IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LORENE UMTUCH, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, Commissioner 

of Social Security, 

Defendant. 

George J. Wall 

1336 E. Burnside Street, Suite 130 

Portland, OR 97214 

Attorney for Plaintiff 

Billy J. Williams 

United States Attorney 

Janice E. Hebe1t 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Po1tland, OR 97204-2902 

1 - OPINION AND ORDER 

Case No. 3:15-cv-00390-AA 

OPINION AND ORDER 

Case 3:15-cv-00390-AA Document 19 Filed 03/21/16 Page 1 of 9
SarahMoum 

Special Assistant United States Attorney 

Office of the General Counsel 

Social Security Administration 

701 Fifth Avenue, Suite 2900, MIS 221A 

Seattle, WA 98104-7075 

Attorneys for Defendant 

Aiken, Judge: 

Plaintiff Lorene Umtuch brings this action pursuant to the Social Security Act (the Act) to 

obtain judicial review of a final decision of the Commissioner of Social Security (Commissioner). 

The Commissioner denied plaintiffs application for Title XVI supplemental security income (SSI) 

under the Act. For the reasons set forth below, the Commissioner's decision is affirmed. 

BACKGROUND 

On April 7, 2011, plaintiff applied for SSL Tr. 189-94. The application was denied initially 

and on reconsideration. Tr. 122, 131. On April 23, 2013, an administrative law judge (ALJ) 

conducted a hearing, wherein plaintiff was represented by counsel and testified, as did a vocational 

expe1t (VE). Tr. 38-91. On May 31, 2013, the ALJ issued a decision finding plaintiff not disabled 

within themeaning of the Act. Tr. 23-32. Thereafter, plaintiff submitted new evidence to the Appeals 

Council and such evidence became pmt of the administrative record. Tr. 6-7, 1016-1558. The 

Appeals Council denied plaintiffs request for review, rendering the ALJ's decision as the final 

decision of the Commissioner. Tr. 1-4. Plaintiff now seeks judicial review. 

Born June 26, 1963, plaintiff was forty-seven years old on the date her application was filed 

and fmty-nine years old on the date of the ALJ's decision. Tr. 46. She completed high school and 

earned thirty-eight college credits. Tr. 52. She has no past relevant work experience. Tr. 31, 84. 

Plaintiff alleges disability as of June 9, 2001, due to end stage renal disease, posttraumatic stress 

2 - OPINION AND ORDER 

Case 3:15-cv-00390-AA Document 19 Filed 03/21/16 Page 2 of 9
disorder, depression, borderline diabetes, borderline high blood pressure, hepatitis C, and 

tymnoplasty. Tr. 187, 213. 

STANDARD OF REVIEW 

This Court must affirm if the Commissioner's decision is based on proper legal standards and 

findings suppmied 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 (197l)(citation and intemal quotations omitted). The court must weigh "both the 

evidence that suppmis 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 ifthe 

Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

THE COMMISSIONER'S DECISION 

The initial burden of proofrests upon the claimant to establish disability. Hml'ard 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 impaitment which can be expected ... to last for a continuous period of not less 

than 12 months." 42 U.S.C. § 423(d)(l)(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 plaintiff had not engaged "in substantial gainful activity since April 7, 2011, the 

application date." Tr. 25; 20 C.F.R. § 416.920(b). 

At step two, the ALJ determined plaintiffs "anxiety disorder, hepatitis C, and substance 

3 - OPINION AND ORDER 

Case 3:15-cv-00390-AA Document 19 Filed 03/21/16 Page 3 of 9
addiction disorder" were "medically severe impairment or combination ofimpairments" and resulted 

in significant work-related functional limitations. Tr. 25; 20 C.F.R. § 416.920(c). At step three, the 

ALJ found plaintiffs impairments, singly and in combination, did not meet or equal the 

requirements of"one of a number of listed impairments that the [Commissioner] acknowledges are 

so severe as to preclude substantial gainful activity." Tr. 26; 20 C.F.R. § 416.920(d). 

The ALJ then evaluated how plaintiffs impaitments affected her ability to work. The ALJ 

found that plaintiff possessed the residual functional capacity (RFC) to perform medium work, with 

the additional limitation that she have only "rare (10% or less) interactions with groups often people 

or more." Tr. 27. At step four, the ALJ determined that plaintiff had no "past relevant work." Tr. 31; 

20 C.F.R. § 416.920(e). The ALJ then proceeded to step five. 

At step five, the Commissioner must establish that the claimant can perfo1m other work 

existing in significant numbers in the national and local economy. Yuckert, 482 U.S. at 141-42; 20 

C.F.R. § 416.920(f). Based on the VE's testimony and considering plaintiffs age, work experience, 

and RFC, the ALJ found plaintiff was "capable of making a successful adjustment to other work that 

exists in significant numbers in the national economy." Tr. 32. Accordingly, the ALJ concluded 

plaintiff was not disabled under the Act. 

DISCUSSION 

Plaintiff contends the Commissioner ened by: 1) failing to find several of plaintiffs 

impairments severe at step two; and 2) improperly rejecting the opinion of a treating psychiatrist. 

I. The ALJ's Step Two Decision 

At step two, the ALJ determines whether the claimant has a medically severe impaitment or 

combination of impairments. Yuckert, 482 U.S. at 140-41. Under SSA regulations, "an impairment 

4 - OPINION AND ORDER 

Case 3:15-cv-00390-AA Document 19 Filed 03/21/16 Page 4 of 9
is not severe if it does not significantly limit [the claimant's] physical ability to do basic work 

activities." 20 C.F.R. § 416.92l(a); Smolen v. Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996) ("An 

impairment or combination of impairments can be found not severe only ifthe evidence establishes 

a slight abnormality that has no more than a minimal effect on an individual's ability to work.") 

(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.'" Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Smolen, 80 F.3d 

at 1290 and S.S.R. 85-28). Importantly, an impairment must be established by medical evidence 

consisting of signs, symptoms, and laboratory findings, and cannot be established on the basis of a 

claimant's symptoms alone. 20 C.F.R. § 416.908. 

A. Chronic Open Lesion of the Right Lower Extremity 

Plaintiff contends that her chronic leg lesions should have been found severe at step two. 

In February 2011, plaintiff developed an infection in her right leg and was hospitalized with 

cellulitis. Tr. 1292. On April 13, 2011, a skin graft was performed on the site. Tr. 1254. On July 8, 

2011, plaintiff was seen in the emergency room with two sores on the graft, and on July 20, 2011, 

plaintiff was admitted to the hospital and given intravenous antibiotics for an infection. Tr. 1223-28, 

1239. On August 30, 2011, plaintiff again was hospitalized for an infected right calf skin graft, with 

debridement and irrigation required for multiple ulcerations. Tr. 1189, 1196. On October 14, 2011, 

plaintiff was diagnosed with a chronic non-healing ulcer and received follow-up care. Tr. 1182. In 

Februaty 2012, plaintiffs treating physician diagnosed "cellulitis in right lower extremity, chronic 

lower extremity ulceration that was recently resolved ... Now it is open again with suspected 

5 - OPINION AND ORDER 

Case 3:15-cv-00390-AA Document 19 Filed 03/21/16 Page 5 of 9
cellulitis and possible underlying abscess." Tr. 1066. In June 2012, plaintiff requested a referral to 

wound care because of persistent leg pain. Tr. 1050. 

The ALJ noted the medical evidence of right lower extremity infections resulting in 

abscesses, drainage procedures, and a skin graft. Nonetheless, the ALJ found the condition not severe 

because it had not caused significant limitation, and plaintiffs treatment for the abscesses did not 

last beyond 2011. Tr. 26. 

The Commissioner argues that the record indicates no work-related limitations caused by 

plaintiffs lesions, though the Commissioner concedes that plaintiff reported pain and difficulty 

walking when she has infections of the wound. Tr. 1026. The Commissioner maintains that 

plaintiffs infections, distinct from her lesions, have not lasted and cannot be expected to last for a 

continuous period of twelve months. 

Even if plaintiffs leg condition should have been deemed a severe impaitment at step two, 

any eJTor was ham1less because plaintiff alleged no fonctional limitations resulting from this 

condition. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Notably, plaintiff completed an 

Adult Function Report on July 6, 2011, less than three months after her April 13 skin graft. Tr. 225-

32. Plaintiff did not endorse any limitations arising from her chronic leg wound and stated that she 

could walk for ten blocks before needing to rest. Tr. 230. Moreover, during the April 2013 

administrative hearing, plaintiff did not mention a chronic leg wound when asked whether she had 

any physical limitations. Tr. 79-81. To the contra1y, plaintiff testified that she walked from her home 

to the MAX line, a distance of twenty blocks, in ten minutes. Tr. 52. 

Given plaintiffs statements and testimony, the ALJ did not e!T by failing to find chronic 

lower extremity lesions to be a severe impairment at step two. 

6 - OPINION AND ORDER 

Case 3:15-cv-00390-AA Document 19 Filed 03/21/16 Page 6 of 9
B. Chronic Nausea, Anemia, and GERD 

Plaintiff has complained of nausea and vomiting, and has a histo1y of microcytic anemia. Tr. 

1178. On February 27, 2012, Matthew Smith, M.D., diagnosed GERD, and advised lifestyle 

modifications including avoiding spicy food and weight loss. Tr. 677. In April 2013, Dr. Page noted 

a gastrointestinal work up showed "only gastritis." Tr. 1037. In August 2012, Dr. Smith found no 

cause for plaintiffs anemia. Tr. 1178. In September 2012, Klaus Holmig, M.D., found plaintiff had 

"mild microcytic anemia with normal iron levels," and advised plaintiff to continue oral iron 

supplements. Tr. 1554. 

Plaintiff testified that her medication for nausea works. Tr. 68. Further, plaintiffs reports 

regarding nausea and dizziness have varied. Tr. 315, 466, 501, 506, 602, 1156. Regardless, plaintiff 

has not identified any specific functional limitations arising from nausea, GERD, or anemia. 

Thus, the ALJ's dete1mination that nausea, GERD, and anemia are not severe impahments 

at step two is supported by substantial evidence. 

C. Tympanoplasty 

Plaintiff testified that she was born without a left ear drum and that a "false" eardrum was 

surgically implanted in her ear. Tr. 71. She testified that she has scar tissue in her ear, has trouble 

hearing, and reads lips a lot. Tr. 72. Medical evidence indicates that plaintiff has "decreased hearing" 

inher left ear. Tr. 1151. In April 2013, she was seen in the emergency room for an earinfectionand 

prescribed eardrops. Tr. 1166-67. 

The ALJ found plaintiffs complaints less than fully credible, in part based on inconsistent 

statements about her medical conditions, and plaintiff does not challenge that finding. Tr. 29. None 

of plaintiffs multiple medical providers noted any difficulty communicating with plaintiff, and the 

7 - OPINION AND ORDER 

Case 3:15-cv-00390-AA Document 19 Filed 03/21/16 Page 7 of 9
record includes reports of"nonnal hearing," and "no hearing loss." Tr. 298, 305. On this record, the 

ALJ did not e1TOr by failing to find hearing loss as a severe impahment at step two. 

II. Physician Opinion 

Plaintiff also argues that remand is required to consider the opinion of Patricia Gardner, 

M.D., a treating psychiatrist. 

Dr. Gardner has been plaintiffs treating psychiatrist at CascadiaBehavioral Healthcare since 

May 2013. Tr. 1558. On December 8, 2014, Dr. Gardner wrote a letter stating that she had met 

plaintiff on six occasions, all for walk-in appointments at Cascadia offices located in plaintiffs 

apmiment building. Dr. Gardner stated that plaintiff failed to keep eleven scheduled appointments, 

despite the fact that plaintiff wants the services and those services are located in plaintiffs apartment 

building. In particular, plaintiff failed to appear on December 4, 2014, for an appointment to allow 

Dr. Gardner to assess her Residual Functional Capacity. Dr. Gardner concludes: "Based on 

[plaintiffs] history of failing to keep appointments even though they are for services she does want, 

and conveniently located in her apmiment building, it is my impression that Ms. Umtuch lacks 

capacity to adhere to timeliness and reliability standards that would be required in competitive, 

suppo1ied or even volunteer employment." Tr. 1558. 

Dr. Gardner's letter was not in the record at the time of the ALJ' s decision. The Appeals 

Council considered the letter, as well as other evidence, and found it did "not provide a basis for 

granting review under the weight of the evidence standard (20 CFR 416.1470)." Tr. 2. As the letter 

is pmi of the record, the court may consider Dr. Gardner's opinion to dete1mine whether, in light of 

the record as a whole, the ALJ's decision is supported by substantial evidence. Brewes v. Comm 'r, 

682 F.3d 1157, 1159-60 (9th Cir. 2012); Ramirez v. Shala/a, 8 F.3d 1449, 1452 (9th Cir. 1993). 

8 - OPINION AND ORDER 

Case 3:15-cv-00390-AA Document 19 Filed 03/21/16 Page 8 of 9
Notably, while Dr. Gardner states that plaintiff cannot adhere to timeliness and reliability 

standards, Dr. Gardner did not opine that plaintiffs incapability is due to a diagnosed mental 

limitation or other disability. Tr. 1558. Further, plaintiff cites no treatment records or notes to 

support Dr. Gardner's letter. Therefore, Dr. Gardner's letter does not place in question the ALJ's 

ultimate finding that plaintiff is not disabled, and it does not raise outstanding questions to wmrnnt 

remand for fmiher proceedings. Harman v. Apfel, 211 F.3d 1172, 1178-80 (9th Cir. 2000). 

CONCLUSION 

The ALJ' s finding that plaintiff is not disabled is supported by substantial evidence in the 

record. Accordingly, the Commissioner's decision is AFFIRMED. 

IT IS SO ORDERED. 

DATED thisd-/ day of March, 2016. 

Ann Aiken 

United States District Judge 

9 - OPINION AND ORDER 

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