IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LORINDA HERGENRADER, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of Social Security, 

Eugene Division 

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~~~~~~~~~--=D~e~fu~n~d=a=nt~·~~~~) 

JONES, J., 

6:14-CV-01997-JO 

OPINION AND ORDER 

Plaintiff Lorinda Hergemader appeals the Commissioner's decision denying her application 

for disability insurance benefits under Title II of the Social Security Act. The court has jurisdiction 

under 42 U.S.C. § 405(g). I AFFIRl\1 the Commissioner's decision. 

PRIOR PROCEEDINGS 

Hergemader alleged she became disabled in April 2005 from the combined effects of 

osteoarthritis, degenerative joint disease, fibromyalgia, depression, and anxiety. Admin. R. 19-22, 

155. The ALJ applied the sequential disability dete1mination process described in 20 C.F.R. 

§404.1520. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The ALJ found that Hergemader's 

ability to work was limited by osteoarthritis, fibromyalgia, degenerative joint disease at the base of 

the left thumb, and right foot pain. Admin. R. 20. The ALJ found that, despite her impairments, 

Hergemader retained the residual functional capacity ("RFC") to perform sedentmy work, with the 

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Case 6:14-cv-01997-JO Document 24 Filed 03/10/16 Page 1 of 11
option to sit or stand and limited climbing, exposure to hazards, and manipulating and fingering with 

the right hand. Admin. R. 22. 

The ALJ compared Hergenrader's RFC with the physical and mental demands of her 

previous job as an office manager and found that her RFC did not preclude her from performing that 

work as she had in the past. Admin. R. 25. In addition, the vocational expe1t ("VE") testified that 

Hergenrader' s RFC did not preclude her from perfo1ming the tasks of an office manager as that 

occupation is typically perfo1med in the national economy. Admin. R. 25, 62. The ALJ concluded 

that Hergenrader failed to show that she was disabled within the meaning of the Social Security Act. 

Admin. R. 25. 

STANDARD OF REVIEW 

The district cou1t must affirm the Commissioner's decision if it is based on proper legal 

standards and the findings of fact are suppo1ted by substantial evidence in the record as a whole. 42 

U.S.C. § 405(g); Batson v. Comm 'r of Soc. Sec. Adm in., 359 F.3d 1190, 1193 (9th Cir. 2004). Under 

this standard, the Commissioner's factual findings must be upheld if suppo1ted by inferences 

reasonably drawn from the record even if evidence exists to supp01t another rational interpretation. 

Batson, 359 F.3d at 1193; Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995). 

DISCUSSION 

I. Claims of Error 

The claimant bears the burden of showing that the ALJ erred and that any error was harmful. 

1vfcLeodv. Astrue, 640 F.3d 881, 886-87 (9th Cir. 2011). Hergenrader contends the ALJ improperly 

discredited her subjective statements, the opinion of Patrick Radecki, M.D. regarding her limitations 

in mental functions, fingering, and manipulation, the recommendation of a physician assistant that 

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Case 6:14-cv-01997-JO Document 24 Filed 03/10/16 Page 2 of 11
she limit the time spent filing documents in an office setting, and letters from three lay witnesses. 

Hergenrader contends these errors were hmmful because they prevented the ALJ from properly 

considering all of her limitations, considering her mental and physical impahments in combination, 

and assessing her RFC. She contends that this led the ALJ to err in his RFC dete1mination and 

incorrectly conclude that she could perform her past relevant work. 

II. Credibility Determination 

In her disability application, Hergenrader alleged that she was unable to perform sedentmy 

work because she could not stand or sit for two or more hours at a time, lift at1d cany ten or more 

pounds, grasp adequately with her right hand, and work without resting intermittently throughout 

the day. Admin R. 20, 210-11. 

The ALJ accepted some of Hergenrader's subjective statements. The ALJ believed that 

Hergenrader' s medically determinable impairments could cause some of the alleged symptoms she 

described. Admin. R. 22. For example, the ALJ limited her to sedentmy work with a sit/stand 

option and excluded working at heights or around moving machine1y to accommodate her asserted 

limitations in lifting and standing due to pain. The ALJ found Hergenrader' s statements less than 

fully credible only insofar as she suggested that her symptoms were so debilitating that they left her 

unable to perfo1m work within the limitations of the RFC assessment. Admin. R. 23. 

The ALJ found that Hergenrader's impahments could reasonably produce some degree of 

the symptoms she alleged. He did not identify affirmative evidence ·of malingering. Under such 

circumstances, an ALJ must assess the claimat1t' s credibility regarding the severity of her symptoms. 

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). An adverse credibility determination 

must include specific findings suppo1ted by substat1tial evidence and clear and convincing reasons. 

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Carmickle v. Comm 'r, Soc. Sec. Adm in., 533 F.3d 1155, 1160 (9th Cir. 2008); Smolen v. Charter, 

80 F.3d 1273, 1281-82 (9th Cir. 1996). The findings must be sufficiently specific to pe1mit the 

reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. 

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 

In assessing credibility, an ALJ must consider all the evidence in the case record, including 

the objective medical evidence, the claimant's treatment histo1y, medical opinions, daily activities, 

work hist01y, the observations of third pmiies with knowledge of the claimant's functional 

limitations, and any other evidence that bears on the consistency and veracity of the claimant's 

statements. Tommasetti, 533 F.3d at 1039; Smolen, 80 F.3d at 1284; Social Security Ruling ("SSR") 

96-7p, 1996 WL 374186 at *5. 

The ALJ' s decision demonstrates that he considered all the evidence relating to the proper 

factors for evaluating credibility. He discussed the findings of Dr. Joshua Mitnick, a podiatrist who 

found that the musculoskeletal pain in Hergemader' s right foot was not debilitating. Admin. R. 23. 

A MRI study ofHergemader' s foot showed only a mild benign outgrowth of cartilage without signs 

of fracture or other abn01malities. Admin R. 349. Thereafter, Dr. Mitnick found that Hergemader' s 

foot pain had improved leaving only mild tenderness on palpation without other acute abnormalities. 

Admin. R. 34 7. Medical improvement from treatment suppo11s an adverse inference as to the 

credibility of a claim of ongoing disability. i\Jorgan v. Comm 'r of Soc. Sec., 169 F.3d 595, 599 (9th 

Cir. 1999); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). 

The ALJ also discussed the physical examination performed by Dr. Radecki in May 2011. 

Admin. R. 23, 326. Hergemader complained of hip pain, problems gripping with the right index 

finger, and problems walking due to pain in her right foot. Admin. R. 326. Dr. Radecki found that 

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Hergenrader' right hip had a no1mal range of motion relative to the left hip which had no symptoms. 

Admin R. 328. He suggested Hergenrader exaggerated her symptoms because "she really had no 

pain behavior when her husband was out of the room ... but when her husband was in the main 

waiting room the claimant seemed to put on the pain behavior." Admin. R. 329-30. The ALJ 

reasonably found this evidence of exaggerated symptoms reflected adversely on Hergenrader's 

credibility. 

As the ALJ noted, Dr. Radecki found "no evidence that there is some disease that would 

prevent her from doing a combination of sitting and standing eight hours a day .... " Admin. R. 23, 

333. Dr. Radecki noted that Hergenrader was able to move around the room without difficulty other 

than a slight limp. Admin. R. 329. Although Dr. Radecki acknowledged subjective pain in 

Hergenrader' s right index finger, he found no limitations on Hergenrader' s keyboarding ability. 

Admin. R. 23, 333. The ALJ made specific findings based upon Dr. Radecki's assessment. Admin. 

R. 23. Where the ALJ makes specific findings that justify the decision to disbelieve a claimant's 

subjective allegation of excess pain, it is not the province of the comt to second-guess the decision. 

Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). 

The ALJ also considered a psychodiagnostic examination performed by Daniel Scharf, Ph.D. 

in December 2011. Admin. R. 24. Dr. Scharf found that Hergenrader was atiiculate, easily 

understandable, logical, and goal oriented. Admin. R. 367. Dr. Scharf dete1mined that the 

"significant cognitive problems" that Hergenrader claimed "were not evident on interview and 

mental status examination." Admin. R. 368. An ALJ may reasonably discount a claimant's 

subjective claims that conflict with the clinical findings. 1Worgan, 169 F.3d at 598; Swanson v. Sec'y 

of Health & Human Servs., 763 F.2d 1061, 1065 (9th Cir. 1985). 

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The ALJ also considered Hergenrader' s daily activities, noting that she acted as the care giver 

for her mother-in-law, pmticipated in a vocational rehabilitation program, cooked with her husband, 

and perfo1med self-care activities. Admin. R. 22-24. While these activities are not equivalent to 

full-time employment, they show Hergenrader was capable of a range of sedentaty activities and 

support the ALJ' s conclusion that she could perfo1m activities similar to those required in sedentmy 

office work. The ALJ's findings are suppo1ted by substantial evidence in the record and are 

sufficiently specific for me to conclude that the ALJ did not arbitrarily discount Hergemader's 

credibility. Tommasetti, 533 F.3d at 1039; Carmickle, 533 F.3d at 1160. 

III. Medical Opinions 

In May 2011, Dr. Radecki found some osteoarthritic changes in the PIP joint of 

Hergemader's right index finger. Admin. R. 326. He opined that these changes were not disabling 

and that she could keyboard without hesitation despite pain in the finger. Admin. R. 327, 329, 333. 

Dr. Radecki's said, "I would say her osteomthritis of her right index finger does not limit her from 

keyboarding, at least occasionally" and "[i]f she had to keyboard constantly, it might be a bit of a 

problem but really there is not much flexion needed to keyboard with the index finger." Admin. R. 

333. Hergenrader contends Dr. Radecki' s statement contradicted the ALJ' s finding that Hergenrader 

could perform frequent handling and fingering. Pl.' s Br. 11. 

The claimant has the burden of proving the existence and severity of her impairment. 

Smolen, 80 F.3d at 1289. At step four, a claimant must show she can no longer perform her past 

relevant work. Pinto v. lvfassanari, 249 F.3d 840, 844 (9th Cir. 2001); lvfayes v. lvfassanari, 276 

F.3d 453, 460 (9th Cir. 2001). Hergenrader argues that Dr. Radecki's statement shows that she 

cannot keyboard or do other fine manipulation frequently, as the ALJ found in his RFC assessment. 

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This argument cannot be sustained because Dr. Radecki did not use the word "occasionally" to limit 

Hergenrader to occasional keyboarding. Instead, Dr. Radecki indicated the minimum she could do. 

Admin. R. 333. Accordingly, Dr. Radecki's opinion does not foreclose frequent keyboarding and 

is insufficient to meet Hergenrader's burden of proving she cannot keyboard frequently. 

Furthe1more, Dr. Radecki's opinion only addressed Hergenrader's keyboarding ability with 

one of her fingers. Admin. R. 333. He did not address her ability to handle and finger generally or 

to compensate for the pain in her index finger by using other fingers. The ALJ reasonably concluded 

that Dr. Radecki's assessment does not show that Hergenrader would be precluded from frequent 

handling and fingering. 

Hergenrader fmiher contends that the ALJ erred by failing to include in his RFC assessment 

that Hergenrader required a cane. Pl.'s Br. 12. Dr. Radecki suggested that if Hergenrader's 

problems in her right foot were truly as bad as she claimed, she could use a cane. Admin. R. 333. 

This statement could reasonably be interpreted to suggest that Dr. Radecki doubted Hergenrader was 

as limited as she claimed, based on her ability to ambulate without a cane. It cannot reasonably be 

interpreted, as Hergenrader urges, as a medical finding that she would require a cane to perf01m 

activities consistent with the limitations in her RFC. Indeed, the record is devoid of medical 

documentation indicating that a cane is medically necessary to aid Hergenrader in walking or 

standing. SSR 96-9P, 1996 WL 374185. The ALJ considered Dr. Radecki's comments regarding 

the use of a cane and gave them proper weight. Admin. R. 23. I find no eirnr in the ALJ' s evaluation 

of Dr. Radecki's opinion. 

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Hergemader contends that the ALJ ened because he failed to address a letter from her 

physician's assistant Ms. Glavor to an unidentified work supervisor. Pl. Br. 12. Ms. Glavor 

reconunended that the supervisor limit the amount of filing Hergemader was required to do during 

a work day due to reported pain from miluitis in her hands. Admin. R. 609. The ALJ did not en by 

failing to discuss Ms. Glavor' s letter, which was dated after the ALJ issued his decision. Admin R. 

25, 609. An ALJ cannot be accused of enor for failing to address evidence that did not exist when 

he issued his decision. 

Ms. Glavor's letter was presented first to the Appeals Council, which found that it provided 

no basis to change the ALJ's decision. Admin. R. 2. Under these circumstances, the district comi 

must review the entire record, including the additional materials submitted to the Appeals Council 

in detetmining whether the Conunissioner' s decision is supported by substantial evidence. Brew es 

v. Comm 'r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012); Harman v. Apfel, 211 F.3d 

1172, 1180 (9th Cir. 2000); Ramirez v. Shala/a, 8 F.3d 1449, 1452 (9th Cir. 1993). 

I conclude that Ms. Glavor's letter does not undermine the evidentiaty basis of the ALJ's 

decision. First, the letter is simply a recommendation that Hergemader be petmitted intermittent 

breaks while filing; it is not a medical finding about specific functional .limitations. Such 

reconunendations need not be incorporated into an RFC assessment. Carmickle, 533 F.3d at 1165. 

In addition, Ms. Glavor's one-sentence reconunendation is not supported by objective or clinical 

findings. Unsupp01ied, conclus01y opinions need not be incorporated into an RFC assessment. 

}Jeana/ v. Apfel, 172 F.3d 1111, 1117 (9th Cir. 1999). In the absence of clinical findings, it is 

reasonable to infer that Ms. Glavor premised her recommendation on Hergemader's subjective report 

of pain. The ALJ's credibility dete1mination suggested that such subjective rep01iing should be 

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given limited weight. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th cir 2001) (Medical 

opinions premised on claimant's discredited subjective statements are no more credible than the 

statements on which it was based). 

V. Lay Witness Statement 

The ALJ considered a letter submitted by Ms. Sunderland, an employment specialist who 

worked with Hergenrader. Admin. R. 24. Ms. Sunderland said that Hergenrader told her that 

Hergemader had anxiety when driving, which limited her ability to look for work. She also said 

worsening symptoms in Hergemader's hands made office work less of an option for her. Admin. 

R. 291. 

An ALJ must consider the statements of a lay witness, and must give reasons germane to the 

witness, for discounting the statements. Valentine v. Comm 'r of Soc. Sec. Adm in., 574 F.3d 685, 694 

(9th Cir. 2009). An ALJ need not clearly link the reasons to his dete1mination that the lay witness 

statement should be discounted, as long as he notes germane reasons somewhere in the decision and 

they are supp01ied by substantial evidence. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). 

The ALJ discounted Ms. Sunderland's letter because it was based entirely on Hergemader' s 

self-repo1iing which, as discussed above, he found not fully credible. When an opinion is premised 

on subjective statements, that opinion is no more reliable than the subjective statements which it 

relies on. Tonapetyan, 242 F.3d atl 149. An ALJ can properly disregard an opinion based on 

subjective statements when the ALJ has already discounted those subjective statements. Fair, 885 

F.2d at 605. 

The ALJ also found that Hergemader' s mental health treatment hist01y and the evaluation 

by Dr. Scharf did not establish significant functional limitations from anxiety. Similarly, the ALJ 

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found the medical records and Hergenrader's activities suggested she could engage in frequent 

fingering and handling, despite her manipulative deficits. Admin. R. 24. This reasoning provides 

an adequate basis, supported by substantial evidence, for the ALJ's evaluation of Ms. Sunderland's 

letter. 

Hergenrader next contends the ALJ silently disregarded lay witness statements from her 

husband, Mr. Hergenrader, and her friend, Ms. Negron. Pl.'s Br. 17. The ALJ considered Mr. 

Hergenrader' sand Ms. Negron' s statements that Hergenrader had pain in her right foot and difficulty 

sleeping, using her right index finger, and performing household chores. Admin. R. 22-24. The ALJ 

did not find these statements inconsistent with his RFC assessment. The ALJ discussed the limiting 

effects of all of the alleged symptoms described by these lay witnesses in his discussion of the 

medical evidence and Hergenrader's credibility. Admin. R. 22-24. Accordingly, the ALJ did not 

reject or ignore the lay witness statements and was not required to articulate reasons for doing so. 

If the ALJ discredited these lay witness statements at all, it was only insofar as they suggested 

that her impairments were so limiting that they would preclude Hergenrader from sedenta1y office 

work with the option to sit or stand. The ALJ's discussion of Hergenrader's credibility and his 

evaluation of the medical evidence provide germane reasons for this conclusion supported by 

substantial evidence. In particular, the ALJ' s discussion of the record as a whole supports his finding 

that Hergenrader retains the capacity to handle and finger frequently and to alternate standing and 

sitting for eight hours, despite her limitations. Admin. R. 23, 332-33. This reasoning provides an 

adequate basis for the ALJ's evaluation of the lay witness statements. Valentine, 574 F.3d at 694; 

Lewis, 236 F.3d at 512. 

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Even if the lay witness statements could be interpreted differently, in a manner more 

favorable to Hergemader, the court must uphold the ALJ' s interpretation because it is supported by 

inferences reasonably drawn from the record. }1lolina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 

2012); Batson, 359 F.3d at 1193;Andrews, 53 F.3d at 1039-40. 

VI. Impairments in Combination 

Hergemader' s argument that the ALJ failed to take into account her multiple impairments 

in combination has no merit. The ALJ's decision reflects that he considered the combined effects 

of all ofHergemader's impaiiments, symptoms, and functional limitations. Admin. R. 21-25. The 

ALJ considered all of Hergemader' s allegations of functional limitations and accounted for all the 

evidence she presented of functional limitations. In doing so, the ALJ properly considered the 

combined effects of her impairments. Hergemader did not identify any functional limitation arising 

from the combination of her impairments or side effects of medications that the ALJ failed to 

address. The ALJ based the RFC assessment on the evidence he found credible. I find no en-or. 

CONCLUSION 

For the foregoing reasons, the Commissioner's final decision is AFFIRMED. 

DATED this --1J:tday of March 2016. 

!Wbcrt~"'°' Unite '"'" St t s District Court 

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