IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PENDLETON DIVISION 

CHRISTIAN RUSSELL, Case No.: 2:14-CV-01908-AC 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Commissioner of Social Security, 

Defendant. 

ACOSTA, Magistrate Judge: 

FINDINGS AND 

RECOMMENDATION 

Christian Russell ("plaintiff') seeks judicial review of a final decision by the Commissioner 

of Social Security ("Commissioner") denying his application for Supplemental Security Income 

("SSI'') under Title XVI of the Social Security Act ("Act"). Based on a careful review of the record, 

the Commissioner's decision should be affirmed and this case should be dismissed. 

Procedural Background 

Plaintiff filed his most recent SSI application on May 3, 2011, alleging disability as of that 

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date due to Crohn's disease, esophagitis, hiatal hernia, and astluna. 1 (Tr. 14, 178-90.) His 

application was denied initially and upon reconsideration. (Tr. 85-88, 95-96.) A hearing was held 

on April 12, 2013, before an Administrative Law Judge ("ALJ"); plaintiff was represented by 

counsel and testified, as did a medical expert ("ME") and vocational expert ("VE"). (Tr. 29-56.) 

On June 18, 2013, the ALJ issued a decision finding plaintiff not disabled. (Tr. 14-23.) Plaintiff 

timely requested review of the ALJ' s decision and, after the Appeals Council denied his request for 

review, filed a complaint in this Court. (Tr. 1-6.) 

Factual Background 

Born on Janumy 4, 1970, plaintiff was 41 years old on the alleged onset date of disability and 

43 years old at the time of the hearing. (Tr. 22, 205.) He completed the eleventh grade and worked 

previously as a kitchen helper, gas station attendant, feed bagger, grinder, trailer assembler, and 

forklift operator. (Tr. 52, 214-15.) 

Standard of Review 

The court must affirm the Commissioner's decision if it is based on proper legal standards 

and the findings are supp01ied by substantial evidence in the record. Hammock v. Bowen, 879 F .2d 

498, 501 (9th Cir. 1989). Substantial evidence is "more than amere scintilla. It means such relevant 

evidence as a reasonable mind might accept as adequate to supp01i a conclusion." Richardson v. 

Perales, 402 U.S. 389, 401 (1971)(citation and internal quotations omitted). The comi must weigh 

"both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez 

1 Plaintiff has sought Social Security benefits numerous times over the past two decades, 

with his most recent denial occurring in March 2010. (Tr. 58, 206-10.) His current application 

initially alleged an onset date of June 201 O; however, at the hearing he amended his alleged onset 

date to May 3, 2011. (Tr. 31-32, 54, 205.) 

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Case 2:14-cv-01908-AC Document 15 Filed 02/08/16 Page 2 of 10
v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can supp01i either 

a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 

486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted). 

The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 

782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an 

"inability to engage in any substantial gainful activity by reason of any medically determinable 

physical or mental impahment which can be expected ... to last for a continuous period of not less 

than 12 months." 42 U.S.C. § 423(d)(l)(A). 

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.§ 416.920. First, the 

Commissioner evaluates whether a claimant is engaged in "substantial gainful activity"; if so, the 

claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b). 

At step two, the Commissioner resolves whether the claimant has a "medically severe 

impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R.§ 416.920(c). 

If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. 

At step tlu·ee, the Commissioner dete1mines whether the claimant meets or equals "one of 

a number oflisted impairments that ... are so severe as to preclude substantial gainful activity." Id; 

20 C.F.R. § 416.920( d). If so, the claimant is presumed disabled; if not, the Commissioner proceeds 

to step four. Yuckert, 482 U.S. at 141. 

At step four, the Commissioner considers whether the claimant can still perform "past 

relevant work." Id; 20 C.F.R.§ 416.920(f). If the claimant can work, he is not disabled; ifhe cannot 

perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 141. At 

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step five, the Commissioner must establish that the claimant can perform other work existing in 

significant numbers in the national or local economy. Id. at 142; 20 C.F.R. § 416.920(g). If the 

Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 416.966. 

The ALJ's Findings 

At step one of the five-step process outlined above, the ALJ found that plaintiff had not 

engaged in substantial gainful activity since the alleged onset date. (Tr. 16.) At step two, the ALJ 

determined that plaintiffhad the following severe impairments: "Crohn's disease; esophagitis; hiatal 

hernia; and asthma." (Id.) At step three, the ALJ found that plaintiffs impairments, either singly 

or in combination, did not meet or equal the requirements of a listed impairment. (Tr. 17.) 

Accordingly, the ALJ continued the sequential evaluation process to determine how 

plaintiffs medical limitations affected his ability to work. The ALJ resolved that plaintiff had the 

residual functional capacity ("RFC") to perform light work as defined by 20 C.F.R. § 416.967(b ), 

except that: 

he can no more than occasionally balance, stoop, kneel, crouch, crawl, climb stairs 

and ramps, or climb ladders, ropes, or scaffolds; he should avoid exposure to all 

pulmonary initants and avoid exposure to hazards; [and] he requires ready access to 

a restroom facility. 

(Id.) At step four, the ALJ concluded that plaintiff could not perfmm his past relevant work. (Tr. 

21.) At step five, the ALJ found, based on the VE's testimony, that plaintiff could perform a 

significant number of jobs existing in the national and local economy despite his impahments, such 

as products assembler, hand packager, and retail clerk. (Tr. 22.) Therefore, the ALJ determined that 

plaintiff was not disabled within the meaning of the Act. (Tr. 23.) 

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Discussion 

Plaintiff argues that the ALJ formulated an incomplete RFC, such that the step five finding 

was invalid, by failing to specify the amount of time needed for restroom use and "rel[ying] on no 

medical authority" in contravention ofSSR 96-8p. (Pl.'s Opening Br. 6-10.) 

The RFC is the maximum a claimant can do despite his limitations. 20 C.F.R. § 416.945. 

In determining the RFC, the ALJ must consider limitations imposed by all of a claimant's 

impairments, even those that are not severe, and evaluate "all of the relevant medical and other 

evidence," including the claimant's testimony. SSR 96-8p, available at 1996 WL 374184. The ALJ 

is responsible for resolving ambiguities in the record and translating the claimant's impairments into 

concrete functional limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th 

Cir. 2008); see also Davis v. Astrue, Case No. I: 10-CV-01452-CL, 2012 WL 4005553, *9 (D. Or. 

June 12), adopted by 2012 WL 3614310 (D. Or. Aug. 21, 2012) ("it is the responsibility of the ALJ, 

not the claimant's physician, to determine [the RFC] and the ALJ's findings of RFC need not 

correspond precisely to any physician's findings") (citations and internal quotations omitted). Only 

limitations supported by substantial evidence must be incorporated into the RFC and, by extension, 

the dispositive hypothetical question posed to the VE. Osenbrockv. Apfel, 240 F3d 1157, 1163-65 

(9th Cir. 200 I). 

As a preliminary matter, plaintiff mis-characterizes the record on appeal in two key respects. 

First, the record before the court plainly contravenes plaintiffs contention "that the ALJ side-stepped 

addressing [his] statements regarding the amount of time he is in the restroom." (Pl.' s Opening Br. 

8.) Plaintiff testified at the hearing that he is unable to work primarily due to "the bathroom trips 

tlu·oughout the day," explaining that he uses the restroom "about every hour" for "[l]ike ten to 20 

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minutes." (Tr. 41.) The ALJ expressly found that plaintiffs medically determinable impahments 

could reasonably be expected to produce some degree of symptoms, but his statements regarding the 

extent of these symptoms were "not entirely credible" due to his activities of daily living, failure to 

report symptoms to his medical providers, inconsistent statements, and history of conservative 

treatment, as well as the lack of c01rnborating medical evidence. (Tr. 18-21.) Specifically, the ALJ 

discussed how plaintiffs ability to fold laund1y, wash dishes, occasionally cook, drive his 

girlfriend's daughter to and from school, shop for groceries, pay bills, be independent in his self-care, 

socialize regularly with family and friends, play games and watch television, and go camping and 

fishing once or twice per year belied his hearing testimony. (Tr. 18, 21, 234-41, 264-71 ); see also 

Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (daily activities may be used to discredit 

a claimarit where they either "are transferable to a work setting" or "contradict claims of a totally 

debilitating impairment").' 

Moreover, ari independent review of the record confirms the ALJ' s determination that 

plaintiff failed to report frequent and/or prolonged restroom use to his treatment providers. For 

instance, in November 20 I 0 plaintiff disclosed to Susan Rice, M.D ., that his bowel movements were 

"absolutely normal and occur once per day." (Tr. 421.) In February 2011, Dr. Rice described 

plaintiffs Crohn's disease as "under good control" in light of his test results, including "a recent 

EGD and colonoscopy." (Tr. 419.) As such, Dr. Rice denoted that plaintiffs abdominal symptoms 

2 While plaintiff does not directly and specifically challenge the ALJ' s credibility finding, 

the court finds that the ALJ provided specific, clear and convincing reasons, supported by 

substaritial evidence, for rejecting his subjective symptom statements. See Carmickle v. Comm 'r, 

Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (court "ordinarily will not consider 

matters on appeal that are not specifically arid distinctly argued in an appellarit' s opening brief') 

(citation and internal quotations omitted). As a result, this court need not discuss all of the 

reasons provided by the ALJ because at least one legally sufficient reason exists. Id at 1162-63. 

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"may be related to [his overuse] of narcotics," as opposed to any underlying medical condition. (Tr. 

419, 421-22); (see also Tr. 343, 378, 401, 564, 577-80 (evidence of plaintiffs narcotic and other 

drug use).) Between July 2011 and January 2012, plaintiff had no complaints of dianhea or bowel 

problems. (Tr. 539-40, 547-52, 564-74.) In July 2012, plaintiff again denied nausea, vomiting, and 

diarrhea. (Tr. 578). In sum, with the exception of two instances in which he endorsed diarrhea, 

plaintiff regularly denied the existence of any symptoms that would be indicative of frequent and/or 

prolonged restroom usage immediately prior to and during the relevant time period.3 (Tr. 299, 408, 

536-37, 539-40, 547-58, 562-89); see also Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) 

(an ALJ may consider a claimant's failure to report symptoms in making an adverse credibility 

finding). 

Second, contrary to plaintiffs assertion, the ALJ's RFC determination explicitly included 

an analysis of the significant and probative medical evidence ofrecord in accordance with SSR 96-

8p. (Tr. 17-21.) Namely, the ALJ discussed objective test results obtained from examinations, 

endoscopies, colonoscopies, etc. (Tr. 19-20.) In addition, the ALJ weighed and assessed medical 

reports from plaintiffs treating providers, including Gurmant Singh, M.D., and Dr. Rice; the state 

agency consulting sources, Mary Ann Westfall, M.D., and Sharon Eder, M.D.; and the ME, William 

Spence, M.D. (Id) 

Concerning the latter, Dr. Spence provided the most thorough opinion regarding plaintiffs 

functioning, testifying at the April 2013 hearing that he had received and reviewed the entire medical 

3 Although plaintiff disclosed nausea and/or vomiting on a more regular basis, especially 

before the alleged onset date of disability, these symptoms did not result in persistent restroom 

usage per his own self-reports, as they typically occurred immediately upon waking and not on a 

daily basis. (Tr. 44, 421, 424, 428, 435.) 

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Case 2:14-cv-01908-AC Document 15 Filed 02/08/16 Page 7 of 10
record. (Tr. 33-40.) Dr. Spence summarized the relevant portions, noting plaintiffs infrequent 

complaints of symptoms that could be associated with significant bowel disease and largely benign 

test results; he also provided a RFC assessment, which the ALJ adopted. (Tr. 17, 20, 36-40, 52-53.) 

Significantly, Dr. Spence did not list the need for hourly or prolonged bathroom access as a concrete, 

work-related limitation of function, despite specifically acknowledging plaintiffs Crohn's disease 

diagnosis and corresponding treatment records. (Tr. 40.) Plaintiffs attorney was afforded an 

opportunity to cross-examine Dr. Spence but declined to ask any questions, commenting only that 

the doctor's testimony was "very complete." (Id.) 

To the extent plaintiff suggests that the ALJ should have developed the record more fully in 

regard to the frequency of his need to use the restroom, his argument is unavailing. (Pl.' s Opening 

Br. 9-10.) The claimant bears the burden of proving the existence or extent of an impairment, such 

that the ALJ' s limited "duty to futiher develop the record is triggered only when there is ambiguous 

evidence or when the record is inadequate to allow for proper evaluation." Mayes v. Massanari, 276 

F.3d 453, 460 (9th Cir. 2001). In this case, plaintiff simply neglected to furnish any credible 

evidence substantiating his claimed limitations, despite being afforded the chance to solicit such 

evidence from the ME at the hearing. That plaintiff neglected to carry his burden of proof does not 

equate to an ambiguity or inadequacy in the record, such that the ALJ' s decision should be affirmed 

as to this issue. 

Thus, there is no medical evidence of record establishing that plaintiff experienced disruption 

due to frequent and/or prolonged restroom usage to a degree that would preclude gainful 

employment. (See PJ's Opening Br. 9 (recognizing that "[n]o physician addressed how much time 

[plaintiffs] restroom access would disrupt his ability to work")); (see also Tr. 536-84 (medical 

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records from the adjudication period, in which no medical source opined that plaintiff is disabled or 

otherwise in need ofhourly restroom access, despite the fact that plaintiff inf01med his providers that 

he was seeking disability and brought in paperwork for them to complete).) Indeed, outside of his 

subjective symptom statements at the hearing, plaintiff does not identify any evidence that relates 

to the frequency of his bathroom usage. (See generally Pl.'s Opening Br.); see also McLeod v. 

Astrue, 640 F.3d 881, 888 (9th Cir. 2011) (as amended) (the claimant bears the burden of 

establishing how an alleged error is harmful). For these reasons, the ALJ's RFC and step five 

finding should be affirmed. 

Recommendation 

Based on the foregoing discussion, the Commissioner's decision should be AFFIRMED and 

this case should be DISMISSED. 

The above Findings and Recommendation will be referred to a United States District Judge 

for review. Objections, if any, are due no later than fourteen days after the date this Findings and 

Recommendation is filed. The paities are advised that the failure to file objections within the 

specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 

1153, 1156-57 (9th Cir. 1991). If no objections are filed, review of the Findings and 

Recommendation will go under advisement on that date. If objections are filed, any party may file 

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a response within fourteen days after the date the objections are filed. Review of the Findings and 

Recommendation will go under advisement when the response is due or filed, whichever date is 

earlier. 

I 

DATED this gfA-day of February 2016. 

i ! 

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J 

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'~~ /~············· ..... . 

(JOHN V. ACOSTA 

Unite~jkates Magistrate Judge 

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