The opinion
_ IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KIM S.!
Plaintiff, Civ. No. 3:20-cv-00715-CL
v. OPINION AND ORDER
COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MARK D. CLARKE, Magistrate Judge.
Plaintiff Kim S. (“Plaintiff”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration denying her claim for social security
disability insurance benefits. Full consent to magistrate jurisdiction was entered on May 29,
- 2020 (Dkt. #7). For the reasons provided below, the Commissioner’s decision is AFFIRMED.
BACKGROUND
Plaintiff is a 52-year-old woman who alleges she is unable to work due toa variety of
conditions including multilevel spondylosis with foraminal stenosis, kyphoscoliosis, pseudo □
meningocele, fibromyalgia, migraines, vertigo, hypertension, irritable bowel syndrome, chronic
neck pain, and restless leg syndrome.
On October 26, 2016, Plaintiff filed a Title I] application for a period of disability and
disability insurance benefits alleging disability on August 15, 2017. Tr. 13. The claim was
'In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name
of the non-governmental party or parties in this case. oe
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initially denied on August 21, 2017. She requested a hearing before an ALJ on September 20,
2017.. Plaintiff appeared and testified at a hearing held on April 30, 2019. She was represented
at the hearing by an attorney. The ALJ Kimberly O. Wyatt found Plaintiff not disabled on July
25,2019. Tr. 26. The Appeals Council denied review, making the ALJ’s decision the final
agency decision. Tr. 1. This appeal followed.
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)(); 416.920(a)(4)@). 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. Ifthe claimant is performing such
work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(@); 416.920(a)(4)(). 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)Gi). 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. 9§ 404.1520(a)(4)qD;
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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 CFR. §§ .404.1520(a)(4)dii);
416.920(a)(4)(ili). 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 CFR.
§§ 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.
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. Jd. at 954. The
Commissioner bears the burden of proof at step five. Jd. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing “work °
which exists in the national economy”). If the Commissioner fails to meet this burden, the
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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 above analysis, the ALJ made the following findings:
1. Plaintiff meets the insured status requirements of the Social Security Act through
December 31, 2020. Tr. 15.
2. Plaintiff has not engaged in substantial gainful activity since August 15, 2017, the
alleged onset date. Tr. 15.
3. Plaintiff has the following severe impairments: lumbar degenerative disc disease,
irritable bowel disorder, obesity, major depressive disorder, generalized anxiety
disorder, and insomnia. Tr. 15. .
4, 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 CFR Part 404,
Subpart P, Appendix 1. Tr. 16.
5. Plaintiff has the residual functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a). She can occasionally balance, stoop, kneel, crouch, crawl, and
climb ramps and stairs, but can never climb ladders, ropes, or scaffolds. She can
perform tasks that do not require rapid, physical movement or production-paced
work. She can perform tasks that require no more than occasional exposure to
extreme heat or cold, but never require exposure to hazards, such as machinery that
requires agility to evade, or to unprotected heights. She can never transverse wet or
slippery surfaces. Plaintiff can understand, remember, and carry out simple
- instructions and perform simple tasks. Within this context, she can maintain attention
for two-hour blocks throughout an eight-hour work day; communicate and interact
adequately with the public, supervisors, and coworkers; complete assigned tasks with
ordinary supervision; exercise sufficient judgment to make work-related decisions;
adapt to changes in a routine work setting; and adhere to a normal schedule. Tr. 18.
6. Plaintiffis unable to perform any past relevant work. Tr. 24.
7. Plaintiff was born on December 6, 1969, and was 47 years old, which is defined as a
younger individual age 18-49, on the alleged disability onset date. Tr. 24.
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8. Plaintiff has at least a high school education and is able to communicate in English.
Tr. 24. . .
- 9, Transferability of job skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that Plaintiff is
“not disabled,” whether or not Plaintiff has transferable job skills. Tr. 24.
10, Considering Plaintiffs age, education, work experience, and RFC, there are jobs that
exist in significant numbers in the national economy that Plaintiff can perform,
including surveillance system monitor, information clerk, and final assembler. Tr. 25.
11. Plaintiff has not been under a disability, as defined in the Social Security Act, from
August 15, 2017, through the date of this decision. Tr. 25.
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).
If the decision of the Appeals Council is the final decision of the Commissioner, this
Court must review the decision of the Appeals Council to determine whether that decision is
supported by substantial evidence. Howard v. Heckler, 782 F.2d 1484 (9th Cir. 1986). Where
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the evidence before the ALJ or Appeals Council 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
the Commissioner’s decision on account of an error that is harmless. /d. 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 properly evaluated the medical opinion of Dr. Ramirez and other _
medical evidence.
2. Whether the ALJ properly evaluated Plaintiff's subjective symptom testimony.
For the following reasons, the Court finds that the ALJ properly evaluated the evidence. The
RFC is supported by substantial evidence. The decision of the Commissioner is affirmed.
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I. The ALJ properly evaluated the medical opinion of Dr. Ramirez and other
medical evidence and did not err in formulating the RFC. □
Plaintiff's RFC is the most she can still do despite her impairments and is determined by
“assessing all relevant evidence. 20 C.F.R. § 404.1545(a)(1). RFC is “an assessment of an
individual’s ability to do sustained work-related physical and mental activities in a work setting
on a regular and continuing basis. A ‘regular and continuing basis’ means 8 hours a day, for 5
days a week.” Social Security Ruling (“SSR”) 96-8p. The RFC must identify the individual’s
functional limitations and assess their work-related abilities on a function-by-function basis. Jd.
Here, the ALJ determined that Plaintiff was capable of performing a reduced range of sedentary
work with postural and environmental limitations. Tr. 18. In coming to this conclusion, the ALI
relied somewhat on the opinion of the State agency consultant, and rejected the opinion of
Plaintiffs treating provider, Dr. Ramirez. Tr. 24.
Plaintiff filed her application for the present matter on October 26, 2016, prior to the
implementation of new regulations regarding evaluation of medical opinion evidence. The
regulations of the SSA set forth the proper'considerations to be used for claims filed prior to
March 27, 2017. They provide that, generally, “we give more weight to the opinion ofasource
who has examined you than to the opinion of a source who has not examined you.” 20 C.F.R. §
404.1527(c)(1). In order to determine what weight to assign the opinion, the ALJ must consider
the following factors: length, nature, and extent of the treating relationship; supportability of the
opinion; consistency of the opinion with’ other evidence in the record; the specialization of the
source; and any other factors that support or contradict the opinion. 20 CFR. § 404.1527(c)(2)-
(6). Under the old rules, in order to reject the opinion of a treating physician, an ALJ is required
to provide “specific and legitimate reasons that are supported by substantial evidence.” Esparza
v. Colvin, 631 F. App'x 460, 462 (9th Cir. 2015) (quoting Burrell v. Colvin, 775 F.3d 1133, 1137
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(9th Cir. 2014)). This is so even if the treating source is contradicted by another doctor. Orn v.
Astrue, 495 F.3d 625, 632 (9th Cir. 2007).
The ALJ’s rationale for affording Dr. Ramirez’s opinion “little weight” was that it was
neither supported nor consistent with the evidence which “shows that [Plaintiffs] physical
impairments are treatable with medications such that her limitations are not as severe as Dr.
Ramirez’s opined.” Tr. 24 (citing Exhibits 9F, 15F, and 19F, generally). Plaintiff argues that the
records from South Texas show that Plaintiff did gain some relief from the plethora of treatments
she underwent, but often that relief was short-lived. For example, at her first examination at
South Texas on February 5, 2018. Plaintiff told staff that her stimulator did help relieve her pain,
. but that she was still at a six out of ten pain level on average. Tr. 546. Before both of Plaintiff's
branch block procedure in April of 2018, she reported a five out of ten pain level. Tr. 767, 772.
Plaintiff reported 100 percent pain relief after the procedures, however, her pain gradually came
back to a six out of ten level. Tr. 761. Plaintiff also received radiofrequency ablations and
thizotomies on April 23 and May 8, 2018, but continued to report the same six out often pain
levels on June 4, 2018. Tr. 746. Similarly, injections in her L4, LS, and S1 levels provided
- significant relief for a few months, but she was back to her standard pain level after these wore
off. Tr. 720, 945.
Plaintiff argues here that her treatments actually became less effective as time went on,
and she asserts that the ALJ’s characterization of the evidence disregards the long-term results,
‘which were not successful. She claims that the ALJ cherry-picked the evidence to show that the
treatments improved her conditions. The Court disagrees. A review of the ALJ’s report shows
that the ALJ thoroughly discussed both the Plaintiff's improvement with treatments, and the
eventual return of her pain as well. Moreover, the fact that the treatments did not fully cure
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Plaintiff with no return of her symptoms does not mean they were not effective or not useful in
. helping Plaintiff manage her pain. The ALJ was not unreasonable in concluding that Plaintiffs
significant, if temporary, improvement with treatments was contradictory to the assessment of
Dr. Ramirez that she would be off-task 70% of the time and must lie down for three to four hours
in an eight-hour day. oo
Il. The ALJ properly evaluated Plaintiff's subjective symptom testimony.
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.
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 “[lJocation, duration, frequency, and intensity of pain or other symptoms”
reported by the claimant, any medical sources, and any non-medical sources. Jd. The ALJ’s
decision must contain “specific reasons for the weight given to the individual’s symptoms, be
consistent with and support by the evidence, and be clearly articulated so the individual and any
subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms.” Jd.
Additionally, the evidence upon which the ALJ relies must be substantial. See Holohan v.
Massinari, 246 F.3d 1195, 1208 (9th Cir. 2001); Sullivan, 947 F.2d 341, 345-46 (9" Cir. 1991).
In rejecting claimant’s testimony about the severity of her symptoms, the ALJ must give
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“specific, clear and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487,
493 (9th Cir. 2015).
Here, the ALJ walked through Plaintiffs extensive record of complaints, treatments, and
results. Ultimately the ALJ found that Plaintiff's “statements concerning the intensity,
persistence and limiting effects of [her] symptoms are not entirely consistent with the medical □
evidence and other evidence in the record for the reasons explained in this decision.” Tr. 20. The
ALJ explained in detail how the medical record was contrary to the severity of symptoms
Plaintiff alleged. Tr. 20-24. For instance, the ALJ thoroughly discussed the treatment modalities
used, and concluded that “her pain has been relieved with treatments, including injections,
medial branch blocks, and radiofrequency ablations (Exs. 9F, 15F, and 19F). In fact, the
claimant has reported 100% relief in some cases (Exs. 9F/23 and 15F/48).” Tr. 24. As discussed
above, if treatment relieves Plaintiff's symptoms, it is not necessary for the relief to be
permanent in order to be effective. Therefore this was a clear and convincing reason for rejecting
the alleged severity of Plaintiff's symptoms. .
Plaintiff discusses the same evidence reviewed by the ALJ, but she comes to a different
conclusion. The Court finds that the ALJ exhaustively reviewed all of the evidence propounded,
and while Plaintiff may disagree with the ALJ’s ultimate conclusions about the evidence, the
ALJ's interpretation and conclusions are not unreasonable as a matter of law. The court will
uphold the ALJ's conclusion when the evidence is susceptible to more than one rational
interpretation. Tommasetti Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Here, Plaintiff's
interpretation of the evidence is réasonable, but so is the ALJ’s interpretation. The ALJ gave
clear and convincing reasons, and substantial evidence supports the ALJ’s assessment regarding
Plaintiff’s subjective symptom testimony. .
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ORDER
The ALJ properly evaluated the evidence, and the RFC is suppofttedby substantial
evidence. The final decision of the Commissioner is affirmed:
It is so ORDERED and DATED this Zo . ZA
CLARKE
“ United States Magistrate Judge
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