IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

KIM CHERRI GIBSON, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Acting Commissioner of Social 

Security, 

Defendant. 

Jeffrey H. Baird 

Dellert Baird Law Offices, PLLC 

P.O. Box 3757 

Silverdale, WA 98383 

Attorney for plaintiff 

Billy J. Williams 

Acting United States Attorney 

District of Oregon 

Janice E. Herbert 

Assistant United States Attorney 

1000 SW Third Avenue, Suite 600 

Portland, OR 97201 

Page 1 - OPINION AND ORDER 

Case No. 3:14-CV-1170-AA 

OPINION AND ORDER 
Courtney Garcia 

Special Assistant United States Attorney 

Office of the General Counsel 

Social Security Administration 

701 Fifth Avenue, Suite 2900 M/S 221A 

Seattle, WA 98104 

Attorneys for defendant 

AIKEN, Chief Judge: 

Plaintiff Kim Cherri Gibson brings this action pursuant to 

the Social Security Act ("Act") to obtain judicial review of a 

final decision of the Commissioner of Social Security 

("Commissioner") denying her application for disability 

insurance benefits ("DIB") and supplemental security income 

("SSI"). For the reasons set forth below, the Commissioner's 

decision is AFFIRMED. 

PROCEDURAL BACKGROUND 

On June 24, 2010, plaintiff protectively filed her 

applications for DIB and SSI. Tr. 23. After the applications 

were denied initially and on reconsideration, plaintiff timely 

requested a hearing before an administrative law judge ( "ALJ") . 

Tr. 146-47. On November 6, 2012, a hearing was held before the 

ALJ; plaintiff, represented by counsel, and a vocational expert 

("VE") testified. Tr. 40-72. On November 21, 2012, the ALJ 

issued a decision finding plaintiff not disabled within the 

meaning of the Act. Tr. 20-33. Plaintiff requested review of the 

Page 2 - OPINION AND ORDER 
decision on December 10, 2012 and submitted new evidence to the 

Appeals Council in March 2013 through July 2013. Tr. 19, 767-81. 

After considering the new evidence and admitting it into the 

record, the Appeals Council declined plaintiff's request for 

review. Tr. 1-5. Plaintiff filed a complaint in this Court on 

July 23, 2014. 

STATEMENT OF FACTS 

Born on December 10, 1960, plaintiff was 48 years old on 

the alleged onset date of disability and 51 years old at the 

time of the hearing. Tr. 31. Plaintiff attended high school 

through part of the tenth grade, and later obtained her GED. Tr. 

32, 44. She previously worked at a care facility called Hilltop 

Healthcare doing laundry, housekeeping, and dishwashing. Tr. 46. 

Plaintiff alleges she became disabled on March 1, 2009 as a 

result of a work-related injury when she was lifting heavy, wet 

laundry, and suffers from fibromyalgia, back pain, back muscle 

strain, hypoglycemia, depression, and cognitive issues. Tr. 2 3, 

47, 97. 

STANDARD OF REVIEW 

The district 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. Hammock v. 

Page 3 - OPINION AND ORDER 
Bowen, 879 F.2d 498, 501 (9th Cir. 1989) Substantial evidence 

is "more than a mere scintilla. It means such relevant evidence 

as a reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 u.s. 38 9' 401 

(1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 

( 1938)) . The court must weigh "both the evidence that supports 

and detracts from the [Commissioner's] conclusions. ]\tlartinez v. 

Heckler, 807 F. 2d 771, 772 (9th Cir. 1986). 

The initial burden of proof rests upon the plaintiff to 

establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 

(9th Cir. 1986). To meet this burden, the plaintiff must 

demonstrate an "inability to engage in any substantial gainful 

activity by reason of any medically determinable physical or 

mental impairment which can be expected to last for a 

continuous period of not less than twelve months." 42 U.S. C. § 

423(d) (1) (A). 

COMMISSIONER'S DECISION 

The Commissioner has established a five-step sequential 

process for determining whether a person is disabled. Bowen v. 

Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 

416.920. At step one, the ALJ found that plaintiff had not 

engaged in "substantial gainful activity" during the period of 

Page 4 - OPINION AND ORDER 
alleged disability. Tr. 25; Yuckert, 482 U.S. at 140; 20 C.F.R. 

§§ 404.1520 (b)' 416.920 (b). 

At step two, the ALJ found that plaintiff had a "medically 

severe impairment or combination of impairments," including 

myofascial syndrome, somatization disorder, mood disorder, 

fibromyalgia, thoracic sprain, hypothyroidism, tobacco 

dependence, depression, posttraumatic stress disorder, and 

personality disorder not otherwise specified with borderline and 

histrionic traits. Tr. 25-26; Yuckert, 482 U.S. at 140-41; 20 

C.F.R. §§ 404.1520(c), 416.920(c). 

At step three, the ALJ found that plaintiff's impairments 

did not meet or equal "one of a number of listed impairments 

that are so severe as to preclude substantial gainful 

activity." Tr. 26; Yuckert, 482 U.S. at 140-4i; 20 C.F.R. §§ 

404.1520 (d)' 416.920 (d) . 

The ALJ then found that plaintiff had the residual 

functional capacity ("RFC") to perform light work as defined in 

20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she should 

never climb ladders, ropes, or scaffolds. The ALJ also found 

that she could occasionally climb ramps and stairs, balance, 

stoop, kneel, crouch, and crawl; could perform simple, routine, 

repetitive work that involves only simple work-related decisions 

Page 5 - OPINION AND ORDER 
and routine workplace changes, and could work under only 

occasional supervision with permission to be off task 5% of the 

workday, but have no direct interaction with the public and have 

only occasional interaction with co-workers. Tr. 26. 

At step four, the ALJ found that plaintiff could not 

perform her "past relevant work" in light of her RFC. Tr. 31; 20 

C.F.R. §§ 404.1520(e), 416.920(e). 

At step five, the ALJ found that jobs existed in the 

national economy in significant numbers that plaintiff could 

perform despite her impairments, including work as a laundry 

folder, garment bagger, and basket filler. Tr. 32; Yuckert, 4 8 2 

U.S. at 141-42; 20 C.F.R. §§ 404.1520(e)&(f), 416.920(e)&(f). 

Accordingly, the ALJ concluded that plaintiff was not disabled 

within the meaning of the Act. Tr. 33. 

DISCUSSION 

Plaintiff contends that the ALJ failed to provide specific, 

clear, and convincing reasons supported by substantial evidence 

for finding plaintiff not fully credible as to the severity of 

her alleged limitations, and by failing to provide germane 

reasons for attributing little weight to the opinion of her 

chiropractor, Tyge Shelby. 

Additionally, plaintiff maintains that the new evidence she 

Page 6 - OPINION AND ORDER 
submitted to the Appeals Council after the ALJ's decision, which 

included treatment notes, imaging reports, and two medical 

source statements, was probative medical evidence that 

undermined the ALJ's finding that she was not disabled. Tr. 767-

81. Further, given that the Appeals Council accepted the new 

evidence into the record but declined to review plaintiff's 

case, plaintiff maintains that the Appeals Council should have 

provided a legally sufficient reason for not finding the new 

material convincing, remanded her case to the ALJ for 

consideration of the new material, or remanded her case with an 

order for payment of benefits. 

I. Plaintiff's Credibilit 

Plaintiff challenges the ALJ's assessment and conclusion 

that plaintiff's credibility was at variance with the weight of 

the evidence, and that the extent of her alleged symptoms were 

contradicted by her veracity, her level of daily activities, and 

her good response to conservative treatment. 

When a plaintiff has medically documented impairments that 

could reasonably be expected to produce some degree of the 

symptoms complained of, and the record contains no affirmative 

evidence of malingering, nthe ALJ can reject the claimant's 

testimony about the severity of her symptoms only by offering 

Page 7 - OPINION AND ORDER 
specific, clear and convincing reasons for doing so." Smolen v. 

Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). A general assertion 

that plaintiff 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). 

In assessing a plaintiff's credibility, an ALJ may consider 

a range of factors, including ordinary techniques of credibility 

evaluation, such as (1) plaintiff's reputation for lying or 

prior inconsistent statements concerning symptoms; ( 2) 

unexplained or inadequately explained failure to seek treatment 

or to follow a prescribed course of treatment; 

evaluation of plaintiff's daily activities. Ghanim v. 

and (3) 

Colvin, 

763 F.3d 1154, 1163 (9th Cir. 2014) (citing Smolen, 80 F.3d at 

1284). The reasons proffered must be "sufficiently specific to 

permit the reviewing court to conclude that the ALJ did not 

arbitrarily discredit the plaintiff's testimony." Orteza v. 

Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citation omitted) 

However, when evidence supports either confirming or reversing 

an ALJ's decision, the court may not substitute its own judgment 

for that of the ALJ. See Batson v. Comm'r of Soc. Sec. Admin., 

359 F.3d 1190, 1196 (9th Cir. 2004}. 

Page 8 - OPINION AND ORDER 
A. Objective Medical Evidence 

Plaintiff contends that the ALJ erred in finding a lack of 

objective medical evidence to support plaintiff's testimony 

regarding the severity of her impairments and functional 

impacts. Plaintiff's primary allegation is that "her physical 

impairments prevent her from performing basic work activities on 

a regular and continuing basis." Pl.'s Br. at 10. Specifically, 

plaintiff maintains that her pain prevents her from sitting, 

standing, or walking for extended periods of time; impacts her 

activities of daily living; and impacts her ability to 

concentrate and remember. Id. 

The ALJ found that plaintiff's medically determinable 

impairments could reasonably be expected to cause the alleged 

symptoms; however, he found that plaintiff's statements as to 

the intensity, persistence, and limiting effects of her symptoms 

were not credible to the extent they were inconsistent with the 

RFC assessment. Tr. 27. 

Once a claimant produces medical evidence of an underlying 

impairment, 

regarding 

an ALJ may not discredit claimant's testimony 

subjective symptoms merely because they are 

unsupported by medical evidence. Berry v. Astrue, 622 F.3d 1228, 

1234 (9th Cir. 2010). Nonetheless, an ALJ may consider the 

Page 9 - OPINION AND ORDER 
objective medical evidence and the claimant's treatment history 

in the credibility determination. Smolen, 80 F.3d at 1284. 

Further, self-limiting behaviors on examination, as well as 

symptom exaggeration, may detract from a plaintiff's 

credibility. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 

2002). Thus, when determining the credibility of a claimant's 

excess symptom testimony, the ALJ may consider evidence of selflimitation. Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 

2001); Tonapetyan v. Halter, 242 F. 3d 1144, 1147-48 (9th Cir. 

2001) (exaggeration and failure to give maximum or consistent 

effort during a medical evaluation can be a basis for an adverse 

credibility finding). 

Here, the ALJ relied on evaluations by treating and 

examining physicians that showed that plaintiff's level of 

physical functioning contradicted the alleged severity of her 

pain and limitations. Tr. 27-30. For example, the ALJ relied on 

chart notes from treating physician Theodore Kruse, M.D., who 

examined plaintiff on three separate occasions, beginning on May 

1, 2009, regarding her back pain. Tr. 27, 416-17. Dr. Kruse 

noted that plaintiff walked from her car to the clinic without 

visible difficulty and showed impressive arm strength and body 

movements without obvious pain or difficulty. Id. Dr. Kruse 

Page 10 - OPINION AND ORDER 
diagnosed plaintiff with myofascial syndrome and somatization 

disorder, and determined that plaintiff likely had an acute 

viral syndrome with myalgias. Tr. 27, 417. The ALJ noted that 

Dr. Kruse expressed that plaintiff was very resistant to his 

recommendations. Tr. 27, 423. 

The ALJ also relied on two physiatry opinions. In July 

2009, Jon Swift, D.O. examined pl?intiff and determined that she 

had 5/5 motor strength in her upper and lower extremities. Tr. 

27, 436-38. Dr. Swift diagnosed plaintiff with a probable 

cervicothoracic sprain and recommended physical therapy and work 

hardening. Tr. 27, 438. He also reassured plaintiff that she had 

a normal neurological examination. Tr. 438. Dr. Swift examined 

plaintiff on two subsequent visits, noting that plaintiff had 

done well with physical therapy was ready for regular work duty 

by August 2009. Tr. 27, 433-35. Further, the ALJ relied on the 

medical opinion of Phillip Wallace, M.D., a second physiatrist, 

who similarly noted plaintiff's high level of motor strength in 

her upper and lower extremities. Tr. 28, 579. 

To further assess plaintiff's physical limitations, the ALJ 

relied on an internal medicine IME conducted by Michael 

Henderson, D.O., in July 2012. Tr. 28. Dr. Henderson examined 

plaintiff, noting normal muscle tone, gait, and strength, and 

Page 11 - OPINION AND ORDER 
imposed no physical limitations for plaintiff. Tr. 2 8, 7 2 6-2 7. 

Dr. Henderson noted that plaintiff gave poor effort at times 

during functional testing. Tr. 28, 727. He also added that 

plaintiff's symptoms of pain were excessive, noting in the 

evaluation that plaintiff's perception of her health was much 

worse than physical exam testing and the medical records would 

suggest. Id. Dr. Henderson was unable to confirm plaintiff's 

fibromyalgia diagnosis with only 9 out of 18 tender point sites 

met. Id. Moreover, with regard to plaintiff's functional 

limitations, Dr. Henderson noted that he could not "find 

objective medical evidence to limit sitting, standing, walking, 

pushing, pulling or lifting." Id. 

Plaintiff is correct that in May 2009, Dr. Kruse imposed 

duty restrictions after her alleged work injury to her back; 

however, the record shows that such restrictions were only 

temporary, as plaintiff was released to full duty work in August 

2009. Tr. 416' 433, 435. Thus, the ALJ explained that 

plaintiff's allegation of pain at a level causing significant 

functional limitations was contradicted by the objective medical 

evidence. 

Besides relying on the objective medical evidence in the 

record of plaintiff's physical condition, the ALJ discredited 

Page 12 - OPINION AND ORDER 
plaintiff's testimony based on findings t'hat she intentionally 

produced spasms, exaggerated her symptoms, and gave poor effort 

during testing. Tr. 28-31, 726-27, 742-44, 751. 

The Court finds that the ALJ provided sufficient objective 

medical evidence to discount plaintiff's alleged severity of 

pain and attendant physical limitations. 

B. Somatization Disorder 

Plaintiff contends that the ALJ erred by relying on the 

lack of objective evidence to support her testimony about the 

severity of her impairments and functional limitations when he 

also found that she had severe somatization disorder and 

personality disorder. In other words, plaintiff contends that 

the behaviors the ALJ found ~ndermined plaintiff's credibility, 

such as intentional spasms and poor effort, were legitimately 

caused by her mental disorders. Plaintiff further maintains that 

the ALJ erred by not calling a medical expert to testify about 

whether plaintiff's mental impairments could affect and/or cause 

her physical 

described. 

symptoms and impairments to the extent she 

Plaintiff has been diagnosed with mental health conditions 

including personality disorder, somatization disorder, 

posttraumatic stress disorder, and depression. Tr. 417, 751. The 

Page 13 - OPINION AND ORDER 
ALJ accounted for these conditions, including somatization 

disorder, in his assessment, determining that they were severe. 

Tr. 25-26. The ALJ relied on a neuro-psychological consultative 

examination by clinical psychologist, Michelle Whitehead, Ph.D. 

in July 2012 to determine the extent of plaintiff's mental 

conditions. Tr. 28, 741-51. Dr. Whitehead gave the opinion that 

plaintiff's spasms were intentionally produced. Tr. 742. 

Further, Dr. Whitehead noted that plaintiff was overly dramatic, 

histrionic, and tearful, and suggested that plaintiff did not 

put forth sufficient effort during periods of psychometric 

testing. Tr. 29-30, 743, 751. Based on her personal observations 

and the testing results, Dr. Whitehead concluded that plaintiff 

could perform simple tasks and generally had mild to moderate 

limitations in the work setting. Tr. 30, 738-39. 

The ALJ also relied on Deschutes County Mental Health 

records, where plaintiff had sought individual and group 

therapy. The ALJ noted records where plaintiff stated that she 

was doing well, had identified coping skills, and her mental 

health issues were not dire. Tr. 2 9. The ALJ also cited the 

opinions of State agency psychologist Bill Hennings, Ph.D., in 

September 2010, and Dr. Sharon Eder in October 2010, both of 

whom concluded that plaintiff had mild limitations pertaining to 

Page 14 - OPINION AND ORDER 
daily living, social functioning, concentration, persistence, 

and pace. Tr. 30, 82-83, 89. 

Furthermore, the ALJ's observation of plaintiff at the 

hearing affected his credibility determination; he noted that 

plaintiff's spams occurred almost exclusively when she was 

testifying about her muscle spasms. Tr. 31. The ALJ also 

questioned plaintiff's credibility based on her inconsistent 

statement. Id. For example, during her examination in 2012, 

plaintiff told Dr. Whitehead that she watched television and 

checked email on the computer; at the administrative hearing, 

plaintiff denied ever owning a computer or using email. Tr. 31, 

59. Finally, the ALJ noted that the record contained a statement 

from plaintiff's friend, LaDonna Moore, stating that plaintiff 

had a history of overreacting. Tr. 29. 

The Court finds that the ALJ did not fail to consider the 

implications of plaintiff's somatization disorder or rule out 

conversion disorder; further, his finding that plaintiff was not 

fully credible as to the extent of her limitations was supported 

by substantial evidence. The weight of the evidence relied on by 

the ALJ reflected plaintiff's physical strength and condition, 

medical clearance to return to work, and neurological status 

confirming her ability to work. Moreover, the psychologists who 

Page 15 - OPINION AND ORDER 
evaluated plaintiff's case did not identify functional 

impairments that would prevent plaintiff from working based on 

her somatization disorder. 

Finally, the ALJ did not err in failing to call an expert 

to opine on the connection between plaintiff's somatization 

disorder and her physical limitations, when the weight of the 

objective medical evidence did not support the existence of 

disabling limitations. Thus, the record was not so ambiguous as 

to require further development. Mayes v. Massanari, 276 F.3d 

453, 460 (9th Cir. 2001) 

C. Daily Activities 

Plaintiff claims that severe back pain and fibromyalgia 

pain impacts her ability to get dressed, cook, and perform 

chores, and prevents her from functioning for much of the day. 

Pl.'s Br. at 10; Tr. 30. Plaintiff testified that her pain 

prevents her from doing yard work, that she does no dish 

washing, and does not pay bills. Tr. 58-59. Thus, plaintiff 

maintains that the ALJ erred by relying on what he determined 

were fairly normal daily activities to find the extent of 

plaintiff's alleged limitations not fully credible. 

The ALJ may consider the claimant's daily activities and 

the observations of third parties with personal knowledge about 

Page 16 - OPINION AND ORDER 
the claimant's functional limitations. Smolen, 80 F.3d at 1284. 

When a claimant's daily activities "are transferable to a work 

setting" or "contradict claims of a totally debilitating 

impairment," performance of those activities may serve as a 

basis for discrediting a claimant. Molina v. As true, 67 4 F. 3d 

1104, 1112-13 (9th Cir. 2012). 

The ALJ found that plaintiff's claimed inability to do much 

of anything was inconsistent with her daily activities 

throughout the disability period. This finding is supported by 

substantial evidence in the record. The ALJ determined that 

plaintiff participated in daily activities including knitting, 

reading, walking, sweeping, vacuuming, grooming without 

assistance, preparing simple meals, putting her clothes in the 

dryer, and watching her mother, all of which were deemed 

inconsistent with the level of impairment plaintiff alleges. Tr. 

30. The ALJ further relied on a report by plaintiff to her 

counselor that she had outings over the holiday weekend and was 

able to get out of the house despite feeling depressed. Tr. 29, 

675. Similarly, the ALJ relied on plaintiff's July 2010 

statements to her health care providers that she enjoyed 

walking, and her October 2010 statement that she went for a walk 

every day that month. Tr. 28. 

Page 17 -OPINION AND ORDER 
The ALJ 

activities, 

could 

including 

reasonably 

engaging 

conclude that plaintiff's 

in personal care without 

assistance, doing laundry, performing general chores in the home 

albeit sometimes experiencing pain, and making grocery purchases 

at the store undermined her claims that her symptoms were so 

severe as to prevent her from working. It was also reasonable 

for the ALJ to conclude that plaintiff's level of activity was 

inconsistent with her alleged limitations based on plaintiff's 

July 2010 statements that she enjoyed knitting, reading, and 

walking, and that her primary form of exercising is cycling. Tr. 

28, 535. 

In addition to the reasons above, the ALJ relied on Dr. 

Whitehead's neuropsychological evaluation, which states: ~The 

claimant's activities of daily living and socialization were 

objectively assessed (Vineland II) and it was determined that 

she does not have any major impairment in these areas." Tr. 743. 

If the ~ALJ' s credibility finding is supported by substantial 

evidence in the record, [the court] may not engage in secondguessing." Thomas, 278 F.3d at 959 (internal citation omitted). 

The Court finds that the ALJ provided clear and convincing 

reasons why plaintiff's activities of daily living undermined 

her statements about the severity of her limitations. 

Page 18 - OPINION AND ORDER 
D. Conservative Treatment 

Plaintiff maintains that the ALJ' s fin ding that her 

credibility was undermined based on her good responses to 

conservative treatment was not supported by substantial evidence 

in the record. 1 

Evidence of conservative treatment can be used to discount 

a claimant's testimony regarding the severity of an impairment. 

Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (citing 

Johnson v. Shalala, 60 F. 3d 1428, 1434 (9th Cir.1995)). 

Evidence in the record supports the ALJ's finding that the 

treatment obtained by plaintiff for her back, neck, arm, and 

chest pain has been conservative, consisting predominantly of 

chiropractic sessions, physical therapy, massage therapy, and 

medication. Tr. 30, 4 9-50. The record and plaintiff's testimony 

present no evidence of hospitalizations and no recommendations 

for back surgery or substantial treatment for pain. Tr. 50. 

Additionally, plaintiff's physical therapist, Tom Watson, OPT, 

1 Plaintiff also argues that the ALJ misconstrued the record 

when he found that Cymbalta was the best drug plaintiff had to 

combat her fibromyalgia symptoms, which he said was' evidence of 

a good response to conservative treatment, when in fact, 

plaintiff stated that Cymbal ta was the best drug for her pain 

outside of narcotics. Pl.'s Br. at 16. However, the ALJ wrote in 

his decision that Cymbal ta was the best drug for plaintiff's 

pain other than narcotics; thus, the ALJ did not misrepresent 

the record. Tr. 30, 616. 

Page 19 - OPINION AND ORDER 
noted in October 2009 that plaintiff "still reports pain but no 

objective findings to support the pain at this time." Tr. 4 60. 

Further, the ALJ relied on medical records noting that plaintiff 

reported her pain was a 3/10 at its worst and she was treating 

it with topical muscle rub and muscle relaxants. Tr. 27,431. 

The ALJ's conclusion that plaintiff has undergone only 

conservative treatment for her allegedly severe pain is 

supported by substantial evidence in the record. Furthermore, 

even if plaintiff could show that she did not have an eff~ctive 

response to conservative treatment, such an error would be 

harmless in this case given that the ALJ provided numerous other 

valid reasons for discrediting plaintiff's testimony as to the 

severity of her pain and limitations, which support the validity 

of the ultimate credibility conclusion. Carmickle v. Comm'r Soc. 

Sec. Admin., 533 F.3d 1155, 1162 

omitted). 

(9th Cir. 2008) (citations 

The Court finds that the ALJ provided specific, clear, and 

convincing reasons for concluding that plaintiff's subjective 

testimony as to the severity of her pain and limitations is not 

fully credible. The ALJ identified the testimony that he did not 

find credible and relied on significant medical opinion evidence 

undermining plaintiff's alleged complaints, including the 

Page 20 - OPINION AND ORDER 
opinions of treating and examining physicians opining on 

plaintiff's high level of strength and normal physical 

functioning, whom also suggested intentional or exaggerated 

behavior by plaintiff. See Burch v. Barnhart, 4 00 F. 3d. 67 6, 68.0 

(9th Cir. 2005). Thus, the ALJ provided a rational basis to 

support an adverse credibility finding despite plaintiff's 

somatization or conversion disorder. As a result, the Court may 

not engage in second-guessing. Thomas, 278 F.3d at 959. The 

ALJ's decision as to plaintiff's credibility is upheld. 

II. Opinion of Tyge Shelby, DC 

Plaintiff contends that the ALJ failed to provide clear and 

convincing reasons supported by substantial evidence for 

affording little weight to the opinion of her chiropractor, Tyge 

Shelby. Shelby treated plaintiff from 2009 through 2012 and his 

treatment notes are the primary source supporting the severity 

of plaintiff's alleged limitations. 

The ALJ discounted Shelby's May 2010 opinion that plaintiff 

was limited to lifting 10 pounds and working no more than four 

hours per day, Tr. 28, 710, finding that Shelby is not an 

acceptable medical source. Tr. 29. The ALJ was correct in 

determining that Shelby is not an nacceptable medical source" to 

provide a medical opinion. 20 C.F.R. § 404.1513 (d) (1). 

Page 21 - OPINION AND ORDER 
Nonetheless, Shelby's opinion as to plaintiff's functional 

limitations should be considered, though it carries less weight 

than the treating and examining physicians that the ALJ relied 

on. Id.; 20 C.F.R. § 404.1527(c). 

The Court finds that the ALJ provided a germane reason for 

affording little weight to Shelby's opinion, namely that 

Shelby's opinion is not indicative of plaintiff's overall 

functioning. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 

1053 (9th Cir. 2006) (quoting Dodrill, 12 F. 3d at 919)). As 

discussed above, several acceptable medical sources in the 

record opined that plaintiff had full motor strength and 

exhibited high levels of strength in the lumbar spine. Tr. 2 8, 

579, 727. The ALJ did not err in finding that the contradictory 

evidence from acceptable medical sources, including treating and 

examining physicians, outweighed Shelby's opinion. Thus, the 

Court finds that the ALJ did not commit reversible error with 

regard to the weight assigned to Dr. Shelby's opinion. 

II. New Evidence Admitted by Appeals Council 

Plaintiff maintains that the new evidence she submitted for 

the first time to the Appeals Council was accepted into the 

record by the Appeals Council, and thus, must be included in 

this Court's review; this point is undisputed by defendant. 

Page 22 - OPINION AND ORDER 
Def.'s Resp. 13, 15. In this case, the Appeals Council accepted 

into the record and reviewed plaintiff's new evidence prior to 

declining review of the ALJ decision. Tr. 1-2, 5. Thus, this 

Court reviewed the administrative record as a whole, including 

the new evidence that plaintiff submitted to the Appeals 

Council. 2 Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 

1163 (9th Cir. 2012); Ramirez v. Shalala, 8 F. 3d 1449, 1452 (9th 

Cir. 1993). The question remaining is whether the new evidence 

supports remand to allow consideration by the ALJ. 

A. Opinion of Tyge Shelby, DC 

Plaintiff contends that Shelby's June 2013 medical source 

statement that plaintiff submitted to the Appeals Council was 

probative medical evidence that undermined the ALJ' s decision. 

In the medical source statement, Shelby opines that plaintiff 

would not be able to sustain full-time work and "based on [his] 

2 Regarding plaintiff's argument that the Appeals Council 

erred when it denied plaintiff's request for review and did not 

offer a substantive discussion of why it found that the new 

evidence did not change the ALJ' s decision, this Court has no 

jurisdiction to review the Appeals Council's decision. Brewes, 

682 F.3d at 1161; Taylor v. Comm'r.of Soc. Sec. Admin., 659 F.3d 

1228, 1231 (9th Cir. 2011). IYioreover, "'the Appeals Council 

[was] not required to make any particular evidentiary finding' 

when it rejected evidence from a vocational expert obtained 

after an adverse administrative decision." Taylor, 659 F. 3d at 

1232 ("rejected" was used to mean the Appeals Council did not 

find the new material persuasive enough to overturn the ALJ' s 

decision) (quoting Gomez v. Chater, 74 F.3d 967, 972 (9th Cir. 

1996)) . 

Page 23 - OPINION AND ORDER 
conversations with [plaintiff] about her condition it is very 

probable that she would be absent from work well over three days 

[per] month." Tr. 774-75. As noted previously, plaintiff 

concedes that Shelby is not an acceptable medical source, but 

maintains that he is competent to provide an opinion on 

plaintiff's functional limitations arising from her impairments. 

Defendant maintains that the new medical source statement 

by Shelby is not credible, is based on subjective statements 

from plaintiff, and does not overcome the contradictory medical 

evidence from acceptable medical sources reviewed by the ALJ. 

Further, defendant argues that Shelby's opinion was contradicted 

by the medical imaging from Central Oregon Radiology Associates. 

These imaging records, obtained approximately four months prior 

to Shelby's statement, show only mild degenerative changes in 

the cervical spine and lumbar spine. Tr. 771-72. Furthermore, 

defendant asserts that Dr. Henderson's IME examination in July 

2012 found plaintiff to be "in very good health" with normal 

muscle bulk and tone in the upper and lower extremities, normal 

gait, 4.5/5 strength, and an unconfirmable fibromyalgia 

diagnosis with 9 out of 18 tender point sites positive. Tr. 726-

27. 

In determining whether to remand a case in light of new 

Page 24 ~ OPINION AND ORDER 
evidence, the court examines 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. 42 U.S.C. § 405(g); Mayes, 276 F.3d 

at 462. The Court agrees with defendant that the medical source 

statement drafted by plaintiff's attorney with minimal answers 

by Shelby, completed approximately one year after Shelby last 

treated plaintiff, does not negate the objective evidence from 

acceptable medical sources that contradict his opinion. 

Additionally, "a6 opinion of disability premised to a large 

extent upon the claimant's own accounts of [her] symptoms and 

limitations may be disregarded, once those complaints have 

themselves been properly discounted." Andrews v. Shalala, 53 

F.3d 1035, 1043 (9th Cir. 1995) In the medical source statement 

Shelby writes, "I take Kim at her word and don't think she is 

faking her pain," indicating that his opinion is premised 

largely upon plaintiff's subjective reports of her pain and 

limitations, which the ALJ found not credible. Tr. 775. Further, 

Shelby -opined that "Kim has significant spinal structural 

abno~malities along with arthritic and degenerative processes in 

the spine"; this assessment conflicts with both the weight of 

the evidence in the record and the most recent imaging studies 

Page 25 - OPINION AND ORDER 
submitted to the Appeal's Council. Tr. 771-772, 775. Finally, 

Shelby's treatment notes that were submitted to the Appeal's 

Council are sufficiently similar to the treatment notes in the 

record reviewed by the ALJ to conclude that the new evidence 

plaintiff submitted to the Appeals Council would not have 

changed the ALJ's decision. 

This Court finds that Shelby's medical source statement 

that plaintiff submitted for the first time to the Appeals 

Council does not warrant this case to be remanded for a new 

hearing, because it is cumulative evidence and poses no 

reasonable possibility of changing the outcome of the 

administrative hearing. Mayes? 276 F.3d at 462. 

B. Opinion of Sydnee Goldstein, MSW 

Finally, plaintiff contends that the medical source 

statement by Sydnee Goldstein, MSW, which was submitted to the 

Appeals Council, is probative medical evidence that undermines 

the basis for the ALJ' s decision. Plaintiff acknowledges that 

Goldstein is not an acceptable medical source, but maintains 

that she is competent to offer an opinion regarding the severity 

of plaintiff's impairments and how such impairments will affect 

plaintiff's ability to work. 

Defendant contends that Goldstein's June 2013 opinion does 

Page 26 - OPINION AND ORDER 
not change the fact that substantial evidence supports the ALJ's 

findings and decision. Further, defendant maintains that the 

marked limitations indicated by Goldstein in the medical source 

statement, written almost two years after plaintiff's last visit 

with her, do not have a basis in the treatment records. 

Goldstein completed a medical source statement in June 2013 

assessing plaintiff's functional limitations and noted that 

plaintiff's physical and mental problems would cause her to miss 

five days per month or more, and that plaintiff would be off 

task more than 30% of an eight-hour work day. Tr. 778-81. 

Goldstein had personally provided individual counseling services 

to plaintiff on several occasions in 2011 and was part of a team 

of mental health counselors who provided services to plaintiff. 

The Court finds that Goldstein's medical source statement 

is not probative and is not material to the ALJrs decision given 

that Goldstein's counseling records from which she based her 

opinion were included in the record reviewed by the ALJ. Tr. 

627, 631, 634, 636, 638, 639, 640. Moreover, the ALJ attributed 

significant weight to Dr. Whitehead's neuro-psychological 

evaluation of plaintiff, which contradicts Goldstein's opinion. 

Tr. 738-51. Further, the limitations identified by Dr. Whitehead 

after administering testing on plaintiff were included in the 

Page 27 - OPINION AND ORDER 
ALJ' s calculation of plaintiff's residual functional capacity. 

Tr. 26. Thus, the new evidence from Goldstein does not alter the 

substantial evidence supporting the ALJ's determination. 

CONCLUSION 

The ALJ's finding that plaintiff is not disabled within the 

meaning of the Act is supported by substantial evidence in the 

record. Accordingly, the Commissioner's decision is AFFIRMED. 

This case is DISMISSED. 

IT IS SO ORDERED. 

Dated this day of September 2015. 

Ann Aiken 

United States District Judge 

Page 28 - OPINION AND ORDER