IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

HESHAM M. ABDALLA, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration, 

Defendant. 

ALAN STUART GRAF 

208 Pine Street 

Floyd, VA 24091 

(540) 745-2519 

Attorney for Plaintiff 

BILLY J. WILLIAMS 

Acting United States Attorney 

RONALD K. SILVER 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

(503) 727-1003 

1 - OPINION AND ORDER 

3:14-CV-01174-BR 

OPINION AND ORDER 

Case 3:14-cv-01174-BR Document 13 Filed 07/16/15 Page 1 of 19
DAVID MORADO 

Regional Chief Counsel 

LARS J. NELSON 

Special Assistant United States Attorney 

1961 Stout Street, Suite 4169 

Denver, CO 80294-4003 

(303) 844-1948 

Attorneys for Defendant 

BROWN, Judge. 

Plaintiff Hesham M. Abdalla seeks judicial review of a final 

decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's applications for 

Disability Insurance Benefits (DIB) and Supplemental Security 

Income (SSI) and under Titles II and XVI of the Social Security 

Act. This Court has jurisdiction to review the Commissioner's 

final decision pursuant to 42 U.S.C. § 405(g). 

For the reasons that follow, the Court AFFIRMS the decision 

of the Commissioner and DISMISSES this matter. 

ADMINISTRATIVE HISTORY 

Plaintiff filed applications for DIB and SSI on February 19, 

2010, and alleged a disability onset date of December 1, 2009. 

Tr. 260, 268. 1 In December 2012 Plaintiff amended his onset date 

to August 9, 2010. Tr. 376. Plaintiff's applications were 

1 Citations to the official transcript of record filed by 

the Commissioner on July 8, 2014, are referred to as "Tr." 

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denied initially and on reconsideration. An Administrative Law 

Judge (ALJ) held a hearing on March 13, 2012, and a supplemental 

hearing on December 18, 2012. Tr. 33-64, 65-108. At the first 

hearing Plaintiff and a vocational expert (VE) testified. At the 

second hearing Plaintiff, a VE, and a medical expert (ME) 

testified. 

hearings. 

Plaintiff was represented by an attorney at both 

On January 10, 2013, the ALJ issued an opinion in which she 

found Plaintiff is not disabled and, therefore, is not entitled 

to benefits. Tr. 10-26. On May 30, 2014, that decision became 

the final decision of the Commissioner when the Appeals Council 

denied Plaintiff's request for review. Tr. 1-6. See Sims v. 

Apfel, 530 U.S. 103, 106-07 (2000). 

BACKGROUND 

Plaintiff was born on August 9, 1960. Tr. 260. Plaintiff 

was 51 years old at the time of the first hearing and 52 years 

old at the time of the second hearing. Plaintiff has a college 

education. Tr. 17. The ALJ found Plaintiff has past relevant 

work experience as a retail shop owner, maintenance technician, 

and manufacturing technician. Tr. 24. 

Plaintiff alleges disability due to "low vision," diabetes, 

high blood pressure, cholesterol, pain and numbness of the left 

upper neck and extremity, and migraines. Tr. 109. 

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Except when noted, Plaintiff does not challenge the ALJ's 

summary of the medical evidence. After carefully reviewing the 

medical records, this Court adopts the ALJ's summary of the 

medical evidence. See Tr. 18-23. 

STANDARDS 

The initial burden of proof rests on the claimant to 

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th 

Cir. 2012). To meet this burden, a claimant must demonstrate his 

inability "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). The ALJ must develop the record when there is 

ambiguous evidence or when the record is inadequate to allow for 

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d 

881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari/ 276 F.3d 

453, 459-60 (9th Cir. 2001)). 

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 as a whole. 42 

u.s.c. § 405(g). See also Brewes v. Comm/r of Soc. Sec. Adinin., 

6 8 2 F . 3 d 115 7 , 11 61 ( 9th Cir . 2 0 12 ) . Substantial evidence is 

"relevant evidence that a reasonable mind might accept as 

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adequate to support a conclusion." Molina, 674 F.3d. at 1110-11 

(quoting Valentine v. Comm'r Soc. Sec. Aclmin., 574 F.3d 685, 690 

( 9th Cir . 2 0 0 9 ) ) . It is more than a mere scintilla [of evidence] 

but less than a preponderance. 

at690). 

Id. (citing Valentine, 574 F.3d 

The ALJ is responsible for determining credibility, 

resolving conflicts in the medical evidence, and resolving 

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 

2009). The court must weigh all of the evidence whether it 

supports or detracts from the Commissioner's decision. Ryan v. 

Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even 

when the evidence is susceptible to more than one rational 

interpretation, the court must uphold the Commissioner's findings 

if they are supported by inferences reasonably drawn from the 

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the 

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 

2006) . 

DISABILITY ANALYSIS 

I. The Regulatory Sequential Evaluation 

At Step One the claimant is not disabled if the Commissioner 

determines the claimant is engaged in substantial gainful 

activity. 20 C.F.R. §§ 404.1520(a) (4) (I), 416.920(a) (4) (I). See 

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also Keyser v. Comm'r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 

2011) . 

At Step Two the claimant is not disabled if the Commissioner 

determines the claimant does not have any medically severe 

impairments or combination of impairments. 20 C.F.R. 

§§ 404 .1520 (a) (4) (ii), 416. 920 (a) (4) (ii). See also Keyser, 648 

F.3d at 724. 

At Step Three the claimant is disabled if the Commissioner 

determines the claimant's impairments meet or equal one of the 

listed impairments that the Commissioner acknowledges are so 

severe as to preclude substantial gainful activity. 20 C.F.R. 

§§ 404 .1520 (a) (4) (iii), 416. 920 (a) (4) (iii). See also Keyser, 648 

F.3d at 724. The criteria for the listed impairments, known as 

Listings, are enumerated in 20 C.F.R. part 404, subpart P, 

appendix 1 (Listed Impairments). 

If the Commissioner proceeds beyond Step Three, she must 

assess the claimant's residual functional capacity (RFC). The 

claimant's RFC is an assessment of the sustained, work-related 

physical and mental activities the claimant can still do on a 

regular and continuing basis despite his limitations. 20 C.F.R. 

§§ 404.1520(e), 416.920(e). See also Social Security Ruling 

(SSR) 96-8p. ~A 'regular and continuing basis' means 8 hours a 

day, for 5 days a week, or an equivalent schedule." SSR 96-Bp, 

at *1. In other words, the Social Security Act does not require 

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complete incapacity to be disabled. Taylor v. Comm'r of Soc. 

Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011) (citing Fair 

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the 

Commissioner determines the claimant retains the RFC to perform 

work he has done in the past. 20 C. F.R. §§ 404 .1520 (a) (4) (iv), 

416. 920 (a) (4) (iv). See also Keyser, 648 F.3d at 724. 

If the Commissioner reaches Step Five, she must determine 

whether the claimant is able to do any other work that exists in 

the national economy. 20 C.F.R. §§ 404.1520(a) (4) (v), 

416. 920 (a) (4) (v). See also Keyser, 648 F.3d at 724-25. Here the 

burden shifts to the Commissioner to show a significant number of 

jobs exist in the national economy that the claimant can perform. 

Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th 

Cir. 2010). The Commissioner may satisfy this burden through the 

testimony of a VE or by reference to the Medical-Vocational 

Guidelines set forth in the regulations at 20 C.F.R. part 404, 

subpart P, appendix 2. If the Commissioner meets this burden, 

the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(l), 

416. 920 (g) (1). 

ALJ'S FINDINGS 

At Step One the ALJ found Plaintiff has not engaged in 

substantial gainful activity since his August 9, 2010, alleged 

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onset date. Tr. 15. 

At Step Two the ALJ found Plaintiff has the severe 

impairments of diabetes, "status post myocardial infarction with 

stent placement," cervical strain, osteoarthritis of the right 

knee, amblyopia, keratoconus, "post penetrating keratoplasty," 

and "post retinal detachment of the right eye status post 

multiple eye surgeries." Tr. 15. 

At Step Three the ALJ concluded Plaintiff's medically 

determinable impairments do not meet or medically equal one of 

the listed impairments in 20 C.F.R. part 404, subpart P, appendix 

1. Tr. 16. The ALJ specifically found (1) "[t]he severity of 

[Plaintiff's] cervical strain does not meet or medically equal 

the criteria of listing 1.04"; (2) "[t]he severity of 

[Plaintiff's] osteoarthritis of the right knee does not meet or 

medically equal listing 1.02"; and (3) "[t]he severity of the 

claimant's visual impairments does not meet or medically equal 

the criteria of listing 2.02 (Loss of visual acuity), 2.03 

(contraction of the visual fields in the better eye), or 2.04." 

Tr. 16. The ALJ found Plaintiff has the RFC to perform light 

work and can occasionally climb ramps or stairs, stoop, kneel, 

crouch, crawl, and reach overhead bilaterally. Tr. 16. The ALJ 

also found Plaintiff can never climb ladders, ropes, or 

scaffolds; be exposed to hazards such as unprotected heights or 

dangerous machinery; or perform "work that requires excellent 

8 - OPINION AND ORDER 

Case 3:14-cv-01174-BR Document 13 Filed 07/16/15 Page 8 of 19
vision or good depth perception, but [Plaintiff] could read print 

or read a computer screen." Tr. 16. 

At Step Four the ALJ concluded Plaintiff is capable of 

performing his past relevant work as a retail shop owner. 

Tr. 24. 

The ALJ also made an alternative finding at Step Five that 

Plaintiff could perform other jobs that exist in the national 

economy. Tr. 25. Accordingly, the ALJ found Plaintiff is not 

disabled. 

DISCUSSION 

Plaintiff contends the ALJ erred when she (1) failed to 

consider at Step Three whether Plaintiff met or equaled Listing 

4.02; (2) improperly found Plaintiff was not fully credible; 

(3) improperly gave limited weight to the opinion of examining 

physician James Borden, M.D.; and (4) relied on the VE's 

testimony at Step Five. 

I. The ALJ did not err at Step Three. 

As noted, at Step Three the ALJ found Plaintiff's medically 

determinable impairments do not meet or medically equal one of 

the listed impairments. Plaintiff contends the ALJ erred when 

she failed to consider specifically whether Plaintiff met Listing 

4.02. Mary Ann Westfall, M.D., reviewing physician, however, 

explicitly considered whether Plaintiff met Listing 4.02 and 

9 - OPINION AND ORDER 

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concluded he did not. Tr. 113, 117. The ALJ gave Dr. Westfall's 

opinion "great weight" and found it was consistent with the 

record as a whole. The ALJ did not explicitly rely on 

Dr. Westfall's conclusion as to the applicability of sting 4.02 

in the ALJ's Step Three findings. Nevertheless, the Court 

concludes the ALJ did not err at Step Three because the ALJ 

discussed Dr. Westfall's findings elsewhere in her opinion and 

gave great weight to Dr. Westfall's findings, which indicates the 

ALJ incorporated Dr. Westfall's findings in the ALJ's Step Three 

finding. Seer e.g.r Dunn v. Colvin, No. 6:13-CV-01339-RE, 2014 

WL 5824817, at *4 (D. Or. Nov. 10, 2014) ("The ALJ relied on the 

October 2008 opinion of reviewing physician J. Morelos, M.D., who 

did consider the listings and concluded Plaintiff's impairment 

was severe but not of listing level. The ALJ assigned 

great weight to Dr. Morelos's opinion because he found it 

consistent with the evidence. The ALJ's determination that 

Plaintiff's impairments did not meet or medically equal a Listing 

is supported by substantial evidence."). 

On this record the Court concludes the ALJ did not err at 

Step Three because she provided legally sufficient reasons to 

support her findings. 

II. The ALJ did not err when she found Plaintiff was not fully 

credible. 

Plaintiff alleges the ALJ erred by failing to provide clear 

and convincing reasons for finding Plaintiff was not fully 

10 - OPINION AND ORDER 

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credible. 

In Cotton v. Bowen the Ninth Circuit established two 

requirements for a claimant to present credible symptom 

testimony: The claimant must produce objective medical evidence 

of an impairment or impairments, and she must show the impairment 

or combination of impairments could reasonably be expected to 

produce some degree of symptom. Cot ton , 7 9 9 F . 2 d 14 0 3 , 14 0 7 ( 9th 

Cir. 1986). The claimant, however, need not produce objective 

medical evidence of the actual symptoms or their severity. 

Smolen, 80 F.3d at 1284. 

If the claimant satisfies the above test and there is not 

any affirmative evidence of malingering, the ALJ can reject the 

claimant's pain testimony only if she provides clear and 

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742, 

750 (9th Cir. 2007) (citing Lester v. Chater, 81 F.3d 821, 834 (9th 

Cir. 1995)). General assertions that the claimant's testimony is 

not credible are insufficient. Id. The ALJ must identify "what 

testimony is not credible and what evidence undermines the 

claimant's complaints." Id. (quoting Lester, 81 F.3d at 834) 

In his October 2010 Adult Function Report Plaintiff stated 

his impairments affect his ability to lift, stand, reach, walk, 

climb stairs, see, remember, complete tasks, concentrate, and get 

along with others. Tr. 343-49. Plaintiff noted he can walk 10 

minutes before he needs to rest for 20 minutes. Tr. 347. 

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Plaintiff noted he does not finish tasks, and the pain in his 

neck and arm disrupts his sleep. Tr. 346-47. Plaintiff noted he 

tires quickly and is unable to work more than one hour without 

taking a long break. Tr. 345. Plaintiff reported he has 

difficulty reading, and he cannot see enough detail to work in 

electronics. Tr. 346. Plaintiff stated he began to experience 

fatigue in December 2009, and he has to nap for 30 to 60 minutes 

three times a day. Tr. 344-46. 

The ALJ found Plaintiff's "subjective complaints and alleged 

limitations are not fully persuasive or consistent with his work 

history and the medical evidence, and he is therefore found to be 

not fully credible." Tr. 21. The ALJ noted Plaintiff worked as 

a taxi driver after his original alleged onset date of 

December 1, 2009. The ALJ also noted Plaintiff reported to his 

health-care provider that he would be leaving Oregon for six 

weeks in December 2011. Tr. 695. Similarly, in February 2011 

Plaintiff reported he had been in Arizona for work. Tr. 613. In 

July 2011 Plaintiff reported to his health-care provider that he 

had days in which he was so busy that he did not have time to 

eat. Tr. 669. In December 2010 Plaintiff reported to his 

health-care provider that he had not been walking as much in the 

previous two months because he had been too busy. Tr. 617. In 

November 2011 Plaintiff's chiropractor stated on a Work Ability 

Form that Plaintiff was able to work full-time with restrictions 

12 - OPINION AND ORDER 

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on reaching over his shoulder, pushing, pulling, carrying, 

kneeling, climbing stairs, and lifting. Tr. 751. The ALJ also 

noted Plaintiff's activities of daily living did not support his 

alleged degree of restriction. Specifically, the ALJ noted the 

record reflects Plaintiff performs personal care without 

difficulty, commutes by driving and walking, manages household 

finances, assists his children in studying and completing 

homework assignments, meets with friends for coffee twice a 

month, and prays at a mosque once a week. Tr. 21. In addition, 

Plaintiff spends two hours once a week laundering, ironing, and 

performing household repairs. Tr. 21. Plaintiff also shops in 

stores and by computer twice a month for food and items for his 

children. Tr. 21. 

On this record the Court finds the ALJ did not err when she 

found Plaintiff was not fully credible because the ALJ provided 

clear and convincing reasons supported by substantial evidence in 

the record for doing so. 

III. The ALJ did not err when he gave limited weight to the 

opinion of James Borden, M.D., examining physician. 

On June 15, 2012, Dr. Borden completed a Medical Source 

Statement in which he opined Plaintiff could sit and stand for 

three hours at a time without interruption and walk 20 minutes at 

a time without interruption. Tr. 897. Dr. Borden also noted 

Plaintiff could sit and stand for a total of eight hours and walk 

for a total of one hour in an eight-hour work day. Id. Dr. 

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Borden found Plaintiff was limited to occasional reaching both 

overhead and "all other," handling, fingering, pushing, and 

pulling. Tr. 898. Dr. Borden noted Plaintiff should never climb 

stairs, ramps, ladders, or scaffolds or "be at unprotected 

heights." Tr. 899-900. Dr. Borden found Plaintiff should only 

occasionally balance, stoop, kneel, crouch, and crawl, operate a 

motor vehicle, or be around moving mechanical parts. Tr. 899-

900. 

Dr. Borden did not evaluate Plaintiff's vision. 

The ALJ gave Dr. Borden's opinion limited weight. The ALJ 

noted Dr. Borden relied on Plaintiff's subjective complaints in 

his evaluation. For example, in the form Dr. Borden specifically 

noted "[p]er client report" and "based on interview" in numerous 

categories. Tr. 22, 897-98, 900. In addition, Dr. Borden 

reported Plaintiff "describe[d] chest pain, but it is very hard 

to get him to commit to when it occurs." Tr. 882. As noted, the 

Court already has concluded the ALJ did not err when she found 

Plaintiff was not fully credible. 

The ALJ also found Dr. Borden lacked objective findings to 

support his opinion. For example, Dr. Borden noted during 

Plaintiff's cardiovascular examination that Plaintiff made it two 

minutes into stage 1 on the treadmill before becoming very 

fatigued, which is "consistent with Class 2 New York Heart 

Association, which is described as patient with slight, mild 

14 - OPINION AND ORDER 

Case 3:14-cv-01174-BR Document 13 Filed 07/16/15 Page 14 of 19
limitation of activity; they are comfortable with rest or mild 

exertion." Tr. 22. Dr. Borden did not note any electrocardiogram changes or chest pain. Tr. 22. The Ninth Circuit has 

held an ALJ did not err when he gave little weight to the opinion 

of a treating cardiologist who opined the claimant was unable to 

perform even sedentary work because the cardiologist's opinion 

was contradicted by his finding that the claimant "fell within 

Class II of the New York Heart Association functional 

classification system." Wobbe v. Colvin, 589 F. App'x 384, 385 

( 9th Cir . 2 0 15 ) . 

In addition, Dr. Borden opined: "[A]t this point 

[Plaintiff's] eye problems are probably more important to daily 

work [limitations] than the heart problems." Tr. 883. 

Dr. Borden, however, did not examine Plaintiff's vision. At the 

December 18, 2012, hearing Willie Boone, M.D., ophthalmologist, 

testified about Plaintiff's vision and opined Plaintiff does not 

visually qualify to carry out tasks requiring excellent vision 

and depth perception such as an airline pilot or commercial bus 

driver. Tr. 71. Dr. Boone, however, opined Plaintiff is 

qualified to drive and is able to read small print and to 

manipulate small objects. Tr. 70. Dr. Boone also testified 

Plaintiff does not meet or medically equal Listings 2.02 to 2.04. 

Tr. 70-71. 

On this record the Court finds the ALJ did not err when she 

15 - OPINION AND ORDER 

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gave limited weight to Dr. Borden's opinion because the ALJ 

provided clear and convincing reasons supported by substantial 

evidence in the record for doing so. 

IV. The ALJ did not err at Step Five. 

Plaintiff alleges the ALJ erred at Step Five when she 

concluded in the alternative that Plaintiff could perform other 

work in the national economy. Specifically, Plaintiff alleges 

the ALJ erred because she relied on the VE's testimony that was 

inconsistent with the Dictionary of Occupational Titles (DOT) and 

the medical evidence. 

When making disability determinations, the SSA relies 

primarily on the DOT for information about the requirements of 

work in the national economy. SSR 00-04p at 2. See also 

Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). The 

Commissioner may also rely on testimony from VEs, which should be 

consistent with the DOT although neither trumps the other when 

there is a conflict. Massachi, 486 F3d at 1153. SSR 00-4p 

explicitly requires the ALJ to determine whether the VE's 

testimony deviates from the DOT and whether there is any 

reasonable explanation for any such deviation. Id. The ALJ may 

only rely on the VE's testimony as substantial evidence to 

support a disability determination after determining whether the 

VE has deviated from the DOT and whether any such deviation is 

reasonable. Id. at 1153-54. 

16 - OPINION AND ORDER 

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At the December 2012 hearing the ALJ posed a hypothetical to 

the VE that includes all of the limitations that the ALJ found to 

be credible. Based on that hypothetical the VE testified a 

claimant with those limitations could perform the jobs of 

security guard, assembler, timekeeper, and data-entry clerk. 

Tr. 105. The ALJ asked the VE twice whether there was a conflict 

between the VE's findings and the DOT, and the VE testified there 

was not a conflict. Tr. 102, 106. 

Nevertheless, Plaintiff asserts the jobs identified by the 

VE all required frequent reaching even though Plaintiff's RFC 

included the limitations of no more than occasional bilateral 

reaching overhead. According to Plaintiff, therefore, the jobs 

identified by the VE were inconsistent with the medical evidence. 

The Ninth Circuit and judges in this district have rejected 

Plaintiff's argument. See Ketelboeter v. Astrue, 550 F.3d 620 

(9th Cir. 2008) (The DOT description of frequent reaching does not 

conflict with a hypothetical limitation regarding overhead 

reaching). See also Gregg v. Comm'r of Soc. Sec., No. 3:13-CV01215-TC, 2014 WL 4101739, at *3 (D. Or. Aug. 11, 2014) 

("Plaintiff argues . the ALJ relied on erroneous vocational 

expert opinion because he limited plaintiff with respect to 

'overhead reaching,' [but] the [VE] identified jobs that require 

'frequent reaching' according to the [DOT]. The [DOT, 

however,] is silent with respect to the type of reaching involved 

17 - OPINION AND ORDER 

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in the jobs identified in that it only identifies 'reaching' in 

general. Accordingly, the ALJ did not err."); Price v. Colvin, 

6:13-CV-01137-PK, 2015 WL 363312, at *7 (D. Or. Jan. 23, 

2015) (same) . 

The Court finds persuasive the reasoning of Ketelboeter, 

Gregg, and Price. On the basis of that reasoning, the Court 

concludes the ALJ did not err when she relied on the testimony of 

the VE with respect to Plaintiff's ability to perform other jobs 

that exist in the national economy. 

Plaintiff also asserts the jobs of security guard and 

assembler are light-exertion jobs, which, according to Plaintiff, 

are inconsistent with Dr. Borden's opinion and the Class 2 New 

York Heart Association Classification. The Court, however, 

already has concluded the ALJ did not err when she gave limited 

weight to Dr. Borden's opinion nor did she err when she concluded 

the Class 2 New York Heart Association Classification did not 

limit Plaintiff to sedentary work. 

Accordingly, the Court concludes the ALJ did not err at Step 

Five when she relied on the VE's testimony and found Plaintiff 

could perform other jobs that exist in the national economy. 

CONCLUSION 

For these reasons, the Court AFFIRMS the decision of the 

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Commissioner and DISMISSES this matter. 

IT IS SO ORDERED. 

DATED this 1 6th day of July, 2015. 

United States District Judge 

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