IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MONA SANDS, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security, 

Defendant. 

Merrill Schneider 

Schneider Kerr & Gibney 

P.O. Box 14490 

Portland, OR 97293 

Attorney for plaintiff 

Billy J. Williams 

Acting United States Attorney 

District of Oregon 

Ronald K. Silver 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97201-2902 

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 98104-7075 

Attorneys for defendant 

1 - FINDINGS AND RECOMMENDATION 

Civ. No. 3:14-cv-01637-TC 

FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 1 of 17
COFFIN, Magistrate Judge: 

Plaintiff brings this action pursuant to the Social Security Act 

(the Act), 42 U.S. C. §§ 405 (g), to obtain judicial review of a final 

decision of the Commissioner of Social Security (Commissioner) . The 

Commissioner denied plaintiff's application for Disability Insurance 

Benefits (DIB) under the Act. The Commissioner's decision should be 

affirmed and the case dismissed. 

PROCEDURAL BACKGROUND 

On November 3, 2010, plaintiff applied for DIB, alleging 

disability beginning November 22, 2008. Tr. 17. Her application was 

denied initially and upon reconsideration. Tr. 17. On February 2 2, 

2013, a hearing was held before an Administrative Law Judge 

wherein plaintiff appeared with an attorney and testified. Tr. 

(ALJ), 

28-60. 

A vocational expert (VE) also appeared by telephone and testified. 

Tr. 56-59. On March 13, 2013, the ALJ issued a decision finding 

plaintiff not disabled from November 22, 2008, through December 31, 

2012, the date last insured. Tr. 17-27. On August 12, 2014, the 

Appeals Council denied review, rendering the ALJ' s decision final. 

Tr. 1-3. Plaintiff now seeks judicial review. 

Plaintiff was fifty-four years old at the time of the ALJ' s 

decision and has a G.E.D. Tr. 140, 168. She had worked as a proof 

machine operator in a bank for 27 years and as a lead proof machine 

operator supervisor for about one and a half years. Tr. 56-57. 

Plaintiff alleges disability as of November 22, 2008, due to various 

physical and mental ailments, including obesity, diabetes, 

fibromyalgia, chronic pain, panic attacks, and depression. Tr. 61. 

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Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 2 of 17
STANDARD OF REVIEW 

This 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 conclusion. 11 Richardson v. Perale~, 

402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 

305 U.S. 197, 229 (1938)). The court must weigh "both the evidence 

that supports and detracts from the [Commissioner's] conclusions. 11 

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). 

The Commissioner's findings are upheld if supported by 

inferences reasonably drawn from the record; if evidence exists to 

support more than one rational interpretation, the court must defer 

to the Commissioner's decision. Batson v. Comm'r Soc. Sec. Admin., 

359 F. 3d 1190, 1193 (9th Cir. 2004) . 

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, a 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 . 

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Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 3 of 17
to last for a continuous period of not less than 12 months II 

42 O.S.C. § 423(d) (1) (A) 

The ALJ evaluated plaintiff's allegation of disability pursuant 

to the relevant five-step sequential process. 

U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. 

Bowen v. Yuckert, 4 8 2 

At step one, the ALJ 

found that plaintiff had not engaged in substantial gainful activity 

since the alleged onset date, November 22, 2008, through her date last 

insured of December 31, 2012. Tr. 19; 20 C.F.R. § 404.1520(a)(4)(i). 

At step two, the ALJ found that plaintiff had severe physical 

impairments of obesity and inflammatory arthritis, but 

plaintiff's mental impairments of anxiety, panic disorder, 

that 

and 

depression were nonsevere. Tr. 19-21; 20 C.F.R. § 404.1520(a) (4) (ii). 

In making that finding, the ALJ considered the four broad functional 

areas enumerated in the disability regulations for evaluating mental 

disorders (known as "paragraph B" criteria) . Tr. 21; 20 C.F.R. § 404, 

Subpt. P, App. 1, 12.00 (C). 

At step three, the ALJ found that plaintiff's medically severe 

impairments did not meet or equal one of a number of listed 

impairments that the Commissioner acknowledges are so severe as to 

preclude gainful activity. Tr. 21; 20 C.F.R. § 404.1520(d). Because 

plaintiff was not presumptively disabled at step three, the ALJ 

continued to evaluate how plaintiff's impairments affected her ability 

to work by assessing her residual functional capacity (RFC). 

20 C.F.R. § 404.1520(e). 

Tr. 22; 

At step four, the ALJ found that plaintiff had the RFC to 

"perform sedentary work as defined in 20 CFR 404.1567(a), except she 

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Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 4 of 17
must avoid exposure to hazards and heights." Tr. 22. Based on 

plaintiff's assessed RFC and the testimony of the VE, the ALJ found 

that plaintiff could perform her past relevant work as a proof machine 

operator. Tr. 26; 20 C.F.R. § 404.1520(e). Because the ALJ 

determined that plaintiff could perform her past relevant work, the 

inquiry did not proceed to step five, and the ALJ found plaintiff not 

disabled under the meaning of the Act. 

404 .1520 (a) (4) (iv). 

DISCUSSION 

Tr. 27; 20 C.F.R. § 

Plaintiff asserts that the Commissioner's decision should be 

reversed and she be found disabled as of November 22, 2008, or in the 

alternative, the case be remanded for a fair and thorough evaluation 

of the following issues. P 1. ' s Br. 4, 16. Plaintiff argues the ALJ 

erred by: (1) improperly finding her testimony not credible; (2) 

failing to properly consider her poor eyesight in the RFC assessment; 

( 3) improperly disregarding the opinion of Dr. Thomas Har burg, her 

primary care physician; and (4) failing to provide reasons supporting 

his rationale for the "paragraph B" criteria. 

A. Credibility Determination 

Plaintiff argues that the ALJ failed to provide clear and 

convincing reasons for discrediting plaintiff's testimony. Pl.' s Br. 

11-16. 

Unless there is affirmative evidence showing that the claimant 

is malingering, the Commissioner's reasons for rejecting the 

claimant's subjective testimony must be clear and convincing. Burch, 

400 F.3d at 680 (9th Cir. 2005). The ALJ must identify what testimony 

5 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 5 of 17
~) 

is not credible and what evidence undermines the claimant's complaints. 

Id.; Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Examples 

of clear and convincing reasons include conflicting medical evidence, 

effective medical treatment, medical noncompliance, inconsistencies 

either in the claimant's testimony or between her testimony and her 

conduct, daily activities inconsistent with the alleged symptoms, a 

sparse work history, testimony that is vague or less than candid, and 

testimony from physicians and third parties about the nature, 

severity and effect of the alleged symptoms complained. Tommasetti v. 

Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Lingenfelter v. Astrue, 

504 F. 3d 1028, 1040 (9th Cir. 2007); Light v. Social Sec. Admin., 119 

F.3d 789, 792 (9th Cir. 1997). 

The ALJ found plaintiff's complaints concerning the intensity, 

persistence, and limiting effects of her pain and anxiety attacks were 

not fully credible because: ( 1) plaintiff's complaints increased in 

severity after she applied for disability benefits and was denied; and 

(2) plaintiff had made inconsistent statements regarding her ability 

to drive and care for herself, the frequency of her panic attacks, and 

her reasons for leaving work and ability to look for work. Tr. 23-24. 

First, the ALJ found that plaintiff's complaints of limitations 

increased in severity after she applied for disability benefits and 

was denied. Tr. 23. Specifically, the ALJ noted that in September 

2011, after being denied disability benefits, plaintiff asked her 

primary care physician, Dr. Thomas Harburg, to place a note in her 

chart stating she was disabled, which Dr. Harburg declined to do. Tr. 

23, 295-96. Shortly thereafter, in October 2011, plaintiff reported 

6 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 6 of 17
to Dr. Harburg that many things "had changed," including that she had 

pain in· her arms and legs, which affected her ability to do things 

around the house, but plaintiff admitted that she was visiting Dr. 

Harburg primarily to document her symptoms. Tr. 23, 297. 

In determining credibility, "an ALJ may engage in ordinary 

techniques of credibility evaluation, such as considering claimant's 

reputation 

testimony." 

for truthfulness and inconsistencies 

Burch, 400 F.3d at 680 (9th Cir. 2005). 

in claimant's 

The ALJ found 

that plaintiff's statements suggested that she was seeking treatment 

primarily to generate evidence for her application and appeal, rather 

than an attempt to obtain relief from her alleged symptoms. Tr. 23, 

297. Here, the ALJ properly cited inconsistencies in the evidence to support 

his reasons for discrediting plaintiff's statements. 

Second, the ALJ found plaintiff had made inconsistent statements 

regarding numerous matters relevant to her disability. Specifically, 

the ALJ noted that plaintiff testified in 2013 that she had not driven 

for three to four years; contradicting plaintiff and her mother's 

reports that she drove once a month, plaintiff's March 2011 report to 

Dr. Ellison that she could "drive a car without difficulty," and Dr. 

Harburg' s medical notes indicating that plaintiff reported that she 

was still driving, but with difficulty. 

297. 

Tr. 24, 36, 176, 192, 267, 

The ALJ also found plaintiff's testimony not credible with 

respect to plaintiff's dependence on her mother for care and support. 

Tr. 23. The ALJ found it hard to believe that plaintiff's 83-year old 

mother, who had had multiple strokes and who was overweight herself, 

7 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 7 of 17
would be able to help care for plaintiff to the degree alleged. Tr. 

23. The ALJ also noted that plaintiff reported that she was 

independent with respect to her personal care needs, yet also reported 

to Dr. McCabe that she depended on her mother to dress and bathe her, 

with no medical evidence of an objective change in her condition to 

warrant this care. Tr. 24, 189-197. 

An ALJ can discredit a plaintiff's testimony if it is found to be 

"unbelievable in general, not because the extent and severity of the 

appellant's pain or fatigue was unsupported by medical evidence." 

Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) Here, the ALJ 

found plaintiff's claims quite "extreme," and given the evidence of 

record, his decision to discredit plaintiff's testimony is reasonable. 

Tr. 23. 

With regards to her panic attacks, the ALJ noted that plaintiff 

had not reported any unusual fears or behaviors as the cause for the 

alleged attacks and also noted inconsistencies in the frequency of the 

reported attacks. Tr. 24. Specifically, the ALJ noted that in April 

2011, plaintiff reported having two to three panic attacks daily, and 

in May 2011, to having at least one panic attack per day. Tr. 2 4, 

200, 283. However, the ALJ noted that at the 2013 hearing, plaintiff 

testified to having panic attacks six to eight times a month for the 

past two years, and only having about five a month in 2008. Tr. 54. 

Finally, with respect to plaintiff's reasons · for leaving work, 

the ALJ cited inconsistencies between plaintiff's testimony that she 

left her job due to impairments, and her earlier reports that she was 

laid off; Tr. 24, 41, 225, 243-44 . The ALJ also noted that plaintiff 

. 8 ~ FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 8 of 17
reported looking for other jobs, but stated no one was hiring and that 

she had never been trained on a computer. Tr. 46. The ALJ found that 

this suggested that plaintiff was still able and willing to work at 

the time she left her full time job, ·and that it was not a disabling 

impairment that led her to stop working. Tr. 24, 46. 

Here, the ALJ provided clear and convincing reasons, supported by 

substantial evidence, for rejecting plaintiff's testimony. While 

variable interpretations of this evidence may exist, the ALJ' s 

analysis was nonetheless reasonable, such that it must be upheld. 

Batson, 359 F.3d at 1198 (9th Cir. 2004). Thus, I find that the ALJ 

did not arbitrarily discredit plaintiff's testimony. 

B. Vision Impairments 

Plaintiff argues that the ALJ erred by failing to consider 

functional limitations resulting from her poor eyesight in the RFC 

assessment. Pl.'s Br. 4-7. The ALJ did not find plaintiff's vision 

to be a severe impairment at step two and did not address any vision 

impairments in the RFC. 

At step two, the ALJ determines if the claimant has a "severe" 

impairment that "significantly limits [the claimant's] physical or 

mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). 

A severe impairment cannot be established on the basis of symptoms 

alone; it must be supported by a medical diagnosis. Ukolov v. 

Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005); 20 C.F.R. § 404.1508. 

"An impairment or combination of impairments can be found not severe 

only if the evidence establishes a slight abnormality that has no more 

than a minimal effect on an individual's ability to work." Smolen v. 

9 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 9 of 17
Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (internal quotation marks 

and citations omitted) "Step two, then, is. 'a de minimis screening 

device [used] to dispose of groundless claims,' and an ALJ may find 

that a claimant lacks a medically severe impairment or combination of 

impairments only when his conclusion is 'clearly established by 

medical evidence.' 11 Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 

2005) (quoting Smolen, 80 F.3d at 1290 and S.S.R. 85-28) 

On March 5, 2011, Dr. John Ellison, performed a comprehensive 

musculoskeletal examination of plaintiff. Tr. 2 67. He conducted a 

Snellen's test which revealed plaintiff had 20/70 vision in both eyes 

and that plaintiff was very myopic. Tr. 268. However, Dr. Ellison did 

not diagnose a visual impairment and instead indicated that plaintiff 

needed a new glasses prescription for her eyes. Tr. 2 68. Thus, the 

ALJ did not err by failing to find plaintiff's vision to be a severe 

impairment, as it was not clearly established by medical evidence. 

Likewise, the ALJ did not err in failing to consider plaintiff's 

poor eyesight in the RFC assessment. The RFC has three components: 

physical abilities, mental abi'li ties, and other impairments, including 

pain, fatigue, and vision. 20 C.F.R. § 404.1545(a), (d). To move 

beyond step two, the claimant must prove the existence of a physical 

or mental impairment by providing medical evidence consisting of 

signs, symptoms, and laboratory findings. 20 C.F.R. § 404.1508. A 

plaintiff's statements about pain or other symptoms will not alone 

establish disability; there must be clinical signs such as 

laboratory findings or diagnoses that show the claimant has a 

medical impairments which could reasonably be expected to produce the 

10 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 10 of 17
pain or other symptoms alleged and which, when considered with all 

of the other evidence, including statements about the intensity and 

persistence of the pain or other symptoms, would lead to a 

conclusion of disability. 20 C.F.R. § 404.1529. 

Plaintiff alleged problems with her vision in her December 20, 

2010 Function Report form; later, in her May 18, 2011 Disability 

Report-Appeal form, she stated that her eyesight had become so bad she 

could hardly see what was on a television. Tr. 194, 200. On October 

12, 2011, plaintiff called her physician and mentioned not having any 

vision in her left eye, and at the 2013 hearing she testified that she 

could not see the computer screen very well at work. Tr. 40, 291. 

However, multiple doctors examined plaintiff - including Dr. Ellison, 

who determined that plaintiff needed a new prescription for her eyesand none diagnosed her with a visual impairment. Tr. 22 6, 2 50, 2 68, 

286. 

Also, even if the ALJ failed to address plaintiff's poor 

eyesight, it is harmless error. An ALJ's error is considered harmless 

if it is "'inconsequential to the ultimate nondisability 

determination' in the context of the record as a whole." Molina v. 

Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) (quoting Stout v. Comm'r, 

Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Here, the lack 

of objective medical findings pertaining to plaintiff's visual 

limitations, paired with the ALJ properly discrediting plaintiff's 

testimony above, is sufficient to affirm the step two findings and the 

ALJ not assessing the plaintiff's poor eyesight in the RFC assessment. 

11 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 11 of 17
In sum, the ALJ did not err in conducting the RFC assessment. As 

discussed above, plaintiff failed to show that her vision was an 

impairment at step two to require it to be considered in the RFC 

assessment. Further, because evidence of plaintiff's visual 

impairments rests upon her subjective statements alone, and the ALJ 

provided clear and convincing reasons for discrediting plaintiff's 

testimony, the ALJ did not err in not considering plaintiff's poor 

eyesight in the RFC assessment. 

C. Opinion of Treating Physician, Dr. Harburg 

Plaintiff argues that the ALJ failed to provide specific and 

legitimate reasons for rejecting the opinion of Dr. Thomas Harburg, 

plaintiff's treating physician. Pl.'s Br. 9-11. 

The medical opinion of a plaintiff's treating physician is 

entitled to "special weight" because "he is employed to cure and has a 

greater opportunity to know and observe the patient as an individual." 

Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989). An ALJ may 

reject the uncontradicted medical opinion of a treating physician 

only for "clear and convincing" reasons supported by substantial 

evidence in the record. Holohan v. Massanarir 246 F.3d 1195, 1202, 

(9th Cir. 2001) (citing Reddick, 157 F.3d at 725 (9th Cir. 1998)). If 

contradicted, the ALJ may reject the opinion with specific and 

legitimate reasons supported by substantial evidence in the record. 

Holohan, 246 F.3d at 1202; Lester v. Chaterr 81 F.3d 821, 830 (9th 

Cir. 1995) . 

The ALJ gave little weight to Dr. Harburg's opinion noting that 

Dr. Har burg's reports were based "quite heavily on the subjective 

12 - FINDINGS AND RECOMMENDA.TION 

Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 12 of 17
report of symptoms and limitations provided by the [plaintiff]." Tr. 

25-26. The ALJ further found that there existed the possibility that 

a doctor may express opinions to assist a patient with whom he 

sympathized, or that patients might be demanding in seeking supportive 

notes. Tr. 26. 

Specifically, the ALJ referenced such a sharp change in Dr. 

Harburg's opinion by noting that in September 2011, Dr. Harburg 

diagnosed plaintiff as not disabled; two months later Dr. Harburg 

completed a questionnaire on behalf of the claimant's representative 

and reported that plaintiff had "severe panic, chronic pain, 

depression, obesity, history of myocardial infarction, history of 

diarrhea, history of fevers and self-reported blind left eye." Tr. 

25, 278-80, 294-96. Dr. Harburg also reported that he was not 

qualified to assess the plaintiff's physical functional capacity, yet 

made findings that plaintiff would "miss more than two days a month 

from even a sedentary job due to an inability to get out of her 

house," and that plaintiff's symptoms would likely increase if she 

worked due to plaintiff's stress and panic attacks. Tr. 25-26, 279-

80. 

I find no error in the ALJ's evaluation of Dr. Harburg's opinion. 

The ALJ found that Dr. Harburg' s reports were based quite heavily on 

plaintiff's subjective report of her symptoms and limitations, shown 

through the sharp contrast in Dr. Harburg's opinions. Tr. 25, 278-80, 

294-96. The ALJ further noted that "there exist good reasons for 

questioning the reliability of the [plaintiff's] subjective 

complaints," given his prior credibility evaluation of plaintiff. Tr. 

13 - FINDINGS AND RECOMMENDATION 

Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 13 of 17
2 6. Further, a "physician's opinion of disability 'premised to a 

large extent upon the claimant's own accounts of his symptoms and 

limitations' may be disregarded where those complaints have been 

'properly discounted.'" Morgan v. Comm'r of Soc. Sec. Admin., 169 F. 

3d 595, 602 (9th Cir. 1999) (quoting Fair v. Bowen, 885 F.2d 597, 605, 

(9th Cir. 1989); see also Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 

1219, 1228 (9th Cir. 2009). Applying either the clear and convincing, 

or the specific and legitimate reason standards, the ALJ provided 

evidence in the record to support his findings. 

D. "Paragraph B" Criteria 

Finally, plaintiff argues that the ALJ erred by not providing 

detailed rationale for findings regarding the degree of limitation in 

the functional areas presented in 20 C.F.R. § 404.1520a(c), known as 

"paragraph B" criteria. Pl.'s Br. 7-9. Essentially plaintiff argues 

that: (1) the ALJ erred in his step two analysis by failing to provide 

detailed rationale for his findings regarding the medical severity of 

plaintiff's impairments; and ( 2) the ALJ erred by failing to provide 

detailed rationale for his findings for why her medication history did 

not support a finding of moderate limitation in her concentration, 

persistence, and pace during the RFC analysis. 

As discussed above, at step two, the · ALJ determines if the 

claimant has a "severe 11 impairment that "significantly limits [the 

claimant's] physical or mental ability to do basic work activities. 1

' 

20 C.F.R. §§ 404.1520(c), 416.920(c). An "ALJ may find that a 

claimant lacks a medically severe impairment or combination of 

impairments only when his conclusion is 'clearly established by 

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Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 14 of 17
medical evidence.'" Webb; 433 F.3d at 687 (9th Cir. 2005) (quoting 

Smolen, 80 F.3d at 1290 and S.S.R. 85-28). 

Here, plaintiff testified that she had numerous panic attacks 

each month for a number of years and that she had taken medications 

for her mental heal th. Tr. 53-54. However, the ALJ found that the 

medical record did not reflect the level of disability alleged by 

plaintiff. Tr. 20, 286. Specifically, the ALJ relied on Dr. McCabe's 

report that diagnosed plaintiff as "meeting the criteria for a panic 

disorder," but finding that this panic disorder, combined with her 

depression, could be treated and did not affect plaintiff's ability to 

work. Tr. 20, 286. Regardless, the ALJ considered the effects of 

plaintiff's panic attacks later when determining her RFC, by noting 

their existence, but discrediting their severity based on his findings 

that plaintiff's testimony was not credible. Tr. 22-24. As discussed 

above, the ALJ noted the inconsistencies in plaintiff's panic attacks 

ranging from reports of two to three times per day to either five or 

eight times per month. Tr. 24. Lewis v. Astrue, 498 F.3d 909, 911 

(9th Cir. 2 007) (any error at step two is considered harmless if the 

ALJ considered the effects of impairments deemed non-severe in 

assessing a claimant's RFC); 20 C.F.R. § 404.1545(a)(2) ("We will 

consider all of your medically determinable impairments of which we 

are aware, including your medically determinable impairments that are 

not 'severe' when we assess your residual functional 

capacity.") . 

Plaintiff next argues that the ALJ erred by failing to provide 

detailed rationale to explain why plaintiff's medication history did 

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Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 15 of 17
not support a finding of moderate limitation in her concentration, 

persistence, and pace during the RFC analysis. Plaintiff maintains 

that the ALJ improperly found that she had only mild limitations in 

concentration, persistence, and pace, even though her ongoing 

medication therapy supported at least a finding of a moderate 

limitation in her concentration, persistence, and pace. Pl.' s Br. 7-

8. 

Plaintiff testified that she was taking pain medications and 

medications for her mental heal th. Tr. 51-53. Plaintiff further 

testified that she was immune to the medication, and that she was 

not taking the higher dosage recommended by Dr. Harburg because it 

kept her mind from "operating correctly." Tr. 52. Because the side 

effects of medication can affect an individual's ability to work, the 

Commissioner considers them in disability determinations. Romero v. 

Co mm' r S o c . S e c . Adm i n . , 2 0 1 4 W L 4 8 2 4 5 8 7 ( D . 0 r . S e p t . 2 5 , 

2014) (citing Salazar v. Astrue 859 F. Supp. 2d 1202, 1228 (D. 

Or. Mar. 12, 2012)). 

Here, the ALJ considered plaintiff's medications and her 

statements about the medications' effects when performing the RFC 

assessment. Tr. 22. However, as discussed above, the ALJ found 

plaintiff's statements were not fully credible and therefore 

discredited plaintiff's statements about the intensity, persistence 

and limiting effects of the symptoms, including her medication 

usage. Tr. 23. 

The ALJ properly provided detailed rationale for his findings on 

the medical severity of plaintiff's impairments and his reasons for 

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Case 3:14-cv-01637-TC Document 15 Filed 09/30/15 Page 16 of 17
discounting plaintiff's testimony concerning her medication use. 

For these reasons, I find no error with the ALJ' s RFC assessment 

with respect to the "paragraph B" criteria analysis. 

CONCLUSION 

The ALJ's finding that plaintiff was not disabled under the Act 

is supported by substantial evidence in the record. Accordingly, the 

Commissioner's decision should be AFFIRMED. 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of appeals. Any notice of 

appeal pursuant to Rule 4 (a) (1), Federal Rules of Appellate Procedure, 

should not be filed until entry of the district court's judgment or 

appealable order. The parties shall have fourteen (14) days from the 

date of service of a copy of this recommendation within which to file 

specific written objections with the court. Thereafter, the parties 

shall have fourteen (14) days within which to file a response to the 

objections. Failure to timely file objections to any factual 

determination of the Magistrate Judge will be considered as a waiver 

of a party's right to de nova consideration of the factual issues and 

will constitute a waiver of a party's right to appellate review of the 

findings of fact in an order or judgment entered pursuant to this 

recommendation. 

Dated this .12._~ay of September 2015. 

Judge 

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