' 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

SHARLENE J. LEE, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security, 

Defendant . 

Richard F. McGinty 

McGinty & Belcher 

P.O. Box 12806 

Salem, OR 97301 

• 

Attorney for plaintiff 

S. Amanda Marshall 

United States Attorney 

Ronald K. Silver 

Assistant United States Attorney 

1000 S.W. Third Ave., Suite 600 

Portland, OR 97204 

David J. Burdett 

Special Assistant United States Attorney 

Social Security Administration 

701 Fifth Ave., Suite 2900 M/S 221A 

Seattle, WA 98104-7075 

Attorneys for defendant 

1 - OPINION AND ORDER 

Case No. 6:13-cv-00802-AA 

OPINION AND ORDER 

Case 6:13-cv-00802-AA Document 16 Filed 06/02/14 Page 1 of 7
1 l i . 

j 

I AIKEN, Chief Judge: 

Plaintiff brings this action pursuant to the Social Security 

Act, 42 U.S.C. § 405(g), to obtain judicial review of the 

Commissioner's decision denying her application for disability 

insurance benefits (DIB) under Title II of the Act. Upon review of 

the record and the parties' submissions, the decision of the 

Commissioner is affirmed. 

BACKGROUND 

On August 13, 2009, plaintiff filed an application for DIB; it 

was denied initially and on reconsideration. Tr. 55-58, 62-64, 140-

43. On January 25, 2012, plaintiff and a vocational expert appeared 

and testified before an administrative law judge (ALJ). Tr. 21-39. 

On February 22, 2012, the ALJ issued a decision finding plaintiff 

not disabled within the meaning of the Act. Tr. 7-20. On April 29, 

2013, the Appeals Council denied review, rendering the ALJ' s 

decision as the final agency decision. Tr. 1-4. Plaintiff now seeks 

judicial review. 

Plaintiff was fifty-five years old at the time of the ALJ's 

decision, with a high school education and past relevant work as a 

claims clerk. Tr. 25, 34. Plaintiff alleges disability since July 

2009 due to congestive heart failure. Tr. 157-58. 

STANDARD OF REVIEW 

This court must affirm the Commissioner's decision if it is 

supported by substantial evidence in the record and the correct 

2 - OPINION AND ORDER 

Case 6:13-cv-00802-AA Document 16 Filed 06/02/14 Page 2 of 7
application of the law. Valentine v. Comm'r Soc. Sec. Admin, 574 

F.2d 685, 690 (9th Cir. 2009). "'Substantial evidence' means more 

than a mere scintilla, but less than a preponderance. It means such 

relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion." Desrosiers v. Sec' y of Health & Human 

Servs., 846 F.2d 573, 576 (9th Cir. 1988) (internal quotation marks 

and citations omitted). In determining whether substantial evidence 

supports the decision, the court must weigh "both the evidence that 

supports and detracts from the [Commissioner] 's conclusions." 

Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Where the 

evidence "is susceptible to more than one rational interpretation," 

the Commissioner's conclusion must be upheld. Burch v. Barnhart, 

400 F.3d 676, 679 (9th Cir. 2005). 

COMMISSIONER'S DECISION 

The ALJ evaluated plaintiff's allegation of disability 

pursuant to the relevant sequential process. See Bowen v. Yuckert, 

482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. At step one, the ALJ 

found that plaintiff had not engaged in "substantial gainful 

activity" during the period of alleged disability. Tr. 12; 20 

C.F.R. § 416.920(b) 

At step two, the ALJ found that plaintiff had medically 

determinable impairments of coronary artery disease and chronic 

obstructive pulmonary disease. Tr. 12; 20 C.F.R. § 416.920(c). 

However, at step three, the ALJ found that these impairments did 

3 - OPINION AND ORDER 

Case 6:13-cv-00802-AA Document 16 Filed 06/02/14 Page 3 of 7
not meet or equal a listed impairment that is deemed so severe as 

to preclude gainful activity. Tr. 13; 20 C.F.R. § 416.920(d). 

The ALJ next determined plaintiff's residual functional 

capacity (RFC) and found that plaintiff retained the RFC to perform 

sedentary work with some exertional and environmental restrictions. 

Tr. 13, 20 C.F.R. § 416.920(e). 

At step four, based on plaintiff's RFC, the ALJ found that 

plaintiff was able to perform her past relevant work as a claims or 

data clerk. Tr. 16; 20 C.F.R. § 416.920(f). The ALJ did not proceed 

to step five and found plaintiff not disabled under the meaning of 

the Act. Tr. 16. 

DISCUSSION 

Plaintiff argues that the ALJ erred in evaluating the medical 

evidence, primarily the opinions of Dr. Woods and Ms. Krider, a 

treating physician and nurse practitioner. Plaintiff also argues 

that the ALJ gave unwarranted weight to the opinion of another 

physician, Dr. Scriven. 

The ALJ may reject the uncontradicted opinion of a treating or 

examining physician by providing clear and convincing reasons 

supported by substantial evidence in the record. See Lester v. 

Chater, 81 F. 3d 821, 830 (9th Cir. 1995); Andrews v. Shalala, 53 

F.3d 1035, 1041 (9th Cir. 1995). If contradicted, the ALJ may 

reject the opinion with specific and legitimate reasons. Id. 

In forms dated August 2009, Dr. Woods and Ms. Krider indicated 

4 - OPINION AND ORDER 

Case 6:13-cv-00802-AA Document 16 Filed 06/02/14 Page 4 of 7
that plaintiff could return to work in September 2009. Tr. 762-63. 

However, in September 2009, Dr. Woods indicated that plaintiff was 

unable to return to work, though he did not provide a temporal 

limitation on plaintiff's inability to work. Tr. 765. In January 

2011, Dr. Woods indicated that he did not anticipate plaintiff 

"ever returning to work." Tr. 760. Also in January 2011, Dr. 

Scriven reported that if plaintiff returned to work, she should 

avoid heavy lifting and dust and fumes. Tr. 761. 

As an initial matter, the determination of whether plaintiff 

can work or is disabled is a matter reserved solely to the 

Commissioner, not to a treating physician. McLeod v. Astrue, 640 

F.3d 881, 885 (9th Cir. 2011). Ultimately, "[t]he law reserves the 

disability determination to the Commissioner." Id. Here, Dr. Woods 

cited no medical reports or clinical findings to substantiate his 

assessment of plaintiff's ability to work, and the ALJ was not 

required to accept his opinion. Tr. 760, 765. Thomas v. Barnhart, 

2 7 8 F . 3d 9 4 7 , 9 5 7 ( 9th C i r . 2 0 0 2 ) ( " The AL J need not accept the 

opinion of any physician, including a treating physician, if that 

opinion is brief, conclusory, and inadequately supported by 

clinical findings."). 

Further, the ALJ noted that a non-examining physician and an 

examining physical therapist found plaintiff less limited than Dr. 

Woods and able to perform light and sedentary work. Tr. 15, 48-49, 

770. Notably, "the findings of a nontreating, nonexamining 

5 - OPINION AND ORDER 

Case 6:13-cv-00802-AA Document 16 Filed 06/02/14 Page 5 of 7
physician can amount to substantial evidence, so long as other 

evidence in the record supports those findings." Saelee v. Chater, 

94 F.3d 520, 522 (9th Cir. 1996). Here, other evidence in the 

record supported the findings of the non-examining physician, 

including the opinions of Dr. Scriven and the physical therapist. 

Finally, the ALJ noted that plaintiff's daily activities -

including shopping, driving a neighbor to and from work, picking 

apples, exercising, reading, cooking, and yard work - contradicted 

Dr. Woods's opinion that plaintiff could not return to work. Tr. 

15, 509, 532, 640, 726, 741. These are specific and legitimate 

reasons supported by the record. See Stubbs-Danielson v. Astrue, 

539 F.3d 1169, 1175 (9th Cir. 2008) (record of daily activities 

suggested that the claimant was capable of performing sustained 

work). 

For the same reasons, the ALJ's reasons for discrediting Dr. 

Woods were "germane" to the statements of Ms. Krider, whose 

statements were similar to Dr. Woods. See Molina v. As true, 67 4 

F.3d 1104, 1122 (9th Cir. 2012). Although plaintiff disagrees with 

the ALJ's interpretation of the medical record, "[w]hen the 

evidence before the ALJ is subject to more than one rational 

interpretation, we must defer to the ALJ's conclusion." Batson v. 

Cornrn'r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). 

CONCLUSION 

The ALJ's conclusion that plaintiff is not disabled under the 

6 - OPINION AND ORDER 

Case 6:13-cv-00802-AA Document 16 Filed 06/02/14 Page 6 of 7
I 

I . 

I 

I 

Act is supported by substantial evidence in the record. 

Accordingly, the decision of the Commissioner is AFFIRMED. 

I IT IS SO ORDERED. 

I DATED this ~ay of June, 2014. 

Ann Aiken 

United States District Judge 

7 - OPINION AND ORDER 

Case 6:13-cv-00802-AA Document 16 Filed 06/02/14 Page 7 of 7