IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ELIZABETH UNDERWOOD, Case No. 6:14-cv-00934-AA 

OPINION AND ORDER 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Acting Commissioner of Social 

Security, 

Defendant. 

AIKEN, Chief Judge: 

This action is brought pursuant to 42 U.S.C. § 405(g) to 

obtain judicial review of the final decision of the Commissioner 

of Social Security denying Plaintiff's application for 

Supplemental Ses;urity Income (SSI). For the reasons below, the 

Commissioner's decision is affirmed. 

1 - OPINION AND ORDER 

Case 6:14-cv-00934-AA Document 26 Filed 09/10/15 Page 1 of 13
Background 

On October 2 6, 2010, plaintiff protectively filed an 

application for SSI; plaintiff's application was denied 

initially and on reconsideration. Tr. 21. After requesting a 

hearing, plaintiff and a vocational expert (VE) testified before 

an Administrative Law Judge (ALJ) . Shortly thereafter, the ALJ 

issued a written decision finding that plaintiff was not 

disabled as of the alleged onset date. Plaintiff sought review 

from the Appeals Council, which denied the request for review. 

The Appeals Council also declined to consider supplemental 

evidence presented by plaintiff, determining that it was not 

relevant to the period before the ALJ's decision. Plaintiff now 

seeks judicial review from this Court. 

Plaintiff was forty-four years old at the time of her 

application, with a high-school education. Tr. 32-33. She 

alleges disability since October 2010 due to carpal tunnel 

syndrome, degenerative disc disease, and depression. 

Standard of Review 

The 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. 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 

2 - OPINION AND ORDER 

Case 6:14-cv-00934-AA Document 26 Filed 09/10/15 Page 2 of 13
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) 

(citation and internal quotations omitted). 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). Variable interpretations of the 

evidence are insignificant if the Commissioner's interpretation 

is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 

2005) . 

Commissioner's Decision 

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 impairment which can be expected... to last for a 

continuous period of not less than 12 months." 42 U.S.C. § 

423(d) (1) (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. At step 

one, the ALJ found that plaintiff had not engaged in 

"substantial gainful activity" since the date of her SSI 

application. Tr. 23; 20 C.F.R. § 416.920(b). 

3 - OPINION AND ORDER 

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At step two, the ALJ found that plaintiff had severe 

impairments of degenerative disc disease in the lumbar and 

cervical spine; degenerative joint disease of the right lower 

extremity; carpal tunnel syndrome; affective disorder; anxiety 

disorder; personality disorder; and substance abuse. Tr. 24; 20 

C.F.R. § 416.920(c). Considering plaintiff's substance abuse 

disorder, the ALJ found that her impairments met a "number of 

listed impairments that the [Commissioner] acknowledges are so 

severe as to preclude substantial gainful activity"; however, 

without plaintiff's substance abuse, the ALJ found that 

plaintiff's impairments did not meet or equal a listed 

impairment. 20 C.F.R. § 416.920(d); Tr. 24-26. 

The ALJ then determined that plaintiff had the residual 

functional capacity (RFC) to perform light work with occasional 

stooping and crawling; no climbing of ladders, ropes or 

scaffolds; and frequent fine fingering and gross handling. Tr. 

26-27; 20 C.F.R. § 416.920(e). The ALJ also found that plaintiff 

"can understand, remember, and carry out simple, repetitive 

tasks and can concentrate in two hour increments with usual and 

customary breaks, in total for an eight· hour workday." Tr. 27. 

The ALJ also found that plaintiff can work occasionally with the 

general public and in proximity to co-workers, and can interact 

frequently with supervisors. Based on this RFC finding, at step 

four the ALJ found that plaintiff was able to perform her past 

4 - OPINION AND ORDER 

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relevant work as a cleaner and housekeeper. Tr. 32; 20 C.F.R. § 

416.920(f). 

Alternatively, at step five, the ALJ found that plaintiff 

could perform other work in assembly production or as a touch-up 

screener. Tr. 33; Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 

416.920(g) Accordingly, the ALJ found plaintiff not disabled 

under the Act. 

Discussion 

Plaintiff argues the ALJ erred by improperly discounting 

her testimony. Plaintiff also argues that the Appeals Council 

improperly failed to consider supplemental evidence and include 

such evidence in the record. Alternatively, plaintiff maintains 

that the supplemental evidence is new and material and warrants 

remand pursuant to sentence six for review by ALJ. 

A. The ALJ's Evaluation of Plaintiff's Credibility 

Plaintiff contends that the ALJ improperly evaluated her 

testimony regarding the effects of carpal tunnel syndrome (CTS). 

Plaintiff contends that, contrary to the ALJ' s findings, her 

daily activities do not exceed her claimed limitations and the 

minimal medical treatment she received is a reflection of her 

financial situation. 

Once a claimant produces medical evidence of an impairment, 

the Commissioner may discredit the claimant's testimony as to 

the severity of symptoms only with clear and convincing reasons. 

5 - OPINION AND ORDER 

Case 6:14-cv-00934-AA Document 26 Filed 09/10/15 Page 5 of 13
Lingenfelter v. Astrue, 405 F. 3d 1028, 1036 (9th Cir .. 2007). In 

making these determinations the ALJ is allowed to use ordinary 

techniques used in the evaluation of credibility. Molina v. 

Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). The ALJ may also 

consider inconsistent or unexplained claimant testimony, failure 

to follow a course of treatment or recommendations of doctors, 

evidence of self-limiting behaviors, and a claimant's work 

history. See id.; Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 

Cir. 2002). 

The ALJ found that plaintiff's allegations were not 

credible for several reasons. Significantly, the ALJ noted that 

plaintiff had recent work experience inconsistent with the 

degree of disability she alleged. Tr. 28. At the administrative 

hearing, plaintiff testified that she worked five to eight hours 

per day, three to five days a week, at her substance abuse 

residential program. Tr. 44, 4 7. Her duties included answering 

the phone, making beds, and washing the dishes. Tr. 44, 47. When 

questioned about how this work affected her wrists and hands, 

plaintiff testified that her hands "hurt mostly at night" and 

"when [she is] not using them." Tr. 47. The ALJ also noted that 

several months prior to the hearing, plaintiff worked at a jail 

laundry facility from five to seven in the morning until four in 

the afternoon, during each day of her 45-day stay. Tr. 28, 50. 

Pl~intiff testified that her wrists hurt, but that she was able 

6 - OPINION AND ORDER 

Case 6:14-cv-00934-AA Document 26 Filed 09/10/15 Page 6 of 13
to complete the work because she wanted to earn her release. Tr. 

65' 69. 

I agree that this work history contradicts plaintiff's 

allegations of disability and supports the ALJ's credibility 

finding. "If a claimant is able to spend a substantial part of 

[her] day engaged in pursuits involving the performance of 

physical functions that are transferable to a work setting, a 

specific finding as to this fact may be sufficient to discredit 

a claimant 1 s allegations." Morgan v. Comm' r Soc. Sec. Admin., 

169 F. 3d 595, 600 (9th Cir. 1999); see also Molina, 674 F.3d at 

1113 ("Even where [a plaintiff's] activities suggest some 

difficulty functioning, they may be grounds for discrediting the 

claimant 1 s testimony to the extent that they contradict claims 

of a totally debilitating impairment.") . While plaintiff 

disagrees with the ALJ's interpretation of her work experience, 

"[w]hen the evidence before the ALJ is subject to more than one 

rational interpretation, we must defer to the ALJ 1 s conclusion." 

Batson v. Comm 1 r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 

2004) . 

The ALJ also found that plaintiff's CTS improved with 

treatment. Tr. 31. The record supports this finding, as 

plaintiff reported that the use of braces alleviated her wrist 

symptoms and a doctor found her CTS "well controlled with 

~upportive therapies." Tr. 490, 492-93. 

7 - OPINION AND ORDER 

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The ALJ also found that plaintiff made misrepresentations 

regarding her substance abuse. Tr. 29. In August 2010, plaintiff 

informed Dr. Slatick, an examining psychologist, that she had 

quit methamphetamine "for over a year" and "even gave up pot." 

Tr. 29, 419. However, in March 2010, a hospital physician 

reported that plaintiff had "stereotypic methamphetamine" 

behaviors and diagnosed her with methamphetamine abuse. Tr. 470-

71. Further, at the administrative hearing in August 2012, 

plaintiff testified that, until three weeks prior;, she had used 

marijuana "weekly" for thirty years and had used methamphetamine 

"once or twice a month" for fifteen years. Tr. 52. Thus, the 

finding that plaintiff was "not honest" with Dr. Slatick is 

supported by the record and is a valid basis for the adverse 

credibility finding. Tr. 29. 

Finally, the ALJ found that plaintiff's history of 

conservative medical treatment detracted from her subjective 

complaints. Tr. 31. Plaintiff contests this finding, arguing 

that her limited financial means prevented her from seeking 

other medical treatment. I agree, in part. While the record 

reflects that plaintiff did not pursue consistent treatment for 

her CTS, I do not uphold the ALJ's finding that plaintiff failed 

to pursue medical treatment generally and could have utilized 

"charity" programs. Tr. 31. 

8 - OPINION AND ORDER 

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However, plaintiff did not challenge the ALJ's findings 

regarding her work in the laundry, her improvement with 

treatment, or her misrepresentations of substance abuse. Thus, 

even if the ALJ erred in the evaluation of plaintiff's perceived 

conservative medical treatment, these additional reasons remain 

legally sufficient. See Carmickle v. Comm' r Soc. Sec. Admin. , 

533 F.3d 1155, 1162-63 (9th Cir. 2008). Thus, because the ALJ 

provided clear and convincing reasons supported by the record, 

the ALJ's evaluation of plaintiff's credibility is upheld. 

B. Supplemental Evidence Presented to the Appeals Council 

Plaintiff submitted sixteen pages of new medical records to 

the Appeals Council after the ALJ's September 2012 decision. The 

Appeals Council concluded that the supplemental records did not 

concern the period prior to the ALJ' s decision and declined to 

include the new evidence in the record. Tr. 2. 

Plaintiff contends that the Appeals Council "impermissibly" 

failed to consider the supplemental evidence relating to her 

disability. Pl.'s Brief at 9. Plaintiff maintains that the 

Appeals Council is required to consider such evidence and that 

it must be viewed as part of the record, citing Brewes v. Comm'r 

Soc. Sec. Admin., 682 F. 3d 1157 (9th Cir. 2012). However, the 

Appeals Council's denial of plaintiff's request for review is 

not subject to judicial review. The Social Security Act permits 

judicial review of the agency's "final decision." 42 U.S. C. § 

9 - OPINION AND ORDER 

Case 6:14-cv-00934-AA Document 26 Filed 09/10/15 Page 9 of 13
405 (g) The Appeals Council's denial of a request for review is 

not a final decision; rather, such denial renders the ALJ's 

decision as the "final decision" of the Commissioner. Sims v. 

Ap f e 1, 53 0 U . S . 10 3, 1 0 7 ( 2 0 0 0) . 

Moreover, plaintiff's supplemental medical evidence is not 

part of the administrative record subject to review by this 

Court. Pursuant to the relevant agency regulation, "if new and 

material evidence is submitted, the Appeals Council shall 

consider the additional evidence only where it relates to the 

period on or before the date of the administrative law judge 

hearing decision." 20 C.F.R. § 416.1470(b). Here, the Appeals 

Council "looked at" the new evidence dated October 2013 to 

January 2014, and determined that the "new information is about 

a later time." Tr. 2. Therefore, the Appeals Council found that 

the supplemental evidence did not relate to the period on or 

before the ALJ's decision, and the evidence was not incorporated 

into the record. 

Further, § 405(g) grants the Commissioner the discretion to 

prepare the administrative record: "As part of the 

Commissioner's answer the Commissioner of Social Security shall 

file a certified copy of the transcript of the record including 

the evidence upon which the findings and decision complained of 

are based." 42 U.S.C. § 405(g). The Commissioner did not include 

the supplemental evidence in the transcript of record. 

10 - OPINION AND ORDER 

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Finally, plaintiff's reliance on Brewes is unavailing. 

There, the Appeals Council accepted the proffered new evidence, 

made it part of the record, and determined that it did not 

provide a basis for changing the ALJ' s decision. Brewes, 682 

F.3d at 1161-62. The Ninth Circuit thus found that "when the 

Appeals Council considers new evidence in deciding whether to 

review a decision of the ALJ, that evidence becomes part of the 

administrative record." Id. at 1163; see also Ramirez v. 

Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993) (finding that new 

evidence presented to the Appeals Council is properly before the 

court when the Appeals Council examined the additional material 

and concluded "that the ALJ' s decision was proper and that the 

additional material failed to 'provide a basis for changing the 

hearing decision.'") . Unlike Brewes, the Appeals Council here 

did not accept plaintiff's new evidence and did not incorporate 

such evidence into the record. 

Alternatively, plaintiff argues that this Court should 

remand the case under "sentence six" of § 405(g) Sentence six 

permits remand to the agency to review "new evidence which is 

material," provided "there is good cause for the failure to 

incorporate such evidence into the record in a prior 

proceeding." 42 U.S.C. § 405(g). Plaintiff arguably meets the 

"new" and "good cause" requirements for sentence six remand; the 

supplemental medical records were obtained after the ALJ's 

11 - OPINION AND ORDER 

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decision and plaintiff contends that she lacked the financial 

ability to seek additional medical care prior to that time. 

However, plaintiff fails to demonstrate that the new evidence is 

material to the issue of disability. 

To be material, the new evidence "bear directly and 

substantially on the matter in dispute" and demonstrate a 

"reasonable possibility" that the evidence would change the 

outcome of the administrative hearing. Mayes v. Massanari, 276 

F.3d 453, 462 (9th Cir. 2001) Here, plaintiff's supplemental 

medical records reflect three office visits and one cervical 

spine x-ray. Doc. 19-1. During an office visit in October 2 013, 

plaintiff reported interrupted sleep due to "numbness" in her 

hands, and her provider gave her a set of wrist braces; 

plaintiff subsequently reported that the wrist braces and 

medication were "helping." Doc. 19-1 at 7, 11. In January 2014, 

plaintiff complained of neck pain, stinging in her hands, and 

difficulty grasping. However, plaintiff also had "pain free 

active [range of motion]" in both wrists. Doc. 19-1 at 2-3. 

Finally, a cervical spine x-ray in October 2013 showed "advanced 

degenerative changes." Doc. 19-1 at 5. Plaintiff contends that 

this evidence is material to the ALJ's decision and likely would 

have changed the outcome. 

I disagree. The supplemental evidence is merely cumulative 

of other evidence in the record; i.e., that plaintiff had CTS 

12 - OPINION AND ORDER 

Case 6:14-cv-00934-AA Document 26 Filed 09/10/15 Page 12 of 13
and degenerative disc disease and, although reporting neck and 

hand pain, she reported improvement with wrist braces and 

medication. Nonetheless, plaintiff argues that the x-ray may 

show that her disc degeneration is causing her CTS. However, as 

noted by the Commissioner, the ALJ found CTS to be a severe 

impairment, and the cause of this impairment is not 

determinative of plaintiff's functional limitations. Nothing in 

the supplemental evidence reflects limitations greater than 

those found by the ALJ. 

Accordingly, the supplemental evidence does not support 

remand for further review under sentence six. 

Conclusion 

The ALJ did not error in evaluating Plaintiff's 

credibility, and the new evidence presented by Plaintiff is not 

material and does not warrant remand pursuant to sentence six. 

Accordingly, the Commissioner's decision is AFFIRMED. 

IT IS SO ORDERED. '~ 

Dated this ~ ~~y of September, 2015. 

Ann Aiken 

U.S. District Judge 

13 - OPINION AND ORDER 

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