OPINION & ORDER – 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PENNY GISH,

Plaintiff,

Case No. 6:14-cv-01938-SI

OPINION AND ORDER

v.

CAROLYN W. COLVIN,

Commissioner of Social Security,

Defendant.

Brenda S. Mosely, Attorney at Law, P.O. Box 1614, Bandon, OR 97411. Attorney for Plaintiff.

Billy J. Williams, United States Attorney, and Janice E. Herbert, Assistant United States 

Attorney, United States Attorney’s Office, District of Oregon, 1000 S.W. Third Avenue, Suite 

600, Portland, OR 97204-2902; Lisa Goldoftas, Special Assistant United States Attorney, Office 

of the General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 

221A, Seattle, WA 98104-2240. Attorneys for Defendant.

Michael H. Simon, District Judge.

Penny R. Gish seeks judicial review of the final decision of the Commissioner of the 

Social Security Administration (“Commissioner”) denying her application for Social Security 

Income (“SSI”). Because the Commissioner’s decision is supported by substantial evidence and 

free of legal error, the decision is AFFIRMED and this case DISMISSED.
OPINION & ORDER – 2

STANDARD OF REVIEW

The district court must affirm the Commissioner’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, but less than a preponderance.” Bray v. Comm’r Soc. Sec. Admin., 

554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 

Cir. 1995) (quotation marks omitted)). It means “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

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). Variable interpretations of the evidence are insignificant if the Commissioner’s 

interpretation is a rational reading of the record, and the Court may not substitute its judgment 

for that of the Commissioner. See Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 

1193 (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) (quotation marks omitted)). However, a reviewing court may not affirm the 

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

F.3d at 1225-26 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

BACKGROUND

A. Plaintiff’s Application

Ms. Gish filed an application for disability benefits on January 26, 2009 and for SSI 

benefits on February 10, 2009, alleging disability as of April 1, 2005. AR 325-31. Born in April 
OPINION & ORDER – 3

1965, Ms. Gish was 43 years old on the alleged disability onset date and 48 years old at the time 

of the latest hearing. AR 31, 325. She speaks English and reports completing the eleventh grade. 

AR 345, 350. She alleges disability due to degenerative disc disease of the lumbar and cervical 

spine, compression fracture of T11, arthritis in the neck and spine, severe back and neck pain, 

depression, and anxiety. AR 346, 360, 370. The Commissioner denied her application initially 

and upon reconsideration, and she requested a hearing before an Administrative Law Judge 

(“ALJ”). AR 13. After an administrative hearing, an ALJ issued an adverse decision on 

October 13, 2010. AR 13, 95-124, 138-51. The Appeals Council granted her subsequent request 

for review. AR 13, 152-56. A second hearing was convened on December 18, 2012, and the ALJ 

determined that Ms. Gish should undergo a consultative examination. AR 67-94. 

Following that examination, a final administrative hearing was convened on 

September 23, 2013. AR 31-66. In addition to Ms. Gish and a vocational expert (“VE”), 

testimony was taken from two medical experts. See id. The ALJ subsequently issued an adverse 

decision on December 9, 2013. AR 13-22. The Appeals Council denied Ms. Gish’s timely 

request for review, making the ALJ’s decision the final decision of the Commissioner. AR 1-3. 

Ms. Gish now seeks review in this Court.

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. 

§ 432(d)(1)(A). “Social Security Regulations set out a five-step sequential process for 

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); see also 20 C.F.R. 
OPINION & ORDER – 4

§ 404.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 

C.F.R. § 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. 

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving 

significant mental or physical duties done or intended to be done for pay 

or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing 

substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An 

impairment or combination of impairments is “severe” if it significantly 

limits the claimant’s physical or mental ability to do basic work activities. 

20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, 

this impairment must have lasted or be expected to last for a continuous 

period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the 

claimant does not have a severe impairment, the analysis ends. 20 C.F.R. 

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe 

impairment, the analysis proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis continues. At that point, the ALJ must 

evaluate medical and other relevant evidence to assess and determine the 

claimant’s “residual functional capacity” (“RFC”). This is an assessment 

of work-related activities that the claimant may still perform on a regular 

and continuing basis, despite any limitations imposed by his or her 

impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 

416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis 

proceeds to step four.

4. Can the claimant perform his or her “past relevant work” with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F.R. 

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform 

his or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 
OPINION & ORDER – 5

significant numbers in the national economy? If so, then the claimant is 

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 

404.1560(c), 416.960(c). If the claimant cannot perform such work, he or 

she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 953; see also 

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. 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. Bustamante, 262 F.3d at 953-54; 

Tackett, 180 F.3d at 1099.

C. The ALJ’s Decision

The ALJ performed the sequential analysis. AR 16-22. At step one, the ALJ found 

Ms. Gish had not engaged in substantial gainful activity since January 1, 2010, the alleged onset 

date. AR 16. At step two, the ALJ concluded Ms. Gish had the following severe impairments: 

degenerative disc disease of the cervical spine, degenerative disc disease of the lumbar spine,

remote compression fracture of T11, coronary artery disease, depressive disorder, and borderline 

intellectual functioning. AR 16-17. At step three, the ALJ determined that Ms. Gish did not have 

an impairment or combination of impairments that met or equaled a listed impairment. AR 17. 
OPINION & ORDER – 6

The ALJ next assessed Ms. Gish’s RFC and found that she could perform sedentary work

except that she was limited to simple, repetitive work. Id. At step four, the ALJ found that 

Ms. Gish was unable to perform her past relevant work. AR 21. At step five, based on the 

testimony of a VE, the ALJ concluded Ms. Gish could perform jobs that exist in significant 

numbers in the national economy, including table worker and optical lens inserter. AR 21-22.

Accordingly, the ALJ found Ms. Gish not disabled. AR 22.

DISCUSSION

Ms. Gish argues the ALJ erred by: (A) rejecting the medical opinion of her treating 

physician; (B) erroneously discrediting her subjective complaints of pain and limitation; and 

(C) failing to find her disabled under the Act at step five of the sequential analysis.

A. Medical Opinion Evidence

Ms. Gish argues the ALJ improperly rejected the medical opinion of her treating 

physician, Shana Jordan, M.D.1The ALJ is responsible for resolving conflicts in the medical 

record, including conflicting physicians’ opinions. Carmickle v. Comm’r, Soc. Sec. Admin., 533 

F.3d 1155, 1164 (9th Cir. 2008). The Ninth Circuit distinguishes between the opinions of three 

types of physicians: treating physicians, examining physicians, and non-examining physicians. 

 

1

In the beginning of Ms. Gish’s brief, in an section entitled “Issues for Review,” 

Ms. Gish indicates the ALJ erred by inadequately weighing the opinions of her treating 

physicians. In the discussion section of her brief, however, Ms. Gish only assigns error to the 

evaluation of the opinion of Dr. Jordan. The Commissioner contends that insofar as Ms. Gish 

asserts any other treating physician’s opinion was erroneously evaluated by the ALJ, any such 

argument is waived. Def.’s Br. 7. The Court agrees. See Indep. Towers of Wash. v. Wash., 350 

F.3d 925, 929 (9th Cir. 2003) (“Our Circuit has repeatedly admonished that we cannot 

‘manufacture arguments for an appellant and therefore we will not consider any claims that were 

not actually argued in appellant’s opening brief.”) (citation omitted); see also Carmickle, 533 

F.3d at 1161 n.2. The Court further notes that Ms. Gish did proffer a rebuttal to the 

Commissioner’s argument, as she declined to file a Reply Brief. Similarly, because Ms. Gish did 

not provide any specific arguments pertaining to the ALJ’s assessment of her alleged mental 

impairments, any such arguments are also waived.
OPINION & ORDER – 7

The opinions of treating physicians are generally accorded greater weight than the opinions of 

non-treating physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating doctor’s 

opinion that is not contradicted by the opinion of another physician can be rejected only for 

“clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991).

If a treating doctor’s opinion is contradicted by the opinion of another physician, the ALJ 

must provide “specific, legitimate reasons” for discrediting the treating doctor’s opinion. Murray 

v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Additionally, the ALJ must accord greater weight 

to the opinion of an examining physician than that of a non-examining physician. Lester, 81 F.3d 

at 830. As is the case with a treating physician’s opinion, the ALJ must provide “clear and 

convincing” reasons for rejecting the uncontradicted opinion of an examining physician. Pitzer v. 

Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). If the opinion of an examining physician is 

contradicted by another physician’s opinion, the ALJ must provide “specific, legitimate reasons” 

for discrediting the examining physician’s opinion. Lester, 81 F.3d at 830. Specific, legitimate 

reasons for rejecting a physician’s opinion may include its reliance on a claimant’s discredited 

subjective complaints, inconsistency with the medical records, inconsistency with a claimant’s 

testimony, or inconsistency with a claimant’s activities of daily living. Tommasetti v. Astrue, 533 

F.3d 1035, 1040 (9th Cir. 2008). It is error to ignore an examining physician’s medical opinion 

without providing reasons for doing so; an ALJ effectively rejects an opinion when he ignores it. 

Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir. 1996).

In a letter dated June 1, 2012, treating physician Dr. Jordan described Ms. Gish’s 

conditions as, “severe extensive degenerative joint disease of the cervical and thoracolumbar 

spine, as well as an old T11 compression fracture . . . [that] severely limit Ms. Gish’s mobility. 

She is also afflicted with chronic, difficult-to-control pain.” AR 714. Dr. Jordan concluded that, 
OPINION & ORDER – 8

“[i]n my opinion, Ms. Gish is totally disabled by her impairments.” Id. In a separate document 

dated June 15, 2012, Dr. Jordan reported Ms. Gish had limited flexion of the spine, limited neck 

mobility, abnormal gait, could not sit, stand, or walk for more than two of eight hours per 

workday, and would miss more than four days per month. AR 728-732. Dr. Jordan’s opinion was 

contradicted by examining consultative physicians Warren Yu, M.D., Homayoun Saeid, M.D.,

and Harvey Alpern, M.D., all of whom determined plaintiff was not completely disabled.2

AR 17, 18, 19-21, 33-39, 449-52, 1551-63. Accordingly, because Dr. Jordan’s opinion was 

contradicted, the ALJ was required to provide specific and legitimate reasons for rejecting her 

medical opinion. Lester, 81 F.3d at 830. 

The ALJ found that Dr. Jordan’s assessment of permanent disability was inconsistent 

with the medical record. AR 18 n.3. Specifically, the ALJ explained that plaintiff’s “physical 

examinations . . . showed normal findings regarding range of movement in both the cervical and 

lumbar spine, with no motor or sensory deficits, and normal gait,” which were inconsistent with 

Dr. Jordan’s assessed severely limited mobility. AR 18, 714. Review of the medical records cited 

by the ALJ supports his position. See AR 846 (stable gait, moves all extremities well, 

December 2011); AR 888 (free movement of neck without stiffness or pain; full range of motion 

(“ROM”) in all four extremities; able to stand, walk, squat, and ambulate without difficulty, 

January 2012); AR 970 (normal gait, July 2012); AR 999 (no midline cervical, thoracic, or 

lumbar tenderness; 5/5 strength in all extremities, Ms. Gish declined x-rays stating she only 

wanted pain medication, again, July 2012); AR 1025-26 (full ROM of neck, no motor weakness 

 

2

The Court notes that another treating physician, Dr. Fish, also opined plaintiff was 

disabled. AR 366. The ALJ reviewed Dr. Fish’s chart note, but accorded the doctor’s opinion 

little weight, finding it was internally inconsistent and based on Ms. Gish’s self-reports. AR 19-

20. As noted supra, because Ms. Gish did not provide any objection to the ALJ’s finding, any 

such argument is waived. See Indep. Towers of Wash., 350 F.3d at 929. Nonetheless, the ALJ 

provided legally sufficient reasons to discredit the opinion of Dr. Fish.
OPINION & ORDER – 9

in extremities, June 2012); AR 1555 (functional capability assessed at light level based on 

examination, January 2013); AR 1605 (normal extremities and gait, February 2013); AR 1617 

(normal neck ROM, March 2013).

Two separate chart notes from May 2013 discuss Ms. Gish’s physical exam and reflect

some limitation in her neck’s ROM. On May 1, 2013, although Mildred Rowley, M.D. reported 

“[n]ormal range of motion” for the musculoskeletal system, she also noted limited flexion in the 

neck, and limited flexion in the lower back. AR 1614. Two days later, Ms. Gish presented at Bay 

Area Hospital, where treating physician James Woods, M.D., Ph.D. reported decreased neck 

ROM. AR 1635. Dr. Woods, however, also found no evidence of acute fracture, cord 

compression, or anything “acute.” Id. Dr. Woods further reported 5/5 arm strength, no sensory 

deficit, and noted it was “[d]ifficult to sort out whether this is true nerve compression or just 

precipitated muscle spasm in the trapezius.” Id. Notably, the doctor found no lumbar abnormality 

and Ms. Gish did not describe lumbar pain at the time. Id.

Despite these isolated chart notes, the record as a whole contains substantial evidence 

supporting the ALJ’s weighing of Dr. Jordan’s opinion. First, neither of the doctors who reported 

decreased neck ROM in 2013 opined Ms. Gish was therefore disabled, unable to perform work 

or activities of daily living, or that anything beyond conservative treatment was indicated. See 

AR 1612-15, 1634-35. Next, the ALJ notes the MRI scans of Ms. Gish’s cervical spine in 2012 

revealed “mild” findings, “with no evidence of nerve root impingement.” AR 18. Indeed, the 

results were interpreted as showing “degenerative changes of the cervical spine . . . with only 

mild and moderate foraminal stenosis and no neural element impingement.” AR 724. 

Additionally, medical expert Dr. Alpern testified that Ms. Gish has “mild degenerative disc 

disease,” and her pain is “predominantly myofascial.” AR 34. Dr. Alpern also indicated Ms. Gish 
OPINION & ORDER – 10

was not totally disabled, assessing a sedentary RFC. AR 20, 34. Although Ms. Gish argues the 

medical imaging reveals a more serious pathological picture, the ALJ’s findings are nonetheless

specific and legitimate and supported by substantial evidence. Further, to the extent there is a 

conflict of medical evidence or opinion, “[t]he ALJ is responsible for resolving conflicts in the 

medical record.” Carmickle, 533 F.3d at 1164. For these reasons, the ALJ’s rejection of 

Dr. Jordan’s opinion was not legally erroneous.

B. Plaintiff’s Credibility

There is a two-step process for evaluating the credibility of a claimant’s testimony about 

the severity and limiting effect of the claimant’s symptoms. Vazquez 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 1029, 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 he has alleged; he need only show that it could reasonably have 

caused some degree of the symptom.” Smolen, 80 F.3d at 1282.

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, 503 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 
OPINION & ORDER – 11

discredit the claimant’s testimony.” Ortez v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing 

Bunnell, 947 F.2d at 345-46).

The ALJ may consider objective medical evidence and the claimant’s treatment history, 

daily activities, work record, and observations of physicians and third parties regarding

claimant’s alleged functional limitations. Smolen, 80 F.3d at 1284. The Commissioner 

recommends assessing the claimant’s daily activities, the location, duration, frequency, and 

intensity of the individual’s pain or other symptoms; factors that precipitate and aggravate 

symptoms; the type, dosage, effectiveness, and side effects of any medication the individual 

takes or has taken to alleviate pain or other symptoms; treatment, other than medication, the 

individual receives or has received for relief of pain or other symptoms; and any measures other 

than treatment the individual uses or has used to relieve pain or other symptoms. See Social 

Security Ruling (“SSR”) 96-7p, available at 1996 WL 374186. The ALJ may not, however, 

make a negative credibility finding “solely because” the claimant’s symptom “is not 

substantiated affirmatively by the objective medical evidence.” Robbins, 466 F.3d at 883.

Further, the Ninth Circuit has stated that an ALJ also “may consider . . . ordinary 

techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent 

statements concerning the symptoms, . . . other testimony by the claimant that appears less than 

candid [and] unexplained or inadequately explained failure to seek treatment or to follow a 

prescribed course of treatment.” Smolen, 80 F.3d at 1284. The ALJ’s credibility decision may be 

upheld overall even if not all of the ALJ’s reasons for rejecting claimant’s testimony are upheld. 

Batson, 359 F.3d at 1197.

Here, the ALJ indicated:

The claimant repeatedly complaints [sic] of chronic pain, primarily 

in the neck and back, although sometimes all over her body. Given 
OPINION & ORDER – 12

the mild to moderate nature of the claimant’s pathology . . . it is 

difficult to determine the exact etiology of the pain the claimant 

alleges in areas other than the neck and back. Although I give 

some weight to the claimant’s allegations of pain, she was not fully 

credible. For example, contrary to the claimant’s allegations of 

unremitting pain, the claimant admitted to treating sources that the 

pain is “waxing and waning,” i.e. intermittent in nature . . . . 

Moreover, the record shows the claimant’s treatment has been 

conservative, consisting of pain medication, and that the claimant 

has not been fully compliant with treatment[.]

AR 20. 

Ms. Gish argues that the ALJ failed to provide sufficiently specific evidentiary support 

for his credibility determination. In support, Ms. Gish contends her treating physicians indicated 

her pain could be explained by her impairments, and that it is not inconsistent for her to report

pain that is unremitting and also waxes and wanes. The ALJ accorded some weight to Ms. Gish’s 

allegations of severe pain in the neck and back, but determined that the objective medical 

evidence suggested only mild to moderate pathology. AR 20. Ms. Gish argues that while an ALJ 

may impugn a claimant’s credibility when objective medical evidence does not support the 

allegations of pain, it cannot be the only reason for doing so. Burch, 400 F.3d at 680. Here, 

however, the ALJ did not solely rely on the lack of objective evidence to impugn Ms. Gish’s 

credibility — he also noted the waxing and waning of her pain symptoms, conservative 

treatment, and her failure to be fully compliant with treatment. All of these rationales are valid in 

the Ninth Circuit. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012). Accordingly, 

the ALJ did not err by declining to accord full weight to Ms. Gish’s pain allegations aside from 

her neck and back pain. 

Ms. Gish further argues her allegation of unremitting pain is not inconsistent with 

evidence of waxing and waning pain because she also reported having days where pain keeps her 

incapacitated in bed, and that she does not have an “average day” because she is “controlled by 
OPINION & ORDER – 13

pain, anger, and depression.” AR 361. The ALJ, in support of his finding, cited a chart note from 

January 2012 wherein Ms. Gish reported “chronic waxing and waning neck and thoracic back 

pain[.]” AR 20. In the same chart note, Ms. Gish indicated she had not taken her Soma pain 

medication prior to the visit, and further that she “normally goes to a clinic and gets a Toradol 

shot for her symptoms, which usually helps.” AR 887. Ms. Gish’s reports of waxing and waning 

pain, and efficacy of injections directly contradicts her allegations of constant pain and inability 

to perform “any physical activities.” AR 370. Her reports also contradict her assertion at the 

hearing that “[n]othing I take helps the pain.” AR 53. 

As set forth above, an ALJ may employ ordinary techniques of credibility evaluation, 

including prior inconsistent testimony regarding symptoms. Smolen, 80 F.3d at 1284. Here, the 

ALJ appropriately identified the testimony he found not credible, and the evidence that he 

believed undermined the testimony. AR 20. The ALJ’s interpretation is reasonable and supported 

by substantial evidence in the record. As such, the ALJ’s rationale was not erroneous. To the 

extent alternative interpretations of the evidence are possible, they do not invalidate the ALJ’s 

rationale as. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (noting that the ALJ’s 

interpretation may not be the only reasonable interpretation, but where the ALJ’s interpretation is 

reasonable and supported by substantial evidence, it is not a court’s role to second-guess it).

The ALJ also discounted Ms. Gish’s credibility based on her conservative treatment,

which predominantly consisted of pain medication, as well as her failure to attend all of her 

medical appointments. AR 20. Ms. Gish contends her conservative treatment course was 

compelled by her lack of health insurance. It is inappropriate for an ALJ to make an adverse 

credibility finding when a claimant has a good reason for not seeking aggressive treatment, such 

as the inability to pay for such treatment. See Orn, 495 F.3d at 638; Gamble v. Chater, 68 F.3d 
OPINION & ORDER – 14

319, 321 (9th Cir. 1995). On the other hand, “if a claimant complains about disabling pain but 

fails to seek treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use such 

failure as a basis for finding the complaint unjustified or exaggerated . . . .” Chaudhry v. Astrue, 

688 F.3d 661, 672 (9th Cir. 2012) (quoting Orn, 495 F.3d at 638). Ms. Gish argues in briefing 

before the Court that the ALJ’s conservative treatment finding is erroneous because she would

have proceeded with surgery in 2006, but did not have the financial ability to do so. At the 

hearing, however, when the ALJ asked Dr. Alpern whether surgery was indicated based on the 

medical record, he answered in the negative. AR 38. As such, medical opinion regarding 

Ms. Gish’s surgical candidacy was divided, and the ALJ properly exercised his discretion in 

finding that more substantial treatment modalities were not indicated. See Carmickle, 533 F.3d at 

1164 (ALJ is responsible for resolving conflicts in the medical record) (citation omitted).

Accordingly, Ms. Gish’s contention that her treatment has been conservative because more 

effective treatment has been precluded by financial barriers is unavailing on this record. Again, 

Ms. Gish’s alternative interpretation of the evidence is insufficient to displace the ALJ’s finding.

Finally, the ALJ found Ms. Gish’s allegations lacked credibility because she “was not 

fully compliant with treatment, often missing appointments or failing to follow through with her 

doctor’s recommendations.” AR 20. While reviewing the record, the Court identified at least two 

instances where Ms. Gish presented at a hospital emergency room with pain complaints, but 

nonetheless reported she had not taken pain medication available to her prior to arriving. 

AR 514, 887. However, the ALJ failed to identify these instances with specifically and explain 

their import regarding Ms. Gish’s credibility. Nor did the ALJ identify any other occasion where 

Ms. Gish failed properly to take her pain medication. See AR 20. Similarly, the ALJ fails to 

identify any instances of Ms. Gish missing appointments, stating only that it happens “often.” Id. 
OPINION & ORDER – 15

Such reasoning is legally insufficient. In order to discredit claimant testimony, the ALJ must 

specifically identify questionable testimony and explain precisely what evidence undermines it. 

Reddick v. Chater, 157 F.3d, 715, 722 (9th Cir. 1998). Here, the ALJ’s general findings 

regarding missed appointments and failure to abide prescribed treatment do not meet the required 

legal threshold, and as such, cannot be upheld. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th 

Cir. 2001) (citation omitted).

In sum, the ALJ provided three valid reasons and one invalid reason for discounting 

Ms. Gish’s credibility. In the Ninth Circuit, the ALJ’s overall credibility decision may be upheld 

even if not all of the ALJ’s reasons for rejecting the claimant’s testimony are upheld. Batson, 359

F.3d at 1197. Such is the case here. Despite the ALJ’s single insufficient credibility rationale, the 

overall finding is nonetheless supported by substantial evidence in the record and otherwise free 

of legal error. Id. Accordingly, the ALJ’s finding concerning Ms. Gish’s credibility is upheld.

C. Step Five Findings

Ms. Gish contends that the ALJ failed to include all of her limitations when posing 

hypothetical questions to the VE regarding jobs in the national economy, rendering his testimony 

irrelevant. Ms. Gish’s assignment of error, however, is prefaced solely upon the ALJ’s failure to 

include the limitations set forth by Dr. Jordan. As explained above, the ALJ did not err in 

according Dr. Jordan’s medical opinion diminished weight. Indeed, the ALJ is not required to 

incorporate evidence from medical opinion evidence that was permissibly discounted. 

Batson, 359 F.3d at 1197. Ms. Gish provides little more than a restatement of her previous 

argument, and as such, her step five argument lacks merit. See Stubbs-Danielson v. Astrue, 539 

F.3d 1169, 1175-76 (9th Cir. 2008). The ALJ’s hypothetical questions to the VE were legally 

sufficient, and the ALJ properly identified sedentary jobs in the national economy that 
OPINION & ORDER – 16

Ms. Gish’s RFC would allow her to perform. AR 21-22. Accordingly, the ALJ’s decision not to 

award benefits is upheld.

CONCLUSION

The Commissioner’s decision that Ms. Gish is not disabled is based on proper legal 

standards and supported by substantial evidence. Thus, Ms. Gish’s request for remand (Dkt. 1) is

DENIED. The Commissioner’s decision is AFFIRMED, and this case DISMISSED.

DATED this 29th day of February, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge