IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRENDA GROFF, 3:15-CV-01252-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

GEORGE J. WALL

1336 E. Burnside

Suite 130

Portland, OR 97214

(503) 236-006

Attorney 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

1 - OPINION AND ORDER

Case 3:15-cv-01252-BR Document 14 Filed 06/06/16 Page 1 of 15
DAVID MORADO

Regional Chief Counsel

SARAH L. MARTIN 

Special Assistant United States Attorney

Social Security Administration

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

Seattle, WA 98104

(206) 615-3705 

Attorneys for Defendant

BROWN, Judge.

Plaintiff Brenda Groff seeks judicial review of a final

decision of the Commissioner of the Social Security

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

for Supplemental Security Income (SSI) under Title XVI 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 an application for SSI on November 10, 2011,

and alleged a disability onset date of May 15, 2008. 

Tr. 103.1 Her application was denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held a

hearing on July 30, 2013. Tr. 42-70. At the hearing Plaintiff

1

 Citations to the official transcript of record filed by

the Commissioner on November 10, 2015, are referred to as "Tr."

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and a vocational expert (VE) testified. Plaintiff was

represented by an attorney. 

On December 11, 2013, the ALJ issued an opinion in which he

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

to benefits. Tr. 19-39. On May 21, 2015, that decision became

the final decision of the Commissioner when the Appeals Council

denied Plaintiff's request for review. Tr. 1-7. See Sims v.

Apfel, 530 U.S. 103, 106-07 (2000). 

BACKGROUND

Plaintiff was born on September 20, 1976, and was 36 years

old at the time of the hearing. Tr. 71. Plaintiff has a GED. 

Tr. 311. She has past relevant work experience as a servicestation attendant, service-station cashier, telemarketer, medical

assistant, phlebotomist, and crater. Tr. 31. 

Plaintiff alleges disability due to bipolar disorder,

anxiety, attention deficit hyperactivity disorder (ADHD),

depression, and arthritis “in back.” Tr. 73. 

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. 28-30.

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STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

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

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). 

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The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

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

The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

2007). See also 20 C.F.R. § 416.920. Each step is potentially

dispositive. 

 At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 416.920(b). See also Keyser v. Comm’r of

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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

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

§ 416.920©. See also Keyser, 648 F.3d at 724. 

At Step Three the claimant is disabled if the Commissioner

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

number of listed impairments that the Commissioner acknowledges

are so severe they preclude substantial gainful activity. 20

C.F.R. § 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 her limitations. 20 C.F.R.

§ 416.945(a). 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

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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 she has done in the past. 20 C.F.R. § 416.920(a)(4)(iv). 

See also Keyser, 648 F.3d at 724.

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. § 416.920(a)(4)(v). See also

Keyser, 648 F.3d at 724. 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. § 416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged 

in substantial gainful activity since her November 10, 2011,

application date. Tr. 24.

At Step Two the ALJ found Plaintiff has the severe

impairments of bipolar disorder, obsessive-compulsive disorder

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(OCD), and cervical and lumbar spine degenerative disc disease. 

Tr. 24. The ALJ found Plaintiff’s post-traumatic stress disorder

(PTSD), pain disorder, and panic disorder are not severe. 

Tr. 24. 

At Step Three the ALJ concluded Plaintiff's impairments do

not meet or equal the criteria for any Listed Impairment from 20

C.F.R. part 404, subpart P, appendix 1. The ALJ found Plaintiff

has the RFC to perform light work. Tr. 27. The ALJ also found

Plaintiff can perform “unskilled, repetitive, routine work.” 

Tr. 27. The ALJ found Plaintiff can have occasional contact with

coworkers and supervisors but no contact with the public. 

Tr. 27. The ALJ also found Plaintiff “will be off-task 9% of the

time [and] will be absent from work 1 time per month.” Tr. 27. 

At Step Four the ALJ concluded Plaintiff is unable to

perform her past relevant work. Tr. 31. 

At Step Five, however, the ALJ found Plaintiff is capable of

performing other jobs existing in the national economy. 

Accordingly, the ALJ found Plaintiff is not disabled. 

DISCUSSION

Plaintiff contends (1) evidence submitted for the first time

to the Appeals Council undermines the ALJ’s decision that

Plaintiff is not disabled, (2) the ALJ erred when he concluded

Plaintiff would be off-task nine percent of the time, and (3) the

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ALJ erred when he found Plaintiff could perform light work.

I. Considering the record as a whole, including exhibits

submitted for the first time to the Appeals Council, the

Commissioner’s decision is supported by substantial evidence

in the record.

As noted, the ALJ held a hearing on July 30, 2013. Two days

later on August 1, 2013, Plaintiff sustained an injury to her

left shoulder while wrestling with her brother. Plaintiff

submitted evidence regarding this injury to the Appeals Council. 

After considering the newly-submitted evidence, the Appeals

Council concluded it did not provide a basis to reverse the ALJ’s

conclusion that Plaintiff is not disabled.

The Ninth Circuit has held 

when a claimant submits evidence for the first

time to the Appeals Council, which considers the

evidence in denying review of the ALJ’s decision,

the new evidence is part of the administrative

record, which the district court must consider in

determining whether the Commissioner’s decision is

supported by substantial evidence.

Brewes, 682 F.3d at 1159-60.

Plaintiff asserts the evidence submitted to the Appeals

Council establishes the Commissioner’s decision was not based on

substantial evidence in the record. Defendant, in turn, contends

the new evidence does not establish that Plaintiff suffered a

severe medically determinable impairment lasting for at least 12

months and, therefore, the new evidence does not “undermine” the

Commissioner’s decision that Plaintiff is not disabled.

The newly-submitted evidence reflects Plaintiff sustained an

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injury to her left shoulder on August 1, 2013, when she was

wrestling with her brother. Tr. 699. On September 6, 2013,

Plaintiff underwent an MRI of her shoulder that reflected:

Markedly abnormal appearance of the humeral head

with severe bone marrow edema centered around the

greater tuberosity, which appears impacted or

eroded. In association with probable

anteroi1derior labral tear, findings suggest

previous shoulder dislocation with an impaction of

the humeral head. However, given the absence of a

definitive history of trauma, other possibilities

such as osteomyelitis or inflammatory arthropathy

would also need to be considered. 

Supraspinatus tendinopathy but no evidence of

rotator cuff tear.

Tr. 696. On October 13, 2013, examining physician John Boyle,

M.D., reviewed Plaintiff’s September MRI and examined Plaintiff. 

Dr. Boyle assessed Plaintiff with a “[l]eft anterior labral tear

with possibility of a Hill-Sachs lesion although this is

typically seen in complete dislocations which she is denying.” 

Tr. 705. Dr. Boyle recommended Plaintiff “begin light

stretching” and “follow up at her convenience.” Tr. 705. 

Dr. Boyle did not recommend surgery or opine Plaintiff’s injury

was expected to last more than twelve months. On October 24,

2013, Plaintiff’s treating physician, David Huberty, M.D.,

examined Plaintiff and noted she had “a rather unusual

compression type fracture to the posterior lateral aspect of the

greater tuberosity. . . . However [Plaintiff] has no significant

labral pathology and demonstrates fairly normal stability exam.” 

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Tr. 700. Dr. Huberty noted he did not see “any injury to the

rotator cuff tendon” that “require[s] surgical intervention.” 

Dr. Huberty recommended Plaintiff “give this 3 more months to

heal with just light activity and gentle stretching.” Tr. 700. 

Dr. Huberty also recommended Plaintiff take Aleve twice a day for

two weeks and return to be seen by Dr. Huberty’s physician

assistant in three months if necessary. The record does not

reflect Plaintiff visited Dr. Huberty’s office or any other

treating or examining physician after her October 24, 2013,

visit.

The newly-admitted evidence also includes a check-the-box

form completed by Plaintiff’s naturopath, Alexandra

Christopoulos, in which she opined: “[It] is . . . likely that

[Plaintiff’s] conditions persisted prior to December 11, 2013.” 

Tr. 714.

As noted, the initial burden of proof rests on the claimant

to establish disability. Molina, 674 F.3d at 1110. To meet this

burden, Plaintiff must demonstrate her 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 Court concludes

the newly-submitted evidence does not establish Plaintiff’s

shoulder injury was a medically determinable impairment that

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lasted for a continuous period of not less than 12 months. The

Court, therefore, concludes the newly-submitted evidence does not

establish the Commissioner’s decision was not supported by

substantial evidence in the record. 

II. Any error by the ALJ when he found Plaintiff would be offtask nine percent of the time and miss one day of work per

month was harmless.

As noted, the ALJ found at Step Three that Plaintiff would

be off-task nine percent of the time and would miss work one day

per month. Plaintiff asserts these findings are unsupported by

the evidence.

Molly McKenna, Ph.D., examining psychologist, opined in a

check-the-box form that Plaintiff was markedly limited in her

ability to “perform activities within a schedule, maintain

regular attendance, and be punctual within customary tolerances”

and in her ability to “complete a normal work day and workweek

without interruptions from psychologically based symptoms and to

perform at a consistent pace without an unreasonable number of

rest periods.” Tr. 458. The ALJ, however, gave little weight to 

Dr. McKenna’s opinion and Plaintiff does not challenge the ALJ’s

conclusion related to Dr. McKenna’s opinion on appeal. Karen

Bate-Smith, Ph.D., examining psychologist, opined Plaintiff “did

well on mental control tasks. . . . Pace of the examination was

normal. Task persistence was good.” Tr. 314. Reviewing

psychologist Robert Henry, Ph.D., opined Plaintiff can sustain

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adequate concentration, persistence, and pace and keep a regular

work schedule. Tr. 331. 

To the extent that Plaintiff asserts the ALJ should have

found Plaintiff to be off-task more than nine percent of the time

or absent more than once a month, the Court concludes on this

record that the ALJ’s findings as to those limitations are

supported by substantial evidence in the record. To the extent

that Plaintiff asserts the ALJ erred when he found any

limitations in these areas, the Court concludes that error is

harmless because the Ninth Circuit has held including too many

restrictions in a plaintiff’s RFC is harmless error. See Johnson

v. Shalala, 60 F.3d 1428, 1436 n.9 (9th Cir. 1995)(alleged

overinclusion of debilitating factors in an ALJ’s hypothetical

question is harmless error). 

III. The ALJ did not err when he found Plaintiff could perform 

light work.

Plaintiff asserts the ALJ erred when he concluded Plaintiff

could perform light work because the ALJ based that conclusion on

the October 9, 2009, opinion of examining doctor Melissa Johnson,

M.D., who did not have the opportunity to review Plaintiff’s

April 14, 2010, MRI before providing her opinion.

On April 14, 2010, Plaintiff underwent an MRI that showed a

“partial sacralization of the L5 vertebral body.” Tr. 335. 

Plaintiff asserts that MRI is “evidence of a low back condition

that would potentially cause more severe limitations than those

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determined by the ALJ.”

The ALJ, however, considered both the April 2010 MRI and a

June 2013 MRI as well as the other medical evidence in the record

in reaching his conclusion that Plaintiff could perform a reduced

range of light work. Plaintiff’s assertion that the April 2010

MRI is evidence of a condition that might potentially cause

Plaintiff to have more severe limitations is insufficient to meet

Plaintiff’s burden to establish disability. The ALJ also relied

on numerous clinical findings by Plaintiff’s treating, examining,

and reviewing physicians to support his conclusion that Plaintiff

is able to perform a reduced range of light work. Tr. 30, 303-5,

359, 636.

The Court concludes on this record that the ALJ did not err

when he concluded Plaintiff is capable of performing a reduced

range of light work because the ALJ provided legally sufficient

reasons supported by substantial evidence in the record for doing

so.

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the 

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Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 6th day of June, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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