IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

OFELIA ROSAS-CARLOS, 

Plaintiff, 

v. 

CAROLYN V. COLVIN, Acting 

Commissioner of the Social Security 

Administration, 

Defendants. 

MCSHANE, Judge: 

Case No.: 6:14-CV-01441-SU 

OPINION AND ORDER 

Magistrate Judge Patricia Sullivan filed a Findings and Recommendation (ECF No. 18), 

and the matter is now before this Court. See 28 U.S.C. § 636(b)(l)(B); Fed.R.Civ.P. 72(b). 

Plaintiff filed objections to the report. Accordingly, I have reviewed the file of this case de nova. 

See 28 U.S.C. § 636(b)(l)(c); lYJcDonnell Douglas Corp. v. Commodore Bus. lYJach., Inc., 656 

F.2d 1309, 1313 (9th Cir. 1981). I find no error and conclude the report is c011'ect. 

Plaintiff argues that the ALJ failed to give clear and convincing reasons for rejecting her 

testimony regarding her need to take Vicodin and lie down or recline to relieve pain for periods 

of several hours, J-4 times per week. The ALJ's first reason for discrediting Plaintiffs 

subjective symptom testimony was its inconsistency with her testimony at the hearing. The ALJ 

placed emphasis on the fact that Plaintiffs need to sleep throughout the day resulted from her 

taking 3--4 Vicodin per day, as revealed by Plaintiffs own description of the Vicodin's side 

1 - OPINION AND ORDER 

Case 6:14-cv-01441-SU Document 25 Filed 12/30/15 Page 1 of 3
effects. Tr. 61, 66. While there appears to be some confusion as to the source of for Plaintiffs 

sleepiness, the ALJ provided additional clear and convincing evidence for rejecting Plaintiffs 

testimony through reference to Plaintiffs daily activities, including driving her daughter to and 

from school every day. Plaintiff attacks this reasoning on the basis that an individual taking 3-4 

Vicodin per day could ostensibly nap before, between, and after trips to her daughter's school. 

Although I agree with that assessment, this Court "must uphold the ALJ' s decision where the 

evidence is susceptible to more than one rational interpretation." Andrews v. Shalala, 53 F.3d 

1035, 1039-40 (9th Cir. 1995) (citations omitted). The ALJ provided a rational interpretation in 

his finding that Plaintiff, by way of engaging in chores and the other daily activities mentioned 

by the ALJ, is not debilitated by her drowsiness. I uphold the ALJ's decision regarding 

Plaintiffs testimony. 

Plaintiff fmiher argues that the ALJ failed to give legally sufficient reasons for providing 

little weight to the contradicted opinion of Dr. Martin Hurtado, Plaintiffs treating physician. Dr. 

Hurtado opined that Plaintiff could lift up to 10-20 pounds with her right aim but not even 5 

pounds with her left arm. Tr. 460. Dr. Hurtado also opined, in response to an inquiry as to 

whether Plaintiff could work a 40-hour work week, that: "Ifthere is a position that does not 

require repetitive use of both arms (I cannot think of one) then she could work full time." Tr. 

461. Dr. Hurtado also opined that Plaintiff would miss, on average, five days of work per month 

due to her medical symptoms. Tr. 461. The state agency reviewing physician, Dr. Neal Bemer, 

opined that Plaintiff had no limitations to the use of her right arm but could reach overhead with 

her left arm no more than occasionally, and he found no other limitations that would prevent 

Plaintiff from working. Tr. 80-81. Because Dr. Hurtado's opinion conflicts with that of Dr. 

Bemer, the ALJ must provide "specific and legitimate reasons that are suppo1ied by substantial 

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Case 6:14-cv-01441-SU Document 25 Filed 12/30/15 Page 2 of 3
evidence in the record" to properly accord little weight to Dr. Hurtado's opinion. Lester v. 

Chafer, 81 F.3d 821, 830 (9th Cir. 1995). 

The ALJ provides the following reasons for rejecting Dr. Hurtado's testimony: (1) the 

medical evidence of record substantiated a left shoulder impairment but no medical or diagnostic 

evidence suggests that Plaintiffs right, dominant arm is anything but fully functional, Tr. 26; (2) 

no medical evidence in the record suggests that Plaintiffs impairment would cause her to miss 

an average of more than five work days each month, Tr. 28; (3) Dr. Hu1tado's assessment of 

Plaintiffs right aim was inconsistent with Plaintiffs testimony that, other than basic overuse, 

she has no limitation on the use of her right arm, Tr. 62, 460; and ( 4) other treating medical 

providers opined that Plaintiff could perform work that required limited or no use of her left aim. 

Tr. 26, 341. These reasons, taken along with the ALJ's recognition of Dr. Hmtado's extended 

treating relationship with Plaintiff as well as the fact that Dr. Hurtado had not examined Plaintiff 

for eighteen months prior to the ALJ' s decision, constitute clear and convincing reasons 

supported by substantial evidence in the record for the ALJ's accordance of little weight to Dr. 

Hurtado' s opinion. 

In light of the foregoing, Judge Sullivan's Findings and Recommendation (ECF No. 18) 

is adopted in full. 

IT IS SO ORDERED. 

o.ol_e, 1 z_ D \-.;-

DATED this ',D day of Jamiai:rr2016. 

3 - OPINION AND ORDER 

Michael J. McShane 

United States District Judge 

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