Thompson v. Commissioner, Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

COLIN T.1, Case No. 6:24-cv-91-SI

Plaintiff, OPINION AND ORDER

v.

MARTIN O’MALLEY, Commissioner of

Social Security,

Defendant.

H. Peter Evans, EVANS & EVANS PC, 222 NE Park Plaza Drive, Suite 113, Vancouver,

WA 98684. Of Attorneys for Plaintiff.

Natalie K. Wight, United States Attorney, and Kevin Danielson, Executive Assistant U.S.

Attorney, UNITED STATES ATTORNEY’S OFFICE, 1000 SW Third Avenue, Suite 600, Portland,

OR 97204; Katherine Watson, Special Assistant United States Attorney, OFFICE OF THE

GENERAL COUNSEL, Social Security Administration, 6401 Security Boulevard, Baltimore,

MD 21235. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Plaintiff Colin T. seeks judicial review of the final decision of the Commissioner of the

Social Security Administration (“Commissioner”) denying his application for Supplemental

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.

Security Income (“SSI”). For the reasons discussed below, the Court affirms the decision of the

Commissioner.

STANDARD OF REVIEW

The decision of the administrative law judge (“ALJ”) is the final decision of the

Commissioner in this case. The district court must affirm the ALJ’s decision if it is based on the

proper legal standards and the findings are supported by substantial evidence. 42 U.S.C.

§ 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial

evidence” means “more than a mere scintilla” and requires only “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587

U.S. 97, 103 (2019) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938));

see also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).

When the evidence is susceptible to more than one rational interpretation, the Court must

uphold the ALJ’s conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable

interpretations of the evidence are insignificant if the ALJ’s interpretation is a rational reading of

the record, and this Court may not substitute its judgment for that of the ALJ. See Batson v.

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[A] reviewing court

must consider the entire record as a whole and may not affirm simply by isolating a ‘specific

quantum of supporting evidence.’” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). A reviewing court, however,

may not affirm the ALJ on a ground upon which the ALJ did not rely. Id.; see also Bray, 554

F.3d at 1225-26.

BACKGROUND

A. Plaintiff’s Application

Plaintiff protectively filed an application for SSI on March 16, 2018,2 alleging disability

beginning on May 11, 2012.3 See AR 95, 125, 307-16. He later amended his alleged onset date to

November 15, 2016. AR 319. Plaintiff’s date of birth is August 12, 1976, and he was 40 years

old at the time of the alleged onset of disability. AR 41. The agency denied Plaintiff’s claim both

initially and upon reconsideration, and Plaintiff requested a hearing. AR 148-56, 165-69, .

Plaintiff appeared for a telephonic hearing before an ALJ on August 31, 2022. AR 51-67. The

ALJ issued a decision denying Plaintiff’s claim on September 9, 2022. AR 23-43. Plaintiff

requested review of the ALJ’s decision, which the Appeals Council denied. AR 1. Accordingly,

the ALJ’s decision is the final decision of the agency and Plaintiff seeks judicial review of that

decision.

B. The Sequential 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

2 The application summary states that Plaintiff applied for SSI on March 20, 2018. AR

307. This appears to be a report generated after the actual application date that mistakenly reports

the application date as the date the report was generated. Other agency documents in the record

and the ALJ’s opinion state that Plaintiff’s application date was March 16, 2018. See AR 23, 95,

125.

3 On March 16, 2018, Plaintiff also applied for disability insurance benefits, alleging a

disability onset date of May 11, 2012. AR 303-06. He later withdrew this application by

amending his alleged disability onset date to after his date last insured. See AR 52-53.

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) 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?

Id. at 724-25. Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If

the analysis continues beyond step three, the ALJ must evaluate medical and other relevant

evidence to assess and determine the claimant’s “residual functional capacity” (“RFC”).

The claimant bears the burden of proof at steps one through four. Bustamante v.

Massanari, 262 F.3d 949, 953 (9th Cir. 2001); see also Tackett v. Apfel, 180 F.3d 1094, 1098

(9th Cir. 1999). The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d

at 1100. 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.” Id.; 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 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.

Tackett, 180 F.3d at 1099; see Bustamante, 262 F.3d at 954.

C. The ALJ’s Decision

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since the alleged onset date. AR 26. At step two, the ALJ found that Plaintiff suffered from the

severe impairments of degenerative disc disease of the spine, fibromyalgia, degenerative joint

disease of the shoulder, mild degenerative joint disease of the knees, chronic obstructive

pulmonary disease (“COPD”), conversion disorder, and personality disorder. Id. At step three,

the ALJ found that Plaintiff’s impairments did not meet, medically equal, or functionally equal a

listing. AR 26-30.

The ALJ then determined Plaintiff’s RFC. The ALJ concluded that Plaintiff could

perform light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b), with the following

additional limitations:

he can never climb ladders, ropes, or scaffolds, can occasionally

climb ramps and stairs, can occasionally balance (as defined in the

SCO [Selected Characteristics of Occupations Defined in the

Dictionary of Occupational Titles]), stoop, kneel, crouch, and

crawl, can tolerate occasional exposure to extreme cold, extreme

heat, humidity, wetness, vibration, and pulmonary irritants such as

fumes, odors, dust, gases, and poor ventilation, can tolerate no

exposure to hazards such as unprotected heights and heavy

machinery, can understand, remember, and carry out simple

instructions, can tolerate occasional changes in a routine work

setting, can use judgment to make simple work related decisions,

cannot perform work requiring a specific production rate (such as

assembly line work), can tolerate frequent contact with

supervisors, can have occasional contact with coworkers but no

team tasks, and can have occasional contact with the general

public.

AR 30.

At step four, the ALJ concluded that Plaintiff was unable to perform his past relevant

work as a diesel mechanic. AR 41. At step five, the ALJ determined that considering Plaintiff’s

age, education, work experience, and RFC, there were jobs that exist in significant numbers in

the national economy that the Plaintiff could perform, including mail room clerk, marking clerk,

and photo copy machine operator. AR 41-42. Thus, the ALJ concluded that Plaintiff was not

disabled from November 15, 2016, through the date of the decision. AR 43.

DISCUSSION

Plaintiff assigns error to the ALJ’s assessment of Plaintiff’s subjective symptom

testimony surrounding only his physical impairments.

A. Legal Standard

A claimant “may make statements about the intensity, persistence, and limiting effects of

his or her symptoms.” SSR 16-3p, 2017 WL 5180304, at *6 (Oct. 25, 2017). There is a two-step

process for evaluating a claimant’s testimony about the severity and limiting effect of the

claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “First, the ALJ must

determine whether the claimant has presented objective medical evidence of an underlying

impairment ‘which could reasonably be expected to produce the pain or other symptoms

alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v.

Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant need not

show that her impairment could reasonably be expected to cause the severity of the symptom she

has alleged; she need only show that it could reasonably have caused some degree of the

symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering

specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting

Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must

state which pain testimony is not credible and what evidence suggests the complaints are not

credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons 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).

Consideration of subjective symptom testimony “is not an examination of an individual’s

character,” and requires the ALJ to consider all of the evidence in an individual’s record when

evaluating the intensity and persistence of symptoms. SSR 16-3p, 2017 WL 5180304, at *2. The

Commissioner recommends that the ALJ 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. The Commissioner

further recommends assessing: (1) the claimant’s statements made to the Commissioner, medical

providers, and others regarding the claimant’s location, frequency and duration of symptoms, the

impact of the symptoms on daily living activities, factors that precipitate and aggravate

symptoms, medications and treatments used, and other methods used to alleviate symptoms;

(2) medical source opinions, statements, and medical reports regarding the claimant’s history,

treatment, responses to treatment, prior work record, efforts to work, daily activities, and other

information concerning the intensity, persistence, and limiting effects of an individual’s

symptoms; and (3) non-medical source statements, considering how consistent those statements

are with the claimant’s statements about his or her symptoms and other evidence in the file. See

id., at *7-8.

The ALJ’s decision relating to a claimant’s subjective testimony may be upheld overall

even if not all the ALJ’s reasons for discounting the claimant’s testimony are upheld. See Batson,

359 F.3d at 1197. The ALJ may not, however, discount testimony “solely because” the

claimant’s symptom testimony “is not substantiated affirmatively by objective medical

evidence.” Robbins, 466 F.3d at 883.

B. The ALJ’s Findings

The ALJ found that Plaintiff passed the first test but failed the second. At the first step,

the ALJ found that Plaintiff’s medically determinable impairments could reasonably be expected

to produce the alleged pain and other symptoms. AR 31. At the second step, however, the ALJ

offered the boilerplate statement that Plaintiff’s “statements concerning the intensity, persistence

and limiting effects of these symptoms are not entirely consistent with the medical evidence and

other evidence in the record for the reasons explained in this decision.” Id. The ALJ then stated

that Plaintiff’s “medical record does not support the alleged severity of his symptoms.” Id.

During the ALJ’s discussion of Plaintiff’s medical record, the ALJ also noted some activities of

daily living performed by Plaintiff as contradicting his claimed limitations. AR 31-33.

C. Plaintiff’s Testimony

At the hearing, Plaintiff testified that on a daily basis, his neck, shoulders, arms, midback,

lower back, hips, and left knee all cause him pain. AR 55. Plaintiff further explained that his mid

and lower back pain occurs twenty-four hours a day to the point that it interrupts his sleep.

AR 56. To deal with the pain, Plaintiff stated that he uses medical marijuana products and

nothing else. Id. Plaintiff further testified that he has difficulty standing and walking, and that

“without assistance” he can walk “50 yards or less[.]” AR 56-57. Plaintiff testified that he began

using a cane on his own, but that “the doctors . . . prescribed it as needed.” AR 57. Plaintiff

stated he can sit for forty-five minutes to one hour, then must get up and stretch. AR 59. On a

typical day, Plaintiff goes to the bathroom, has breakfast, watches TV, does things in the yard

with help if need be, has lunch, goes the store if necessary, has dinner, then sleeps. Id. Plaintiff

testified the heaviest item he can lift without causing pain is one half-gallon. AR 60. Lastly,

Plaintiff testified that because of his pain, it is hard to focus on tasks. Id.

D. Specificity

Plaintiff argues that the ALJ was not sufficiently specific about which testimony she was

discounting for this Court to meaningfully review the ALJ’s decision. Plaintiff contends that

because the ALJ “regurgitat[ed] the medical record[,]” and generally “conclude[d] that the

medical record does not support the alleged severity of Plaintiff’s symptoms[,]” the ALJ’s stated

rationale for discounting Plaintiff’s testimony is not clear or convincing. The Court disagrees.

A court “cannot review whether the ALJ provided specific, clear, and convincing reasons

for rejecting [a clamaint’s] pain testimony where . . . the ALJ never identified which testimony

she found not credible, and never explained which evidence contradicted that testimony.” Brown-

Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (emphasis in original). “[A]n ALJ does not

provide specific, clear, and convincing reasons for rejecting a claimant’s testimony by simply

reciting the medical evidence in support of his or her residual functional capacity determination”

but must “specify which testimony she finds not credible.” Id. at 489. And reaching a conclusion

about the plaintiff’s testimony and summarizing the medical evidence, even if a district court can

reasonably draw inferences regarding inconsistencies from that summary of medical evidence,

does not suffice to meet the ALJ’s burden. Id. at 494. This is because a court may only affirm

based on reasons asserted by the ALJ, and the district court may not “comb the administrative

record to find specific conflicts.” Id. (quoting Burrell v. Colvin, 775 F.3d 1133, 1138 (9th

Cir. 2014)); see also Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020) (stating that

“provid[ing] a relatively detailed overview of [a claimant’s] medical history . . . [‘]is not the

same as providing clear and convincing reasons for finding the claimant’s symptom testimony

not credible’” (emphasis in original) (quoting Brown-Hunter, 806 F.3d at 494)).

Here, the ALJ identified the subjective symptom testimony the ALJ found unsupported

by or inconsistent with the record: Plaintiff’s allegation of ongoing back and shoulder pain, his

cane use and weakness with walking, decreased range of motion, radicular symptoms of tingling,

jerking motions and numbness in the arm and hand, and knee pain. AR 31-37. The ALJ further

identified what evidence she believed contradicted these allegations: Plaintiff’s reported pain

levels to medical providers, mild imaging and physical examination results, and his daily

activities and habits. Id. For example, the ALJ found that despite Plaintiff’s claims of breathing

issues due to COPD, he continues to be a “daily smoker, with treatment and progress notes from

throughout the period in question showing that he reported smoking half to one pack of

cigarettes per day in addition to regular marijuana use (‘several times per day’).” AR 37. The

ALJ also discussed Plaintiff’s medical history, highlighting objective evidence that the ALJ

considered did not support that testimony. AR 31-37. Within the medical history discussion, the

ALJ noted at times the objective evidence that did not support specific aspects of Plaintiff’s

testimony, such as that his normal physical examinations contrasted with his claimed limitations

from his back and shoulder pain and arm tingling and numbness. Id. The ALJ thus explained the

reasoning linking the testimony to particular parts of the record with sufficient clarity to permit

review.

The Ninth Circuit does not require an ALJ to “perform a line-by-line exegesis of the

claimant’s testimony.” Lambert, 980 F.3d at 1277. And the Court “will not fault the agency

merely for explaining its decision with ‘less than ideal clarity.’” Brown-Hunter, 806 F.3d at 492

(quoting Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)). “Even

when an agency explains its decision with less than ideal clarity, [the reviewing court] must

uphold it if the agency’s path may reasonably be discerned.” Molina v. Astrue, 674 F.3d 1104,

1121 (9th Cir. 2012) (quotation marks omitted). Nor does Plaintiff offer sections of the record

showing his physical health symptoms were more limiting than the ALJ described them. The

Court can reasonably discern the ALJ’s path regarding which testimony she found unsupported

by what medical evidence. The ALJ’s discussion of Plaintiff’s testimony and the medical

evidence was sufficient to “allow[] for meaningful review,” Brown-Hunter, 806 F.3d at 492.

E. Daily Activities

Daily living activities may provide a basis for discounting subjective symptoms if the

plaintiff’s activities either contradict his or her testimony or meet the threshold for transferable

work skills. See Molina, 674 F.3d at 1112-13; Orn, 495 F.3d at 639. “Engaging in daily activities

that are incompatible with the severity of symptoms alleged can support an adverse credibility

determination.” Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). A claimant, however,

need not be utterly incapacitated to receive disability benefits, and completion of certain routine

activities is insufficient to discount subjective symptom testimony. See Molina, 674 F.3d

at 1112-13 (noting that a “claimant need not vegetate in a dark room in order to be eligible for

benefits” (quotation marks omitted)); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)

(“One does not need to be utterly incapacitated in order to be disabled.” (quotation marks

omitted)). The Ninth Circuit “has repeatedly asserted that 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.”

Vertigan, 260 F.3d at 1050; see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)

(requiring the level of activity be inconsistent with the plaintiff’s claimed limitations to be

relevant to his or her credibility and noting that “disability claimants should not be penalized for

attempting to lead normal lives in the face of their limitations”). Moreover, particularly with

certain conditions, cycles of improvement may be a common occurrence, and it is error for an

ALJ to pick out a few isolated instances of improvement over a period of months or years and to

treat them as a basis for concluding that a plaintiff is capable of working. See Garrison v.

Colvin, 759 F.3d 995, 1017 (9th Cir. 2014).

Regarding Plaintiff’s daily activities, the ALJ stated:

In a pair of Function Reports from June of 2018, the claimant

indicated that he has difficulty with lifting, squatting, bending,

standing, reaching, walking, sitting, kneeling, stair climbing,

seeing, memory, completing tasks, concentration, using his hands,

and getting along with others. However, the claimant also stated

that he can manage his personal care (bathing, grooming, dressing,

feeding himself, and using the toilet) with very minimal problems

and is able to work in his greenhouse (water plants and grow

cannabis), go to the store “when needed” and “2-4 times a week”

for one to three hours, watch his children and play games with

them, prepare cereal, go outside “all the time,” sometimes go

outside alone, drive a car, ride in a car with others, pay bills, count

change, watch movies, and spend time with others four to five days

per week (“hang out & talk[”]).

AR 31 (citations omitted). The ALJ also noted that Plaintiff’s medical record from

December 2020 showed that he had performed work around the house, including carrying a

bucket with “a couple pounds of rocks.” AR 32-33.

These activities of daily living cited by the ALJ are inconsistent with Plaintiff’s

testimony that he is in constant twenty-four-hour back pain and that he has problems lifting,

squatting, bending, walking, climbing stairs, reaching, sitting, talking, hearing, and seeing. See

AR 31, 56, 397. In Plaintiff’s function report, he claimed he is unable to do any household

chores, whether they be indoors or outdoors, because he is “in need of help from children [and]

neighbors [and] wife for those things to be done.” AR 393. The ALJ found that Plaintiff’s

reported activity to his medical provider of performing work around the house and lifting heavy

buckets, combined with his other reports that he works in his greenhouse and goes outside “all

the time,” undermined his statements that he “has difficulty with lifting, squatting, bending,

standing, reaching, walking, sitting, kneeling, stair climbing, [and] seeing[.]” AR 31, citing

AR 397.

Plaintiff argues that the ALJ “cherry-picked” findings that support her conclusion while

ignoring others regarding Plaintiff’s activities. Plaintiff misunderstands the ALJ’s reasoning. The

ALJ did not reject Plaintiff’s testimony regarding his impairments “based on reports that he was

still driving and performed work around the house[,]” as Plaintiff asserts. Instead, the ALJ found

that Plaintiff’s activities directly undercut his claims that he has difficulty lifting, squatting,

bending, standing, reaching, walking, sitting, kneeling, stair climbing, and seeing. In turn, the

ALJ reasonably found that Plaintiff’s statements about the “intensity, persistence, and limiting

effects” of his physical symptoms were not as severe as alleged, given his physical examinations,

reports to providers of being pain-free, and his ability to partake in activities during the relevant

period. See AR 31-37. “The court will uphold the ALJ’s conclusion when the evidence is

susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038

(9th Cir. 2008). The ALJ’s assessment of Plaintiff’s record is a rational one, even if Plaintiff may

offer another rational interpretation of the evidence. Thus, in rejecting Plaintiff’s testimony, the

ALJ did not err in relying on Plaintiff’s activities.

F. Objective Medical Evidence

The ALJ also discounted Plaintiff’s symptom testimony in part because the “medical

record does not support the alleged severity of his symptoms.” AR 31; see also AR 32-37

(stating that “[w]ith regard to [Plaintiff]’s degenerative disc disease of the spine, [shoulder and

knees, fibromyalgia, and COPD,] review of the record shows that th[ese] disorder[s] do[] not

cause limitations in excess of those found in the [RFC.]”). An ALJ may consider the lack of

corroborating objective medical evidence as a “relevant factor in determining the severity of the

claimant’s” alleged symptoms. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ

may not, however, “discredit the claimant’s testimony as to subjective symptoms merely because

they are unsupported by objective evidence.” Berry v. Astrue, 622 F.3d 1228, 1234 (9th

Cir. 2010) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Robbins, 466

F.3d at 883; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2), (noting that the Commissioner “will not

reject your statements about the intensity and persistence of your pain or other symptoms or

about the effect your symptoms have on your ability to work solely because the available

objective medical evidence does not substantiate your statements”).

The ALJ described many medical records that do not support Plaintiff’s alleged

limitations. AR 32-37. For example, the ALJ cited objective medical testing from

September 2018 showing that despite Plaintiff’s allegations of ongoing back and shoulder pain,

he “drove himself to the appointment, presented as very pleasant and in no acute distress, with

negative straight leg raises, no upper extremity impingement, intact 5/5 motor strength at the

rotator cuff, normal shoulder range of motion, normal grasp, pinch, manipulation, and fine

coordination” and had “no muscle weakness or atrophy, negative Tinel’s and Phalen sign,

normal thenar and hypothenar muscles, intact cranial nerves, normal motor and sensory function,

negative Romberg test, no weakness of any extremity, and normal range of motion through the

thoracic spine with no muscle spasm, swelling, or deformity.” AR 32, citing AR 601-04. The

ALJ also acknowledged that during examination Plaintiff exhibited “some slight restriction in his

cervical and lumbar range of motion as well as mild tenderness of the lumbar spine.” Id.

Furthermore, the ALJ observed that Plaintiff “use[s] . . . a cane because ‘at times he does not

think that he has strength in his legs,’ [but] the doctor specifically indicated that ‘he is carrying a

cane but the use of the cane is not obligatory.’” Id., citing AR 603. The ALJ also discussed

Plaintiff’s February 2020 MRI of his cervical spine and found that it showed “left cervical

adenopathy as well as mild cervical degenerative changes most pronounced at C6-7, but the

changes are otherwise classified as largely minimal to mild and there is no evidence of acute

post-traumatic abnormalities.” Id., citing AR 872-73; see also AR 33 (discussing several

treatment notes indicating Plaintiff’s generally mild cervical spine examination findings).

Regarding Plaintiff’s shoulder limitations, the ALJ cited OHSU Sport Medicine

examination notes endorsing Plaintiff’s complaints that after he did “light work around the

yard[,]” his pain increased and his range of motion decreased. AR 34, citing AR 901. However,

the physician’s assistant observed that “despite some restriction in his right shoulder range of

motion” Plaintiff

was alert and fully oriented, with normal posture, intact 5/5

strength bilaterally through the shoulders, no shoulder instability

bilaterally, no shoulder atrophy or abnormal mechanics bilaterally,

no shoulder load shift issues bilaterally, and no cervical spine

tenderness or focal neurological deficits, though movement of the

neck did cause some shoulder pain.

Id., citing AR 902-04. The provider concluded that Plaintiff’s “symptomology, particularly when

considered with [his] recent imaging showing only early osteoarthritis signs, was more indicative

of cervical spine issues rather than a significant shoulder problem” and the provider then referred

Plaintiff to physical therapy. Id., citing AR 904. Ultimately the ALJ concluded that that the RFC

takes Plaintiff’s cervical spine and shoulder limitations into consideration “with the exertional

and postural limitations as well as the restrictions related to avoiding vibration and hazards.”

AR 33.

With regard to Plaintiff’s knee limitations, the ALJ cited an independent medical

consultant’s examination report where Plaintiff “refused to attempt toe and heel walking and

refused to attempt to squat, [but] he got on and off the exam table without difficulty and

exhibited normal gait with no limping, [and] had 5/5 strength in the lower extremities with only

minimal restriction in knee range of motion.” AR 35, citing AR 601-03. The provider also

indicated that though Plaintiff reported knee pain and used a cane, the use is “not obligatory.”

AR 603. The ALJ also pointed to a knee x-ray taken in 2018 showing “evidence of only

‘minimal’ bilateral knee osteoarthritic changes, with relatively well-maintained knee joint spaces

and no evidence of significant knee joint effusion.” AR 35, citing AR 693. The ALJ observed

that Plaintiff “alleged issues related to knee pain on a handful of occasions, but [the record] also

indicate[s] that his mobility problems were also related to other respiratory, musculoskeletal, and

pain disorders.” Id., citing AR 601-04, 608-09. The ALJ concluded that the RFC takes Plaintiff’s

knee limitations into consideration “with the exertional and postural limitations as well as the

restrictions related to avoiding vibration and hazards.” AR 36.

Lastly, with regard to Plaintiff’s allegations of fibromyalgia, the Ninth Circuit has

recognized fibromyalgia symptoms include “chronic pain throughout the body, multiple tender

points, fatigue, stiffness, and a pattern of sleep disturbance that can exacerbate the cycle of pain

and fatigue . . . . [T]hose suffering from it have muscle strength, sensory functions, and reflexes

[that] are normal.” Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017) (cleaned up). The

record, however, fails to support the symptoms of supporting pain, tender points, and fatigue at

various points. This is not consistent with fibromyalgia symptom reporting. See id. at 663 (noting

fibromyalgia symptoms “wax and wane”). The ALJ found that aside from Plaintiff’s

September 2018 consultative examination, “[t]here are no other examples of formal fibromyalgia

testing in the file and no other references to positive tender or trigger points.” AR 36. The ALJ

discussed that the consultative examination revealed that “testing did not show any specific

tender areas save some tenderness around the left posterior scapular and left elbow [therefore] no

definitive diagnosis of fibromyalgia can be made.” Id., citing AR 601-02, 605. Considering the

record is devoid of any detail regarding Plaintiff’s Fibromyalgia or treatment thereof, the ALJ

reasoned:

While records from throughout the period in question, to include

the extensive treatment and examination discussed above, do

include regular pain complaints, these pains are consistently linked

to the claimant’s musculoskeletal disorders of the spine, shoulder,

and knees and even then, the claimant is found to be in no acute

distress and able to move and function in a manner consistent with

the residual functional capacity above, with only mild or minimal

tenderness.

Id., citing AR 601-04, 608-09, 882-83, 885-88, 891-92, 894-95, 901-04, 912-13, 932-34, 940,

953.

In general, Plaintiff presents an alternative interpretation of the medical evidence

regarding all of his physical limitations and asks the Court to accept his proposed interpretation

instead of the ALJ’s evaluation of the evidence. But the Court may neither reweigh the evidence

nor substitute its judgment for that of the Commissioner. See Thomas v. Barnhart, 278 F.3d 947,

954 (9th Cir. 2002). When the evidence is susceptible to more than one rational interpretation, it

is the Commissioner’s conclusion that must be upheld. Id. Because the ALJ’s findings are

supported by substantial evidence and free of legal error, the Court cannot disturb those findings.

Bayliss v. Barnhart, 427 F.3d 1211, 1214-15 (9th Cir. 2005). Accordingly, the ALJ did not err in

concluding that the objective medical evidence does not support Plaintiff’s claimed limitations

and relying on this as a relevant factor in discounting Plaintiff’s subjective testimony.

CONCLUSION

The Court AFFIRMS the Commissioner’s decision that Plaintiff was not disabled.

IT IS SO ORDERED.

DATED this 14th day of November, 2024.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge