IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

ANANA RAZUMNY ROBERTS, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

CLARKE, Magistrate Judge. 

Civ. No. 6:15-cv-01460-CL 

REPORT AND 

RECOMMENDATION 

Plaintiff Anana Razumny Roberts ("Roberts") seeks judicial review of the Social 

Security Commissioner's final decision denying her application for Supplemental Security 

Income under Title XVI of the Social Security Act. This Court has jurisdiction under 42 U.S.C. 

§ 405(g), and reviews to determine that the Commissioner's decision was based upon substantial 

evidence. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). The 

Commissioner's decision should be affirmed for the reasons that follow. 

Ill 

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ANALYSIS 

The Commissioner makes disability determinations under the Act using a prescribed 

regulatory five-step analysis. 20 C.F.R. § 416.920(a)(4). Each step is potentially dispositive. Id. 

Ms. Roberts alleges the Commissioner's administrative law judge ("ALJ") erred by (1) finding 

her cervical degenerative disc disease "nonsevere" at step two in the sequential proceedings; (2) 

failing to find her impairments "equaled" regulatory listings establishing disability at step three; 

(3) improperly rejecting testimony proffered by Ms. Roberts, a physical therapist, and her 

mother; (4) erroneously formulating a "residual functional capacity" describing her workplace 

abilities; and (5) submitting an incomplete hypothetical to a vocational expert testifying at her 

administrative hearing at step five. Ms. Roberts asserts that, but for these errors, she has 

established disability. Ms. Roberts bears the burden of establishing error, and this court may not 

reverse an ALJ's decision "on account of an error that is harmless." Molina v. Astrue, 674 F.3d 

1104, 1111 (9th Cir. 2012) (internal citations omitted). 

I. Step Two Severity Finding 

Ms. Roberts asserts that the ALJ should have found her cervical degenerative disc disease 

"severe" at step two in the sequential analysis. Pl.'s Op. Br., 10 (Dkct. # 12). The ALJ's step 

two findings address medical "severity" only, 20 C.F.R. § 416.920(a)(4)(ii). To be deemed 

"severe," the alleged impairment must also significantly limit one's ability to perform basic work 

activities. 20 C.F.R. § 416.921(a). However, the ALJ's subsequent analysis must consider all of 

a claimant's medically-established impairments, both severe and non-severe. 20 C.F.R. § 

416.945(a)(2); see also§ 416.923. The Ninth Circuit consequently instructs that an ALJ's failure 

to address an impairment at step two is harmless if the ALJ' s later findings discuss the matter. 

Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007); but see Webb v. Barnhart, 433 F.3d 683, 688 

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(91

h Cir. 2005) (finding error in step two omission where the claimant presented evidence that 

ALJ improperly omitted later in the analysis). 

Here, the ALJ's step two findings discussed diagnostic imaging studies pertaining to Ms. 

Roberts' cervical spine. Admin. R. 33. The ALJ's later findings limited Ms. Roberts' pushing, 

pulling, and reaching overhead. Id. at 34. Ms. Roberts does not now articulate further limitation 

stemming from her cervical spine impairment, regardless of medical evidence discussed at step 

two. Any omissions are therefore harmless. 

II. Step Three Listing Analysis 

The ALJ stated that Ms. Roberts' impairments did not meet or equal a listed impairment. 

Admin. R. 33. Ms. Roberts asserts that the ALJ erroneously found that her combined 

impairments did not "equal" a listing at step three of the sequential analysis; she distinguishes 

that her argument does not address "meeting" a listing at this juncture. Pl.'s Op. Br. 11. She 

does not clearly indicate what impairment she asserts or discuss supporting evidence; instead she 

points broadly by number to Listings 14.06B, 14.09D, and 12.06. Id. at 12. These regulatory 

citations respectively address connective tissue disorders (s14.06B), inflammatory arthritis 

(s14.009D), and anxiety (sl2.06). 

The claimant bears the burden of establishing disability at step three. Burch v. Barnhart, 400 

F.3d 676, 683 (9th Cir. 2005); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Error is 

harmless if the ALJ discusses the alleged impairment at a later step in the analysis. Lewis v. 

Astrue, 498 F.3d 909, 911 (9th Cir. 2001). 

Under the regulations, an impairment is "medically equivalent" to a regulatory listing at step 

three "if it is at least equal in severity and duration to the criteria of any listed impairment." 20 

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C.F.R. § 416.926(a). Application of this rule is limited. The Commissioner may determine that 

an impairment "equals" an impairment listed its regulations in one of three specified instances: 

(1) the claimant has a "listed" impairment, but does not exhibit one or more relevant specified 

findings; (2) the claimant has a "listed" impairment but relevant findings are "not as severe" as 

the regulations specify; or (3) the claimant has a combination of impairments and no single one 

meets a listed impairment. 20 C.F.R. § 416.926(b). The Supreme Court further instructs that 

"for a claimant to qualify for benefits by showing that his unlisted impairment, or combination of 

impairments, is 'equivalent' to a listed impairment, he must present medical findings equal in 

severity to all the criteria for the one most similar listed impairment." Sullivan v. Zebley, 493 

U.S. 521, 531 (1989) (citing 20 C.F.R. s 416.926(a)) (superseded by statue on other grounds as 

noted by Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013) (internal citations omitted)). 

Further, the Ninth Circuit finds step three arguments foreclosed where a claimant relies upon 

overall functional impact rather than a demonstration of equivalence to each regulatory prong of 

a listing. Kennedy, 738 F.3d at 1176 

Ms. Roberts does not specifically discuss the ALJ' s alleged step three errors, or her own 

impairments, under these standards. Here, the ALJ proceeded beyond step three of the 

sequential disability analysis and directly addressed Ms. Roberts' fibromyalgia and fatigue 

symptoms impairments in discussion pertaining to her RFC assessment. Admin. R. 34-37. Ms. 

Roberts, therefore, does not establish reversible error at step three pertaining to fibromyalgia or 

chronic fatigue syndrome impairments in relation to§§ 14.06B and 14.09D. 

Ms. Roberts also indicates the ALJ should have discussed Listing 12.06, which encompasses 

"anxiety related disorders." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.06. At step two, the ALJ 

found that Ms. Roberts "has no established medically determinable mental health impairment." 

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Admin. R. 33. Step three determinations are based upon medically-established impairments 

deemed severe at step two. 20 C.F.R. § 416.926; Burch, 400 F.3d at 683; see also Kennedy, 738 

F.3d at 1175. The Ninth Circuit affirms that an ALJ does not error in omitting discussion of a 

medically-established impairment at step three where the claimant presents no evidence of she 

meets or equals a listed impairment. Id. Ms. Roberts does not challenge this finding, nor does 

her argument point to evidence in the record on this point. Because the ALJ' s analysis is 

sequential, the ALJ was obliged to consider Ms. Roberts' global impairments, including those 

deemed nonsevere, in addressing her RFC. 20 C.F.R. § 416.945(a)(2). Ms. Roberts therefore 

fails to establish reversible error pertaining to Listing 12.06 at step three. 

III. Evaluation of Testimony 

A. Claimant's Testimony 

Under the regulations, the ALJ evaluates a claimant's testimony in formulating the 

claimant's "residual functional capacity" ("RFC") between steps three and four of the sequential 

analysis. 20 C.F.R. § 416.945(a)(5). The ALJ must consider a claimant's statements regarding 

her symptoms. 20 C.F.R. § 416.929(a). This analysis is individualized, 20 C.F.R. § 416.945 (e), 

but pain and functional limitation must be related to a medically determinable impairment. 20 

C.F.R. § 416.929(b). 

The Ninth Circuit further directs a two-step process in evaluating a claimant's testimony. 

First, the ALJ must determine "whether the claimant has presented objective medical evidence of 

an underlying impairment which could reasonably be expected to produce pain or other 

symptoms alleged." Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). Here, the 

claimant need only show that the impairment "could reasonably have caused some degree of the 

symptom." Smolen v. Chafer, 80 F.3d 1273, 1282 (9th Cir. 1996). Second, absent evidence of 

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malingering, the ALJ may reject a claimant's testimony to the severity of her symptoms only by 

offering "specific, clear and convincing reasons for doing so." Lingenfelter, 504 F.3d at 1036 

(quoting Smolen, 80 F.3d at 1281). Such findings must be "sufficiently specific to permit the 

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

Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell v. Sullivan, 947 F.3d 341, 

345-46 (9th Cir. 1991) (en bane)). 

Ms. Roberts asserts that the ALJ erroneously cited objective medical evidence, her 

activities of daily living, and her work history, and that the ALJ failed to consider the 

Commissioner's administrative rulings pertaining to fibromyalgia and symptom testimony. Pl.'s 

Op. Brief, p.17-25 (Dckt. #12). 

1. Medical Evidence 

The ALJ generally discussed Ms. Roberts' medical evidence at some length. Admin. R. 

at 34-36. The Commissioner's regulations and administrative rulings permit citation to the 

medical record in evaluating symptom testimony, specifically allowing consideration of the 

"extent to which your symptoms can reasonably be accepted as consistent with objective medical 

evidence, and other evidence." 20 C.F.R. § 416.929(a). The Commissioner clearly instructs that 

the ALJ's credibility analysis may also consider the longitudinal medical history, and "medical 

signs and laboratory findings." Soc. Sec. Ruling 96-7p at *5, 7 (available at 1996 WL 374186). 

But, the ALJ may not reject symptom testimony "solely" because medical evidence alone does 

not corroborate the degree of symptom severity. Bunnell, 947 F.3d at 345 (en bane). 

Ms. Roberts specifically objects to the ALJ's statement that her pain and fatigue 

complaints "exceed objective and physical exam findings." Pl.'s Op. Br. 19 (citing Admin. R. 

35). However, her challenge to the ALJ's discussion of medical evidence in evaluating her 

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credibility points only to evidence relating to her alleged cervical disc impairment. Pl.'s Op. Br., 

19. But, she later submits that this impairment is irrelevant to discussion of her testimony 

because the ALJ' s step two analysis is limited to medically determinable impairments. Pl.' s 

Reply, p. 8 (Dckt. #17). As noted above, the ALJ must consider all of a claimant's impairments, 

both severe and non-severe, in proceeding past step two of the sequential analysis. Because the 

ALJ limited Ms. Roberts to occasional overhead reaching (Admin. R. 34), and Ms. Roberts does 

not assert further limitation due to her cervical disc issues, any error pertaining to medical 

evidence and cervical disc limitations in evaluating her testimony is harmless. 

Ms. Roberts also asserts, broadly, that the ALJ did not address the Commissioner's 

administrative rulings pertaining to fibromyalgia and chronic fatigue syndrome. Pl.' s Op. Br. 19. 

She does not, however, identify error made by the ALJ pertaining to medical evidence and her 

credibility at this juncture. The Court therefore turns to the ALJ' s subsequent credibility 

findings. 

Finally, Ms. Roberts infers that the ALJ failed to apply the Commissioner's 

administrative rulings pertaining to fibromyalgia and chronic fatigue syndrome. Pl.' s Op. Br. 

19-20. While she quotes these materials at considerable length, and notes the ALJ's comment 

that her complaints exceed "objective and physical exam findings,'' Ms. Roberts does not 

establish that the ALJ improperly relied upon this rationale alone for rejecting her associated 

symptom testimony. The court, therefore, turns to the remaining credibility issues under review. 

2. Activities of Daily Living 

Regarding her activities of daily living, the ALJ noted Ms. Roberts' testimony that she 

plays ipad games, is unable to knit or sew, and performs daily activities such as preparing 

breakfast and lunch, feeding animals, and sporadically completing chores such as laundry and 

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shopping. Admin R. 34. Later, the ALJ noted Ms. Roberts' reports of performing "minor 

repairs, and gardening" and her mother's reports that she prepares meals, completes chores, and 

shops. Id. at 36. 

The ALJ's credibility analysis may cite activities of daily living in conjunction with other 

factors such as frequency and intensity of reported symptoms, medication and its effects, and 

treatment utilized. 20 C.F.R. § 416.929(c)(3). But, such reasons must be "sufficiently specific to 

permit the reviewing court that the ALJ did not arbitrarily discredit the claimant's testimony." 

Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 

The ALJ's citation to Ms. Roberts' activities is consistent with this standard. Where an 

ALJ' s analysis is open to more than one plausible interpretation, the reviewing court must affirm 

the ALJ' s findings if they are reasonable and supported by substantial evidence. Rollins v. 

Massinari, 261 F.3d 853, 857 (9th Cir. 2001). Though Ms. Roberts asserts that her activities 

were "sharply circumscribed" and "performed only sporadically," Pl.'s Op. Br. 24, the ALJ's 

analysis is sufficient under the standard above. 

The ALJ's citation to Ms. Roberts' hopes to become a parent, however, falls afoul of this 

standard. Here, the ALJ noted three times that Ms. Roberts "started trying to have a child." Id. 

at 34, 36. The ALJ also questioned Ms. Roberts on the matter at some length in the course of the 

administrative hearing. Id. at 56-59. This is entirely speculative; furthermore, while Courts have 

upheld an ALJ's citation to childcare activities as inconsistent with disability, Rollins, 261 F.3d 

at 857, no authority suggests parenthood itself, much less aspiring to parenthood, is inconsistent 

with disability. This reasoning should not be sustained. 

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3. Work History and Secondary Gain 

Finally, Ms. Roberts challenges the ALJ's citation to her own reports of her work history. 

Pl.'s Op. Br. 21. The ALJ reviewed Ms. Robert's employment history, and noted her statement 

that she looked for work "a couple of times." Admin R. 34. The ALJ inferred that these 

statements were contradictory, noting Ms. Roberts' testimony that she last looked for work in 

1997 and her testimony that she last worked in 1999. Id. While an ALJ may consider claimant's 

inconsistent or poor work history, Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002), this 

alone does not suffice. The ALJ may not discredit a claimant based upon a failed work attempt. 

Lingenfelter, 504 F.3d 1037. The ALJ's reasoning on this point, therefore, should also not be 

sustained. 

The ALJ also stated, "I noted possible secondary gain motive" based upon Ms. Roberts' 

application for benefit payments. Id. at 36. The Commissioner now asserts that "secondary 

gain is an acknowledged credibility factor." Def.'s Br., 11 (Dckt. #13). Her first citation points 

to review of a record where medical providers directly stated secondary gain concerns arose. 

Gallant v. Heckler, 753 F.2d 1450, 1458-59 (9th Cir. 1984). That is not presently the case. The 

Commissioner's second citation addresses work history and does not directly address secondary 

gain, Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998), and her third citation addresses neither. 

Matney v. Sullivan, 981F.3d1016, 1020 (9th Cir. 1992). 

The Ninth Circuit rejects secondary gain inferred from the act of disability benefit 

application as a basis for finding a disability claimant not credible. This is because "it is 

difficult to see how any claimant could be found credible under that reasoning." Reinertson v. 

Barnhart, 127 Fed. Appx. 285, 289 (9th Cir. 2005)(not reported). Further, this Court has long 

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declined to endorse such reasoning. Ratto v. Sec., Dept. Health and Human Servs., 839 

Fed.Supp. 1415, 1428-29 (D. Or. 1993); see also Altorfer v. Colvin, No. 3:14-cv-01933-HZ at *8 

(D. Or. 2014) (available at 2015 WL 9255544). It will not do so now. 

4. Conclusion 

In summary, the reviewing court need not sustain an ALJ's credibility determination in 

its entirety. Batson, 359 F.3d at 1197. Here, the ALJ adequately cited Ms. Roberts' medical 

record and reports of her daily activities. While the issues discussed by the ALJ may be open to 

variable interpretations, this Court must sustain inferences reasonably drawn. Rollins, 261 F.3d 

at 857. Therefore, the ALJ's citation to Ms. Roberts' medical record and activities of daily 

living, except as noted, is sufficient to sustain her finding that Ms. Roberts' symptom testimony 

was "not entirely credible." 

B. Physical Therapist John Breuer 

The regulations define a physical therapist as a lay, or "other" source, as opposed to an 

"acceptable medical source." 20 C.F.R. § 416.914(d)(l); see also Molina v. Astrue, 674 F.3d 

1104, 1111 (9th Cir. 2012). The Commissioner has promulgated an advisory opinion instructing 

evaluation of such sources. SSR 06-3p (available at 2006 WL 2329939). It states that other 

sources cannot establish the existence of a medically determinable impairment, but may "provide 

insight into the severity of the impairment(s) and how it affects the individual's ability to 

function." Id. at *2. In evaluating an "other" source opinion, the ALJ may consider its 

consistency with other evidence, its relevance, how well the source explains the opinion, whether 

the source has expertise related to the impairment, and "any other factors that tend to support or 

refute the opinion." Id. at *4-5. In some instances, more weight may be given to the "other" 

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medical source if that source has seen the individual more often than the treating source, and 

provided better supporting evidence and explanation of their opinion. Id. at * 5. 

The ALJ noted physical therapist John Breuer's opinion that Ms. Roberts was in poor 

physical condition and "at medium risk for future medical problems," and stated that this opinion 

was inconsistent with "objective and physical exam findings," and Ms. Roberts' own activities. 

Admin. R. 37. Ms. Robert's argument pertaining to Mr. Breuer states "nowhere in the entirety of 

her decision did the ALJ grapple with the fact that plaintiffs activities are sporadic, subsedentary and nonsustainable." Pl. 's Op. Br. 17. 

The record before the Court shows that Ms. Roberts' physician referred her to Mr. Breuer 

for a work capacity evaluation. Admin R. 388. Mr. Breuer made the following concluding 

observations: 

Anna completed most of the functional tests in the Work Capacity 

Evaluation. She was pleasant and cooperative throughout the 

testing. No inconsistencies were observed in this testing. She 

demonstrated positive signs of competitive test performance and 

appeared to put forth her best effort during this evaluation. This 

evaluation is considered valid. 

Capacities as demonstrated on this evaluation today indicate that 

Anana Roberts, based on maximum effort and endurance testing is 

function at the LIGHT level with maximum capacity of 17# [sic] 

(According to the Physical Demand Characteristic of Work Level) 

[sic] Client reported pain level "5-6" prior to testing and "7-8" 

after testing. 

Admin R. 390 (emphasis original). Contrary to Ms. Robert's assertion, this conclusion does not 

support a finding that Ms. Roberts can only perform "sub sedentary" work. Further, while Mr. 

Breuer's report contains a document entitled "functional activities," which indicates two hours 

per day of standing, sitting and driving "tolerance," the report contains no explanation or 

discussion of these statements. Id. at 389. Mr. Breuer clearly concluded that Ms. Roberts could 

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perform light work. Id. at 390. The ALJ concluded that Ms. Roberts can perform "light" work, 

with further limitations in pushing and pulling overhead. Id. at 34. Ms. Roberts, therefore, fails 

to show that the ALJ omitted Mr. Breuer' s concluding opinion to her detriment. 

C. Claimant's Mother, Jessica Bittner 

Ms. Roberts submits that the ALJ improperly rejected her mother's statements that Ms. 

Roberts engages in limited housework, has limited ability to walk, and cannot remain in one 

position. Pl. 's Op. Br. 25. 

The ALJ must give "germane" reasons for rejecting lay testimony, Nguyen v. Chafer, 100 

F.3d 1462, 1467 (9th Cir. 1996), and here may reject lay testimony to the extent it is consistent 

with similar testimony properly rejected. Molina, 674 F.3d at 1114. But, such analysis applies 

to commensurate portions of testimony. Dale v. Colvin, Comm 'r Soc. Sec., _ F .3d _ (9th Cir. 

May 19, 2016) (available at 2016 WL 2909237 at *4). Here, the ALJ did not reject limitations 

testified to by Ms. Bittner that differed from those testified to by Ms. Roberts. Therefore, Ms. 

Roberts points to no reversible error. 

D. Residual Functional Capacity Finding 

Ms. Robert's challenge to the ALJ's RFC finding broadly asserts that the ALJ did not 

properly follow an administrative opinion addressing fibromyalgia. Pl. 's Op. Br., 26 (citing Soc. 

Sec. Ruling 12-2p § VI.D., available at 2012 WL 3104869). The Commissioner's ruling 

rehearses fibromyalgia diagnostic criteria, and states the Agency pays particular attention to the 

longitudinal record in fibromyalgia claims because of the waxing and waning of symptoms 

associated with the condition. "Soc. Sec. Ruling 12-2P; Titles II and XVI: Evaluation of 

Fibromyalgia," (available at 2012 WL 3104869 at *2-3, 5). The ruling clearly states that 

analysis of an alleged fibromyalgia impairment proceeds under the same regulatory ambit as any 

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other impairment. Id. at *5. No authority suggests that different legal standards apply to 

analysis of disability claim based upon fibromyalgia. 

Ms. Roberts' argument is limited to the statement that her fibromyalgia is "disabling because 

it prevents her from being able to sustain work activity at even the sedentary level of exertion." 

Pl.'s Op. Br. 26. She does not further address the matter pertaining to the RFC analysis. 

Because Ms. Roberts has not established error in the ALJ's assessment of the medical and 

testimonial evidence above, she fails to separately establish error in the ALJ's findings that she 

could perform the indicated RFC. 

E. Vocational Expert's Testimony at Step Five 

Finally, Ms. Roberts contends that the ALJ proffered an incomplete hypothetical question to 

the ALJ at step five in the sequential proceedings. Here, the Commissioner may use a vocational 

expert's testimony to meet his burden of showing that the claimant can perform work in the 

national economy and is therefore not disabled. 20 C.F.R. § 416.967(e). The ALJ's questions to 

the vocational expert at step five must include all properly supported limitations, but need not 

include limitations the ALJ found unsupported by substantial evidence. Osenbrock v. Apfel, 240 

F.3d 157, 1665-66 (9th Cir. 2001). 

Ms. Roberts asserts that the ALJ should have included an "inability to sustain work activity 

over an 8-hour workday." Pl.'s Op. Br., 26. This assertion is based upon her own testimony 

and, she submits, that of physical therapist Mr. Breuer. Id Because the ALJ properly assessed 

that testimony, as discussed above, Ms. Roberts does not now establish reversible error. 

RECOMMENDATION 

For the reasons set forth above, the Commissioner's decision should be AFFIRMED. 

This Report and Recommendation will be referred to a district judge. Objections, if any, are due 

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no later than fourteen (14) days after the date this recommendation is filed. If objections are 

filed, any response is due within fourteen (14) days after the date the objections are filed. See 

Fed. R. Civ. P. 72, 6. Parties are advised that the failure to file objections within the specified 

time may waive their right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 

(91h Cir. 1991 ). 

"· ~l / ' 

DATED this __ v__.---=.,,,. 

M 

United States Magistrate Judge 

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