1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KELLY L. ROBERTS,

Plaintiff, Civ. No. 6:15-cv-00228-MC

v. OPINION AND ORDER

CAROLYN W. COLVIN, 

Acting Commissioner of the Social Security

Administration,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff Kelly Roberts brings this action for judicial review of the Commissioner’s 

decision denying her application for supplemental security income (“SSI”). This court has 

jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). On April 14, 2011, Roberts filed an 

application for SSI, alleging disability as of that date. After a hearing, the administrative law 

judge (“ALJ”) determined Roberts was not disabled under the Social Security Act from April 14, 

2011 through July 23, 2013. Tr. 32.

1 Roberts argues the ALJ erred in finding her testimony lessthan credible, in rejecting the opinion of a treating physician, in not finding her depression to be 

a severe impairment, and in failing to order a psychological evaluation. Because the 

Commissioner’s decision is based on proper legal standards and supported by substantial 

evidence, the Commissioner’s decision is AFFIRMED.

 

1

“Tr” refers to the Transcript of Social Security Administrative Record provided by the Commissioner.

Case 6:15-cv-00228-MC Document 22 Filed 06/03/16 Page 1 of 7
2 – OPINION AND ORDER

STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner’s decision if the decision is based on 

proper legal standards and the legal findings are supported by substantial evidence in the record. 

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

“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 

v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 

(9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative 

record as a whole, weighing both the evidence that supports and that which detracts from the 

ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can 

reasonably support either affirming or reversing, ‘the reviewing court may not substitute its 

judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d 

519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)). 

DISCUSSION

The Social Security Administration utilizes a five-step sequential evaluation to determine 

whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of 

proof rests upon the claimant to meet the first four steps. If the claimant satisfies his burden with 

respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 

404.1520. At step five, the Commissioner must show that the claimant is capable of making an 

adjustment to other work after considering the claimant’s residual functional capacity (RFC), 

age, education, and work experience. Id. If the Commissioner fails to meet this burden, then the 

claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the 

Commissioner proves that the claimant is able to perform other work existing in significant 

Case 6:15-cv-00228-MC Document 22 Filed 06/03/16 Page 2 of 7
3 – OPINION AND ORDER

numbers in the national economy, the claimant is not disabled. Bustamante v. Massanari, 262 

F.3d 949, 953-54 (9th Cir. 2001).

The ALJ determined Roberts suffered from the following severe impairments: 

degenerative disc disease (DDD), chronic obstructive pulmonary disease (COPD), and mild 

obesity. Tr. 22. After listing Roberts’s earlier psychological diagnoses, the ALJ conducted an 

analysis of the four functional areas known as the “paragraph B” criteria and concluded 

Roberts’s depression was not severe under the Act. Tr. 22-24. As to Roberts’s residual functional 

capacity (RFC), the ALJ found she could perform light work and could lift/carry 20 pounds 

occasionally and 10 pounds frequently, stand/walk for 6 hours and sit for 6 hours in an 8-hour 

workday. Tr. 24. Given Roberts’s RFC, the vocational expert opined she could perform the jobs 

of small products assembler II, marker II, and office helper. Tr. 32. Therefore, the ALJ 

concluded Roberts was not disabled under the Act.

Roberts argues the ALJ erred in four ways: (1) finding her less-than credible; (2) 

rejecting the opinion of Dr. Bolz; (3) failing to find her depression was a severe impairment; and 

(4) failing to order a psychological evaluation. I disagree. 

Roberts alleged severe limitations, such as the need to stop to rest after walking three 

blocks. The ALJ is not “required to believe every allegation of disabling pain, or else disability 

benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).”

Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 

603 (9th Cir.1989)). The ALJ “may consider a wide range of factors in assessing credibility.” 

Ghanim v. Colvin, 12-35804, 2014 WL 4056530, at *7 (9th Cir. Aug. 18, 2014). These factors 

can include “ordinary techniques of credibility evaluation,” id., as well as comparing and 

Case 6:15-cv-00228-MC Document 22 Filed 06/03/16 Page 3 of 7
4 – OPINION AND ORDER

contrasting the alleged symptoms against the claimant’s activities of daily living. Lingenfelter v. 

Astrue, 504 F.3d 1028, 1040 (9th Cir.2007). 

The ALJ pointed to Roberts’s activities of daily living and contrasted those activities 

against her alleged limitations. Roberts does not dispute that she helps care for her boyfriend’s 

disabled sister. At the hearing, Roberts stated her boyfriend was the primary caretaker. The ALJ, 

however, referenced Dr. Mehlaff’s note that “she is the care provider for her boyfriend’s sister.” 

Tr. 28 (citing Tr. 300). Roberts performed those caretaking duties despite not being on pain 

medications for several months. Tr. 301. The ALJ also noted Roberts went on daily bike rides 

around the neighborhood, did cooking, cleaning, and other household chores for herself and her 

boyfriend, and took the bus to go shopping. The ALJ’s conclusion that Roberts’s daily activities 

did not align with her claimed limitations is supported by substantial evidence in the record.

Additionally, the ALJ noted that pain medications generally limited Roberts’s pain. 

Impairments that can be controlled effectively with medication or treatment are not disabling for 

purposes of determining eligibility for benefits. see Warre v. Comm’r Soc. Sec. Admin., 439 

F.3d 1001, 1006 (9th Cir. 2006). Shortly before going off pain medication, Roberts reported her 

pain was 90% controlled with medications. While Roberts testified that pain medication made 

her “dope sick,” the record does not indicate Roberts stopped using pain medication because of 

side effects. Instead, Roberts’s doctor refused to prescribe more pain medication—despite 

Roberts’s request for a refill—after Roberts skipped a UA (after warnings that she could not 

continue smoking marijuana and using methamphetamines while on pain medications). Tr. 301.

The ALJ also referenced Roberts’s inconsistent statements to doctors over many years 

regarding her drug use. Despite being hospitalized for methamphetamine abuse in July 2008, 

Case 6:15-cv-00228-MC Document 22 Filed 06/03/16 Page 4 of 7
5 – OPINION AND ORDER

Roberts told an examining physician in 2011 that she last used methamphetamine in 2007. Also 

in 2011, Roberts told Dr. Bolz she last used methamphetamine in 2009. 

The ALJ provided “specific, clear and convincing reasons” for rejecting Roberts’s 

testimony. Vasquez v. Astrue, 572, F.3d 586, 591 (9th Cir. 2009) (quoting Smolen v. Charter, 80 

F.3d 1273, 1282 (9th Cir. 1996)).

Roberts next argues the ALJ erred in rejecting the opinion of Dr. Bolz, her treating 

physician. Dr. Bolz opined Roberts was limited to sedentary functions. Where there exists 

conflicting medical evidence, the ALJ is charged with determining credibility and resolving any 

conflicts. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). When a treating physician’s 

opinion is contradicted by another medical opinion, the ALJ may reject the opinion of a treating 

physician only by providing “specific and legitimate reasons supported by substantial evidence 

in the record.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).

The ALJ gave Dr. Bolz’s opinion little weight as it was based largely on Roberts’s selfreporting of her limitations. Tr. 30. “An ALJ may reject a treating physician's opinion if it is 

based ‘to a large extent’ on a claimant's self-reports that have been properly discounted as 

incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Dr. Bolz mentioned that 

Roberts presented that day solely for Dr. Bolz to fill out the disability form. Tr. 308. Dr. Bolz 

wrote “Reviewed with her what she feels that she is able to do and not able to do.” Tr. 308. The 

ALJ’s conclusion that Dr. Bolz’s limitations were taken from Robert’s self-reporting is 

supported by the record. For example, in his treatment notes, Dr. Bolz wrote “She says she 

cannot even open up a bottle of pop because of the severe pain.” Tr. 301. This comment, clearly 

taken from Roberts’s own self-report, also appears in Dr. Bolz’s opinion regarding Roberts’s 

Case 6:15-cv-00228-MC Document 22 Filed 06/03/16 Page 5 of 7
6 – OPINION AND ORDER

limitations, where he notes Roberts is limited to occasionally reaching, handling, and fingering, 

and “Cannot open bottle.” Tr. 297.

Although that reason alone is sufficient for assigning little weight to Dr. Bolz’s opinion 

regarding Roberts’s limitations, the ALJ provided other legitimate reasons. The ALJ noted Dr. 

Bolz’s restrictions are not consistent with his notes from his most recent treatment of Roberts, 

where he stated Roberts’s medications provided 90% relief of her symptoms. In September 2012, 

when Dr. Bolz provided his opinions, Roberts was still taking pain medications. Finally, the ALJ 

pointed to Roberts’s activities of daily living, described above, and contrasted those activities 

with Dr. Bolz’s limitations. The ALJ provided specific and legitimate reasons, supported by the 

record, for discounting Dr. Bolz’s limitations. 

Next, Roberts argues the ALJ erred in not assigning her depression a severe impairment

and in failing to order a psychological evaluation. The ALJ concluded depression did not limit 

Roberts in any meaningful way. The more recent of Roberts’s two evaluations concluded she 

suffered no work-related impairments from psychological issues. Tr. 256-57. Dr. McConochie 

concluded Roberts “does not appear to have any major psychological limitations to work activity 

that she hasn’t had for many decades, many of which were present when she was successfully 

employed.” Tr. 257. Because even this more recent evaluation came over two years before the 

alleged onset date, the ALJ assigned it no weight.

The ALJ pointed out Roberts did not seek any psychological treatment in the four years 

between his written decision and her last evaluation. And while Dr. Bolz referred Roberts for 

psychological treatment, she failed to follow through. Tr. 301, 315. Additionally, Roberts did not 

even mention depression, or any related limitations, at the hearing before the ALJ. 

Case 6:15-cv-00228-MC Document 22 Filed 06/03/16 Page 6 of 7
7 – OPINION AND ORDER

The ALJ also conducted an analysis of Roberts’s mental limitations under the “paragraph 

B” criteria of the regulations. Tr. 23-24. As to this portion of the ALJ’s decision, Roberts points 

to no specific errors and I find none. Contrary to Roberts’s claim, the ALJ did not fail to 

sufficiently develop the record. Here, the record regarding Roberts’s depression was sufficiently 

developed to allow for a proper evaluation, which the ALJ performed. Mayes v. Massanari, 276 

F.3d 453, 460 (9th Cir. 2001). The ALJ’s conclusion that Roberts suffered only mild limitations 

in activities of daily living, social functioning, and concentration, persistence, and pace, with no 

evidence of any episodes of decompensation, is supported by the record. Although Roberts

argues another interpretation of the record is reasonable, that is not a legitimate reason for 

overturning the ALJ’s conclusions. Gutierrez, 740 F.3d at 523 (quoting Reddick, 157 F.3d at 

720-21) (“If the evidence can reasonably support either affirming or reversing, ‘the reviewing 

court may not substitute its judgment’ for that of the Commissioner.”)).

CONCLUSION

The ALJ’s decision is free of legal error and supported by substantial evidence. The

Commissioner’s final decision is therefore AFFIRMED.

IT IS SO ORDERED.

DATED this 3rd day of June, 2016.

_______/s/ Michael J. McShane ________

Michael McShane

United States District Judge

Case 6:15-cv-00228-MC Document 22 Filed 06/03/16 Page 7 of 7