IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JACK E. HARMON, 6:15-CV-01496-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

KATHERINE EITENMILLER

MARK A. MANNING

Harder Wells Baron & Manning

474 Willamette Street

Eugene, OR 97401

(541) 686-1969

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

 - OPINION AND ORDER 1

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 1 of 18
DAVID MORADO

Regional Chief Counsel

THOMAS M. ELSBERRY 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/A 221A

Seattle, WA 98104

(206) 615-2112

Attorneys for Defendant

BROWN, Judge.

Plaintiff Jack E. Harmon seeks judicial review of a final

decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff's applications

for Supplemental Security Income (SSI) and Disability Insurance

Benefits (DIB) under Titles XVI and II of the Social Security

Act. This Court has jurisdiction to review the Commissioner's

final decision pursuant to 42 U.S.C. § 405(g). 

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff filed his applications for DIB and SSI on 

December 1, 2011. Tr. 194.1

 Plaintiff alleged a disability

onset date of August 1, 2008. His applications were denied

initially and on reconsideration. An Administrative Law Judge

1 Citations to the official transcript of record filed by the

Commissioner on January 13, 2016, are referred to as "Tr."

 - OPINION AND ORDER 2

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 2 of 18
(ALJ) held a hearing on December 13, 2013. Tr. 35-78. At the

hearing Plaintiff was represented by an attorney. Plaintiff and

a vocational expert (VE) testified at the hearing. 

The ALJ issued a decision on February 12, 2014, in which he

found Plaintiff was not disabled and, therefore, is not entitled

to benefits. Tr. 15-34. Pursuant to 20 C.F.R. § 404.984(d),

that decision became the final decision of the Commissioner on

June 8, 2015, when the Appeals Council denied Plaintiff's request

for review. Tr. 1-4. See Sims v. Apfel, 530 U.S. 103, 106-07

(2000). 

BACKGROUND

Plaintiff was born on April 15, 1959. Tr. 194. Plaintiff

was 54 years old at the time of the hearing. Plaintiff has a

GED. Tr. 41-42. Plaintiff has past relevant work experience as

a termite inspector. Tr. 69. Plaintiff alleges disability due

to arthritis, ulcers, reflux, and hypertension. Tr. 80. 

Except when noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

medical evidence. See Tr. 21-23, 26-27.

STANDARDS

The initial burden of proof rests on the claimant to

 - OPINION AND ORDER 3

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 3 of 18
establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden, a claimant must demonstrate his

inability "to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which . . . has lasted or can be expected to last for

a continuous period of not less than 12 months." 42 U.S.C. 

§ 423(d)(1)(A). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)). 

The district court must affirm the Commissioner's decision

if it is based on proper legal standards and the findings are

supported by substantial evidence in the record as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). It is more than a mere scintilla [of evidence]

but less than a preponderance. Id. (citing Valentine, 574 F.3d

at 690). 

The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

 - OPINION AND ORDER 4

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 4 of 18
ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006). 

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). See

also Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.

2011).

At Step Two the claimant is not disabled if the 

Commissioner determines the claimant does not have any medically

severe impairments or combination of impairments. 20 C.F.R. 

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also Keyser, 648

F.3d at 724.

 - OPINION AND ORDER 5

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 5 of 18
At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R. 

§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). See also Keyser, 648

F.3d at 724. The criteria for the listed impairments, known as

Listings, are enumerated in 20 C.F.R. part 404, subpart P,

appendix 1 (Listed Impairments). 

If the Commissioner proceeds beyond Step Three, she must

assess the claimant’s residual functional capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite his limitations. 20 C.F.R.

§§ 404.1520(e), 416.920(e). See also Social Security Ruling

(SSR) 96-8p. “A 'regular and continuing basis' means 8 hours a

day, for 5 days a week, or an equivalent schedule." SSR 96-8p,

at *1. In other words, the Social Security Act does not require

complete incapacity to be disabled. Taylor v. Comm’r of Soc.

Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work he has done in the past. 20 C.F.R. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). See also Keyser, 648 F.3d at 724.

 - OPINION AND ORDER 6

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 6 of 18
If the Commissioner reaches Step Five, she must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). See also Keyser, 648 F.3d at 724-25. Here the

burden shifts to the Commissioner to show a significant number of

jobs exist in the national economy that the claimant can perform. 

Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th

Cir. 2010). The Commissioner may satisfy this burden through the

testimony of a VE or by reference to the Medical-Vocational

Guidelines set forth in the regulations at 20 C.F.R. part 404,

subpart P, appendix 2. If the Commissioner meets this burden,

the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1),

416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since his August 1, 2008, alleged

onset date. Tr. 20.

At Step Two the ALJ found Plaintiff has the severe

impairment of degenerative disc disease of the cervical,

thoracic, and lumbar spine. Tr. 20. The ALJ found Plaintiff’s

reflux, anemia, “bilateral foot problems,” depression, and

anxiety are nonsevere and Plaintiff’s gout is not an impairment. 

Tr. 21, 23. 

 - OPINION AND ORDER 7

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 7 of 18
At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do did not meet or medically equal one

of the listed impairments in 20 C.F.R. part 404, subpart P,

appendix 1. Tr. 24. The ALJ found Plaintiff has the RFC to

perform light work with “a sit/stand option at 30 minute

intervals; he may need two to three minutes off task each hour

while he stands and moves to stretch his back.” Tr. 25. The ALJ

also found Plaintiff could occasionally stoop, kneel, crouch,

crawl, and climb ladders, ropes, scaffolds, stairs, and ramps. 

Tr. 25. At Step Four the ALJ concluded Plaintiff could not

perform his past relevant work. Tr. 27. 

At Step Five the ALJ concluded Plaintiff could perform jobs

that exist in significant numbers in the national economy. 

Tr. 27. Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION

Plaintiff contends the ALJ erred when he (1) improperly

partially rejected Plaintiff’s testimony; (2) improperly gave “no

weight” to the opinion of Kelly Smith, F.N.P., treating nurse

practitioner, related to Plaintiff’s depression; (3) found at

Step Two that Plaintiff’s depression is a nonsevere impairment; 

and (4) found at Step Five that Plaintiff could perform other

work in the national economy.

 - OPINION AND ORDER 8

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 8 of 18
I. The ALJ did not err when he partially rejected Plaintiff’s

testimony.

Plaintiff alleges the ALJ erred by failing to provide clear

and convincing reasons for partially rejecting Plaintiff's

testimony.

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and he must show the impairment

or combination of impairments could reasonably be expected to

produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th

Cir. 1986). The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity. 

Smolen, 80 F.3d at 1284.

If the claimant satisfies the above test and there is not

any affirmative evidence of malingering, the ALJ can reject the

claimant's pain testimony only if he provides clear and

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th

Cir. 1995)). General assertions that the claimant's testimony is

not credible are insufficient. Id. The ALJ must identify "what

testimony is not credible and what evidence undermines the

claimant's complaints." Id. (quoting Lester, 81 F.3d at 834).

At the hearing Plaintiff testified he could “hardly walk

 - OPINION AND ORDER 9

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 9 of 18
very far at [a] very long stretch” due to pain in his back and

gout in his knees and ankles. Tr. 45. Plaintiff testified he

stopped working as a termite inspector in August 2008 because he

was laid off due to “the housing market . . . falling out.” 

Tr. 46. Plaintiff obtained two other short-lived jobs before he

moved to Oregon in 2010, but “it just wasn’t a very good

[economic] atmosphere for doing work.” Tr. 46. Plaintiff also

testified he began to have problems performing the work due to

back pain towards the end of his job in August 2008. Plaintiff

stated he attempted to work for a fishery for a month in later

2010 or early 2011, but he was unable to perform the job because

it required him to lift 50-pound boxes full of crab. Plaintiff

testified he applied for other jobs, but he was not hired and, in

any event, he was uncertain whether he could have performed the

jobs he applied for due to his back pain. Plaintiff testified he

could walk “maybe 50 yards at a time” before he needed to stop

and to rest, could sit 210 minutes before needing to stand, and

could stand for 10 minutes before needing to sit. Tr. 64-65. 

Plaintiff noted he walks to the Mission three times a week to eat

and to visit with friends. Tr. 66. Plaintiff acknowledged the

Mission is 3/4 of a mile from where he lives, but he rests during

his walk there. Tr. 66. Plaintiff stated he could lift 20

pounds, but he is “anemic and real weak.” Tr. 65. 

Plaintiff stated he had a significant problem with drinking

 - OPINION AND ORDER 10

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 10 of 18
alcohol until mid-2012 when he quit “cold turkey.” Tr. 52. 

Plaintiff testified he suffers from depression and anxiety that

were exacerbated when Plaintiff lost his job in 2008 and then

became homeless for a time. Plaintiff noted he takes medications

for anxiety that are helpful. Tr. 58. Plaintiff testified he

was seen by Rose Beck, M.S., in October 2012 for a behavioral

health evaluation, but he did not follow up with her and he has

not made any other attempts to see any other mental-health

professional. Tr. 64.

The ALJ found Plaintiff’s “medically determinable

impairments could reasonably be expected to cause some of the

alleged symptoms,” but Plaintiff’s testimony “concerning the

intensity, persistence and limiting effects of [his] symptoms are

not entirely credible.” Tr. 25. The ALJ noted Plaintiff

underwent an MRI in January 2012 that indicated Plaintiff had

“minimal to mild degenerative disc disease in the cervical,

thoracic, and lumbar spine . . . without disc herniation at any

of the levels in the spine.” Tr. 292. “The disc bulging does

not touch the spinal cord or displace any of the transversing

nerve roots.” Tr. 292. The ALJ also noted records from Bay

Clinic reflect Plaintiff had normal gait and maintained full

motor strength on multiple examinations from August 2012 through

May 2013. Tr. 26, 396, 400, 404, 409. In addition, the ALJ

noted treating physician Greg Schandelmeier, M.D., declined to

 - OPINION AND ORDER 11

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 11 of 18
give Plaintiff an early refill of his narcotic pain medication in

December 2012 and provided Plaintiff with ibuprofen and Tramadol

instead. Tr. 432. On May 6, 2013, treating physician Andrew

Maslona, M.D., explained to Plaintiff that “chronic opiates [are]

not likely to be beneficial for back pain.” Tr. 413. 

Dr. Maslona recommended Plaintiff taper off narcotics and

discontinue Tramadol. Dr. Maslona filled a partial prescription

for narcotics and then “plan[ned] to taper slowly with next

[refill] request.” Tr. 413. Plaintiff, however, did not

continue treatment with Dr. Maslona and instead began treatment

with Amit Bhandari, M.D., at a new clinic in June 2013. 

Dr. Bhandari prescribed narcotics to Plaintiff for pain. In

September 2013 Plaintiff reported to Dr. Bhandari that his

narcotics had been stolen during Plaintiff’s transition from

homelessness to a motor home. Dr. Bhandari refilled Plaintiff’s

narcotics prescription early, but he advised Plaintiff that he

would not provide any more early refills.

On this record the Court finds the ALJ provided clear and

convincing reasons supported by substantial evidence in the

record for finding Plaintiff's testimony was not entirely

credible as to the limiting effects of his impairments. The

Court, therefore, concludes the ALJ did not err when he rejected

Plaintiff's testimony in part.

 - OPINION AND ORDER 12

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 12 of 18
II. The ALJ did not err when he did not give any weight to

F.N.P. Smith’s opinion regarding Plaintiff’s mental-health

impairments.

Plaintiff alleges the ALJ erred when he did not give any

weight to F.N.P. Smith’s opinion regarding Plaintiff’s mentalhealth impairments.

Medical sources are divided into two categories: 

"acceptable" and "not acceptable." 20 C.F.R. § 416.902. 

Acceptable medical sources include licensed physicians and

psychologists. 20 C.F.R. § 416.902. Medical sources classified

as "not acceptable" include, but are not limited to, nurse

practitioners . . . . SSR 06-03p, at *2. The ALJ may assign a

not-acceptable medical source either greater or lesser weight

than that of an acceptable medical source. SSR 06-03p, at *5-6. 

The ALJ, however, must explain the weight assigned to such

sources to the extent that a claimant or subsequent reviewer may

follow the ALJ's reasoning. SSR 06-03p, at *6.

On June 20, 2012, F.N.P. Smith completed check-the-box forms

related to Plaintiff’s mental-health impairments. F.N.P. Smith

opined Plaintiff’s depression caused him to have marked

difficulties in maintaining social functioning and “episodes of

deterioration or decompensation in work or work-like settings

which cause [Plaintiff] to withdraw from that situation or to

experience exacerbation of symptoms.” Tr. 335. 

The ALJ did not give any weight to F.N.P. Smith’s opinion on

 - OPINION AND ORDER 13

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 13 of 18
the ground that it was not supported by the medical record. 

Specifically, the ALJ noted in July 2012 (which was only one

month later) F.N.P. Smith reported Plaintiff did “not appear

depressed, and [his] affect did not appear flat. He is not

tearful. He does not appear anxious. . . . Mood is stable.” 

Tr. 404. In August 2012 Dr. Schandelmeier reported Plaintiff’s

mood was “pleasant. Not depressed” and described Plaintiff’s

depression as mild. 

Tr. 396. The ALJ also noted Plaintiff’s medical records from

October 2011 through June 2013 reflect Plaintiff did not “appear

depressed, and [his] affect does not appear flat. He is not

tearful. He does not appear anxious” or similar. See, e.g., Tr.

297, 299, 303, 305, 307, 309, 313, 316, 339, 343, 354, 356, 420,

422, 424, 426, 428. The ALJ also noted Plaintiff underwent a

Behavioral Health Assessment in October 2012 performed by Rose

Beck, M.S., who diagnosed Plaintiff with alcohol abuse but

deferred a diagnosis of depression. Tr. 458-59. Rose indicated

Plaintiff “could benefit from specific cognitive education to

learn healthier coping techniques to manage stressors in his

life.” Tr. 459. Rose recommended Plaintiff participate in an

out-patient treatment at Adapt and engage in mental-health

counseling at CCMH. Plaintiff, however, did not participate in

either of these programs and did not see Rose again for

treatment.

 - OPINION AND ORDER 14

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 14 of 18
On this record the Court concludes the ALJ did not err when

he did not give any weight to F.N.P. Smith’s opinion regarding

Plaintiff’s mental-health impairments because the ALJ provided

legally sufficient reasons supported by substantial evidence in

the record for doing so.

III. The ALJ did not err at Step Two when he found Plaintiff’s 

depression is nonsevere.

Plaintiff asserts the ALJ erred at Step Two when he found

Plaintiff’s depression is nonsevere.

As noted, at Step Two the claimant is not disabled if the

Commissioner determines the claimant does not have any medically

severe impairment or combination of impairments. Stout, 454 F.3d

at 1052. See also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). A

severe impairment "significantly limits" a claimant's "physical

or mental ability to do basic work activities." 20 C.F.R. 

§ 404.1521(a). See also Ukolov, 420 F.3d at 1003. The ability

to do basic work activities is defined as "the abilities and

aptitudes necessary to do most jobs." 20 C.F.R. §§ 404.1521(a),

(b). Such abilities and aptitudes include walking, standing,

sitting, lifting, pushing, pulling, reaching, carrying, handling,

seeing, hearing, and speaking; understanding, carrying out, and

remembering simple instructions; using judgment; responding

appropriately to supervision, co-workers, and usual work

situations; and dealing with changes in a routine work setting. 

 - OPINION AND ORDER 15

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 15 of 18
Id.

Here the ALJ found Plaintiff's depression is nonsevere and

well-controlled with medication. The ALJ relied on the following

to support his opinion: (1) the numerous times in the record

that Plaintiff was reported as not being depressed or not showing

signs of depression, (2) Plaintiff’s failure to follow up with

any mental-health counseling after his evaluation by Rose in

October 2012, (3) Rose’s deferral of a diagnosis of depression,

and (4) his reasons for rejecting F.N.P. Smith’s June 2012

opinion.

On this record the Court concludes the ALJ did not err when

he found Plaintiff's depression is nonsevere and well-controlled

with medication because the ALJ provided legally sufficient

reasons supported by the record for doing so.

In any event, the Ninth Circuit has held when the ALJ has

resolved Step Two in a claimant's favor, any error in designating

specific impairments as nonsevere does not prejudice a claimant

at Step Two. Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir.

2005)(any error in omitting an impairment from the severe

impairments identified at Step Two was harmless when Step Two was

resolved in claimant's favor). As noted, at Step Two the ALJ

found Plaintiff has the severe impairment of degenerative disc 

 - OPINION AND ORDER 16

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 16 of 18
disease of the cervical, thoracic, and lumbar spine. Because the

ALJ resolved Step Two in Plaintiff's favor, the Court concludes

any error by the ALJ in finding Plaintiff’s depression is

nonsevere would be harmless.

IV. The ALJ did not err at Step Five when he concluded Plaintiff

could perform other work that exists in the national

economy.

Plaintiff asserts the ALJ erred at Step Five when he

concluded Plaintiff could perform other work that exists in the

national economy because the ALJ failed to consider all of the

limitations set out by Plaintiff and F.N.P. Smith.

Because the Court has found the ALJ properly rejected

Plaintiff's testimony in part and properly did not give any

weight to F.N.P. Smith’s opinion regarding Plaintiff’s

depression, the Court concludes the ALJ did not err at Step Five

when he failed to include all of the limitations indicated by

Plaintiff and by F.N.P. Smith in the his assessment of

Plaintiff's ability to do other jobs existing in the national

economy. 

Accordingly, the Court concludes the ALJ did not err at Step

Five when he concluded Plaintiff could perform other work in the

national economy because the ALJ provided legally sufficient

reasons supported by substantial evidence in the record for doing

so.

 - OPINION AND ORDER 17

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 17 of 18
CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 27th day of July, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

 - OPINION AND ORDER 18

Case 6:15-cv-01496-BR Document 14 Filed 07/27/16 Page 18 of 18