# Ihinger v. Commissioner Social Security Administration

> District Court, D. Oregon · October 4, 2022

URL: https://www.frixlaw.com/law-library/cases/10395319

## Case

- **Court:** District Court, D. Oregon
- **Decided:** October 4, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10395319

## How later opinions describe it (automated extraction)

- concluding that an ALJ’s valid reasons to reject claimant’s testimony also applied to the lay statements

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

AARON I.,1 Case No. 1:21-cv-877-SI

Plaintiff, OPINION AND ORDER

v.

KILOLO KIJAKAZI, Acting
Commissioner of Social Security,

Defendant.

Michael H. Simon, District Judge.
Aaron I. brings this appeal challenging the Commissioner of the Social Security
Administration’s (Commissioner) denial of his applications for Disability Insurance Benefits
(DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act
(Act). The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 1383(c)(3), which
incorporates the review provisions of 42 U.S.C. § 405(g). For the reasons explained below, the
Commissioner’s decision is affirmed.

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial
of the last name of the non-governmental party in this case. When applicable, this Opinion and
Order uses the same designation for a non-governmental party’s immediate family member.
STANDARD OF REVIEW
A district court may set aside a denial of benefits only if the Commissioner’s findings are
“‘not supported by substantial evidence or [are] based on legal error.’” Bray v. Comm’r Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880,
882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla [of evidence]

but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
Cir. 1995)).
The district court “cannot affirm the Commissioner’s decision ‘simply by isolating a
specific quantum of supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.
2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Instead, the district court
must consider the entire record, weighing the evidence that both supports and detracts from the
Commissioner’s conclusions. Id. When the record as a whole can support either a grant or a denial
of Social Security benefits, the district court “‘may not substitute [its] judgment for the
[Commissioner’s].’” Bray, 554 F.3d at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152

(9th Cir. 2007)).
BACKGROUND
I. PLAINTIFF’S APPLICATION
Plaintiff worked in the construction industry until 2017 after a coworker dropped a board
on his foot. AR 343. Plaintiff filed his applications for DIB and SSI in March 2019, alleging
disability beginning June 19, 2017. AR 289-307. His claims were denied initially and upon
reconsideration, and he requested a hearing before an Administrative Law Judge (ALJ). AR 195-
202, 205-15. After an administrative hearing held in December 2020, ALJ Matthew Kawalek
issued a written opinion denying Plaintiff’s claims. AR 77-105, 13-40. The Appeals Council
denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Commissioner. AR 1-7. This appeal followed.
II. THE SEQUENTIAL ANALYSIS
A claimant is considered 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). Those five steps are: (1) whether the claimant
is currently engaged in any substantial gainful activity; (2) whether the claimant has a severe
impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the
claimant can return to any past relevant work; and (5) whether the claimant is capable of
performing other work that exists in significant numbers in the national economy. Id. at 724-25.
The claimant bears the burden of proof for the first four steps. Bustamante v. Massanari, 262 F.3d
949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those steps, the

claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).
The Commissioner bears the burden of proof at step five of the sequential analysis, where
the Commissioner must show the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity (RFC), age, education, and work experience.” Tackett, 180 F.3d at 1100. If the
Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954
(citations omitted).
III. THE ALJ’S DECISION
The ALJ applied the five-step sequential evaluation process to determine whether Plaintiff
was disabled. AR 14-34. At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since his alleged onset date of June 19, 2017. AR 19. At step two, the
ALJ determined that Plaintiff suffered from the following severe impairments:

status post Lis Franc fracture/traumatic injury to the right foot status
post surgery; ACL tear of the right knee status post arthroscopic
surgery; partial supraspinatus tear of the right shoulder; mild to
moderate sensorineural hearing loss of the left ear; tinnitus; obesity;
a neurocognitive disorder (called either mild neurocognitive
disorder and encephalomacia status post traumatic brain injury
(“TBI”)); and an affective disorder (called either persistent
depressive disorder or depression).

AR 20.

At step three, the ALJ concluded that Plaintiff did not have an impairment or combination
of impairments that meets or equals a Listing. AR 20-21. The ALJ then assessed Plaintiff’s RFC,
finding that Plaintiff retained the ability to perform a range of light work with the following
limitations:
[Plaintiff] can occasionally lift/carry 20 pounds and frequently
lift/carry 10 pounds. He can stand and/or walk 4 hours out of an
eight-hour workday and sit 6 hours out of an 8-hour workday. He
can frequently operate foot controls with the right lower extremity.
The claimant can never climb ladders, ropes, or scaffolds. He can
occasionally stoop, kneel, crouch, crawl, or climb ramps and stairs.
He can frequently reach with the right upper extremity. He can
tolerate no more than a moderate noise level. Mentally, he is limited
to understanding, remembering, carrying out, and maintaining
attention and concentration on no more than simple tasks and
instructions, defined specifically as those job duties that can be
learned in up to 30 days’ time. He can sustain only ordinary routines
and make no more than simple, work-related decisions. He cannot
perform work at a fast-paced production rate.

AR 23.
At step four, the ALJ found that Plaintiff was unable to perform any of his past relevant
work. AR 31. At step five, the ALJ determined that Plaintiff could perform jobs existing in
significant numbers in the national economy. AR 32-33. The ALJ therefore concluded that
Plaintiff was not disabled from the alleged onset date through January 5, 2021, the date of the
ALJ’s decision. AR 33.

DISCUSSION
Plaintiff argues that the ALJ erred by (1) improperly applying a presumption of
nondisability; (2) improperly evaluating the medical opinions of David LaCourt, Ph.D., and Kris
Lichtle, PA; (3) improperly rejecting Plaintiff’s subjective symptom testimony; and (4) rejecting
the lay testimony without comment.
I. PRESUMPTION OF NONDISABILITY
Plaintiff first argues that the ALJ erred by applying a presumption of nondisability based
upon Plaintiff’s prior unsuccessful application for benefits. Here, Plaintiff previously filed
applications for DIB and SSI and received an unfavorable ALJ decision finding Plaintiff not
disabled from March 27, 2012, through August 18, 2015. AR 17, 178-94. Agency regulations
provide that:

When adjudicating the subsequent claim involving an unadjudicated
period, adjudicators will apply a presumption of continuing
nondisability and determine that the claimant is not disabled with
respect to that period, unless the claimant rebuts the presumption.

Acquiescence Ruling (AR) 97-4(9), 1997 WL 742758, at *3. In accordance with Agency
regulations, the ALJ found that the denial of Plaintiff’s prior claims warranted a presumption of
continuing nondisability, and that Plaintiff did not rebut this presumption. AR 17.
Plaintiff argues that this was error because the evidence of the prior decision was not
proffered to Plaintiff at the administrative hearing, and because Plaintiff’s circumstances changed
after the date of the prior denial of benefits.2 ECF 17, at *7. Any error in the ALJ’s application of
the presumption of continuing nondisability, however, was harmless because the ALJ also
performed the sequential analysis and evaluated Plaintiff’s RFC based on the current medical
record. AR 16-27. See Cha Yang v. Comm’r, 488 F. App’x 203, 204 (9th Cir. 2012) (unpublished)
(concluding that the ALJ erred by failing to consider the claimant’s changed circumstances, but

that the error was harmless because “the ALJ in fact weighed [the] medical evidence”); Conrad v.
Berryhill, 2018 WL 437460, at *4 (C.D. Cal. Jan. 16, 2018) (finding harmless error because “[t]he
ALJ did not in fact adopt the prior ALJ’s RFC determination; he independently reviewed medical
evidence from after the [prior] decision and used that evidence in determining Plaintiff’ s RFC
after finding that she had established new severe impairments.”); see also Molina v. Astrue, 674
F.3d 1104, 1115 (9th Cir. 2012) (An ALJ’s error is harmless where it is “‘inconsequential to the
ultimate nondisability determination.’” (quoting Carmickle v. Comm’r, 533 F.3d 1155, 1162 (9th
Cir. 2008)). In sum, because the ALJ performed the sequential evaluation process, the Court
concludes that the ALJ’s application of the presumption of nondisability does not constitute

reversible error.
II. MEDICAL OPINION EVIDENCE
Plaintiff next argues that the ALJ improperly evaluated the opinions of psychological
examiners David LaCourt, Ph.D., and Kris Lichtle, PA. An ALJ’s decision to discredit any medical
opinion must be supported by substantial evidence. Woods v. Kijakazi, 32 F.4th 785, 787 (9th
Cir. 2022). “An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed
and thorough summary of the facts and conflicting clinical evidence, stating his interpretation

2 Here, the prior denial indicates that Plaintiff’s traumatic brain injury (TBI) was non-
severe through August 18, 2015; by contrast, the Commissioner’s most recent decision lists TBI
and other impairments as “severe” at step two of the sequential analysis. AR 20.
thereof, and making findings.’” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Merely stating conclusions is insufficient:
“The ALJ must do more than state conclusions. He must set forth his own interpretations and
explain why they, rather than the doctors’, are correct.” Id. “[A]n ALJ errs when he rejects a
medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting

without explanation that another medical opinion is more persuasive, or criticizing it with
boilerplate language that fails to offer a substantive basis for his conclusion.” Id. at 1012-13 (citing
Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)).
Dr. LaCourt and PA Lichtle performed a consultative psychological examination with
Plaintiff in May 2019. AR 538. The examiners diagnosed persistent depressive disorder with pure
dysthymic syndrome and mild neurocognitive disorder secondary to TBI. AR 540. They found no
limitation in Plaintiff’s ability to understand and remember very short information/instructions but
assessed mild limitation in Plaintiff’s ability to understand and remember detailed/complex
instructions and interact with coworkers and supervisors. AR 540. Dr. LaCourt and PA Lichtle

also assessed moderate limitation in Plaintiff’s ability to work without supervision, interact with
the public, and adapt to changes in the workplace. AR 540-41. The psychological examiners also
assessed marked limitations in Plaintiff’s ability to sustain concentration and persistence for
carrying out instructions, as well as in Plaintiff’s ability to concentrate. AR 540.
The ALJ found this opinion unpersuasive. AR 30. First, the ALJ noted that the examiners’
conclusion that Plaintiff had limitations in sustained performance of simple tasks conflicted with
Plaintiff’s testimony. AR 30. An ALJ may discount part of a medical opinion when it is
inconsistent with the record. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Here,
Plaintiff testified at the administrative hearing that he “retains good working knowledge of skills
learned in his many years in construction.” AR 30. Plaintiff was able to maintain a job at Fred
Meyer during the relevant period and reported working at least 20 hours per week. AR 20, 85-86.
On this record, it was reasonable for the ALJ to infer from Plaintiff’s consistent work activities
that Plaintiff was not as limited as alleged in his ability to sustain performance of simple tasks.
Tommasetti, 533 F.3d at 1041.

The ALJ also found unpersuasive Dr. LaCourt and PA Lichtle’s assessment of Plaintiff’s
marked impairment in sustained concentration, persistence, and pace; moderate impairment in
working without supervision; and moderate limitations in social interaction with the public and
mild with coworkers and supervisors. The ALJ concluded that these limitations were inconsistent
with Plaintiff’s testimony and work activities. AR 30. The ALJ is required to consider the
supportability of a medical opinion given the longitudinal record. 20 C.F.R. §§ 404.1520(c)(1),
416.920(c)(1). Here, the ALJ found that these alleged limitations were inconsistent with the
Plaintiff’s testimony “that he interacts well with the public but has had some difficulties with
coworkers in his current job at Home Depot.” AR 30. Further, in contrast to the assessment that

Plaintiff had “moderate limitation” when interacting with the public or coworkers, Plaintiff
reported no difficulty getting along with others. AR 388-89. It was reasonable for the ALJ to
conclude from Plaintiff’s ability to work in a “largely public environment” that Dr. LaCourt and
PA Lichtle’s assessments of marked and moderate impairments in concentration, working without
supervision, and social interaction were less than persuasive. 20 C.F.R. §§ 404.1520(c)(1),
416.920(c)(1). In sum, the ALJ properly considered the persuasiveness of Dr. LaCourt and PA
Lichtle’s medical opinions in light of the Agency’s regulations and supported his conclusions with
substantial evidence. The ALJ’s evaluation of the medical evidence was therefore free of harmful
error.
III. SUBJECTIVE SYMPTOM TESTIMONY
Plaintiff next argues that the ALJ improperly rejected his subjective symptom testimony.
The ALJ is required to provide specific, clear and convincing reasons for rejecting a claimant’s
testimony. Garrison, 759 F.3d at 1017. At the administrative hearing, Plaintiff testified that he was
unable to sustain full-time work primarily due to (1) knee pain; (2) a chronic, debilitating foot

condition; and (3) lack of sleep. AR 88-89. At the time of the hearing, Plaintiff was working twenty
hours per week at Fred Meyer. AR 85. Plaintiff testified that this part-time work was “really all
that [he could] handle . . . physically and cognitively.” Id. Plaintiff stated that he could maintain
focus for four hours before needing a two-hour rest, and that short-term memory loss affected his
work performance. AR 89-90, 403.
The ALJ rejected Plaintiff’s testimony to the extent that it conflicted with the RFC. AR 25.
The ALJ first found that Plaintiff’s testimony was unsupported by the medical evidence of record.
The ALJ may consider objective medical evidence when assessing a claimant’s testimony. 20
C.F.R. §§ 404.1529(c)(2), 416.929(c)(2); Carmickle, 533 F.3d at 1161. Here, although Plaintiff
sustained an injury to his right foot at work in 2017, X-rays were unremarkable, and his provider

noted that Plaintiff walked normally and had no swelling or deformity. AR 26-27, 527, 589-90.
During a consultative examination in June 2019, Plaintiff had normal gait, balance, and
unremarkable physical examination findings. AR 28, 546-48. As the ALJ noted, physical
examination findings throughout the record are generally unremarkable except during temporary
periods of acute injury. AR 28. While Plaintiff alleged “a significant amount of short-term memory
problems” due to poor sleep (AR 89), the ALJ noted that treating providers routinely observed
normal mental status and psychiatric findings, and psychological examiners found no objective
deficits with Plaintiff’s remote or recent memory. AR 22, 499, 539, 546, 571, 590, 594, 670. While
this evidence is not sufficient to discount Plaintiff’s testimony, it does support the ALJ’s
conclusion that Plaintiff’s testimony regarding his chronic, debilitating foot pain and memory
issues was unpersuasive. 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2).
The ALJ next found Plaintiff’s testimony unpersuasive because Plaintiff sought and
received only “sparse treatment” during the relevant period. AR 28. A claimant’s course of
treatment is a valid consideration for assessing the persuasiveness of a claimant’s testimony. 20

C.F.R. §§ 404.1529(c)(3); 416.929(c)(3). Evidence of medical treatment successfully relieving
symptoms can undermine a claimant’s allegations of disability. Wellington v. Berryhill, 878 F.3d
867, 876 (9th Cir. 2017). Here, while Plaintiff alleged disability in part due to a “Lisfranc fracture-
metatarsals 2 & 3 and lateral cuneiform” (AR 342), Plaintiff underwent a successful fusion
treatment in 2012 that resulted in good pain control. AR 25, 631, 633. The ALJ also noted that
despite Plaintiff’s allegation that he was unable to work a full time job due to musculoskeletal
pain, Plaintiff took “no medications for pain.” AR 24. In September 2017, Plaintiff received
treatment for acute left leg pain and was prescribed antibiotics after his provider noted redness and
tenderness, though other findings were normal. AR 27, 501, 524, 527. In April 2019, Plaintiff

reported new left knee pain after tripping over his cat and received a prescription for ibuprofen
and a knee brace, which he used “for a while” until he felt better. AR 27, 647. In sum, Plaintiff’s
treatment record provides additional support for the ALJ’s conclusion that Plaintiff was less
limited than alleged in his testimony. 20 C.F.R. §§ 404.1529(c)(3); 416.929(c)(3).
Finally, the ALJ discussed Plaintiff’s regular activities as further evidence that his
testimony was unpersuasive. AR 28. An ALJ may find a claimant’s testimony unpersuasive when
the claimant’s daily activities conflict with his alleged level of impairment. Ahearn v. Saul, 988
F.3d 1111, 1117 (9th Cir. 2021). Here, as discussed above, Plaintiff returned to part-time work
in 2020 and was also able to complete home improvement projects and other activities. AR 28.
Specifically, Plaintiff testified that when he was not working, he spent his time “doing fixer up
type stuff” around his house, such as demolishing and rebuilding a deck, completing drywall and
framing repairs, and fixing his roof. AR 91-92. Plaintiff also testified that he spent 30 minutes a
day cleaning his house and regularly went shopping. AR 385. While Plaintiff claimed that he could
work no more than four hours at a time before needing to rest for two hours (AR 403), he testified

at the administrative hearing that he worked up to five-hour shifts at Fred Meyer (AR 46, 97) and
would occasionally work longer hours if he was in the middle of a project. AR 86. On this record,
Plaintiff’s activities constitute a clear and convincing reason to discount Plaintiff’s allegations of
debilitating pain and limitations. Ahearn, 988 F.3d at 1117. The ALJ’s evaluation of Plaintiff’s
testimony was supported by substantial evidence and is therefore affirmed.
IV. Lay Testimony of Christopher N.
Plaintiff final argument is that the ALJ erred by rejecting the lay testimony of Plaintiff’s
friend, Christopher N. Mr. N. reported that Plaintiff has extreme difficulty prioritizing important
activities and understanding the nature of a situation and frequently loses his patience. AR 355.

Mr. N. also reported that Plaintiff suffers from severe tinnitus, which prevents him from sleeping,
and that Plaintiff’s conditions affect his ability to hear, remember, complete tasks, concentrate,
understand, follow instructions, follow directions, and follow through on everyday tasks. AR 355,
359. Mr. N. further testified that Plaintiff has problems with authority figures and was fired from
a previous job due to social problems. AR 360.
The ALJ considered this testimony, but stated that the regulations do not require him to
“articulate how [he] considered evidence from such non-medical sources.” AR 31. The revised
regulations state that the ALJ is “not required to articulate how he consider[s] evidence from
nonmedical sources” using the same criteria for medical sources, 20 C.F.R. §§ 404.1520c(d) and
416.920c(d). This, however, “does not eliminate the need for the ALJ to articulate his
consideration of lay-witness statements and his reasons for discounting those statements.” Joseph
M. R. v. Comm’r, 2019 WL 4279027, at *12 (D. Or. Sept. 10, 2019).
Although the ALJ failed to articulate specific reasons for rejecting the lay opinion of
Mr. N., any error is harmless because his testimony was substantially similar to Plaintiff’s

testimony. When an ALJ’s rationale for discounting a claimant’s testimony applies equally to the
nonmedical source statements, any error in failing to provide adequate reasons to reject the
nonmedical source statements is harmless. Molina, 674 F.3d at 1117 (the lack of error in
articulating a reason to reject lay witness statements was harmless); Valentine v. Comm’r, 574
F.3d 685, 694 (9th Cir. 2009) (concluding that an ALJ’s valid reasons to reject claimant’s
testimony also applied to the lay statements). Here, Mr. N. described symptoms that mirrored
Plaintiff’s own allegations, such as difficulty prioritizing and completing activities, memory
problems, and difficulty sleeping, organizing, and concentrating. AR 354-55, 359-60. As discussed
above, the ALJ provided legally sufficient reasons for concluding that Plaintiff’s testimony was

unpersuasive. On this record, the ALJ’s error in rejecting Mr. N.’s testimony without comment
was harmless. Molina, 674 F.3d at 1117.
CONCLUSION
For the reasons stated, the Court AFFIRMS the Commissioner’s decision.
IT IS SO ORDERED.
DATED this 4th day of October, 2022.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395319. Public record. Not legal advice.