PAGE 1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

GERALDINE DUENAS,

 Plaintiff, 

 v. 

 

CAROLYN W. COLVIN, 

Commissioner, Social Security Administration, 

 Defendant. 

Case No. 2:14-cv-01186-SI 

OPINION AND ORDER

Rory Joseph Linerud, Linerud Law Firm, P.O. Box 1105, Salem, OR 97308-1105. Of Attorneys 

for Plaintiff. 

Billy J. William, Acting United States Attorney, Janice E. Hebert, Assistant United States 

Attorney, U.S. Attorney's Office, District of Oregon, 1000 SW Third Avenue, Suite 600, 

Portland, OR 97204-2902; Alexis L. Toma, Special Assistant United States Attorney, Social 

Security Administration, Office of the General Counsel, 701 Fifth Avenue, Suite 2900, Mailstop 

221A Seattle, WA 98104-7075. Of Attorneys for Defendant. 

Michael H. Simon, District Judge.

Geraldine Duenas seeks judicial review of the final decision of the Commissioner of the 

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

Insurance Benefits. For the following reasons, the Court AFFIRMS the Commissioner’s 

decision. 

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PAGE 2 – OPINION AND ORDER 

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)). 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 this 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)). A reviewing court, however, may not affirm the 

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

F.3d at 1226. 

BACKGROUND 

A. Plaintiff’s Application 

Ms. Duenas filed an application for Disability Insurance Benefits on June 7, 2010, 

alleging disability beginning on June 15, 2009. AR 52. She was 55 years old at the alleged 

disability onset date and was 59 years old at the time the Administrative Law Judge (“ALJ”) 

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issued his opinion. AR 170. Ms. Duenas alleged disability due to numerous impairments, 

primarily relying on: fibromyalgia; low back pain syndrome; diabetes mellitus; hypertension; 

obesity; lumbosacral radiculopathy; obstructive sleep apnea; right foot pain status postbunionectomy; restless leg syndrome; anxiety disorders; dysthymia; and carpal tunnel syndrome. 

AR 54-55. The Commissioner denied her application initially and upon reconsideration; 

thereafter, she requested a hearing before an ALJ. AR 52. On December 6, 2012, the ALJ found 

Ms. Duenas was not disabled. AR 62. The Appeals Council declined Ms. Duenas’s request for 

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

seeks judicial review of that decision. 

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. 

§ 423(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. 

§§ 404.1520(a)(4) (DIB), 416.920(a)(4) (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each 

step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 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. 

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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 

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 

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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 applied the sequential analysis in his December 6, 2012 decision. AR 52-62. 

The ALJ began his opinion by noting that Ms. Duenas met the insured status requirements of the 

Social Security Act through June 30, 2014. AR 54. At step one, the ALJ determined Ms. Duenas 

had not engaged in gainful activity since the alleged onset date, June 15, 2009. Id. At step two, 

the ALJ found Ms. Duenas had the following severe impairments: fibromyalgia; low back pain 

syndrome; diabetes mellitus; hypertension; obesity; lumbosacral radiculopathy; obstructive sleep 

apnea; right foot pain post-bunionectomy; restless leg syndrome; and carpal tunnel syndrome. Id.

The ALJ found Ms. Duenas’s mental impairments were not severe, because her limitations to 

activities of daily living, social functioning, and concentration were mild and she had no 

episodes of decompensation. AR 55-56. At step three, the ALJ found Ms. Duenas did not have 

an impairment or combination of impairments that met or equaled one of the specific 

impairments listed in the regulations. AR 56. 

The ALJ next determined Ms. Duenas’s RFC and found that she could perform sedentary 

work, except that she could occasionally lift and carry articles such as docket files, ledgers, and 

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small tools; she could occasionally use her right lower extremity for foot control operation; she 

could stand or walk for about two hours and sit for six hours in an eight-hour workday; she could 

occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or stairs, but could never 

climb ladders, ropes or scaffolds; and she should avoid concentrated exposure to extreme cold, 

excessive vibration, poorly ventilated areas, pulmonary irritants, unprotected heights, and 

moving machinery. AR 57. At step four, the ALJ found that Ms. Duenas could perform her past 

relevant work as an office manager, as she had actually performed it. AR 61-62. Thus, at step 

four, the ALJ concluded that Ms. Duenas was not disabled from July 15, 2009, through the date 

of the decision, December 6, 2012. AR 62. 

DISCUSSION 

Ms. Duenas contends that the Commissioner’s decision is not supported by substantial 

evidence and is not based on the application of proper legal standards. She alleges the ALJ erred 

by: (1) improperly rejecting the opinion of Dr. Stewart Swena; (2) failing to comply with Social 

Security Ruling (“SSR”) 82-621

 in concluding at step four that Ms. Duenas could perform her 

past relevant work; (3) determining an RFC that did not have support in the medical evidence; 

(4) failing to consider the medical-vocational guidelines; and (5) failing to consider a closed 

period of disability. The Court addresses these arguments below. 

A. Opinion of Ms. Duenas’s Treating Physician 

Ms. Duenas contends that the ALJ improperly discounted the medical opinions in her 

record. Social Security regulations distinguish among the opinions of three types of physicians: 

(1) treating physicians, who treat the claimant; (2) examining physicians, who examine but do 

not treat the claimant; and (3) non-examining physicians, who neither examine nor treat the 

 1

 This ruling is available at 1982 WL 31386. 

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claimant, but review the claimant’s file. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); see

20 C.F.R. § 404.1527(d). The Ninth Circuit has explained how the Commissioner is to consider 

medical evidence. Generally, a treating physician’s opinion carries more weight than an 

examining physician’s, and an examining physician’s opinion carries more weight than a nonexamining physician’s. Holohan v. Massinari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. 

§ 404.1527(d). In addition, more weight shall be given to opinions that are explained than to 

those that are not and to the opinions of specialists concerning matters relating to their specialty 

over that of non-specialists. Holohan, 246 F.3d at 1202; 20 C.F.R. §§ 404.1527(c)(3)-(c)(5), 

416.927(c)(3)-(c)(5). Finally, the testimony of a non-examining medical advisor who testifies at 

the hearing and is subject to cross examination is entitled to greater weight than the opinions of 

other non-treating, non-examining physicians. Andrews, 53 F.3d at 1042; Lester, 81 F.3d at 831. 

If a treating physician’s medical opinion is not inconsistent with other substantial 

evidence in the record, and is supported by medically acceptable clinical findings, it is generally 

given controlling weight. Holohan, 246 F.3d at 1202; 20 C.F.R. § 404.1527(d)(2). An ALJ need 

not, however, accept a physician’s opinion that is brief, conclusory, or inadequately supported by 

clinical findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Crane v. Shalala, 76 

F.3d 251, 253 (9th Cir. 1996) (ALJ properly rejected check-off reports that did not contain any 

explanation of bases for conclusions). If an ALJ chooses to reject the uncontradicted opinion of a 

treating physician, he or she must provide “clear and convincing” reasons for doing so. Baxter v. 

Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). 

The ALJ is responsible for resolving any conflicts in the medical record, including 

conflicts among medical opinions. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 

(9th Cir. 2008). If the opinion of a treating physician is contradicted by a non-treating doctor, the 

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ALJ must provide “specific, legitimate reasons” supported by substantial evidence in the record 

for discrediting the treating physician’s opinion. Lester, 81 F.3d at 830-31; Andrews, 53 F.3d at 

1043. Specific, legitimate reasons for rejecting a medical opinion include reliance on a 

claimant’s discredited subjective complaints and inconsistency with medical records. Tommasetti 

v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). The contrary opinion of a non-examining 

physician cannot by itself justify rejecting the opinion of a treating or examining physician. 

Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 

1456 (9th Cir. 1984). 

If a treating physician’s opinion is not given controlling weight, it is still entitled to 

deference. SSR 96-2p at 4, 61 Fed. Reg. at 34,491. An ALJ may not simply disregard a treating 

physician’s opinion because it is not “well-supported” or because it is inconsistent with other 

substantial evidence in the record. Orn, 495 F.3d at 631; Ghanim v. Colvin, 763 F.3d 1154, 1161 

(9th Cir. 2014) (“Even if a treating physician’s opinion is contradicted, the ALJ may not simply 

disregard it.”). The opinion of a treating physician must be weighed using all the factors set out 

in 20 C.F.R. § 404.1527(c). SSR 96-2p at 4. The requisite factors include: the examining and 

treatment relationship, including the length and nature of that relationship; the specialization of 

the doctor; and the supportability and consistency of the medical opinion. 20 C.F.R. § 

404.1527(c). The regulations offer these factors for consideration, but do not require a thorough 

discussion. See Misener v. Astrue, 926 F.Supp.2d 1016, 1032 (N.D. Ind. 2013) (“The reasons 

given by the ALJ are facially consistent with the factors an ALJ is instructed to consider when 

determining how much weight to give to a medical opinion.”). 

Ms. Duenas asserts that the ALJ improperly discounted the opinion of her primary care 

physician, Dr. Swena. Dr. Swena offered diagnoses of Ms. Duenas’s medical conditions and an 

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assessment of her ability to work. The ALJ assigned “little to no weight to Dr. Swena’s 

assessment.” AR 60-61. Ms. Duenas argues that the ALJ erred in failing to comply with 20 

C.F.R. § 404.1527(c) and in failing to provide specific and legitimate reasons to reject 

Dr. Swena’s opinion. 

Ms. Duenas contends that the ALJ failed to comply with the requirements of 20 C.F.R. 

§ 404.1527(c) by not considering the specified factors in weighing the medical opinion of 

Dr. Swena. The ALJ’s decision, however, demonstrates that the ALJ did consider the relevant 

factors. The ALJ noted that Ms. Duenas presented to Dr. Swena in August 2008 and discussed a 

number of occasions between September 2008 and October 2012 where Ms. Duenas visited 

Dr. Swena. AR 59-61. The ALJ’s decision also included discussions of various examinations 

conducted by Dr. Swena including Romberg testing, a nerve conduction study, and fibromyalgia 

testing. AR 59. Further, the decision noted Dr. Swena’s treatment of Ms. Duenas’s muscle 

spasms, diabetes, blood pressure, and fibromyalgia pain. AR 60. The decision also specifically 

stated that Dr. Swena was Ms. Duenas’s primary care physician, so specialization was not a 

relevant factor. Id. Finally, the ALJ addressed whether Dr. Swena’s opinion was consistent with 

the record as a whole or supportable as the basis for discounting that testimony. Thus, although 

the ALJ did not specifically address the required factors in the decision he clearly considered all 

of the required factors when weighing the medical evidence. 

Ms. Duenas also argues that the ALJ failed to provide specific and legitimate reasons for 

discounting Dr. Swena’s opinions. The ALJ rejected Dr. Swena’s opinions because they were 

inconsistent with Dr. Swena’s own medical records and were inconsistent with the record as a 

whole. 

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The ALJ noted several inconsistencies between Dr. Swena’s assessment and his medical 

records. AR 60-61. As such, the ALJ concluded “Dr. Swena’s assessment appear[ed] to be based 

entirely on the claimant’s self-report rather than objective evidence. . . .” AR 61. The ALJ gave 

more weight to the contradicting opinions from two non-examining medical physicians, 

Drs. Berner and Alley, the state agency consultants who evaluated Ms. Duenas’s impairments 

and limitations. AR 61. 

The ALJ’s conclusion that Dr. Swena’s assessment of Ms. Duenas’s limitations was 

inconsistent with Dr. Swena’s own medical records is supported by substantial evidence in the 

record. Dr. Swena opined that Ms. Duenas could never manipulate or grasp, she could 

occasionally lift her right and left arm over shoulder level, and she could never balance, stoop, 

kneel, crouch, crawl, or climb. AR 736. Dr. Swena stated that he based his conclusions on 

Ms. Duenas’s multiple tender muscle trigger points, her nerve conduction test, and her lumbar 

MRI. AR 737. As noted by the ALJ, however, Dr. Swena’s conclusions were not supported by 

the results of Dr. Swena’s testing on Ms. Duenas. Ms. Duenas only had tender points in 

approximately seven out of 18 areas and her nerve conduction study produced only mild 

findings. AR 733. Additionally, as the ALJ noted, there were no MRI results in Ms. Duenas’s 

record. AR 61. The medical record suggests that Ms. Duenas never had an MRI, due to her 

claustrophobia. AR 123. Thus, the ALJ’s determination that Dr. Swena’s opinion was 

inconsistent with his own medical records is supported by substantial evidence in the record and 

constitutes a specific and legitimate reason to discount Dr. Swena’s opinion. 

There is also substantial evidence in the record showing that although Ms. Duenas sought 

treatment for various issues, they generally improved with treatment. See AR 455, 555-56 

(Ms. Duenas’s physical therapist noted that following Ms. Duenas’s bunionectomy, she rated her 

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pain at “2/10” when presenting for physical therapy that subsequently resulted in full range of 

motion in the right foot); AR 602 (Dr. Carlson noted that Ms. Duenas had only “mild edema” 

and her x-rays showed “good healing”); AR 375, 819 (Dr. Swena noted that Ms. Duenas reported 

“Savella seem[ed] to work for the fibromyalgia,” and that her “back pain and hip pain have gone 

away” with a vitamin D3 supplement); AR 578 (The Oregon Sleep Center records indicated that 

Ms. Duenas reported “very salient improvement” and a “rapid upswing in quality of life” after 

receiving a CPAP machine); AR 812-13 (Dr. Chang noted that in June 2010 Ms. Duenas 

reported that she was “feeling better” and that her pain overall was “less severe than before” and 

that she “[m]ay have some mild aches in hands and knees sometimes,” but had been “active in 

house and yard work,” was joining a wellness program three times a week, and her “pain level is 

mostly about 3/10.”). This evidence is inconsistent with the significant limitations ascribed to 

Ms. Duenas by Dr. Swena. Accordingly, the ALJ’s conclusion that Dr. Swena’s medical opinion 

was inconsistent with Ms. Duenas’s medical records as a whole is supported by substantial 

evidence in the record and is a specific and legitimate reason to discount Dr. Swena’s opinion. 

The ALJ’s decision demonstrates that the ALJ considered the required factors. The ALJ 

also provided two specific and legitimate reasons to reject Dr. Swena’s testimony. Accordingly, 

the ALJ did not err in weighing the medical evidence. 

B. Compliance with SSR 82-62 

Ms. Duenas argues that the ALJ failed to make findings regarding the physical and 

mental demands of her past work required by SSR 82-62. At step four, the ALJ determines 

whether a claimant could perform his or her relevant past work. 20 C.F.R. §§ 404.1520. 

Although the burden of proof lies with the claimant at step four, see, e.g., Valentine v. Comm’r 

Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009), the ALJ still has a duty to make the 

requisite factual findings to support a conclusion that the claimant is capable of performing the 

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relevant past work. Pinto, 249 F.3d at 844 (citing SSR 82-62). The ALJ can meet this duty by 

comparing the claimant’s RFC to the physical and mental demands of the claimant’s past 

relevant work. Id. at 844-45 (citing 20 C.F.R. §§ 404.1520(e)). “This requires specific findings 

as to the claimant’s residual functional capacity, the physical and mental demands of the past 

relevant work, and the relation of the residual functional capacity to the past work.” Id. at 845 

(citing SSR 82-62). 

SSR 82-62 explains the procedures for determining a disability claimant’s capacity to do 

past relevant work as set forth in the regulations. It establishes that “sufficient documentation 

will be obtained” of a claimant’s past work, including factual information about the work 

demands, including strength, endurance, manipulative ability, mental demands, and other job 

requirements. It also states that the claimant is the “primary source for vocational 

documentation” and that “in some cases” other sources, such as the Dictionary of Occupational 

Titles (“DOT”), may be used. 

The regulations set out two different tests for determining whether a claimant is capable 

of performing his or her past relevant work. SSR 82-61.2

 In one, the ALJ assesses the claimant’s 

ability to perform the actual demands of the particular past relevant job whereas the other 

assesses the claimant’s ability to perform the functional demands of that work as generally 

required by employers in the national economy. Id. Either test is dispositive. Id. The Ninth 

Circuit has explained that to determine how a claimant’s previous job was actually performed by 

a claimant, an ALJ may only consider a vocational report properly completed by the claimant or 

the claimant’s own testimony. Pinto, 249 F.3d at 845 (citing SSR 82-61 and 82-41). 

 2

 This ruling is available at 1982 WL 31387. 

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In assessing whether a claimant can perform past relevant work as generally performed in 

the national economy, an ALJ may also consult other vocational sources and obtain the 

testimony of a vocational expert. See 20 C.F.R. §§ 404.1560(b)(2); 404.1566(d). According to 

the Ninth Circuit, the “best source for how a job is generally performed is usually the [DOT].” 

Pinto, 249 F.3d at 845. A job description in the DOT creates a presumption as to how that job is 

preformed. Id. at 845-46. A claimant may overcome that presumption by demonstrating that the 

duties in his or her past work were not those envisaged by the drafters of the category. Villa v. 

Heckler, 797 F.2d 794, 798 (9th Cir. 1986). 

Here, the ALJ concluded that Ms. Duenas could perform the position of office manager 

as she actually performed, but relied upon the functional demands of that work as generally 

required by employers in the national economy to do so. Ms. Duenas testified about both her 

work history as well as her physical and mental limitations at the hearing. AR 77-100. 

Ms. Duenas also described some of the physical demands of her position as an office manager in 

a Work History Report. AR 237. The ALJ, however, did not address that testimony in his 

decision. Instead, the ALJ questioned a vocational expert and relied on DOT title 169.167-034 to 

determine the physical and mental demands of Ms. Duenas’s past work as an office manager.

AR 61-62. 

Because the ALJ did not make any specific findings about the physical and mental 

demands of the office manager position as actually performed by Ms. Duenas in order to 

compare those demands to the RFC, he was not able to determine Ms. Duenas’s ability to 

perform the actual demands of that past work. Pinto, 249 F.3d at 845.The ALJ did, however, 

comply with the requirements of SSR 82-62 by questioning the vocational expert about the DOT. 

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Although the ALJ concluded that Ms. Duenas could perform her past work as actually 

performed, he analyzed that work as generally performed. Because the ALJ did not make the 

requisite findings relating to how Ms. Duenas actually performed her past work as an office 

manager, the ALJ erred in concluding that Ms. Duenas could perform past relevant work as she 

actually performed. The Court finds this error to be harmless, however, because the ALJ made 

the requisite factual findings to support a conclusion that Ms. Duenas was capable of performing 

her past relevant work of office manager as it was generally performed in the national economy. 

With the assistance of the vocational expert’s testimony, the ALJ compared Ms. Duenas’s RFC 

to the DOT and concluded that Ms. Duenas could generally perform the physical and mental 

demands of an office manager. Thus, the ALJ’s conclusion that Ms. Duenas could perform her 

past relevant work is supported by substantial evidence in the record despite the fact that the ALJ 

identified the past relevant work as being performed as Ms. Duenas actually performed it instead 

of identifying it as being performed as generally performed in the national economy. 

C. RFC Determination 

Ms. Duenas also argues that the ALJ failed to comply with the requirements of 

SSR 96-8p3

 by failing to provide a narrative discussion describing how the record evidence 

supports each conclusion, citing to specific medical evidence and to nonmedical evidence. 

Ms. Duenas asserts that there is no evidence to support the ALJ’s conclusion that she was limited 

to sedentary work rather than less than sedentary work. Ms. Duenas also asserts there is no 

correlation between her severe impairments and the RFC limitations. 

 3

 This is available at 1996 WL 374184. 

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1. Failure to rely on record evidence and provide a narrative 

Ms. Duenas contends that the ALJ failed to comply with SSR 96-8p by not explaining 

how the medical evidence supported his conclusions. SSR 96-8p requires the ALJ to identify a 

claimant’s functional limitations or restrictions and assess the claimant’s work related abilities on 

a function-by-function basis, including a narrative discussion of both medical and nonmedical 

evidence. 

The ALJ did, however, explain how the medical and nonmedical evidence supported his 

RFC determination. The ALJ discussed Ms. Duenas’s treatment records from each treating 

source in detail, noting what, if any, limitations were supported by the opinions, what opinions 

were fully credited, and what evidence supported discounting aspects of the treating source 

opinion. The ALJ also discussed the opinions of the state agency consultants, and although he 

found them the most credible medical source, he included in Ms. Duenas’s RFC limitations 

greater than opined by the consultants. It is not, however, error for an ALJ to give the claimant 

the benefit of the doubt and allow for greater limitations than opined by the reviewing physician. 

See, e.g., Gontes v. Astrue, 913 F. Supp. 2d 913, 922 (C.D. Cal. 2012) (finding ALJ did not err in 

giving the plaintiff “the benefit of the doubt” and including in the RFC greater limitations than 

those opined to by the agency consultants); Ivory v. Colvin, 2013 WL 6182573 at *8 (E.D. Cal. 

Nov. 25, 2013) (finding the ALJ did not err in evaluating the medical record where the ALJ 

found the claimant lacked credibility, but “assessed a more restrictive RFC” than the limitations 

identified by the consultative examiner, “giving [the] plaintiff some benefit of the doubt”); 

Cortez v. Colvin, 2014 WL 1725796, at *6 (C.D. Cal. Apr. 30, 2014) (finding the ALJ did not err 

where the ALJ found the claimant was “less than fully credible” but nevertheless gave the 

claimant “the benefit of the doubt [and] found a more restrictive RFC” than those offered by 

consultative examiners). 

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PAGE 16 – OPINION AND ORDER 

The ALJ determined that Ms. Duenas could stand or walk for about two hours and sit for 

six hours in an eight-hour workday. AR 57. The ALJ discussed at length how Ms. Duenas’s 

medical evidence supported that determination. A variety of assessments made by Family Nurse 

Practitioner Hansell in 2009 and 2010 included obesity, hypertension, diabetes, and generalized 

anxiety. The ALJ concluded that although no doctor opined that obesity caused Ms. Duenas an 

inability to work, it “clearly affects her ability to stand and walk for extended periods.” AR 61. 

Despite earlier reports from Ms. Duenas about generalized pain, the ALJ determined that both 

Dr. Chang and Physical Therapist Tanner reported in 2010 that Ms. Duenas was doing well with 

only mild pain symptoms. 

The ALJ also determined that Ms. Duenas responded well to medical treatment. The ALJ 

concluded Dr. Carlson’s medical records indicated steady improvement and minimal pain 

following Ms. Duenas’s 2009 right foot bunion and neuroma. AR 59. The ALJ noted that 

Ms. Duenas reported successful treatment of her sleep apnea to Dr. Winde in 2010. AR 59-60. 

Thus, after reviewing Ms. Duenas’s medical record as a whole, and properly discounting 

Dr. Swena’s assessment, the ALJ concluded that the objective medical evidence “only supports 

mild impairment and pain.” AR 60. These explanations support the ALJ’s RFC. 

The ALJ also explained why he discounted some of the non-medical testimony. Although 

the ALJ recognized Ms. Duenas testified to additional limitations than included in the ALJ’s 

RFC determination, he did not find her testimony fully credible. Ms. Duenas has not challenged 

this credibility determination. Similarly, the ALJ found Robert Duenas, Ms. Duenas’s husband, 

“merely recites the claimant’s allegations” and “likewise lack[ed] credibility.” AR 61. Ms. 

Duenas also does not challenge the ALJ’s finding discounting her husband’s credibility. 

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PAGE 17 – OPINION AND ORDER 

The ALJ provided a sufficient narrative and explanation of how the medical and 

nonmedical evidence supports his RFC determination and thus did not err. 

2. Failure to explain the sedentary exertional category 

Ms. Duenas also contends that there is no evidence to support the ALJ’s determination 

that she could perform sedentary work as opposed to being restricted further. The ALJ, however, 

explained that determination as well. The ALJ noted that both state agency doctors, Drs. Berner 

and Alley, opined that Ms. Duenas could perform light work rather than merely sedentary work. 

AR 111-12, 123. The ALJ explained that he found Ms. Duenas’ limitations more severe than 

both of the state agency doctors, but noted that the opinions of Drs. Berner and Alley were “more 

consistent with the medical evidence than Dr. Swena’s statement.” AR 61. Thus, the ALJ 

supported his exertional category determination with a narrative discussion of the record 

evidence. 

3. Failure to include limitations relating to step two severe impairments 

Ms. Duenas further contends that at step two the ALJ found Ms. Duenas’s carpal tunnel 

syndrome and lumbosacral radiculopathy, among other impairments, to be severe impairments 

and yet did not include any corresponding limitations in the RFC. “A severe impairment need not 

necessarily ‘correspond to limitations on a claimant's ability to perform basic work 

activities . . . ‘.” Thomas v. Comm’r of Soc. Sec. Admin., 480 F. App’x 462, 463 (9th Cir. 2012) 

(quoting Bray, 554 F.3d at 1228-29). To avoid error, an ALJ must provide a “sufficient 

explanation why [he or] she included no limitation for a severe impairment . . . .” Giebudowksi v. 

Colvin, 981 F.Supp.2d 765, 777 (W.D. Ill. 2013) (quoting Taloff v. Astrue, 2013 WL 1499027, at 

*10 (N.D. Ill. Apr. 11, 2013)). Accordingly, here the ALJ needed to provide some discussion of 

the evidence that supports an RFC that does not contain limitations corresponding to 

Ms. Duenas’s severe (and nonsevere) impairments. The ALJ did so. 

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At step two, the ALJ found Ms. Duenas’s carpal tunnel and lumbar sacral radiculopathy 

were severe impairments. Ms. Duenas was diagnosed with carpal tunnel syndrome in 2006 and 

deferred surgery because the supplements she took helped to reduce swelling and pain. AR 748. 

In 2008, Ms. Duenas had positive Tinnel’s signs at both wrists, but her hand sensation was intact 

and she had no atrophy of the thenar muscles. AR 662. Also in 2008, Ms. Duenas underwent a 

nerve conduction study, which found that her upper extremity sensory findings showed normal 

median DSL and SNAP amplitude. AR 650. With respect to Ms. Duenas’s radiculopathy, the 

2008 nerve conduction study found only mild and chronic radiculopathy. Id. Thus, the ALJ cited 

to substantial evidence to support his conclusion that during the relevant time period, 

Ms. Duenas had only minimal limitations from her carpal tunnel syndrome and lumbosacral 

radiculopathy. AR 54, 59. Accordingly, the ALJ did not err in failing to include in the RFC 

limitations associated with Ms. Duenas’s carpal tunnel syndrome and lumbosacral radiculopathy. 

The ALJ also found at step two that Ms. Duenas had several other severe impairments. 

The ALJ’s discussion of the medical evidence sufficiently explains the limitations ascribed to 

Ms. Duenas and the reasons for not ascribing limitations for certain conditions. Accordingly, the 

ALJ did not err by failing to provide limitations in the RFC for conditions he found to be severe 

at step two. 

D. Medication-Vocational Guidelines 

Ms. Duenas contends that the ALJ erred by failing to determine whether she is disabled 

pursuant to the Medical-Vocational Guidelines (“the Grids” or “Grid Rule”). The Grids are a 

matrix of Social Security regulations that determine whether an applicant’s vocational factors of 

age, education, and past work experience determine disability. 20 C.F.R. Part 404, Subpt. P, 

App. 2; SSA, POMS, § DI 25025.005 (Feb. 13, 2015). If an ALJ determines a claimant cannot 

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PAGE 19 – OPINION AND ORDER 

do past relevant work in step four, the Grids are used in step five to determine disability. 

20 C.F.R. § 404.1520 (a) (4). 

Ms. Duenas alleges that she meets Grid Rule 201.06 and is therefore disabled within the 

meaning of the Social Security Act. Because the ALJ determined Ms. Duenas was not disabled at 

step four, the ALJ did not have a duty to proceed to step five or to consider any of the Grid 

Rules. Thus, the ALJ did not err in failing to consider the Grid Rules. 

E. Closed Period of Disability 

Ms. Duenas asserts that the ALJ failed to analyze her claim for a possible closed period 

of disability. To support this assertion, Ms. Duenas notes that Dr. Swena’s medical statement of 

October 3, 2012 evaluated Ms. Duenas’s limitations over a closed period, from June 15, 2009 

through September 4, 2012. AR 736. A claimant may be entitled to a closed period of disability 

if he or she can establish disability within the meaning of the statute, but is no longer disabled at 

the time of adjudication. 20 C.F.R. § 404.1594. To establish a closed period of disability, the 

evidence must show the onset date, the duration requirement, and the date disability ceased. Id.

Here, Ms. Duenas applied for disability benefits, alleging disability beginning 

June 15, 2009. AR 52. Ms. Duenas did not allege a closed period of disability or assert any 

change in her medical status to justify a closed period of disability. Instead, Ms. Duenas now 

suggests that because Dr. Swena evaluated Ms. Duenas for closed period of time, the ALJ should 

have considered Ms. Duenas’s disability for that closed period of time. This argument fails for 

several reasons. 

First, the ALJ found Ms. Duenas not to have been disabled at any time since the alleged 

onset date. AR 62. This necessarily includes a finding that she was not disabled during the time 

period of Dr. Swena’s evaluation. Second, Dr. Swena’s medical evidence is only one of many 

medical reports in Ms. Duenas’s record, which spans from April 4, 2009 to September 4, 2012. 

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PAGE 20 – OPINION AND ORDER 

Finally, because the ALJ discounted Dr. Swena’s opinion, the ALJ did not have a duty to address 

the specific time period Dr. Swena treated Ms. Duenas. Under the circumstances of this case, the 

ALJ did not err in failing to consider separately whether Ms. Duenas had a closed period of 

disability. 

CONCLUSION 

The Commissioner’s decision is AFFIRMED. 

IT IS SO ORDERED. 

DATED this 25th day of November, 2015. 

 /s/ Michael H. Simon 

Michael H. Simon 

 United States District Judge 

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