and found the ALJ’s conclusion the mental status examinations were generally

“unremarkable” and inconsistent with the extreme limitations described by Plaintiff is supported

by the record. This finding applies equally to Kreiselmaier’s opinion on Plaintiff’s limitations as

described in the Assessment.

The court finds the ALJ properly weighed the medical evidence, did not err by finding

Kreiselmaier’s opinion unpersuasive or in relying on the reviewing physician’s opinions, and

provided the necessary support to discount Plaintiff’s testimony. Accordingly, the ALJ’s

conclusion Plaintiff did not have a severe mental impairment at step two was proper.

II. Residual Functional Capacity

Plaintiff also argues the ALJ’s RFC assessment was not supported by substantial evidence.

Specifically, Plaintiff asserts the lack of medical evidence on Plaintiff’s physical limitations is fatal

to the ALJ’s RFC assessment. It is undisputed the record is void of opinion evidence describing

limitations resulting from Plaintiff’s physical ailments.

The RFC is the most a person can do despite her physical or mental impairments. 20 C.F.R.

§ 404.1545(a)(1). In formulating an RFC, the ALJ must consider all medically determinable

impairments, including those that are not “severe,” and evaluate “all of the relevant medical and

other evidence,” including the claimant’s testimony. Id.; SSR 96-8p, available at 1996 WL

374184. In determining a claimant’s RFC, the ALJ is responsible for resolving conflicts in the

PAGE 32 - OPINION AND ORDER

medical testimony and translating the claimant’s impairments into concrete functional limitations

in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only limitations

supported by substantial evidence must be incorporated into the RFC and, by extension, the

dispositive hypothetical question posed to the vocational expert. Osenbrock v. Apfel, 240 F.3d

1157, 1163-65 (9th Cir. 2001).

The ALJ determined Plaintiff’s physical impairments of mild osteoarthritis of the knees,

degenerative changes of the lumbar spine, history of asthma, and obesity were severe and

significantly limited her ability to perform basic work activities. The ALJ found the reviewing

physicians’ opinions Plaintiff’s physical conditions were not severe or disabling unpersuasive

based on the lack of access to all of Plaintiff’s medical evidence, including updated radiology

reports. On the other hand, the ALJ discounted Plaintiff’s description of her physical limitations,

finding her “allegations concerning her incapacity are not borne out by the objective evidence of

record, the well-considered medical opinions, or the consistency of her own reported and

demonstrated functional ability.” (Admin. R. at 23.) Plaintiff does not contest these findings but

complains only about the ALJ’s description of Plaintiff’s limitations in the absence of medical

evidence supporting such limitations.

The plaintiff carries the burden of proof at steps one through four, including the

intermediary step between step three and step four where the ALJ determines the RFC. Carmickle,

533 F.3d at 116; 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). Plaintiff did not present evidence

from a medical source identifying any limitations resulting from her physical ailments.

Consequently, Plaintiff failed to carry her burden to establish she is limited to any great degree

due to her obesity, asthma, and knee and back issues. Despite this, the ALJ found Plaintiff limited

PAGE 33 - OPINION AND ORDER

to moderate work with additional limitations for stooping, crawling, kneeling, climbing, and

exposure to pulmonary irritants. Plaintiff claims the RFC is not supported by the medical evidence

and the ALJ had a duty to further develop the record to provide support for the RFC.

An ALJ has “a special duty to develop the record fully and fairly and to ensure that the

claimant’s interests are considered, even when the claimant is represented by counsel.” Mayes v.

Massanari, 276 F.3d 453, 459 (9th Cir. 2001). However, “[a]n ALJ’s duty to develop the record

further is triggered only when there is ambiguous evidence or when the record is inadequate to

allow for proper evaluation of the evidence.” Id. (citing Tonapetyan v. Halter, 242 F.3d 1144,

1150 (9th Cir. 2001). Moreover, a claimant bears the burden of establishing a disability. See 42

U.S.C. § 423(d)(5) (2020) (“An individual shall not be considered to be under a disability unless

he furnishes such medical and other evidence of the existence thereof as the Secretary may

require.”). Accordingly, the ALJ has no duty to develop the record regarding an impairment the

existence of which is not reflected in the record as a whole.

Here, the evidence of regarding Plaintiff’s physical limitations is not ambiguous and the

ALJ’s duty to further develop the record did not arise. Plaintiff indicated in the Report her knee

and back pain limited her ability to squat, bend, stand, reach, sit, kneel, and climb stairs. While

the ALJ discounted the severity of Plaintiff’s reported symptoms, his limitations on Plaintiff’s

stooping, crawling, kneeling, and climbing are generally consistent with Plaintiff’s representation

in the Report. Furthermore, there is evidence from physical therapists Plaintiff had some

limitations in her ability to move around; decreased range of motion, strength, motor control, and

balance; and an abnormal gait pattern but that physical therapy could return Plaintiff to normal

and/or pain-free activities of daily living. This evidence is not ambiguous or inconsistent with the

PAGE 34 - OPINION AND ORDER

ALJ’s finding of only minor physical limitations and the ALJ properly included the limitations in

the RFC.

Plaintiff argues the record is ambiguous because it contains absolutely no opinion evidence,

either from Plaintiff’s treating sources or agency consultants regarding how Plaintiff’s physical

issues impact her ability to engage in specific activities or perform work-related tasks. Plaintiff

cites no authority, however, for the proposition that a lack of opinion evidence automatically

renders a record ambiguous. Rather, the cases cited by Plaintiff generally establish an ALJ may

not reject clear medical evidence of limitations in favor of his own analysis of the medical records.

See e.g., Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (in light of uncontradicted

medical opinions, “the Hearing Examiner, who was not qualified as a medical expert, should not

have gone outside of the record to medical textbooks for the purpose of making his own exploration

and assessment as to claimant’s physical condition.”); Davis v. Colvin, Case No. 3:15-cv-00843-

SI, 2016 WL 8674265, at *8 (D. Or. Aug. 12, 2016) (“The ALJ considered and purportedly placed

significant weight on the objective medical evidence throughout the decision, but failed to explain

how it, or any other evidence, supports the ALJ’s RFC finding that Plaintiff can stand or walk for

six hours, contrary to the opinion of every physician.”); Nelson v. Astrue, No. 11-CV-00003-JPH,

2012 WL 2847863, at *7 (E. D. Wash. July 11, 2012) (“In rejecting all of the mental limitations

assessed after three psychological examinations, except for a limitation on superficial interaction

with the public and coworkers, the ALJ acted as his own medical expert, substituting his opinion

for the professional opinions of the psychologists regarding their exam results.”); Jones v. Astrue,

Civ. No. 09-645-AA, 2010 WL 4875700, at *2 (D. Or. Nov. 23, 2010) (“The ALJ cannot substitute

his judgment for those of medical experts, particularly when the medical findings are

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uncontradicted.”). Moreover, despite the ALJ’s duty to develop an ambiguous or incomplete

record, the claimant bears the ultimate burden of proving disability. Again, to the extent Plaintiff

has failed to produce evidence that gives rise to a more restrictive RFC, that ALJ’s failure to obtain

such evidence is not legal error which compels the court to reverse the ALJ’s decision. See Bayliss

vy. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (“The ALJ, with support in the record, found the

evidence adequate to make a determination regarding Bayliss’s disability. Accordingly, the ALJ

did not have a duty to recontact the doctors.”’)

The ALJ’s RFC finding and hypothetical included restrictions which exceeded those

supported by the record and, consequently, were proper. See Osenbrock vy. Apfel, 240 F.3d 1157,

1164-65 (9th Cir. 2001) (‘An ALJ is free to accept or reject restrictions in a hypothetical that are

not supported by substantial evidence.”) Because she posed a hypothetical question to the

vocational expert that incorporated a proper RFC assessment, the vocational expert’s testimony is

substantial evidence for the ALJ’s step five finding, and that finding is affirmed.

Conclusion

The Commissioner’s findings on Plaintiff's disabilities, considering the record as a whole,

are supported by substantial evidence. The decision of the Commissioner is affirmed.

DATED this 30th day of August, 2021. (|

\ V. ACOS A

uitgd States Magistrate Judge

PAGE 36 - OPINION AND ORDER