IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JENABI T. HEMMER 

Plaintiff, 

v. 

COMMISSIONER SOCIAL SECURITY 

ADMINISTRATION, 

Defendant. 

JAMES S. COON 

820 S.W. 2nd Avenue, Suite 200 

Portland, OR 97204 

Attorney for Plaintiff 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

JOHN C. LAMONT 

Social Security Administration - Region X 

Office of the General Counsel 

701 Fifth Avenue, Suite 2900 MIS 221A 

Seattle, WA 98104-7075 

Attorneys for Defendant 

1 - OPINION AND ORDER 

Case No. 3:15-cv-00374-MA 

OPINION AND ORDER 
MARSH, Judge 

Plaintiff Jenabi T. Hemmer seeks judicial review of the final decision of the Commissioner 

of Social Security denying his application for Disability Insurance Benefits (DIB) under Title II of 

the Social Security Act, 42 U.S.C. §§ 401-403. This Court has jurisdiction pursuant to 42 U.S.C. § 

405(g). For the reasons that follow, I affirm the final decision of the Commissioner. 

FACTUAL AND PROCEDURAL BACKGROUND 

Plaintiff protectively filed an application for a period of disability and disability insurance 

benefits on November 3, 2010, alleging disability beginning December 23, 2005, due to injuries to 

his left shoulder and low back resulting from an automobile accident. Plaintiffs claim was denied 

initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law 

judge ("ALJ"). An ALJ held a hearing on April 28, 2013, at which plaintiff appeared with his 

representative and testified. A vocational expe1i, Nancy E. Bloom, also attended the hearing and 

testified. On May 31, 2013, the ALJ issued an unfavorable decision. The Appeals Council denied 

plaintiffs request for review, and therefore, the ALJ' s decision became the final decision of the 

Commissioner for purposes of review. 

Bom in 1976, plaintiff was 29 years old on his alleged disability onset date and 34 years old 

on his date last insured. Plaintiff has a eleventh grade education and completed training as an auto 

glass installer. Plaintiff has past relevant work as an automobile glass technician and a construction 

laborer. 

THE ALJ'S DISABILITY ANALYSIS 

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. § 404.1520. Each step 

2 - OPINION AND ORDER 
is potentially dispositive. The claimant bears the burden of proof at steps one through four. '11!0/ina 

v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Valentine v. Commissioner Soc. Sec. Admin., 574 

F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner to show that the 

claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 

1161 (9th Cir. 2012). 

Plaintiff meets insured status requirements for a DIB application through September 30, 

2010. At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity from 

his alleged onset date of December 23, 2005 through his date last insured of September 30, 2010. 

At step two, the ALJ found that plaintiff had the following severe impairments: degenerative disc 

disease with post laminectomy syndrome and epidural fibrosis, and left AC ( acromioclavicular) joint 

impingement with status post arthroscopic repair. At step three, the ALJ found that plaintiffs 

impairment or combination of impairments, did not meet or medically equal a listed impairment. 

The ALJ assessed plaintiff with a residual functional capacity ("RFC") to perform sedentary 

work but with the following limitations: 

no climbing of ladders, ropes, or scaffolds and avoiding even moderate exposure to 

hazards; frequent balancing; occasional stooping, kneeling, crouching, crawling, and 

climbing ramps and stairs; with the dominant right arm occasional overhead 

reaching; with the non-dominant left arm no overhead reaching, and frequent 

reaching in all other directions; and the use of cane at all times with standing or 

walking. 

Transcript of Record ("Tr."), ECF No. 11 at 21. 

At step four, the ALJ found that plaintiff is unable to perform his past relevant work. At step 

five, the ALJ concluded that considering plaintiffs age, education, work experience, and residual 

functional capacity, jobs exist in significant numbers in the national economy that plaintiff can 

3 - OPINION AND ORDER . 
perform, such as charge account clerk, document preparer, and addresser. Accordingly, the ALJ 

concluded that plaintiff has not been under a disability under the Social Security Act from December 

23, 2005 through September 30, 2010, his date last insured. 

ISSUES ON REVIEW 

Plaintiff contends that the ALJ improperly evaluated the opinion of his treating physician 

Christina Yun Lee, M.D., and elToneously omitted a limitation that plaintiff"must move periodically 

to relieve some pain" from the RFC. The Commissioner argues that even if the ALJ elTed, plaintiff 

has not demonstrated harmful enor because the jobs identified by Vocational Expert ("VE") can be 

perfo1med with a "sit-stand option at the employee's choice." 

STANDARD OF REVIEW 

The district co mi must affirm the Commissioner's decision if the Commissioner applied the 

proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. 

§ 405(g); Beny v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than 

a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion." Hill, 698 F.3d at 1159 (internal quotations 

omitted); Valentine, 574 F.3d at 690. The comi must weigh all the evidence, whether it supports or 

detracts from the Commissioner's decision. lvlartinezv. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 

The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one 

rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 

2004 ). If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; 

"the comi may not substitute its judgment for that of the Commissioner." Edlund v. 1\1assanari, 253 

F.3d 1152, 1156 (9th Cir. 2001); Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). 

4 - OPINION AND ORDER 
I. The ALJ Properly Evaluated Dr. Lee's Medical Source Statement 

To reject the uncontrove1ted opinion of a treating or examining physician, the ALJ must 

present clear and convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If 

a treating or examining doctor's opinion is contradicted by another doctor's opinion, it may be 

rejected by specific and legitimate reasons. Molina, 674 F.3d at 1111. When evaluating conflicting 

opinions, an ALJ is not required to accept an opinion that is not supp01ted by clinical findings, or 

is brief or conclusory. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). In addition, a doctor's 

work restrictions based on a claimant's subjective statements about symptoms are reasonably 

discounted when the ALJ finds the claimant less than fully credible. Bray v. Comm'r of Soc. Sec. 

Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); Batson, 359 F.3d at 1195. 

Plaintiff argues that the ALJ erred by failing to provide specific and legitimate reasons for 

ignoring his treating physiatrist Christina Yun Lee's September 30, 2010 medical source statement 

that plaintiff must "move periodically to relieve some pain." Plaintiff contends that the ALJ was 

required to provide specific and legitimate reasons for rejecting that specific limitation, or 

alternatively, incorporate the limitation into the RFC. According to plaintiff, because the ALJ failed 

to do either, when Dr. Lee's periodic movement limitation is credited as a matter of law, the 

descriptions for the sedentaty jobs identified by the VE make it clear that plaintiff is unable to 

perform them, and consequently, he is disabled under the act. Plaintiffs arguments miss the mark. 

On September 30, 2010, plaintiff was referred to Dr. Lee by his neurosurgeon Carrie 

Schulman, M.D., for consideration of epidural steroid injections and evaluation of ongoing low back 

pain and left lower extremity neuropathy following anL4-5 laminectomy with diskectomy perfonned 

5 - OPINION AND ORDER 
in April 2009. 1 Dr,. Lee reviewed plaintiffs June 19, 2010 lumbar spine MRI and noted that it 

showed post-surgical changes and scarring, without evidence of a new disk protrusion or herniation. 

Tr. 961. Dr. Lee's notes reflect that plaintiff reported constant pain in his low back and left lower 

extremity down to his left foot that had been worsening over the previous two to three months. Tr. 

961. Plaintiff reported increased pain with prolonged sitting, standing in one position, and walking, 

and that lying down provides the greatest relief. As the ALJ noted, Dr. Lee observed that "[plairitiffl 

must move periodically to relieve some pain," he could stand independently, and had an antalgic gait 

on the lower left extremity with decreased weightbearing. Tr. 28, 961. Plaintiffinfo1med Dr. Lee that 

he owns his own body shop, was then working, but was minimizing his work load. Tr. 961. 

Dr. Lee's physical examination of plaintiff showed a decreased range of motion with reports 

of pain in the low back, Spurling testing revealed pain extending to the left lower extremity, and 

straight leg testing on the left demonstrated reduced range of motion with pain extending to the left 

foot. Dr. Lee's notes also show plaintiff reported pain in the left buttock and left sacro-iliac join, but 

that plaintiff had 5/5 muscle strength in the right, and 4+/5 muscle strength in the left, with sensation 

subjectively limited in the left L5 and S 1 distribution. Tr. 962. Dr. Lee recommended a trial of 

epidural steroid injections and prescribed baclofen, a muscle relaxer, for muscle spasms and 

myofascial pain in plaintiffs low back and left buttock area. Tr. 962. Dr. Lee indicated that if the 

injections are helpful, physical therapy may be warranted. Tr. 962. 

1

Plaintiffwas examined by Dr. Lee on several occasions for assessment of whether 

injections would relieve his ongoing complaints of pain in his low back, left lower extremity, and 

left shoulder. Plaintiff met with Dr. Lee in December 2008, April 2009, December 2009, Januaiy 

2010, September 2010, and October 2010. Tr. 883-86, 872-74, 960-62, 975-78, 980-81. It is 

notewmihy that the record for this case spans over 1,200 pages, and that plaintiff challenges only 

the ALJ' s failure to include a single statement from Dr. Lee. 

6 - OPINION AND ORDER 
Initially, I note that Dr. Lee did not conduct a physical capacity evaluation and her treatment 

notes do not detail specific functional limitations. The purpose of plaintiffs September 30, 2010 

consultation with Dr. Lee was to assess the efficacy of steroid injections. Indeed, aside from Dr. 

Lee's observation that plaintiff moved periodically to relieve some pain, she did not provide an 

opinion as to how long plaintiff is· capable of sitting, standing, needs breaks, or must change 

positions. 

Next, Dr. Lee's observation that plaintiff must move periodically to relieve some pain, even 

if characterized as a limitation, is contradicted by the opinion of nonexamining agency physicians 

Sharon Eder, M.D., andNealE. Bemer, M.D. OnFebruaiy22, 2011, Dr. Eder completed a Residual 

Functional Capacity ("RFC") Assessment. Tr. 90-103. Dr. Eder indicated that plaintiff could 

frequently or occasionally lift and cany 10 pounds, could stand or walk for two hours, sit for six 

hours, could do unlimited pushing and pulling, and could occasionally climb ramps or stairs, stoop, 

kneel, crawl or crouch, and frequently balance. Tr. 99. Dr. Eder determined that plaintiff could 

perform limited overhead reaching bilaterally, and must avoid even moderate exposure to hazards. 

Tr. 100. Dr. Eder did not opine that plaintiff was required to move periodically, needed to change 

positions, or that he would require more than nonnal breaks. On November 15, 2011, Dr. Bemer 

affirmed Dr. Eder's RFC. Because Dr. Lee's opinion was contradicted, the ALJ was required to 

provide specific and legitimate reasons, supported by substantial evidence in the record, for 

discounting it. 

In the decision, the ALJ thoroughly discussed Dr. Lee's September 30, 2010 evaluation. The 

ALJ found that Dr. Lee's detailed assessment did not "impos[e] any additional significant 

limitations" beyond those described in. the RFC, which limited plaintiff to a reduced range of 

7 - OPINION AND ORDER 
sedentaiy work. Although the ALJ did not specifically discount Dr. Lee's alleged functional 

limitation that plaintiff must periodically move to relieve some pain, the ALJ did discuss plaintiffs 

pain allegations thoroughly when evaluating his credibility and his ongoing left shoulder and low 

back pain complaints when evaluating the medical evidence. Notably, plaintiff does not challenge 

the ALJ's negative credibility assessment or the ALJ's evaluation of the remaining voluminous 

medical record. 

The ALJ' s negative credibility detennination rested on plaintiffs symptom magnification 

and lack of objective medical evidence. The lengthy record shows that plaintiff suffered on-the-job 

il\iuries in a motor vehicle accident in December 2005. Tr. 25. Following surgical repair to his left 

shoulder, surgical repair of a deviated septum, and physical therapy, plaintiff was released to return 

to work in August 2007 with permanent restrictions to his left shoulder. Tr. 26. Because of these 

restrictions, plaintiff was unable to return to his previous work as an auto glass installer. However, 

plaintiff continued to have pain complaints concerning his low back and left lower extremity. In 

April 2009, plaintiff underwent an L4-5 laminectomy with diskectomy. As the ALJ noted, plaintiff 

had good results, with a gradual return of numbness and tingling. Tr. 27. As accurately noted by 

the ALJ, plaintiff reported to Dr. Lee on September 30, 2010, that his increased pain had been 

present for two to three months. Tr. 28. 

As the ALJ thoroughly discussed, by 2010, plaintiffs physicians found scant objective 

evidence for plaintiffs continued alleged pain, despite numerous testing, imaging, and consultations. 

To be sure, as the ALJ stated, in October 2010, Dr. Lee performed electrodiagnostic nerve testing 

and found no evidence of an active radiculopathy to explain plaintiffs pain, despite plaintiffs 

complaint of a sudden onset of pain and numbness in the left foot. Tr. 29, 872. At that visit, Dr. Lee 

8 - OPINION AND ORDER 
observed that plaintiff was using a walker for ambulation and could not tolerate standing. Tr. 874. 

Plaintiff was refe1Ted to neurologist Greg R. Zarelli, M.D ., who examined plaintiff on November 19, 

2010. Dr. Zarelli noted that plaintiff complained about numbness in the left lower extremity, 

progressing to his left mm, as well as his left eye. Tr. 866. Dr. Zarelli indicated that "a large portion 

of [plaintiffs] exam does not make sense neurologically," and that plaintiffs sensory allegations 

"are so profound they are not possibly neurologic." Tr. 869. As the ALJ co11'ectly described, Dr. 

Zarelli indicated that plaintiffs "presentation is functional in nature, either secondmy to a conversion 

disorder and/or malingering." Tr. 30, 868. And, as the ALJ fi.niher discussed, an examination by 

Benjamin B. Brennan, M.D., demonstrated an umeliable motor exam with give-away weakness. Tr. 

1056-59. The ALJ' s negative credibility findings ate wholly suppmied by substantial evidence in the 

record and are unchallenged by plaintiff. 

Therefore, having thoroughly reviewed all of Dr. Lee's treatment records and the record as 

a whole, I conclude the ALJ rationally interpreted Dr. Lee's September 30, 2010 medical source 

statement as not imposing additional significant limitations beyond those accounted for in the RFC. 

Moreover, the ALJ appropriately accounted for plaintiffs pain complaints elsewhere in the decision, 

and the ALJ' s findings are supported by substantial evidence in the record as a whole. Valentine, 57 4 

F.3d at 691-93 (finding physician's observation about claimant's PTSD was not a diagnosis or 

functional limitation that was required to be included in the RFC); see also Bayliss, 427 F.3d at 1217 

(noting ALJ only is required to identify specific, credible limitations in the RFC; "[p ]reparing a 

function-by-function analysis for medical conditions or impairments that the ALJ found neither 

credible nor supported by the record is unnecessary"). Based on the record before me, the ALJ 

reasonably and rationally interpreted the evidence concerning plaintiffs pain complaints, and did 

9 - OPINION AND ORDER 
not err in assessing Dr. Lee's opinion. Jvfolina, 674 F.3d at 1111 (finding rational interpretations of 

the evidence must be upheld if they are suppo1ied by substantial evidence). The ALJ' s decision is 

suppmied by substantial evidence in the record as whole and free oflegal error, and accordingly, is 

affirmed. 

CONCLUSION 

For the reasons set forth above, the Commissioner's final decision denying benefits to 

plaintiff is AFFIRMED. This action is DISMISSED. 

IT IS SO ORDERED. 

DATED this ~ 9day of FEBRUARY, 2016. 

Malcolm F. Marsh 

United States District Judge 

10- OPINION AND ORDER