IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

SEAN E. LERCH, ) 

) 

Plaintiff, ) 

) 

~ ) 

) 

CAROLYN W. COLVIN, Acting Commissioner of) 

Social Security, ) 

) 

Defendant. ) 

JONES, J., 

6:15-CV-01395-JO 

OPINION AND ORDER 

Plaintiff Sean E. Lerch appeals the Commissioner's decision denying his 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\11 the Commissioner's decision. 

PRIOR PROCEEDINGS 

Before his present application, Lerch filed a claim for disability insurance benefits under the 

Social Security Act, alleging disability beginning in July 2006. After developing the record and 

holding an administrative hearing before an ALJ, the Commissioner denied that application on 

February 12, 2010. Admin. R. 52-66. 

Lerch then filed his present application for disability insurance benefits, alleging disability 

beginning February 13, 2010. Admin. R. 11, 149. The ALJ found that Lerch met the insured status 

1 - OPINION AND ORDER 

Case 6:15-cv-01395-JO Document 18 Filed 09/29/16 Page 1 of 10
requirements of the Act through December 31, 2011. Admin. R. 12. Lerch must prove he was 

disabled on or before that date to prevail on his claim. 42 U.S.C.§ 423(a)(l)(A); Tidwell v. Apfel, 

161 F.3d 599, 601 (9'h Cir. 1998). Accordingly, the relevant period for this appeal runs from 

February 13, 2010, the day after the previous determination of non-disability, through December 31, 

2011, the day Lerch' s insured status expired. 

To determine whether Lerch was disabled during the relevant time, the ALJ applied the fivestep sequential disability determination process described in 20 C.F.R. § 404.1520. See Bowen v. 

Yuckert, 482 U.S. 137, 140 (1987). The ALJ found that, during the relevant time, Lerch's ability to 

perform basic work activities was adversely affected by degenerative disc disease of the spine with 

a history ofL4-5 decompression surgery and discectomy, colitis, and bmsitis in the right shoulder. 

Admin. R. 14. The ALJ determined that, despite these impaiiments, Lerch retained the residual 

functional capacity to perform sedentary work as defined in the regulations, except that he could lift 

up to 15 pounds occasionally, had limitations on climbing, postural activities, and reaching overhead 

with his right aim. In addition, Lerch required access to a bathroom at the worksite. Admin. R. 15. 

The ALJ compared Lerch' s RFC to the description of his past relevant work in his work 

histmy repo1t and his hearing testimony and concluded that his past relevant work as a security 

officer, customer service representative/dispatcher, appointment clerk, and staffing clerk did not 

require work activities that were inconsistent with his RFC. Admin. R. 18. Accordingly, the ALJ 

found that Lerch was able to perfo1m past relevant work and was not disabled within the meaning 

of the Act. Admin. R. 18-19. 

Ill 

Ill 

2 - OPINION AND ORDER 

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ST AND ARD OF REVIEW 

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

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

Tommasetti v. Astrue, 533 F.3d I 035, I 038 (9th 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. Chater, 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 suppo1ted by inferences reasonably drawn from the record even if 

evidence exists to suppo1t another rational interpretation. Batson v. Comm 'r of Soc. Sec. Adm in., 

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

In addition, a prior determination of non-disability creates a presumption of continuing nondisability that the claimant must rebut by showing that his circumstances changed after the prior 

determination. Examples of such changes in circumstance include a change in age that affects the 

applicable age category for the purposes of20 C.F.R. Pait 404, Subpart P, Appendix 2, a change in 

medical condition showing an increase in severity of the claimant's impairments, evidence of the 

existence of an impairment that was not previously considered, or a change in the criteria for 

detennining disability. Chavez v. Bowen, 844 F.2d 691 (91

h Cir. 1988); Taylor v. Heckler, 765 F.2d 

872 (9'h Cir. 1985). 

CLAIMS OF ERROR 

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

1\1cLeodv. Astrue, 640 F. 3d 881, 886-87 (9'h Cir. 2011). Lerch contends the ALJ erred at Step Two 

3 - OPINION AND ORDER 

Case 6:15-cv-01395-JO Document 18 Filed 09/29/16 Page 3 of 10
of the sequential evaluation process by failing to identify obesity, GERD, migraine headaches, 

bursitis of the right hip, and sleep apnea among his "severe impairments" as defined in the 

regulations. Lerch contends the ALJ improperly discounted his subjective statements and the lay 

witness statements of his friends Doug Meyer and Devin Booth. Lerch contends these errors led the 

ALJ to assess his RFC in a manner that did not reflect all of his functional limitations and to 

erroneously conclude that he could perf01m his past work. 

DISCUSSION 

I. The Step Two Severity Requirement 

Step two of the evaluation process is a de minimis screening tool. The ALJ must determine 

whether the claimant has any medically dete1minable impairment or combination ofimpairments that 

adversely affects his ability to perfo1m basic work activities. 20 C.F.R. 404.1520(c); 20 C.F.R. 

404 .1521. If the ALJ determines that the claimant has no such "severe" 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 resolved step two in Lerch's favor when he found that the 

combination ofLerch's impairments adversely affected his ability to do basic work activities, and 

therefore satisfied the de minimus severity requirement. The ALJ properly continued to the 

remaining steps of the sequential disability determination process instead of halting at step two. 

Accordingly, Lerch has failed to identify a harmful error at step two of the ALJ' s decision. See 

Burch v. Barnhart, 400 F.3d 676, 682 (9'h Cir. 2005) (any error in omitting an impahment from the 

list of severe impahments at step two was hmmless because step two was resolved in claimant's 

favor); Lewis v. Astrue, 498 F.3d 909 (9'h. Cir. 2007) (failure to list impairments as severe at step two 

was hmmless because the limitations posed by the impairments were considered at step four). 

4 - OPINION AND ORDER 

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II. Credibility Determination 

Lerch contends the ALJ improperly discounted his subjective statements. In his written 

function report, Lerch said that pain radiating to his legs from a pinched nerve at L4-5 interfered with 

his ability to sit, stand and walk. He said he had missed work in the past due to migraines and 

stomach pain from a flare up of colitis. Lerch said he had the urge to go to have a bowel movement 

frequently, sometimes up to five times a day. Admin. R. 184. 

At his administrative hearing, Lerch testified that he had to stop working in July 2006 due 

to a combination of back problems, the need to use the batlu·oom more frequently than others, and 

migraines. Admin. R. 30-31. Lerch said his back problems precluded continuous sitting, standing, 

or walking. Admin. R. 31. He said he felt the urge to have a bowel movement eight to twelve times 

a day. Admin. R. 32, 46. Lerch said he had recently developed chest pains. Admin. R. 34. 

Lerch testified that his back pain had gotten worse over the years. He said that, in about early 

2010, he began to get tingling and numbness between the knees and hips on the front of both legs. 

Admin. R. 40-41. He said continuous sitting or standing would cause inflammation and he would 

need to change positions. Admin. R. 42. Lerch said he suffered six to nine migraines per month, 

lasting three to six hours each. Admin. R. 43. 

The ALJ believed Lerch had medically determinable impahments that could cause some 

degree of the limitations he claimed, as reflected in the significant restrictions in his RFC 

assessment, limiting him to sedentary work activities at a worksite with ready access to a batlu·oom. 

Admin. R. 15. The ALJ discounted Lerch's subjective statements about the intensity, persistence, 

and limiting effects of his symptoms, however, to the extent he claimed the symptoms prevented him 

from working even within the restrictions of his RFC. Admin. R. 16. 

5 - OPINION AND ORDER 

Case 6:15-cv-01395-JO Document 18 Filed 09/29/16 Page 5 of 10
An adverse credibility detennination must include specific findings supported by substantial 

evidence and a clear and convincing explanation. Carmickle v. Comm 'r, Soc. Sec. Adm in., 533 F.3d 

1155, 1160 (9'h Cir. 2008); Smolen v. Chafer, 80 F.3d at 1281-82. The findings must be sufficiently 

specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the 

claimant's testimony. Tommasetti v. Astrue, 533 F .3d at 103 9. In assessing credibility, an ALJ must 

consider all the evidence in the case record, including the objective medical evidence, the claimant's 

treatment histmy, medical opinions, daily activities, work history, the observations of third parties 

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. 

The ALJ' s written decision shows that he considered all the evidence pe1iaining to the proper 

factors for assessing Lerch's credibility. The ALJ noted the unchallenged adverse credibility 

detennination from the previous ALJ' s decision, which was based on a dearth of objective evidence 

of functional limitation, inconsistencies between the extreme pain Lerch claimed in suppo1i of his 

disability application and the relatively mild pain he reported when seeking treatment from health 

care providers, his limited use of pain medication relative to the extreme levels of pain he claimed, 

his failure to seek treatment for colitis symptoms that he later claimed to be debilitating, and the 

opinions of an examining physician and two non-examining medical consultants who opined that 

Lerch remained capable of at least sedentary work with modifications for postural activities. Admin. 

R. 16, 61-64. 

The ALJ then reviewed the medical evidence received after the previous decision and found 

that it did not support a change in Lerch's medical condition that would suggest a worsening of his 

6 - OPINION AND ORDER 

Case 6:15-cv-01395-JO Document 18 Filed 09/29/16 Page 6 of 10
.. 

functional limitations. The diagnostic imaging ofLerch's spine remained generally consistent with 

the imaging from the prior period. Admin. R. 350, 412-413. Imaging from Janumy 2010 supported 

radiculopathy at L2-3, but Lerch contemporaneously reported that he was doing great and failed to 

indicate any worsening in function. Admin. R. 17, 392, 595. Clinical observations were generally 

benign as well, with Lerch demonstrating normal gait, intact strength, and no atrophy of muscle bulk 

or tone that would be associated with inactivity. Admin. R. 17, 411, 412, 646. The ALJ found that 

Lerch did not report shoulder symptoms to his health care providers after the previous decision and 

the clinical findings regm·ding strength and range of motions were nonnal. Admin. R. 17, 266, 295, 

322. 

Similarly, the medical evidence regarding his colitis did not support a worsening of his 

symptoms. The ALJ noted correctly that Lerch did not report symptoms to health care providers 

until the end of 2011, when he repmied frequent urgency in the need to use the bathroom. Admin. 

R. 17, 319. A colonoscopy study was normal, however, and his symptoms repmiedly improved with 

medication. Admin. R. 17, 303, 296, 309-310, 312. This evidence suggests that Lerch continued 

to have periodic infrequent flares of these symptoms, consistent with the findings of the previous 

ALJ. Admin. R. 58, 62. This evidence reasonably supports an adverse inference as to the credibility 

ofLerch's claim that his functional limitations had worsened and the ALJ's conclusion that Lerch 

had failed to show a change in circumstances to rebut the presumption of continued non-disability 

raised by the previous ALJ's decision. Chavez v. Bowen, 844 F.2d at 693. 

The ALJ also found Lerch's reported daily activities inconsistent with the severity of the 

symptoms he alleged. Admin. R. 17. As the ALJ found, Lerch appeared to engage in an active 

lifestyle with exercise at a gym, travel, providing primmy care and home schooling for his children, 

7 - OPINION AND ORDER 

Case 6:15-cv-01395-JO Document 18 Filed 09/29/16 Page 7 of 10
driving regularly including long trips, going to church, shopping, and spending hours on the 

computer. Admin. R. 17, 35-37, 38, 39, 40, 280, 284, 293. While these activities are not necessarily 

equivalent with full time work, they are inconsistent with the severity of the limitations Lerch 

claimed and support the ALJ' s conclusion that Lerch' s impairments had not increased in severity 

during the relevant time for his present claim. 

As the foregoing demonstrates, the ALJ considered the proper factors for assessing Lerch's 

credibility and drew reasonable inferences from substantial evidence in the record. The ALJ' s 

explanation is clear and convincing and his findings are sufficiently specific to satisfy me that he did 

not arbitrarily discredit Lerch's statements. Accordingly, Lerch has failed to establish a basis to 

overturn the ALJ's credibility detetmination. Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d at 

1160; Tommasetti v. Astrue, 533 F.3d at 1039. 

III. Lay Witness Statements 

In January 2014, Devin Booth wrote a letter in support ofLerch's disability claim. Booth 

said he had been Lerch' s friend and neighbor for ten years and had seen him have difficulty with 

maintenance tasks around the house due to his inability to lift heavy objects and bend over. He said 

Lerch had cancelled plans with friends and family due to discomfort from headaches and stomach 

pain. Admin. R. 260. Another friend, Doug Meyer, also submitted a letter in suppo1t of Lerch. 

Meyer said he had observed Lerch with "extreme back pain" that required him to ask for help with 

tasks he once did on his own. He said Lerch could not lift heavy objects. He said Lerch's pain had 

increased since they met ten years earlier. Admin. R. 261. It is worth noting that neither statement 

suggested that Lerch's impaitments had worsened significantly after the previous ALJ's decision. 

In any event, the ALJ accorded these statements little weight. Admin. R. 18. 

8 - OPINION AND ORDER 

Case 6:15-cv-01395-JO Document 18 Filed 09/29/16 Page 8 of 10
Lay witness statements as to a claimant's symptoms are competent evidence that an ALJ 

must consider. Nguyen v. Chafer, 100 F.3d 1462, 1467 (91

h Cir. 1996). An ALJ may discount the 

statements of a lay witness for reasons germane to the witness. Valentine v. Comm 'r of Soc. Sec. 

Admin., 574 F.3d 685, 694 (91

h Cir. 2009). An ALJ need not clearly link the reasons to his 

determination that the lay witness testimony should be discounted, as long as he notes gennane 

reasons somewhere in the decision and they are supp01ied by substantial evidence. Lewis v. Apfel, 

236 F.3d 503, 512 (91

h Cir. 2001). When the statements of a lay witness are similar to the claimant's 

subjective complaints, for example, then an ALJ's clear and convincing reasons for discounting the 

claimant's testimony are also germane to the lay witness. lvfolina v. Astrue, 674 F.3d at 1114; 

Valentine, 574 F.3d at 694. 

· Here the ALJ gave more weight to the medical evidence and Lerch' s repo1ied daily activities 

than to the lay witness statements. Admin. R. 18. As noted previously, the ALJ discounted Lerch's 

subjective statements because they were inconsistent with the medical evidence, treatment record, 

and Lerch's repo1ied daily activities. Admin. R. 17. The same reasons apply with respect to the lay 

witness statements. In 2011, for example, Lerch told health care providers that his migraines were 

becoming less frequent and that he was able to manage them with over the counter medications. 

Admin. R. 300. He told them that, on his current medications, he was no longer having diarrhea or 

abdominal pain. Admin. R. 319. This evidence calls into question the accuracy of Booth's 

statement regarding extreme headaches and stomach pain. The ALJ' s reasons for discounting 

Lerch's subjective statements provide germane reasons for discounting the weight accorded the lay 

witness statements. i'vfolina v. Astrue, 674 F.3d at 1114; Valentine, 574 F.3d at 694. I find no eirnr 

in the ALJ' s evaluation of the lay witness statements. 

9 - OPINION AND ORDER 

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CONCLUSION 

The ALJ' s conclusion that the case record did not support a change in circumstances is 

suppmied by substantial evidence and will not be overruled. The ALJ properly adopted the 

previous ALJ' s RFC assessment. Lerch' s claims of e1rnr cannot be sustained for the foregoing 

reasons. The Commissioner's decision is AFFIRMED. 

L 

DATED thisJ.'t day of September, 2016. 

I 0 - OPINION AND ORDER 

-~ 

. JgJie , Senior Judge 

United States District Court 

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