The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TUANANH B.,1
Plaintiff, Civ. No: 3:22-cv-01497-MC
v. OPINION AND ORDER
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff seeks judicial review of a final decision of the Commissioner of Social
Security’s decision denying her application for disability insurance benefits. This court has
jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
Plaintiff alleges that the Administrative Law Judge (“ALJ”) erred by (1) improperly
rejecting Plaintiff’s subjective symptom testimony, and (2) failing to include all of Plaintiff’s
supported limitations in the RFC. Because the Commissioner’s decision is based on proper legal
standards and supported by substantial evidence, 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.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff applied for benefits on November 8, 2019, alleging disability since February 25,
2018. Tr. 51-52, 179-83. Her claim was denied initially and upon reconsideration. Tr. 69, 90.
Plaintiff appeared before the Honorable John Michaelsen on September 10, 2021. Tr. 37-60. ALJ
Michaelsen denied Plaintiff’s claim on October 8, 2021. Tr. 22-36. Plaintiff sought review from
the Appeals Council and was denied, rendering the ALJ’s decision final. Pl.’s Br. at 2, ECF No.
11. Plaintiff now seeks judicial review of the ALJ’s decision.
Plaintiff is 59 years old and was 53 as of the amended alleged onset date. See Tr. 182.
Plaintiff has a high school diploma and completed two years of college. Tr. 213. Plaintiff has
past relevant work experience as an electrical assembler. Tr. 31. On February 25, 2018, Plaintiff
was injured in a car accident, and she alleges disability from her injuries. Pl.’s Br. At 2.
Specifically, Plaintiff alleges disability from injuring multiple vertebrae in her neck, resulting in
chronic neck pain, right arm pain and weakness, intermittent numbness in her right hand, and
reduced range of motion in her neck. Id.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner’s decision if the decision is based on
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 of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Hill
v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980
(9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative
record as a whole, weighing both the evidence that supports and that which detracts from the
ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can
reasonably support either affirming or reversing, ‘the reviewing court may not substitute its
judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d
519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).
DISCUSSION
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden
of proof rests on the claimant for steps one through four, and on the Commissioner for step five.
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999)). At step five, the Commissioner’s burden is to demonstrate that the
claimant can make an adjustment to other work existing in significant numbers in the national
economy after considering the claimant’s residual functional capacity (“RFC”), age, education,
and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner fails to meet this
burden, then the claimant is considered disabled. Id. 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 953-54.
The ALJ determined Plaintiff’s only severe impairment was “history of cervical DDD
with s/p discectomy and fusion.” Tr. 27. As noted, Plaintiff argues the ALJ erred by improperly
rejecting: (1) her subjective symptom testimony; and (2) failing to include all of her supported
limitations in the RFC.
Plaintiff first contends the ALJ erred in discounting her subjective statements about the
limiting effects of her symptoms including chronic pain, radiculopathy, numbness, weakness,
and tingling in her lower extremities. To determine whether a claimant’s testimony about
subjective pain or symptoms is credible, an ALJ performs a two-stage analysis. Trevizo v.
Berryhill, 871 F.3d 664, 678 (9th Cir. 2017); 20 C.F.R. § 416.929. First, the claimant must
produce objective medical evidence of an underlying impairment that could reasonably be
expected to produce the symptoms alleged. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d
1090; 1102 (9th Cir. 2014); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Second,
absent affirmative evidence that the claimant is malingering, the ALJ must provide specific, clear
and convincing reasons for discounting the claimant’s testimony regarding the severity of the
symptoms. Trevizo, 871 F.3d at 678; Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.
2007). The ALJ must make findings that are sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant’s testimony. Brown-Hunter v.
Colvin, 806 F.3d 487, 493 (9th Cir. 2015). The Ninth Circuit demands more than a summary of
the medical evidence and generic, high-level reasons why a claimant’s allegations conflict with
that evidence. Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). The Ninth Circuit “requires
the ALJ to specifically identify the testimony she or he finds not to be credible and . . . explain
what evidence undermines that testimony.” Id.; Brown-Hunter, 806 F.3d at 494.
Clear and convincing reasons for rejecting a claimant’s testimony “include conflicting
medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the
claimant’s testimony or between her testimony and her conduct, daily activities inconsistent with
the alleged symptoms, and testimony from physicians and third parties about the nature, severity
and effect of the symptoms” about which the claimant complains. Bowers v. Astrue, No. 11-cv-
583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti, 533 F.3d at 1040);
Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013).
In some circumstances, an ALJ may reject subjective complaints where the claimant's
“statements at her hearing do not comport with objective medical evidence in her medical
record.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). However,
especially in the mental health context, an ALJ may not cherry-pick isolated instances of
favorable psychological symptoms when the record as a whole reflects long-standing
psychological disability. See Ghanim, 763 F.3d at 1164; see also Garrison v. Colvin, 759 F.3d
995, 1017 (9th Cir. 2014). Moreover, a lack of objective evidence may not be the sole basis for
rejecting a claimant's subjective complaints. See Rollins v. Massanari, 261 F.3d 853, 856 (9th
Cir. 2001)
The record demonstrates Plaintiff’s primary concern was her residual pain, radiculopathy,
and numbness related to a prior motor vehicle accident. Tr. 52-54. At the hearing before the ALJ,
Plaintiff testified that a motor vehicle accident caused a neck injury that led to a cervical
discectomy and anterior cervical discectomy and fusion (ACDF). Tr. 52-54. Plaintiff reported
that she continues to experience pain and numbness in her neck, feet, and hands. Tr. 53, 61, 73,
80, 99. She testified that her pain radiates down her neck to her feet and hands, causing her to
have trouble typing. Tr. 53. Additionally, she stated that she is only able to walk very slowly
given that her feet are often in pain or numb. Tr. 54. In her function report, Plaintiff indicated
that she slowly walks three quarters of a mile every day. Tr. 230, 232. Plaintiff also alleged she
could not bend, kneel, or sit for prolonged amounts of time. Tr. 54. Plaintiff asserts that her
symptoms only marginally improved with treatment and that she had intolerable side effects
from gabapentin. Pl.’s Br. 7.
The ALJ determined that Plaintiff’s “statements concerning the intensity, persistence and
limiting effects of [her] symptoms, her allegations are not substantiated or supported by the
medical record.” Tr. 30. The ALJ discounted Plaintiff’s subjective complaints because they
conflicted with her reported improvement with treatment and the objective medical evidence in
the record. Id.
Regarding Plaintiff’s improvement with treatment, the ALJ acknowledged that Plaintiff
was prescribed medication, including voltaren and gabapentin to treat her symptoms. Id. The
ALJ also discussed how Plaintiff pursued additional “conservative treatment options” including
steroid injections, physical therapy, and chiropractic care. Id. The ALJ cited physical therapy
records from December 2018 and November 2019 where Plaintiff reported that her pain,
stiffness, radiculopathy, and ability to rotate her head had improved with physical therapy
treatment. Tr. 30 (citing Tr. 545, 650). Plaintiff also reported her symptoms were improving
significantly with physical therapy and exercise on multiple occasions. Tr. 450-52, 528, 540,
542, 545, 547, 551, 562, 650, 657, 671-72, 675, 678, 901, 910, 925, 931, 939. Throughout the
course of her physical therapy treatment, treatment notes continuously document that “[Plaintiff]
demonstrates good potential to achieve established goals to address documented impairments by
participating in skilled physical therapy.” Tr. 541, 546, 547, 549, 550. The ALJ therefore
provided clear and convincing reasons to discount Plaintiff's testimony as to the severity of her
symptoms given her improvement with treatment.
Regarding the objective medical evidence, Plaintiff alleged that she is unable to bend,
kneel, sit, or stand for prolonged periods of time, and that she can only walk very slowly due to
pain. Tr. 29 (citing Tr. 54). However, the ALJ discussed that physical examination findings
showed that Plaintiff exhibited normal sensation, normal range of motion, non-antalgic gait, and
the ability to heel and toe walk. Tr. 30 citing (Tr. 489, 493-94, 510-511 528, 653, 904). The ALJ
cited multiple x-rays, MRI scans, and other diagnostic imaging that showed mostly mild
findings. Tr. 30. Specifically, the ALJ cited diagnostic imaging from April 13, 2018 that revealed
degenerative changes with mild spinal canal, moderate right and mild left neuroforaminal
narrowing at C6-7. Tr. 474. He also cited x-rays of Plaintiff’s cervical spine that revealed stable
mild degenerative disc disease and mild multifocal facet joint arthropathy. Tr. 496, 515. Plaintiff
also denied trouble walking multiple times at medical examinations. Tr. 536, 584, 646, 666, 714,
896, 921, 980.
Because the ALJ provided “specific, clear and convincing reasons” for finding Plaintiff
less-than credible regarding the extent of her limitations, the ALJ did not err in discounting
Plaintiff’s testimony regarding those limitations. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
2009) (quoting Smolen v. Chater, 80 F.3d 1273,1282 (9th Cir. 1996)).
Plaintiff next argues that the ALJ failed to include any upper extremity limitations in her
RFC. Pl.’s Br. 9. Plaintiff further asserts that failing to include any upper extremity limitations is
harmful error because her past relevant work as an electronic assembler requires frequent
reaching, handling, and fingering. Id.
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. 20 C.F.R. §§ 404.1545, 416.945; SSR 96-
8p. However, only limitations supported by substantial evidence must be incorporated into the
RFC and, by extension, the hypothetical question posed to the vocational expert. Osenbrock v.
Apfel, 240 F.3d 1157, 1163–65 (9th Cir. 2001).
As explained above, the ALJ properly discounted Plaintiff's symptom testimony because
it was unsubstantiated by the evidence. Plaintiff reported that Ibuprofen and voltaren were
controlling her pain symptoms in her upper extremities without side effects. Tr. 509. The state
agency consultants did not assess any reaching or manipulative limitations due to their findings
that plaintiff had normal fine finger movements and normal arm swing on physical examination.
Tr. 65, 68, 79, 86. Additionally, no other physicians assessed that Plaintiff has functional
limitations with respect to her arm and hand extremities.
Further, despite the lack of evidence supporting Plaintiff's gastrointestinal issues, the ALJ
still limited Plaintiff to perform light work with lower extremity limitations including no more
than frequent balancing, stooping, crouching, crawling, or kneeling. Tr. 29. Plaintiff does not cite
to anything supporting Plaintiff's additional suggested upper extremity limitations. Because
Plaintiff's upper extremity limitations were not supported by substantial evidence, the ALJ did
not err in construing Plaintiff's RFC. See Dawn Jeanette Z. v. Comm'r of Soc. Sec., No. 6:19-CV-
00423-BR, 2020 WL 1172695, at *4 (D. Or. Mar. 11, 2020), aff’d sub nom. Zul v. Kijakazi, No.
20-35404, 2021 WL 5298595 (9th Cir. Nov. 15, 2021) (affirmed ALJ’s light RFC with no
reaching limitation was supported by substantial evidence because the reviewing physician
opined that Plaintiff could perform light work without any reaching limitations, Plaintiff's
extremities did not show any gross joint abnormalities, she had full range of motion of the arms,
and she could move all four extremities with normal strength and sensation).
CONCLUSION
The ALJ’s decision is free of legal error and supported by substantial evidence. The
Commissioner’s final decision is therefore AFFIRMED.
IT IS SO ORDERED.
DATED this 16th day of October, 2023.
_______/s/ Michael J. McShane________
Michael McShane
United States District Judge