# Bigler v. Commissioner Social Security Administration

> District Court, D. Oregon · June 12, 2023

URL: https://www.frixlaw.com/law-library/cases/10396067

## Case

- **Court:** District Court, D. Oregon
- **Decided:** June 12, 2023
- **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/10396067

## How later opinions describe it (automated extraction)

- recognizing an ALJ “need not discuss all evidence presented to her”
- holding district court did not abuse its discretion in determining the plaintiff failed to show good cause for not having introduced evidence earlier
- discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

KIMBERLY B.,1 Case No. 3:22-cv-00436-YY

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,

Defendant.

YOU, Magistrate Judge.
Plaintiff Kimberly B. challenges the denial by the Commissioner of the Social Security
Administration (“Commissioner”) of her application for Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act. This court has jurisdiction to review the
Commissioner’s decision pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, that
decision is REVERSED and REMANDED for further proceedings consistent with this decision.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if it is based on proper
legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C.
§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the

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.
evidence that supports and detracts from the ALJ’s conclusion and “‘may not affirm simply by
isolating a specific quantum of supporting evidence.’” Garrison v. Colvin, 759 F.3d 995, 1009-
10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). This
court may not substitute its judgment for that of the Commissioner when the evidence can

reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746
(9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational
interpretation, the Commissioner’s decision must be upheld if it is “supported by inferences
reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(citation omitted); see also Lingenfelter, 504 F.3d at 1035.
SEQUENTIAL ANALYSIS AND ALJ FINDINGS
Disability is the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or 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). The ALJ engages in a five-step sequential inquiry to

determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 416.920;
Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180
F.3d 1094, 1098-99 (9th Cir. 1999)).
At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since
her application date of September 3, 2019. Tr. 18. At step two, the ALJ determined plaintiff
suffered from the following severe impairments: degenerative disc disease with lumbar
radiculopathy and stenosis and right peroneal axonal neuropathy. Id. The ALJ recognized other
impairments in the record, i.e., a history of thyroid cancer, migraines, asthma, status post hip
arthroscopy and mild osteoarthritis of the hips, and a positive nerve conduction study for carpal
tunnel in April 2016, but the ALJ concluded that these impairments were non-severe. Id. at 18-
19.
At step three, the ALJ found plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listed impairment. Id. at 20. The ALJ next

assessed plaintiff’s residual functional capacity (“RFC”) and determined she could perform light
work as defined in 20 CFR 416.967(b) with the exceptions that she could (1) frequently climb
ramps and stairs, (2) occasionally climb ropes, ladders, and scaffolds, (3) frequently stoop,
crouch, kneel, and occasionally crawl, (4) occasionally reach overhead bilaterally, and (5)
frequently finger and handle with the right upper extremity. Id. at 21. The ALJ also concluded
that plaintiff should have no exposure to workplace hazards or vibration and should be able to
change positions between sitting and standing in thirty-minute intervals. Id. at 21-22.
At step four, the ALJ found plaintiff was unable to perform any past relevant work. Id. at
27.
At step five, the ALJ considered plaintiff’s age, education, work experience, and RFC

and concluded there were jobs that existed in significant numbers in the national economy that
plaintiff could perform, including storage facility rental clerk, office helper, and collator
operator. Id. at 27-28. Thus, the ALJ concluded plaintiff was not disabled. Id. at 28.
DISCUSSION
Plaintiff argues that the ALJ: (1) erroneously assessed the medical opinions of Drs.
Brown, Wiggins, Buskirk, and Kessler, and (2) improperly discounted her subjective symptom
testimony. Pl. Br. 1. Plaintiff also asks this court to consider new medical evidence presented to
the Appeals Commission after the hearing. Pl. Br. 9.
I. New Evidence
The ALJ held a hearing on February 19, 2021, and issued a decision on April 15, 2021.
Thereafter, plaintiff presented new evidence to the Appeals Council, consisting of MRIs
conducted on March 20, 2021 (Tr. 33-36) and June 7, 2021 (Tr. 8-9). The Appeals Council did
not exhibit the March 20, 2021 MRI report because it did “not show a reasonable probability that

it would change the outcome of the decision,” and did not exhibit the June 7, 2021 MRI report
because it did “not relate to the period at issue.” Tr. 2. Plaintiff argues this new information
“undermines the reviewing physicians’ findings,” and thus the ALJ’s decision. Pl. Br. 11.
Under 42 U.S.C. § 405(g), to remand a case in light of new evidence, “the court examines
both whether the new evidence is material to a disability determination and whether a claimant
has shown good cause for having failed to present the new evidence to the ALJ earlier.” Mayes
v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001). “To be material under section 405(g), the new
evidence must bear ‘directly and substantially’ on the matter in dispute.” Id. (citation omitted).
The plaintiff “must additionally demonstrate that there is a ‘reasonable possibility’ that the new
evidence would have changed the outcome of the administrative hearing.” Id.

Good cause is demonstrated by showing that the new evidence was unavailable earlier.
Id. at 463. However, “[a] claimant does not meet the good cause requirement by merely
obtaining a more favorable report once his or her claim has been denied.” Id. “The claimant
must also establish good cause for not having sought the expert’s opinion earlier.” Id.
Plaintiff does not discuss, and there is nothing in the record to support, a finding that
there is good cause to consider this new evidence. Plaintiff fails to explain “why she did not
seek or could not have obtained an evaluation . . . before the ALJ Hearing.” Id.. Accordingly,
this new evidence cannot be considered by the court, and the case cannot be remanded on that
basis. See id. (holding district court did not abuse its discretion in determining the plaintiff failed
to show good cause for not having introduced evidence earlier).
II. Subjective Symptom Testimony
Plaintiff argues the ALJ improperly rejected her subjective symptom testimony. Pl. Br.

19. When a claimant has medically documented impairments that could reasonably be
affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the
severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.”
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that
the claimant is not credible is insufficient; the ALJ must “state which . . . testimony is not
credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12
F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific to permit the
reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.”
Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). The ALJ need not
“perform a line-by-line exegesis of the claimant’s testimony” or “draft dissertations when

denying benefits.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). But Ninth Circuit law
“plainly requires” that an ALJ do more than “offer[ ] non-specific conclusions that [the
claimant’s] testimony [is] inconsistent with [certain evidence].” Id. (citations omitted). If the
“ALJ’s credibility finding is supported by substantial evidence in the record, [the court] may not
engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation
omitted).
Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”)
96-7p, governing the assessment of a claimant’s “credibility,” and replaced it with SSR 16-3p.
See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to
“credibility,” clarifies that “subjective symptom evaluation is not an examination of an
individual’s character,” and requires the ALJ to consider all the evidence in an individual’s
record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must
examine “the entire case record, including the objective medical evidence; an individual’s

statements about the intensity, persistence, and limiting effects of symptoms; statements and
other information provided by medical sources and other persons; and any other relevant
evidence in the individual’s case record.” Id. at *4.
A. Objective Medical Evidence
The ALJ rejected plaintiff’s subjective symptom complaints because they were not
consistent with the objective medical evidence. Tr. 22-25. In evaluating a claimant’s subjective
symptom testimony, an ALJ may consider whether it is consistent with objective medical
evidence. 20 C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3); SSR 16-3p, available at 2017 WL
5180304, at *7-8. The lack of objective medical evidence may not form the sole basis for
discounting a claimant’s testimony. Tammy S. v. Comm’r Soc. Sec. Admin., No. 6:17-cv-01562-

HZ, 2018 WL 5924505, at *4 (D. Or. Nov. 10, 2018) (citing Reddick v. Chater, 157 F.3d 715,
722 (9th Cir. 1998) (“[T]he Commissioner may not discredit [a] claimant’s testimony as to the
severity of symptoms merely because they are unsupported by objective medical evidence.”)).
However, when coupled with another permissible reason, inconsistencies between a claimant’s
allegations and objective medical evidence may be used to discount a claimant’s testimony.
Tatyana K. v. Berryhill, No. 3:17-cv-01816-AC, 2019 WL 464965, at *4 (D. Or. Feb. 6, 2019)
(citing Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197-98 (9th Cir. 2004)).
The ALJ provided valid reasons for rejecting plaintiff’s subjective symptoms complaints
on several grounds. For instance, the ALJ recognized that, while plaintiff reported “significant
right upper extremity symptoms, the record does not document reduced grip strength or observed
difficulty with handling or fingering.” Tr. 24. The ALJ reasoned that plaintiff’s “often normal
upper extremity strength (2F/27; 5F/55, 166) . . . and shoulder range of motion (7F/13), as well
as her lack of grip weakness or grip or fingering abnormality on exam, do not support additional

limitations.” Tr. 25. The ALJ also did not include a cane requirement; while plaintiff reported
using a cane for balance, the ALJ noted several examinations where plaintiff’s gait, stance,
balance, and strength were normal without a cane, and a cane was never prescribed. Tr. 22-25.
The ALJ cited medical records to support these conclusions, and the ALJ’s interpretation of the
records is reasonable.
However, the ALJ erred in discounting plaintiff’s complaints of pain without further
explanation. The ALJ recognized that plaintiff reported pain with repetitive movement of her
right arm and shoulder, which was her dominant side, and constant hip pain that went down into
her foot. Tr. 22. Plaintiff could sit for 10-15 minutes with a pillow behind her back, but had to
lay down after that, due to radiating hip and leg pain. Id. Plaintiff used a heating pad for pain,

so much so that her doctors noted skin changes from constant use. Id.; Tr. 331. Plaintiff
described her lower back pain as “stabbing,” with sudden “lightning strikes” of radiating pain
when she tried to lift anything heavy or sit for a few minutes. Tr. 22. Her ability to twist, turn,
and bend was limited by pain and stiffness, and she had to take breaks when brushing her teeth,
washing her hair, and cooking, to avoid triggering pain. Id. The pain also affected plaintiff’s
ability to focus. Id.
Plaintiff was prescribed gabapentin and Percocet, a narcotic, for “moderate to severe
pain.” Tr. 645, 775. Records show plaintiff’s pain was “stable” on Percocet, Tr. 439, and it was
prescribed on an “as needed” basis. Tr. 592. Plaintiff was cautioned to “use [Percocet]
sparingly.” Tr. 644; see also 472 (“adv to limit percocet”). However, plaintiff testified that her
pain was so severe that she needed to use Percocet three times a day. Tr. 56; Tr. 473 (chart note
describing Percocet use 2-3 times per day); Tr. 645 (“using Percocet more often, requests refill”).
The ALJ recognized that plaintiff had undergone numerous treatments for pain, including

medication:
In terms of treatments, the claimant was prescribed pain medication, muscle-spasm
medication, nerve pain medication, and muscle relaxants, including Neurontin,
Celebrex, methocarbamol, metaxalone, acetaminophen, oxycodone, oxycodone-
acetaminophen, cyclobenzaprine, pregabalin, and Cymbalta. 3F/71-72. Prior to the
relevant period, she attended physical therapy, and received SI and right shoulder
trigger point injections. 2F/26; 5F/43.

Tr. 24. The ALJ determined that plaintiff’s “reduced right hip range of motion . . . , occasional
antalgic gait . . . , paraspinal and sacroiliac tenderness . . . , 4+/5 bilateral hip strength . . . , and
decreased right lower extremity sensation . . . support a limitation to light work” with restrictions
surrounding use of stairs, ladders, certain movements, and exposures to vibrations or hazards, as
well as the ability to switch from sitting to standing every thirty minutes. Tr. 25. The ALJ noted
that “[t]hese limitations are designed to accommodate neck, back, and right shoulder pain and
stiffness, and avoid exacerbating the claimant’s symptoms, as well as avoid injury due to pain or
stiffness while climbing around hazards.” Tr. 25.
But these limitations do not address the chronic and debilitating pain that plaintiff had
described. And while the ALJ cited to plaintiff’s multiple treatments for pain, the ALJ did not
explain how the objective medical evidence contradicts plaintiff’s claim that she suffered from
pain so extreme that it prevented her from working. It is possible that the ALJ intended to
discount plaintiff’s complaints of pain based on her normal examination findings, including
strength and flexing tests; however, if so, this reasoning is not clearly stated in the decision.
Moreover, it is not reasonable for an ALJ to disbelieve a plaintiff’s reports of pain based on
normal strength where the strength tests reveal pain symptoms on exertion. Saenz v. Astrue, No.
CV08-543-TUCCKJJCG, 2010 WL 77305, at *8 (D. Ariz. Jan. 7, 2010). Here, plaintiff reported
major and moderate pain during lumbar flexing, bending, and extending. Tr. 285. The record
elsewhere shows plaintiff resisted hip flexion and abduction without pain, Tr. 329, but at the

same time, she was prescribed pain killers, including a narcotic. In any event, it is unclear from
the ALJ’s decision why plaintiff’s complaints of debilitating pain were rejected, and the case
must be remanded for that analysis.
B. Activities of Daily Living
The ALJ also rejected plaintiff’s subjective symptom complaints based on her activities
of daily living. An ALJ may discount a plaintiff’s symptom testimony based on activities of
daily living to (1) illustrate a contradiction in previous testimony or (2) demonstrate that the
activities meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th
Cir. 2007).
The ALJ noted plaintiff was “limited to some degree,” but her activities and record did

“not support that the claimant was limited to the extent alleged.” Tr. 27. In support, the ALJ
made the following observations:
The claimant’s activities of daily living are consistent with the above residual
functional capacity assessment. She was able to drive once or twice a week, shop,
cook, vacuum, do light household chores, and do laundry. While she reported
taking breaks, she was able to handle her own grooming and hygiene. Her ability
to handle her own grooming and hygiene, as well as regularly drive, does not
support greater handling, fingering, or reaching limitations, as these activities
involve handling and fingering (for example, of a toothbrush) and forward reaching
(the steering wheel). Her ability to do chores and shop does not support additional
lifting and carrying limitations, as these activities involve lifting (of laundry and
groceries). Cooking, shopping, and vacuuming both involve sustained standing and
walking, which is consistent with the above light exertional level with the option to
change position between sitting and standing in 30 minute intervals. Her ability to
do laundry and shop does not support additional postural activities, as these
activities involve stooping (to load and unload laundry, and pick up groceries). The
claimant’s activities of daily living do not support a greater degree of exertional
restriction.

Tr. 25.

Many of the cited activities are taken out of context or are consistent with plaintiff’s
testimony. For example, plaintiff testified that her driving, cooking, and other household
activities were all severely limited by pain, causing her to be able to engage in these activities for
only a few minutes and sometimes requiring medications or hours of lying down on a heating
pad afterwards. Tr. 22, 48-50. Plaintiff’s ability to handle her grooming, such as using a
toothbrush, was limited by needing to shake out her hands every few minutes to avoid pain. Tr.
22, 53-54. Plaintiff also needed a family member go with her to the store and help with many
activities, such as putting away laundry, and described stabbing, radiating lower back pain “when
she tried to lift anything heavy, or sit for more than a few minutes.” Tr. 22, 49, 52, 227. Thus,
plaintiff’s activities of daily living do not contradict her allegations of disabling symptoms and
limitations, and therefore do not constitute a basis for rejecting her subjective symptom
testimony. Vertigan v. Halter, F.3d 1044, 1050 (9th Cir. 2001) (holding “the mere fact that a
plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited
walking for exercise, does not in any way detract from her credibility as to her overall
disability”).
III. Mental Health Impairments
Plaintiff asserts the ALJ’s paragraph B analysis is flawed because the ALJ failed to
consider “her reported symptoms, her psychological history, her medications, and descriptions of
how she functioned in therapy.” Pl. Br. 24.
The ALJ observed that plaintiff was diagnosed with major depressive disorder and PTSD.
Tr. 19. The ALJ then examined the four paragraph B criteria, and pointed to portions of the
record to support the conclusion that plaintiff had no limitations or only mild limitations in the
four areas. However, as plaintiff observes, the ALJ made no mention of her multiple prescribed
medications for depression and anxiety, including Xanax, Lexapro, trazodone, and hydroxyzine,
or that she suffered from “a lot of anxiety” and panic attacks (Tr. 439), was “struggling,” had no

appetite, and had insomnia. Tr. 451. Plaintiff also had passive suicidal thoughts (Tr. 723) and a
fear of dying (Tr. 451), but stated, “I stay alive because I don’t want to hurt my family.” Tr. 723.
Plaintiff described that her anxiety interfered with her social activities and was not relieved by
medication. Tr. 452. She further described that she had a “lot of depression and anxiety” that
“gets in the way of [her] functioning.” Tr. 697, Tr. 720. On more than one occasion, medical
records indicate that plaintiff’s “symptoms cause clinically significant distress in important areas
of function.” Tr. 620, 736.
The ALJ’s paragraph B determination is reviewed for substantial evidence. 42 U.S.C. §
405(g). When “interpreting the evidence and developing the record, the ALJ does not need to
‘discuss every piece of evidence.’” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th

Cir. 2003); Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (recognizing an ALJ
“need not discuss all evidence presented to her”) (emphasis in original). As the Ninth Circuit
has explained, an “ALJ is not required to discuss evidence that is neither significant nor
probative.” Howard, 341 F.3d at 1012. However, an ALJ “must explain why ‘significant
probative evidence has been rejected.’” Vincent, 793 F.2d at 1395 (citation omitted). Here, the
ALJ failed to discuss significant probative evidence, including plaintiff’s prescribed medications,
her symptoms, and records indicating that her “symptoms cause clinically significant distress in
important areas of function.”
Moreover, 20 C.F.R. § 404.1545(a)(2) provides that, in determining the RFC, “[w]e will
consider all of your medically determinable impairments of which we are aware, including your
medically determinable impairments that are not ‘severe[.]’” See also Hutton v. Astrue, 491 F.
App’x 850 (9th Cir. 2012) (“Regardless of its severity, however, the ALJ was still required to

consider Hutton’s PTSD when he determined Hutton’s RFC.”). Thus, even if the ALJ had
properly concluded that plaintiff’s mental impairments were non-severe, they must be factored
into the RFC, which did not occur in this case.
It is unnecessary and premature to reach the remaining issues presented in plaintiff’s
briefing.
ORDER
The Commissioner’s decision is REVERSED and REMANDED for further proceedings
consistent with this opinion.
DATED June 12, 2023

/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10396067. Public record. Not legal advice.