# Nevarez v. Commissioner Social Security Administration

> District Court, D. Oregon · November 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10395562

## Case

- **Court:** District Court, D. Oregon
- **Decided:** November 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

MELISSA J.R. N., Case No. 1:21-cv-01099-AA
OPINION AND ORDER
Plaintiff,
vs.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.

AIKEN, District Judge:
Plaintiff Melissa J. R. N.1 seeks judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying her claim for
Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“SSDIB”).

1 In the interest of privacy, this opinion uses only first name and the initial of
the last name of the non-governmental party or parties in this case. Where
applicable, this opinion uses the same designation for a non-governmental party’s
immediate family member.
This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). For the reasons
below, the Commissioner’s decision is AFFIRMED.
BACKGROUND

On January 18, 2019, Plaintiff filed an application for a period of disability
allegedly beginning in December 2017. Tr. 193. In her initial disability report,
Plaintiff cited four limiting medical conditions: “lower back fusion (L4-L5),” “sciatica
(mostly right side),” “migraines,” and “muscle spasms.” Tr. 222. During 2018 and
prior to filing a claim for disability, Plaintiff had established care with Julie
Ohlschwager, N.P., to receive treatment for headaches and chronic back pain. Tr. 356.
Plaintiff’s claims were initially denied in March, Tr. 85, and again in November

2019, after reconsideration, Tr. 107. In January 2020, Plaintiff requested a hearing
before an administrative law judge (“ALJ”). Tr. 110. The hearing took place on
December 9, 2020, by telephone due to COVID-19 pandemic restrictions. Tr. 40-76.
The ALJ determined that the Plaintiff was not disabled. Tr. 10. When, on June 9,
2021, the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision
became the final decision of the Commissioner. Tr. 1. Having exhausted all

administrative remedies, Plaintiff then requested review of that final decision by this
Court.
DISABILITY ANALYSIS
A claimant is disabled if 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 stepwise
process by which an ALJ must determine whether the claimant is disabled within the
meaning of the Social Security Act. Keyser v. Comm’r, 648 F.3d 721, 724 (9th Cir.

2011). If the claimant is found disabled at any step, there is no need to continue the
process to subsequent steps. See 20 C.F.R. §§ 404.1520; 416.920.
The five steps are: (1) Is the claimant presently working in a
substantially gainful activity? (2) Is the claimant’s impairment severe?
(3) Does the impairment meet or equal one of a list of specific
impairments described in the regulations? (4) Is the claimant able to
perform any work that he or she has done in the past? And (5) Are there
significant numbers of jobs in the national economy that the claimant
can perform?

Keyser, 648 F.3d at 724-25; see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th
Cir. 2001).
The claimant bears the burden of proof at steps one through four, at which
point the burden shifts to the Commissioner for step five. Bustamante, 262 F.3d at
953-54. If the Commissioner shows that the claimant is able to perform other work
existing in significant numbers in the national economy, the claimant is not disabled.
Id.
THE ALJ’S FINDINGS
The ALJ performed the five-step analysis, ultimately concluding that Plaintiff
was not disabled. At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the alleged onset date, December 20, 2017. Tr. 19.
At step two, the ALJ found that Plaintiff had the following severe impairments:
cervical degenerative disc disease; lumbosacral strain; lumbar degenerative disc
disease; obesity; and migraines. Id. The ALJ found that, due to waxing and waning
of symptoms secondary to treatment and evidence of situational stressors, Plaintiff’s
mental impairments were non-severe. Tr. 20. At step three, the ALJ found that

Plaintiff did not have an impairment or combination of impairments that met or
equaled the severity of a listed impairment. Tr. 25.
The ALJ found that Plaintiff had the residual functional capacity (“RFC”) to
perform less than the full range of sedentary work with the following limitations:
Plaintiff “must never be required to climb ladders, ropes or scaffolds;” she can
“occasionally stoop, crouch, kneel, crawl, and climb ramps and stairs, and is able to
frequently balance;” Plaintiff is “limited to occasional bilateral overhead reaching;”

and must avoid frequent exposure to humidity, vibration, irritants, or unprotected
heights. Tr. 26. Plaintiff was also limited to jobs that are performed indoors in normal
work setting lighting. Id.
At step four, the ALJ found that Plaintiff was unable to perform any past
relevant work. Tr. 36. At step five, the ALJ found that in light of Plaintiff’s age,
education, work experience, and RFC, “there are jobs that exist in significant

numbers in the national economy that [Plaintiff] can perform,” including telephone
sales representative, telephone order clerk, or receptionist. Tr. 37. As a result, the
ALJ found that Plaintiff was not disabled. Tr. 38.
STANDARD OF REVIEW
The Court must affirm an ALJ’s disability determination “unless it contains
legal error or is not supported by substantial evidence.” Garrison v. Colvin, 759 F.3d
995, 1019 (9th Cir. 2014) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.
2007)). Evidence is substantial if “a reasonable person might accept [the evidence] as
adequate to support a conclusion.” Id. at 1009. A reviewing court must “consider the

entire record as a whole, weighing both the evidence that supports and the evidence
that detracts from the Commissioner’s conclusion, and may not affirm simply by
isolating a specific quantum of supporting evidence.” Id.
The Court must uphold the Commissioner’s decision if it is “supported by
inferences reasonably drawn from the record,” and when the evidence before the ALJ
is subject to more than one rational interpretation, courts must defer to the ALJ’s
conclusion. Batson v. Comm’r, 359 F.3d 1190, 1193 (9th Cir. 2004). However, the

Court cannot affirm the Commissioner’s decision on a ground that the agency did not
invoke in making its decision. Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006).
The Court may not reverse an ALJ’s decision based on harmless error. Id. at 1055-
56.
DISCUSSION
Plaintiff alleges the ALJ erred by (I) improperly rejecting Plaintiff’s subjective

symptom testimony; (II) improperly rejecting the medical opinion from Nurse
Ohlschwager; and (III) failing to find that Plaintiff’s migraine headaches met a
listing.
I. Subjective Symptom Testimony
Plaintiff claims that the ALJ improperly rejected Plaintiff’s subjective
testimony about her symptoms and functional limitations. An ALJ may reject the
plaintiff’s subjective testimony about the severity of her symptoms “only by offering
specific, clear and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d
487, 493 (9th Cir. 2007). Those reasons must be “sufficiently specific to permit the

reviewing court to conclude that the ALJ did not arbitrarily discredit the [testimony].”
Ortega v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995).
In this case, the ALJ found that Plaintiff’s allegations about her limitations
due to her symptoms were not wholly consistent with the objective medical evidence,
with the evidence in the record, or with Plaintiff’s activities of daily living (“ADL”). A
person who is capable of basic ADL is not necessarily able to work because
“impairments that would unquestionably preclude work and all the pressures of a

workplace environment will often be consistent with doing more than merely resting
in bed all day.” Garrison, 759 F.3d at 1016. Also, an ALJ errs in his determination
where he “pick[s] out a few isolated instances of improvement over a period of months
or years and [treats] them as a basis for concluding a claimant is capable of working.”
Id. at 1017. However, even if not all of the ALJ’s findings for discrediting symptom
allegations are upheld, the overall decision may stand assuming the ALJ provides

other valid rationales. Batson, 359 F.3d at 1197.
A. Back Pain
Imaging studies of Plaintiff’s back, as well as assessments occasionally
showing tenderness and limited range of motion, show that Plaintiff suffers from
physical conditions which could reasonably cause symptoms and limitations of the
type Plaintiff alleges. See e.g. Tr. 402-03, 470, 511-13. However, the ALJ found that
Plaintiff’s allegations about the severity of her symptoms and limitations did not
match up with this and other evidence in the record, including Plaintiff’s ADL. Tr.
24. At the hearing before the ALJ, Plaintiff testified to significant pain, inability to

sit for more than 15 or 20 minutes, and lack of confidence in moving around without
triggering spasms or episodes of severe pain. Tr. 59, 63. However, Plaintiff also
confirmed that before and during the period of alleged disability, Plaintiff held a part
time job before being “let go.” Tr. 50-51. Plaintiff was also able to engage at times in
various ADL which the ALJ opined are not wholly inconsistent with Plaintiff’s
description of her pain. Tr. 25. In addition, at visits with healthcare providers Nurse
Ohlschwager and a chiropractor, objective measures of Plaintiff’s response to

palpation and Plaintiff’s range of motion waxed and waned throughout her treatment
history. Tr. 23-24. The ALJ identified this variability in objective assessments as a
factor detracting from the persuasiveness of Plaintiff’s symptom allegations. Id.
Individually these inconsistencies are an insufficient basis for the ALJ to
conclude that Plaintiff’s allegations related to back pain are not persuasive. Plaintiff’s
post-surgical physical condition corroborated by imaging done before and during the

period of disability could conceivably cause waxing and waning symptoms of the type
Plaintiff describes. Plaintiff might have held a part time job before her back pain
compounded other symptoms to subsequently make that impossible, or Plaintiff could
have been let go for a reason having to do with her symptoms. However, these
realities are not affirmatively established by the evidence in the record. Multiple
allegations in multiple contexts, which are inconsistent with objective medical
evidence and other evidence in the record, may reasonably show broader
inconsistency of Plaintiff’s symptom testimony. Together, these inconsistencies
provide a reasonable basis for the ALJ’s conclusions. Thus, the ALJ did not err in

discrediting Plaintiff’s allegations regarding her back pain.
B. Migraines
On establishing care with Nurse Ohlschwager in 2018, Plaintiff complained of
chronic migraines since 2012 which Plaintiff reported she could manage fairly well
with prompt use of medication at the onset of an episode. Tr. 357. Throughout the
period since the alleged date of onset, Plaintiff’s reports to Nurse Ohlschwager show
waxing and waning of severity and frequency of migraines, and of Plaintiff’s ability

to control her migraines with medication. See e.g. Tr. 524, 546, & 551. Plaintiff also
periodically alleged limitations due to side effects of migraine medications. See e.g.
Tr. 524, 551. The ALJ found that Plaintiff’s allegations of limitations due to chronic
migraines were inconsistent with Plaintiff’s work history and with her ADL. Tr. 25-
28.
The ALJ erred in determining that Plaintiff’s alleged limitations due to

migraines were not fully consistent with the evidence in the record when the ALJ
relied on the variable nature of Plaintiff’s symptoms and on specific reports of ADL.
Chronic migraines are by nature variable and unpredictable, as is clear from the
objective evidence in the record. Therefore, it is inappropriate for the ALJ to rely on
waxing and waning symptoms, or on specific instances of Plaintiff participating in
ADL, to support a conclusion that Plaintiff’s allegations are non-persuasive.
However, this error by the ALJ is harmless because his determination is
supported by other circumstances which might reasonably show inconsistency in
Plaintiff’s allegations. Plaintiff testified at the hearing that she worked a part time

for a few months after the alleged onset date of Plaintiff’s period of disability. Tr. 50-
51. When questioned as to the reason Plaintiff left that job, Plaintiff indicated that
she was let go after only a few months, and that Plaintiff suspected her boss “was
scared to continue carrying me on the payroll” because of her disabilities. Tr. 51.
Plaintiff’s work history also shows she earned significant annual income during the
five years before the alleged onset of disability, Tr. 197, during which time she was
also experiencing frequent migraines, Tr. 357.

The ALJ characterized Plaintiff’s work history as inconsistent with Plaintiff’s
allegations that her migraines prevent her from working. Tr. 28. While Plaintiff is
not wrong that the ALJ’s cherry picking instances of functionality, and the ALJ’s
reliance on basic ADL, were in error, this Court is not in a position to reverse the
ALJ’s determination. Given the evidence in the record, the ALJ’s conclusion about
the Plaintiff’s migraine symptom allegations represents a reasonable interpretation

and is thus sufficient to support the ALJ’s conclusion. In sum, the ALJ reasonably
discounted Plaintiff’s testimony concerning her migraines.
II. Medical Source Opinion
Plaintiff claims that the ALJ improperly rejected the medical source opinion
from Plaintiff’s primary care provider, Nurse Ohlschwager. Under new social security
rules, nurse practitioners are considered professional medical providers capable of
providing a medical opinion. 20 C.F.R. §§ 404.1502(a)(7), 416.902(a)(7). The ALJ must
consider every medical opinion in the record and evaluate each opinion’s
persuasiveness, affording greatest importance to each opinion’s supportability and

consistency. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). In this case, the ALJ found that
Nurse Ohlschwager’s medical source opinion about Plaintiff’s limitations was
inconsistent with the Plaintiff’s testimony and with the nurse’s own treatment notes.
The ALJ characterized Nurse Ohlschwager’s medical source opinion as
“extremely restrictive” in describing Plaintiff’s level of functionality. Tr. 31. In
assessing Plaintiff’s physical limitations, Nurse Ohlschwager opined that Plaintiff
can rarely lift less than 10 pounds, can never perform any postural activities, and can

only perform tasks with her hands and fingers 25% of the time. Tr. 499. In the same
questionnaire, Nurse Ohlschwager opined Plaintiff would need to stand and walk for
2 minutes every 15 minutes, and that Plaintiff would need hourly breaks lasting 10
minutes. Tr. 498. In assessing Plaintiff’s headaches, Nurse Ohlschwager estimated
that Plaintiff experienced 4-5 headaches per week, and opined that Plaintiff would be
unable to work at all on a day when she is experiencing a headache. Tr. 501, 503.

The ALJ correctly determined that these limitations are not entirely consistent
with Nurse Ohlschwager’s treatment notes or with Plaintiff’s testimony regarding
Plaintiff’s ADL. While ability to perform some ADL does not always translate to an
ability to work a full-time job, discrepancies between Plaintiff’s ADL and Plaintiff’s
allegedly extreme limitations can support a determination by the ALJ that an opinion
is non-persuasive. For example, Plaintiff’s alleged inability to ever twist, stoop, or
squat, Tr. 499, would essentially render Plaintiff bedridden. But the ADL Plaintiff
reported to Nurse Ohlschwager and to the ALJ in Plaintiff’s hearing all require some
at least some twisting, stooping, and squatting. Similarly, at a frequency of 4-5

headaches per week, days during which Plaintiff can allegedly do no work, Tr. 503,
Plaintiff would have missed too many virtual class sessions to have finished an
associates degree in early childhood development. Tr. 47.
That Nurse Ohlschwager’s medical source opinion is not fully consistent with
the nurse’s own treatment notes or with Plaintiff’s testimony reasonably supports the
ALJ’s assessment of the medical source opinion as non-persuasive, as well as the
ALJ’s decision to credit the agency physician, Dr. Desai, over Plaintiff’s established

care provider. Tr. 30. The ALJ did not err in determining that Nurse Ohlschwager’s
medical source opinion is inconsistent with the evidence in the record and thus non-
persuasive.
III. Step 3 Listing
Plaintiff claims that the ALJ erred in finding that Plaintiff’s migraine
headaches did not meet listing 11.02D. In order to meet a listing, the claimant’s

impairment must satisfy all of the components of the listing. Kennedy v. Colvin, 738
F.3d 1172, 1174 (9th Cir. 2013). Because a finding that claimant’s symptoms meet a
listed impairment creates a presumption of disability, listed impairments set strict
standards and correspond to a high level of severity. Id. at 1176. In this case, the ALJ
found that neither the frequency of Plaintiff’s migraines, nor the resulting level of
limitation, were consistent with listing 11.02D.
In assessing primary headache disorders, including migraine headaches, the
SSA looks to listing 11.02 for dyscognitive seizures as the “most closely analogous
listed impairment.” SSR 19-4p. Plaintiff claims her migraine headaches fall under

listing 11.02B or 11.02D, which require similar conditions and evidence. Pl. Br., 10.
Under listing 11.02B as applied to a primary headache disorder, headaches must
occur (i) at least once a week; (ii) for at least three consecutive months; (iii) despite
adherence to prescribed treatment. SSR 19-4p; 20 C.F.R. Ch. III, Part 404, Subpart
III, Appendix 1. Listing 11.02D requires the same showings as required under
11.02B, but headaches must occur at least once every two weeks, and claimant must
experience marked limitation in at least one area of functioning. Id. A diagnosis or

statement of symptoms alone is insufficient to establish the existence of a medical
impairment to meet listing requirements. SSR 19-4p. However, these sources of
evidence will be considered alongside concurrent observation of a headache event by
a medical provider, any findings on laboratory tests, and claimant’s response to
treatment. Id.
In Plaintiff’s case the ALJ considered all the above factors, compared the

circumstances to the requirements under the listing, and properly determined that
“the record lacks the necessary evidence to satisfy the criteria to meet or medically
equal these listed impairments.” The ALJ made this determination on multiple bases,
though his analysis of this determination came in other parts of the ALJ’s opinion.
Tr. 21. Plaintiff’s testimony and treatment notes indicate that Plaintiff has
periodically been able to control her migraines with medication such that their
frequency remains below the listed criteria. Tr. 357, 457, 524. Though Plaintiff
mentioned side effects of medications to Nurse Ohlschwager, and in her hearing
testimony, it is not clear that these side effects rise to a level precluding Plaintiff’s

adherence to treatment or limiting her functionality. Tr. 27. Finally, and perhaps
most importantly, where the ALJ discounted both Plaintiff’s symptom allegations and
Nurse Ohlschwager’s medical source opinion as non-persuasive, the remaining record
is indeed insufficient to meet the high bar required for Plaintiff to show that her
headaches fall under listing 11.02 as a medically determinable impairment.
CONCLUSION
The ALJ’s findings, and the Commissioner’s final decision regarding Plaintiff’s

disability status, are AFFIRMED.
IT IS SO ORDERED.
Dated this 30th day of November 2022.

________/s_/_A_n__n_ A__ik__e_n_______
Ann Aiken
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395562. Public record. Not legal advice.