IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

PENNY MARIE LONG HAYWARD, ) 

) 

Plaintiff, ) 

) 

~ ) 

) 

CAROLYN W. COL VIN, Acting Commissioner of ) 

Social Security, ) 

) 

Defendant. ) 

JONES, J., 

3:15-CV-01325-JO 

OPINION AND ORDER 

Plaintiff Penny Hayward appeals the Commissioner's decision denying her application for 

disability instU·ance benefits under Title II of the Social Security Act. The court has jurisdiction 

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

PRIOR PROCEEDINGS 

Hayward alleged disability beginning December 30, 2000, due to pancreatitis, osteoporosis, 

osteomihritis, chronic obstructive pulmonary disease ("COPD"), nerve problems, back problems, 

mndety, and problems with mem01y and learning. Admin. R. 19, 152, 184. The ALJ conectly found 

that Haywm·d satisfied the insured status requirements of the Social Security Act through March 31, 

2009. Admin. R. 19. Hayward must establish disability on or before that date to prevail on her 

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Case 3:15-cv-01325-JO Document 22 Filed 07/12/16 Page 1 of 10
claim. 42 U.S.C.§ 423(a)(l)(A); Tidwell v. Apfel, 161F.3d599, 601 (9'h Cir. 1998). Accordingly, 

the relevant period for Hayward's claim runs from December 30, 2000 through March 31, 2009. 

The ALJ applied the five-step sequential evaluation process required by 20 CFR 404.1520(a) 

in order to dete1mine whether Hayward was disabled during the relevant time. Admin. R. 19-21. 

See Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At step two of the evaluation, the ALJ determined 

that Hayward had the severe impairments of osetoarthrosis and related disorders, and opioid 

dependence. Admin. R. 22. The ALJ determined that pancreatitis did not adversely affect 

Hayward's ability to perform basic work activities and was not severe during the relevant time. 

Admin. R. 23. At step three of the evaluation, the ALJ determined that Hayward did not suffer from 

an impairment or combination of impairments that met the criteria for any of the presumptively 

disabling conditions listed in 20 CFR Part 404, Subpart P, Appendix 1. Admin. R. 25. The ALJ 

carefully considered Listing 5.08 and concluded Hayward's pancreatitis symptoms did not meet the 

criteria for weight loss due to any digestive disorder prior to her date last insured. Admin. R. 25. 

The ALJ then found that, despite her impahments during the relevant time, Hayward retained 

the residual functional capacity ("RFC") to perform medium work if she could avoid concentrated 

exposure to fumes, odors, dusts, and gases. Admin. R. 26. The ALJ found that Hayward had past 

relevant work as a front desk clerk and as a kennel attendant and dog bather. Admin. R. 31. The 

ALJ compared Hayward's RFC with her description of her past work and determined that she could 

perform the front desk and kennel attendant/dog bather work as she had actually done it in the past. 

Admin. R. 32. In addition, the VE testified that a person with Hayward's RFC could perform these 

jobs as they are generally performed in the national economy. Admin. R. 31-32. Accordingly, at 

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step four of the disability determination process, the ALJ concluded that Hayward was not disabled 

within the meaning of the Social Security Act. 

ST AND ARD OF REVIEW 

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

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

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (91

h Cir. 2008). Substantial evidence is such relevant 

evidence that a "reasonable mind might accept as adequate to support a conclusion." Webb v. 

Barnhard, 433 F.3d 683, 686 (9'h Cir. 2005); See also Smolen v. Chafer, 80 F.3d 1273, 1279 (9'h Cir. 

1996) ("Substantial evidence means more than a scintilla, but less than a preponderance.") (quoting 

Richardson v. Perales, 402 U.S. 389, 401 (1971). Under this standard, the Commissioner's factual 

findings must be upheld if supported by inferences reasonably drawn from the record even if 

evidence exists to suppo1i another rational interpretation. Batson v. Comm 'r of Soc. Sec. Admin., 

359 F.3d 1190, 1193 (9'h Cir. 2004); Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9'h Cir. 1995). 

CLAIMS OF ERROR 

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

1VfcLeod v. Astrue, 640 F.3d 881, 886-87 (9'h Cir. 2011). Hayward contends the ALJ improperly 

concluded that her pancreatitis was not a severe impairment at step two of the evaluation process. 

She also contends the ALJ ened at step three by finding that her chronic pancreatitis did not meet 

the criteria for presumptive disability under Listing 5.08 in the Listing of Impairments. Finally, 

Hayward contends the ALJ improperly rejected the opinion of Scott Dunlap, M.D., which led her 

to reach an RFC assessment that did not accurately reflect all of Hayward's functional limitations. 

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DISCUSSION 

I. Step Two Severity Requirement 

Step two of the evaluation is a de minimis screening process, at which point the ALJ 

dete1mines whether the claimant has any medically determinable impairment or combination of 

impahments that adversely affect the ability to perform basic work activities. 20 CFR 404.1520( c ); 

20 CFR 404.1521. If the ALJ dete1mines that the claimant has no such impairment, the claimant is 

not disabled within the meaning of the Social Security Act and the disability determination process 

ends at step two. Here, the ALJ determined that Hayward did meet the step two severity requirement 

because her osteoarthritis and opioid dependence limited her ability to perform basic work activities. 

Admin. R. 22. Thus, the ALJ resolved step two in Hayward's favor and properly continued to the 

remaining steps of the sequential decision-making process. Hayward, therefore, has failed to identify 

a harmful error at step two of the ALJ's decision. See Burch v. Barnhart, 400 F.3d 676, 682 (91

h Cir. 

2005) (any error in omitting an impairment from the list of severe impaiiments at step two was 

hmmless because step two was resolved in claimant's favor); Lewis v. As true, 498 F.3d 909 (91

h Cir. 

2007) (failure to list impahments as severe at step two was harmless because the limitations posed 

by the impairments were considered at step four). 

II. Listing 5.08 Requirements 

At step three, the claimant bears the burden of showing that her impairments satisfy the 

criteria for an impairment in the regulatory listings, so as to trigger a presumptive finding of 

disability. Burch, 400 F.3d at 682-83; Lewis v. Apfel, 236 F.3d 503, 514 (9'h Cir. 2001). Hayward 

contends that the ALJ erred in finding that her chronic pancreatitis did not meet the criteria for 

Listing 5.08. Listing 5.08 requires the claimant to prove that she suffers "weight loss due to any 

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Case 3:15-cv-01325-JO Document 22 Filed 07/12/16 Page 4 of 10
digestive disorder despite continuing treatment as prescribed, with BMI of less than 17.50 

calculated on at least two evaluations at least 60 days apaii within a consecutive six month period" 

(emphasis added). 20 CFRPt. 404, Subpt. P, App. 1, § 5.08. Here, theALJ found thatHaywardhad 

shown the requisite weight loss, but had failed to show that it was attributable to her pancreatitis or 

any other digestive disorder. Admin. R. 25. This court cannot reverse or modify the ALJ's finding 

unless the finding is not suppo1ied by substantial evidence or is based on legal error. Burch v. 

Barnhart, 400 F.3d at 679; ivfagallanes v. Bowen, 881 F.2d 747, 750 (9'h Cir. 1989). If the evidence 

is susceptible to more than one rational interpretation, this court must uphold the ALJ's finding. 

Andrews, 53 F.3d at 1039-40. 

In determining that Hayward's pancreatitis did not cause her weight loss, the ALJ relied on 

rep01is from doctors, who examined and treated Hayward, but could not identify the cause of her 

weight loss between 2006 and 2008. Admin: R. 25. Evidence of the ambiguous etiology of 

Hayward's weight loss persists throughout the record. For example, Dr. Sharon Kenny said the 

etiology was unclear when she examined Hayward in June 2007. Admin. R. 323. In February and 

June of2008, two more doctors found "no evidence of chronic pancreatitis" and reported that it was 

"not clear" whether Hayward's chronic abdominal pain was due to her "pancreas (or not)". Admin. 

R. 283, 520. Objective medical test results did not suggest that clu·onic pancreatitis caused 

Haywood's pain and weight loss symptoms. For example, an abdominal CT scan perfo1med in July 

2008 showed no "pancreatic abnormalities ... to suggest gross pancreatitis". Admin. R. 360. The 

doctor's uncertainty regarding the etiology of Hayward's weight loss combined with the negative 

objective medical tests support the ALJ' s conclusion that Hayward's pancreatitis did not cause her 

weight loss between 2006 and 2008. 

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Case 3:15-cv-01325-JO Document 22 Filed 07/12/16 Page 5 of 10
The ALJ also considered medical records suggesting that opiate withdrawal contributed to 

Hayward's weight loss. Hayward has a well documented history of opiate drug abuse. Adm in. R. 

462. When Hayward was examined on January 11, 2006, the doctor noted she was suffering from 

"typical opiate withdrawal symptoms, including nausea, vomiting, anxiety, insomnia, arthralgia, 

pain" and a reported inability to eat. Admin. R. 462, 474. Her doctors remained aware of the 

possibility that opiate abuse may be causing Hayward's symptoms even after her release from detox. 

The day she was released, January 18, 2006, a doctor listed "addiction vs. anxiety vs. pancreatitis 

vs. eating disorder" as potential causes for her weight loss. Admin. R. 477 - 78. These reports and 

Hayward's histmy of addiction support the ALJ's conclusion that Hayward's weight loss was 

attributable to factors other than pancreatitis. 

The ALJ also noted that Hayward's doctors considered nutritional deficits a contributor to 

her weight loss. Dr. Eileen Sparks assessed Hayward on July 15, 2008, and concluded that 

Hayward's "unintentional weight loss" resulted from "not eating adequate kcals for appropriate wt 

gain." Admin. R. 523. Notably, Hayward later did gain weight by increasing her caloric intake. 

Admin. R. 25, 332, 525-26. Thus, the evidence supports an inference that Hayward lost weight 

between 2006 and 2008 because she did not eat enough to sustain healthy weight and had addiction 

and withdrawal symptoms that exacerbated her difficulty eating. 

In order for Hayward to have met the 5 .08 listing criteria, her chronic pancreatitis or another 

digestive disorder must have caused her weight loss. The ALJ inferred that Hayward's weight loss 

was not attributable to a digestive disorder from the lack of objective medical evidence of active 

pancreatitis during the relevant time together with evidence that she lost weight due to poor diet, 

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Case 3:15-cv-01325-JO Document 22 Filed 07/12/16 Page 6 of 10
addiction, and withdrawal symptoms. The ALJ's finding is supp01ted by inferences reasonably 

drawn from the record and will not be disturbed. Batson, 359 F.3d at 1193. 

III. Dr. Dunlap's Opinion 

Dr. Dunlap began treating Hayward on Januaiy 29, 2009, sh01tly before Hayward's insured 

status expired. In his progress notes, he said Hayward's pancreatitis was "not causing her a lot of 

pain." Admin. R. 526. In April 2011, two years after Hayward's insured status expired, Dr. Dunlap 

examined her for complaints of abdominal pain. Admin. R. 339-40. Then, in July 2013, four years 

after Hayward's insured status expired, Dr. Dunlap submitted the letter that is at issue here. Admin. 

R. 512. 

In the letter, Dr. Dunlap said Hayward had diagnoses of COPD, pancreatitis, osteoporosis, 

and chronic pain syndrome. He acknowledged her histo1y of opiate addiction with current 

methadone maintenance. He said that Hayward had been underweight since August 2008 and that 

a history of ve1tebrate fractures in the thoracic spine and pancreatitis probably caused her chronic 

pain. Dr. Dunlap opined that "the effects of her COPD alone would limit her endurance and ability 

to exert herself since 2008." Admin. R. 512. Ultimately, Dr. Dunlap opined that it would not be 

likely that Haywai·d would be able to "stand more than two hours in an eight hour day without sitting 

down or lying to rest" and that "she should not be asked to lift more than ten pounds more than fourfive times per day." Admin. R. 512. Hayward contends the ALJ improperly rejected Dr. Dunlap's 

letter. 

The ALJ gave "ve1y little weight" to Dr. Dunlap's letter in reaching her decision. Admin. 

R. 29. The ALJ gave greater weight to the opinions of state agency medical consultants Sharon Eder, 

MD and Neal Berner, MD, who dete1mined that there was "insufficient evidence" to rate Hayward's 

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Case 3:15-cv-01325-JO Document 22 Filed 07/12/16 Page 7 of 10
physical functioning capabilities. Admin. R. 30, 80-86, 87-95. An ALJ may properly give 

diminished weight to the opinion of a treating physician that is controve1ied by other medical 

opinions by providing "specific and legitimate reasons ... supported by substantial evidence in the 

record" for doing so. See Windmarkv. Barnhart, 454 F.3d 1063, 1066-67 (9'h Cir. 2006) (specific 

and legitimate standard applied even when the only contradictory medical opinion was the "brief and 

conclusory opinion of the state agency reviewing physician). 

The ALJ pointed out that Dr. Dunlap relied on factual etTors in forming his opinion. Admin. 

R. 29, 512. Dr. Dunlap incorrectly believed that Hayward had positive pulmonmy tests for COPD 

in August 2008, but the test actually took place in August 2009, after Hayward's insured status 

expired. Admin. R. 29, 265, 512. Accordingly, Dr. Dunlap's opinion that Hayward's COPD would 

have limited her endurance and ability to exert herself "at least since 2008" is not suppmied by the 

objective medical evidence or any clinical findings. An ALJ need not accept the opinion of a 

treating physician that is brief, concluso1y, and inadequately suppmied by clinical findings. Bayliss 

v. Barnhart, 427 F.3d 1211, 1216 (9'h Cir. 2005); Cotton v. Bowen, 799 F.2d at 1403,1408 (9'h Cir. 

1986). 

The ALJ noted that Dr. Dunlap did not begin treating Hayward until the end of her period 

of insured status in early 2009. Admin. R. 29. Accordingly, Dr. Dunlap had ve1y little first hand 

information about her ability to function during the period that is relevant for her claim. Under such 

circumstances, it is reasonable to infer that Dr. Dunlap relied primarily on Hayward's subjective 

statements to form his opinion about her functional limitations before he met her. 

Dr. Dunlap also believed Hayward was "probably correct" when she said that "she had 

stopped working because she could not do a full day's work." Admin. R. 29, 512. The ALJ found 

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Case 3:15-cv-01325-JO Document 22 Filed 07/12/16 Page 8 of 10
this showed that Dr. Dunlap relied on the unreliable statements of his patient. An ALJ is entitled 

to reject a treating physician's opinion that is premised primarily on subjective statements that the 

ALJ properly found unreliable. Tonapetyan v. Halter, 242 F.3d 1144 at 1149 (9'h cir 2001). 

The ALJ pointed out that evidence in the record contradicted Dr. Dunlap's suggestion that 

Hayward had stopped working due to pain. Adm in. R. 29. Hayward's employers submitted a letter 

in July 2013 stating that Hayward was let go from her position "due to conduct with clients." 

Admin. R. 258. The employers said that they did not keep records when employees called in sick, 

suggesting that lost work time likely did not contribute to Hayward's termination. Moreover, 

Hayward herself reported that "her employers were very supp01iive of her clu·onic pain and need 

sometimes to have lighter job duties or go home earlier." Admin. R. 315. She also stated around 

the same time that "obtaining employment had been one of the best tools to treat her clu·onic pain 

[and] that it provides a distraction for her. Admin. R. 323. Hayward's own statements and those of 

her employers therefore undermine the notion that she stopped working due to pain. When a 

claimant stops working for reasons unrelated to disability, it casts doubt on her claim that she cannot 

work due to disability. Bruton v. }vfassanari, 268 F.3d 824, 828 (9th Cir. 2001). 

Moreover, the ALJ noted that, during the relevant time period, substance abuse appeared to 

be the cause of Hayward's pain. The ALJ noted that "contemporaneous medical repo1is show 

[Hayward's] work absences were primarily related to opiate abuse and opiate withdrawal symptoms 

and her work ups for pancreatitis were negative." Admin. R. 29-30. For example, when Hayward 

complained of pain in 2007, her work-ups for pancreatitis all returned negative. Admin. R. 323. 

Then in Janumy 2008 she rep01ied that her "pancreatitis [had] been under good control." Admin. 

R. 325. In January 2008, Hayward struggled with withdrawal symptoms while trying to decrease 

9 - OPINION AND ORDER 

Case 3:15-cv-01325-JO Document 22 Filed 07/12/16 Page 9 of 10
her methadone dosage on her own, which had an adverse impact on her ability to work. Admin. R. 

325. Thus, Hayward's deviations from her opioid regimen and not her pancreatitis, appears to have 

been the cause of her pain. Accordingly, it is reasonable to infer that, even if pain contributed to 

Hayward's tennination from work, opioid withdrawal symptoms caused the pain while her 

pancreatitis was under control and her COPD remained undiagnosed. 

The ALJ provided specific and legitimate reasons based on substantial evidence in the record 

for affording Dr. Dunlap's opinion diminished weight in her analysis. Admin. R. 29-30. 

Accordingly, I find no en·or in the ALJ' s evaluation of that evidence and it will not be disturbed. 

Windmarkv. Barnhart, 454 F.3d at 1066-67. 

CONCLUSION 

Based on the foregoing, Hayward's claims of error cannot be sustained. The 

Commissioner's decision is AFFIRi\i!ED. 

DATED this 1:t1l:iay of July, 2016. 

10 - OPINION AND ORDER 

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