IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

Kelley Carper, 

Plaintiff, 

v. 

Carolyn W. Colvin, 

Commissioner of Social 

Security, 

Defendant. 

Rory Linerud 

Linerud Law Firm 

P.O. Box 1105 

Salem, OR 97308 

Attorney for plaintiff 

Billy J. Williams 

Ronald K. Silver 

United States Attorney's Office 

1000 S.W. Third Avenue, Suite 600 

Portland, Oregon 97201 

Franco L. Becia 

Social Security Administration 

Office of the General Counsel 

701 Fifth Avenue, Suite 2900 M/S 221A 

Seattle, Washington 98104-7075 

Attorneys for defendant 

Page 1 - OPINION AND ORDER 

Case No. 2:14-cv-01185-AA 

OPINION AND ORDER 

Case 2:14-cv-01185-AA Document 16 Filed 12/02/15 Page 1 of 12
AIKEN, Chief Judge: 

Plaintiff Kelley Carper 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 Cormnissioner. The 

Cormnissioner denied plaintiff's applications for Title II 

disability iqansurance benefits and Title XVI supplemental security 

income disability benefits under the Act. For the reasons explained 

below, the ALJ's decision is affirmed and this case is dismissed. 

BACKGROUND 

Born September 11, 1961, plaintiff was 39 years old on the 

alleged disability onset date of September 1, 2001. Tr. 24, 31. 

Plaintiff completed tenth grade. Id. at 28. Plaintiff "can do 

simple math but has no computer skills." Id. Her previous jobs 

include pet care, in-home caregiver, lawn maintenance, and cleaner. 

Id. Plaintiff alleges she suffers from: lifelong asthma, chronic 

bronchitis, chronic obstructive pulmonary disease, back spasms, 

migraines, insomnia resulting from pain in her back and hips, 

childhood and domestic abuse, kidney failure, numbness in her arm 

and middle fingers, and hand cramps. Id. at 28-29. In addition, 

plaintiff alleges difficulty breathing, walking, sitting for 

extended periods of time, lifting anything weighing more than a 

gallon of milk, tolerating gas and fumes, and handling small 

objects. Id. 

Page 2 - OPINION AND ORDER 

Case 2:14-cv-01185-AA Document 16 Filed 12/02/15 Page 2 of 12
On July 14, 2010, plaintiff filed an application for 

disability insurance benefits and supplemental security income, 

alleging disability beginning September 1, 2001. Id. at 22. Both 

claims were denied initially and on reconsideration, after which 

plaintiff filed a written request for a hearing. Id. Plaintiff 

appeared with counsel and testified at a hearing on October 26, 

2012. Id. The ALJ found plaintiff not disabled, and capable of 

performing both past work and other work. Id. at 23. The Appeals 

Council denied plaintiff's request for review, rendering the ALJ's 

findings the final agency decision. Id. at 1. Plaintiff 

subsequently filed this appeal on May 26, 2015. Pl.'s Br. 1. 

STANDARD 

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 conclusion." Richardson v. 

Perales, 402 U.S. 389, 401 (1971) (citation and quotations marks 

omitted). The court must weigh "both the evidence that supports and 

detracts from the [ALJ's] conclusions." Martinez v. Heckler, 807 

F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the 

evidence are insignificant if the ALJ's interpretation is rational. 

Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

Page 3 - OPINION AND ORDER 

Case 2:14-cv-01185-AA Document 16 Filed 12/02/15 Page 3 of 12
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. § 404.1502. First, the 

ALJ determines whether a claimant is engaged in "substantial 

gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 

404.1520(b). If so, the claimant is not disabled. 

At step two, the ALJ evaluates whether the claimant has a 

"medically severe impairment or combination of impairments." 

Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c). If the 

claimant does not have a severe impairment or combination of 

impairments, she is not disabled. 

At step three, the ALJ determines whether the claimant's 

impairments, either singly or in combination, meet or equal "one of 

a number of listed impairments that the [ALJ) acknowledges are so 

severe as to preclude substantial gainful activity." Yuckert, 482 

U.S. at 140-41; 20 C.F.R. § 404.1520(d) (list of impairments in 

Appendix 1). If so, the claimant is presumptively disabled; if not, 

Page 4 - OPINION AND ORDER 

Case 2:14-cv-01185-AA Document 16 Filed 12/02/15 Page 4 of 12
the ALJ proceeds to step four. Yuckert, 482 U.S. at 141. 

At step four, the ALJ resolves whether the claimant can still 

perform "past relevant work." 20 C.F.R. § 404.1520(f). If the 

claimant can work, she is not disabled; if she cannot perform past 

relevant work, the burden shifts to the Commissioner. Yuckert, 482 

U.S. at 141. At step five, the ALJ must establish the claimant can 

perform other work existing in significant numbers in the national 

and local economy. Id. at 141-42; 20 C.F.R. § 404.1520(g). If the 

Commissioner meets this burden, the claimant is not disabled. 20 

C.F.R. § 404.1566. 

ADMINISTRATIVE LAW JUDGE'S FINDINGS 

At step one, the ALJ concluded the claimant, despite working 

"relatively steadily" until 2003, had not engaged in substantially 

gainful activity since September 1, 2001. Tr. 24, 29. At step two, 

the ALJ found the claimant has several severe impairments: 

diabetes, asthma, hypertension, lumbar degenerative disk disease 

with lumbosacral radiculi tis, and obesity. Id. at 25. At step 

three, the ALJ found claimant's combination of symptoms, while 

severe, did not meet or equal the severity of impairments listed in 

Appendix 1. Id. at 27. At step four, the ALJ concluded plaintiff 

was not disabled because she had the residual functional capacity 

("RFC") to perform past work. Id. at 27-31. Finally, the ALJ made 

the alternative finding the claimant had the RFC to perform other 

work existing in significant numbers in the national economy. Id. 

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Case 2:14-cv-01185-AA Document 16 Filed 12/02/15 Page 5 of 12
at 32. 

DISCUSSION 

Plaintiff asserts the ALJ made three errors in finding 

plaintiff not disabled. First, plaintiff alleges the ALJ erred by 

failing to address physicians' opinions considering plaintiff's 

diabetes, and failing to explain how her diabetes is accommodated 

in the RFC findings. Pl.'s Br. 9-13. Second, plaintiff alleges the 

Appeals Council improperly declined to review the ALJ's findings 

after ignoring new lay witness testimony. Id. at 13-14. Third, 

plaintiff alleges the ALJ erred during step five's RFC 

determination by failing to consider all applicable age categories. 

Id. at 6-9. 

I. First Claim: The ALJ Failed to Address Physicians' Opinions 

of Plaintiff's Diabetes, and Failed to Explain How Her 

Diabetes is Accommodated in the RFC Findings 

Plaintiff alleges the ALJ failed to adequately consider her 

severe impairment of diabetes in determining her RFC because the 

ALJ relied on state agency physician's opinions which do not 

address diabetes. Id. at 10. In addition, plaintiff alleges the ALJ 

failed to explain how her diabetes is accommodated by the RFC 

finding. Id. at 11. 

An ALJ is required to determine a claimant's RFC based on all 

relevant evidence in the record. 20 C.F.R. §§ 404.1545(a), 

416. 945 (a). Here, the opinions of Mary Ann Westfall, M. D., and 

Sharon Eder, M.D., both discuss plaintiff's diabetes. Tr. 84, 96, 

Page 6 - OPINION AND ORDER 

Case 2:14-cv-01185-AA Document 16 Filed 12/02/15 Page 6 of 12
107, 114, 117. In addition, plaintiff testified she has difficulty 

using her upper extremities. Id. at 29, 65-67. She now argues that 

difficulty is caused by her diabetes. Pl.'s Br. 11. As explained 

below, the ALJ adequately considered this relevant evidence in 

determining plaintiff's RFC. Tr. 27, 29. 

The opinions of Mary Ann Westfall, M. D., and Sharon Eder, 

M.D., both acknowledge plaintiff's diabetes but do not specifically 

link any limitations to diabetes. Id. at 84, 96, 107, 114, 117. The 

only evidence of difficulties with her upper extremities is 

plaintiff's testimony. Id. at 29, 65-67. Therefore, plaintiff's 

allegation the ALJ failed to adequately consider her limitations is 

a challenge to the ALJ's determination plaintiff's testimony lacked 

credibility. 

To find a claimant's testimony lacks credibility, an ALJ "must 

provide specific, cogent reasons for the disbelief." Lester v. 

Chater, 81 F.3d 821, 834 (9th Cir. 1995) (quotation marks omitted). 

In the absence of evidence suggesting malingering, the ALJ' s 

reasons for rejecting a claimant's testimony "must be clear and 

convincing." Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 

1989). When an ALJ "finds that a claimant's testimony relating to 

the intensity of his pain and other limitations is unreliable, the 

ALJ must make a credibility determination citing the reasons why 

the testimony is unpersuasive." Morgan v. Comm' r of Soc. Sec. 

Admin., 169 F.3d 595, 599 (9th Cir. 1999) (citing Bunnell v. 

Page 7 - OPINION AND ORDER 

Case 2:14-cv-01185-AA Document 16 Filed 12/02/15 Page 7 of 12
Sullivan, 947 F.2d 341 (9th Cir. 1991)). In making a credibility 

determination, the ALJ "must specifically identify what testimony 

is credible and what testimony undermines the claimant's 

complaints. In this regard, questions of credibility and 

resolutions of conflicts in the testimony are functions solely of 

the [ALJ] . " Id. (citations omitted) . 

Although the ALJ found "the claimant's medically determinable 

impairments could reasonably be expected to cause the alleged 

symptoms" the ALJ concluded "the claimant's statements concerning 

the intensity, persistence and limiting effects of these symptoms 

are not entirely credible." Tr. 29. The ALJ supported the adverse 

credibility finding with specific, cogent reasons. The ALJ 

explained plaintiff continued to work "relatively steadily for two 

more years" after the alleged disability began in September 2001. 

Id. In addition, the ALJ noted the plaintiff was not diagnosed with 

diabetes until 2007 and, despite losing fifty pounds, did not 

comply with taking blood pressure medication and diabetes 

medication. Id. These factors are permissible bases for finding 

plaintiff's testimony lacked credibility. See Smolen v. Chater, 80 

F. 3d 1273, 1284 (9th Cir. 1996) (when determining the credibility 

of a claimant's symptoms a court may consider the claimant's 

"unexplained or inadequately explained failure to seek treatment or 

follow a prescribed course of treatment" and "work record") . 

Page 8 - OPINION AND ORDER 

Case 2:14-cv-01185-AA Document 16 Filed 12/02/15 Page 8 of 12
The ALJ also found plaintiff's testimony about difficulty 

using her arms and hands lacked credibility because the symptoms 

were "new impairments" raised at the hearing. Tr. 29. Despite 

alleging the symptoms began in 2003, plaintiff "did not mention 

these symptoms in any of the [medical) evaluations since that time" 

with the exception of one mention to Dr. Henderson in October 2010, 

who "failed to indicate any significant findings in association 

with this complaint." Id. at 29-30. Absence of medical 

corroboration is an insufficient basis to discredit a claimant's 

testimony about the severity of symptoms caused by an underlying 

impairment. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 

However, absence of objective medical records supporting 

plaintiff's testimony, in combination with contradictory testimony 

from plaintiff about her ability to work, is a permissible basis 

for the ALJ to determine plaintiff's statements lack credibility. 

Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196-97 (9th 

Cir. 2004). 

Although physicians' opinions confirm plaintiff's diabetes 

diagnosis, the only evidence of upper extremity limitation came 

from plaintiff's testimony, which the ALJ discounted for 

permissible reasons. Because the ALJ was justified in finding 

plaintiff's upper extremities symptoms not credible, the ALJ' s 

finding regarding plaintiff's RFC is affirmed. 

Page 9 - OPINION AND ORDER 

Case 2:14-cv-01185-AA Document 16 Filed 12/02/15 Page 9 of 12
II. Second Claim: The Appeals Council Improperly Declined to 

Review the ALJ's Findings Based on Lay Witness Testimony 

Plaintiff alleges the Appeals Council improperly elected not 

to review the ALJ's findings based on lay witness statements from 

Allison Cox and Teresa Daum-Futter provided to the Council after 

the ALJ's decision. Pl.'s Br. 13; Tr. 6, 268 270-74. Although the 

Appeals Council specifically stated it "considered the 

additional evidence," including letters from Ms. Cox and Ms. DaumFutter, it found no reason to review the ALJ's decision. Tr. 1, 5. 

Plaintiff contends this error "was harmful because the statements 

made by Ms. Cox and Ms. [Daum-) Futter regarding [p) laintiff' s 

walking difficulties establishes disability." Pl.'s Br. 14. 

District courts have jurisdiction to review only final agency 

actions. Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161 

(9th Cir. 2011). The Appeals Council's decision to decline review 

of the ALJ's decision is a non-final agency action and, therefore, 

this court lacks jurisdiction to review it. Id. 

To the extent plaintiff alleges the ALJ' s decision is no 

longer supported by substantial evidence in light of the new lay 

witness testimony, plaintiff's argument fails. The testimony of Ms. 

Cox and Ms. Daum-Futter offers no new insight into plaintiff's 

claims and, rather, reiterates symptoms previously mentioned by 

plaintiff and in third party statements by plaintiff's sister, 

Donna Cisneroz, and significant other, James Johnson. For example, 

Ms. Cox and Ms. Daum-Futter both report plaintiff's difficulty with 

Page 10 - OPINION AND ORDER 

Case 2:14-cv-01185-AA Document 16 Filed 12/02/15 Page 10 of 12
mobility, symptoms mentioned by plaintiff in her testimony and 

represented in her medical records. Tr. 52-53, 56, 72-73, 84, 96, 

107, 114, 117, 268, 272. As explained in section I, the ALJ had 

permissible reasons for disbelieving plaintiff about the severity 

of her symptoms. Moreover, the statements of Ms. Cox and Ms. DaumFutter are similar to the statements of Ms. Cisneroz and Mr. 

Johnson, which the ALJ permissibly discredited as inconsistent with 

other evidence in the record. Tr. 30. When an ALJ does not consider 

lay witness testimony describing symptoms already within the record 

and properly rejected by the ALJ, there is no harmful error. Molina 

v. Astrue, 674 F.3d 1104, 1117 (9th Cir. 2012). The ALJ's findings 

are supported by substantial evidence and are affirmed. 

III. Third Claim: The ALJ Failed to Examine Plaintiff's Claims 

Under Each Relevant Age Category, Resulting in Erroneous 

Determination of Plaintiff's RFC 

At step five, the ALJ considered only jobs available to 

"younger individual[s)" age 18-49. Tr. 31. Plaintiff contends the 

ALJ should have also considered jobs available for "person [s) 

closely approaching advanced age 50-54." Pl.'s Br. 6-9. As 

defendant concedes, the failure to consider the "person approaching 

advanced age 50-54" category was error. See 20 C.F.R. 404.1563(b) 

(ALJ must consider all age categories applying to the claimant 

during the period of time for which the court determines claimant's 

disability). The error, however, is harmless because at step four 

the ALJ determined plaintiff could perform past work. See Crane v. 

Page 11 - OPINION AND ORDER 

Case 2:14-cv-01185-AA Document 16 Filed 12/02/15 Page 11 of 12
Shalala, 76 F.3d 251, 255 (9th Cir. 1996) (failure to properly call 

a vocational expert during step five was harmless because the ALJ 

determined in step four claimant could perform past work) . The 

vocational expert testified plaintiff could work as a 

housekeeper/cleaner. Tr. 31. Plaintiff does not challenge the ALJ's 

finding she could perform this past work. Accordingly, any error by 

the ALJ at step five was harmless. 

CONCLUSION 

The Commissioner's decision is AFFIRMED and this case is 

DISMISSED. 

IT rs so ORDERED. 

")no Dated this _O'-~- day of ~~ Nmr@ml3el! 2015. 

Ann Aiken 

United States District Judge 

Page 12 - OPINION AND ORDER 

Case 2:14-cv-01185-AA Document 16 Filed 12/02/15 Page 12 of 12