1 - OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JAMES ABRAHAMSON, No. 6:15-cv-00580-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER SOCIAL 

SECURITY ADMINISTRATION, 

Defendant.

Bruce W. Brewer

Law Offices of Bruce W. Brewer, PC

PO Box 421

West Linn, OR 97068

Attorney for Plaintiff

Janice E. Hebert

Assistant United States Attorney

U.S. Attorney’s Office, District of Oregon

1000 SW Third Avenue, Suite 600

Portland, OR 97204

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Alexis L. Toma

Social Security Administration 

Office of the General Counsel

701 Fifth Avenue, Suite 2900 M/S 221A

Seattle, WA 98104

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff James Abrahamson brings this action for judicial review of the Commissioner’s 

final decision denying his application for Disability Insurance Benefits (DIB) under Title II of 

the Social Security Act. This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 

U.S.C. § 1382(c) (3)). For the reasons that follow, the Court affirms the Commissioner’s 

decision. 

PROCEDURAL BACKGROUND

Plaintiff applied for DIB on April 17, 2012, alleging an onset date of April 15, 2010. Tr. 

192.1 His application was denied initially and on reconsideration. Tr. 101, 107. On December 2, 

2013, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). 

Tr. 32. On December 18, 2013, the ALJ found Plaintiff not disabled. Tr. 27. The Appeals 

Council denied review. Tr. 1.

FACTUAL BACKGROUND

Plaintiff alleges disability based on pain in his hands, back, neck, and left knee; a torn 

tendon in his left hand; and tennis elbow in both elbows. Tr. 221. Plaintiff was 60 years old at the 

time of the administrative hearing. Tr. 37. He graduated from high school and obtained an 

associate’s degree in automotive technology. Tr. 37. He has past work experience as an auto 

mechanic. Tr. 63. 

 1 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative record, 

filed herein as Docket No. 11.

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SEQUENTIAL DISABILITY ANALYSIS

A claimant is disabled if unable 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). 

Disability claims are evaluated according to a five-step procedure. See, e.g., Valentine v. 

Comm’r, 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving 

disability. Id.

In the first step, the Commissioner determines whether a claimant is engaged in 

“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 

137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner 

determines whether the claimant has a “medically severe impairment or combination of 

impairments.” Yuckert, 482 U.S. 137 at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, 

the claimant is not disabled.

In step three, the Commissioner determines whether the impairment meets or equals “one 

of a number of listed impairments that the [Commissioner] acknowledges are so severe as to 

preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 

416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner 

proceeds to step four. Yuckert, 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any 

impairment(s), has the residual functional capacity to perform “past relevant work.” 20 C.F.R. §§ 

404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot 

perform past relevant work, the burden shifts to the Commissioner. In step five, the 

Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 

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141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden 

and proves that the claimant is able to perform other work which exists in the national economy, 

the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

THE ALJ DECISION

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful 

activity since April 15, 2010, the alleged onset date. Tr. 19. Next, at steps two and three, the ALJ 

determined that Plaintiff has the severe impairments of arthritis/dupuytren’s contracture of the 

left hand and degenerative disc disease of the lumbar spine, and the non-severe impairments of 

acute cholecystitis with flank/abdominal pain, but that the impairments or combination of 

impairments did not meet or medically equal the severity of one of the listed impairments. Tr. 

20-23. At step four, the ALJ concluded that Plaintiff has the following residual functional 

capacity: 

[He can] perform the full range of medium work as defined in 20 CFR 404.1567(c) 

including lifting up to 50 pounds occasionally, lifting and carrying up to 25 pounds 

frequently. He may occasionally climb ladder, ropes, scaffolds, and crawl. He may 

frequently engage in handling and fingering with the non-dominant left hand. 

Tr. 23. With this residual functional capacity, the ALJ determined that Plaintiff is capable of 

performing past relevant work as an auto mechanic. Tr. 25. Alternatively, at step five, the ALJ 

determined that there are jobs that exist in significant numbers in the national economy that 

Plaintiff can perform, such as tune-up mechanic, carburetor mechanic, and vehicle fuel systems 

converter. Tr. 26. Thus, the ALJ determined that Plaintiff is not disabled. Tr. 33.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner’s decision if the Commissioner 

applied proper legal standards and the 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 

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Cir. 2004). “Substantial evidence” means “more than a mere scintilla, but less than a 

preponderance.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) 

(quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is “such relevant evidence 

as a reasonable mind might accept as adequate to support a conclusion.” Id.

The court must weigh the evidence that supports and detracts from the ALJ’s conclusion. 

Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 

715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the 

Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see 

also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the 

evidence are insignificant if the Commissioner’s interpretation is a rational reading. Id.; see also

Batson, 359 F.3d at 1193. However, the court cannot not rely upon reasoning the ALJ did not 

assert in affirming the ALJ’s findings. Bray, 554 F.3d at 1225-26 (citing SEC v. Chenery Corp., 

332 U.S. 194, 196 (1947)).

DISCUSSION

Plaintiff contends that the ALJ erred by finding Plaintiff not entirely credible and by 

rejecting the opinion of treating physician Dr. Heder. The Court finds that the ALJ properly 

discounted Plaintiff’s credibility and that any error in rejecting the opinion of Dr. Heder was 

harmless.

I. Credibility of Plaintiff 

Plaintiff contends that the ALJ failed to provide clear and convincing reasons for 

rejecting his testimony about his impairments and their limiting effects. In assessing the 

credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the 

ALJ engages in a two-step analysis. 20 C.F.R. § 404.1529. First, the ALJ determines whether 

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there is objective medical evidence of an underlying impairment that could reasonably be 

expected to produce some degree of symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir.

1996). If such evidence exists, and barring affirmative evidence of malingering, the ALJ must 

give clear and convincing reasons for discrediting the claimant's testimony regarding the severity 

of the symptoms. Id. at 1284; see also Lingenfelter, 504 F.3d at 1036. If the record contains 

affirmative evidence of malingering, the ALJ need only provide specific and legitimate reasons 

for an adverse credibility finding. Morgan v. Comm'r, 169 F.3d 595, 599 (9th Cir. 1999).

The ALJ may consider many factors in weighing a claimant’s credibility, including: (1) 

ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior 

inconsistent statements concerning the symptoms, and other testimony by the claimant that 

appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or 

to follow a prescribed course of treatment; and (3) the claimant’s daily activities. Tommasetti v. 

Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Where the ALJ's credibility findings are supported 

by substantial evidence in the record, the reviewing court “may not engage in second-guessing.” 

Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). However, a general assertion that 

plaintiff is not credible is insufficient; the ALJ must “state which . . . testimony is not credible 

and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 

(9th Cir.1993); see also Morgan, 169 F.3d at 599.

Plaintiff testified that he stopped working as an auto mechanic because of severe 

problems with his back, neck, and hands. Tr. 38. Plaintiff explained that he had pulled muscles 

and had arthritis in his hands. Id. He stated that his left hand was worse than his right but that 

both hands bothered him. Id. Plaintiff testified that he dropped things “all the time” because he 

was unable to grasp and hold on to objects such as dishes or writing utensils. Tr. 38-39, 44. 

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Plaintiff also testified that he had severe back pain which impeded his range of motion and made 

bending over difficult. Tr. 42-43. At the hearing, Plaintiff stated, “I have trouble just sitting here 

talking to you right now. I mean I’m in extreme pain right now. . . . My back, my neck and my 

hands are throbbing real bad.” Tr. 48.

The ALJ found that Plaintiff was not credible in his testimony regarding the intensity, 

persistence, and limiting effects of his symptoms. Tr. 24. The ALJ was primarily troubled by 

Plaintiff’s inconsistent reports regarding his earnings and work history. The ALJ suggested that 

“secondary gain” could be Plaintiff’s motive in these proceedings. Id.

During the December 2013 administrative hearing, Plaintiff testified that it had been 

“over two years” or “a couple of years” since he had performed any mechanic work. Tr. 38, 41. 

He also testified that, since his alleged onset date of April 15, 2010, he had not worked at all. Tr. 

47-48. However, a medical record from May 7, 2012 indicates that he was still performing 

mechanic work, albeit with pain. Tr. 339. In addition, on a May 15, 2012 Disability Report, 

Plaintiff wrote “I am currently working” and indicated that he worked part-time. Tr. 221. He also 

reported over nine thousand dollars in earnings in 2010 and six thousand dollars in earnings in 

2011. Tr. 56. 

Contrary to Plaintiff’s argument, the ALJ did not discount his credibility because Plaintiff 

worked part-time after his alleged onset date. See Pl. Br. 7, ECF 12. The ALJ discounted 

Plaintiff’s credibility because the ALJ found significant discrepancies in Plaintiff’s reports about 

the amount he worked, when he stopped working, and what he earned. The inconsistency 

between what Plaintiff said at the hearing and what he stated to his doctor and in a written 

disability report is a compelling reason for the ALJ to discount Plaintiff’s credibility. Bunnell v. 

Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (“So long as the adjudicator makes specific findings 

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that are supported by the record, the adjudicator may discredit the claimant's allegations based on 

inconsistencies in the testimony[.]”).

The ALJ also noted that Plaintiff’s testimony was inconsistent with medical evidence in 

the record. Conflicts between a claimant’s testimony and the objective medical evidence in the 

record can undermine a claimant's credibility. Morgan, 169 F.3d at 600. The ALJ reviewed 

Plaintiff’s medical records and found that there was no mention of “bilateral hand pain” until 

after Plaintiff filed his disability claim. Tr. 24. Plaintiff was first seen for “hand pain” on May 7, 

2012, within weeks of filing his claim. Id. However, on August 4, 2012, examining physician 

Daniel Lincoln, M.D., noted on physical examination virtually no limitations with Plaintiff’s 

hands. Tr. 280-81. As to Plaintiff’s back pain, Dr. Lincoln only diagnosed Plaintiff’s anecdotal 

claim of “chronic pain,” but did not find objective support for Plaintiff’s claim and did not assess 

Plaintiff with any limitations in sitting, standing, lifting, carrying, balancing, stooping, kneeling, 

climbing, crouching, or crawling. Id. Plaintiff’s lack of treatment prior to filing for disability and 

Dr. Lincoln’s assessment provide further justification for the ALJ’s credibility finding. 

Finally, the ALJ discounted Plaintiff’s credibility because Plaintiff’s behavior conflicted 

with his report of limitations and pain. “Although an ALJ's personal observations, standing 

alone, cannot support a determination that a claimant is not credible, they may form part of that 

determination.” Reinertson v. Barnhart, 127 F. App'x 285, 290 (9th Cir. 2005) (citing Fair v. 

Bowen, 885 F.2d 597, 602 (9th Cir. 1989) and Morgan, 169 F.3d at 600 (“The inclusion of the 

ALJ's personal observations does not render the decision improper.”)). Plaintiff testified that he 

did not grasp things with his left hand because it was painful and because he would drop things. 

Tr. 51. Yet Plaintiff carried a laptop computer with his left hand into the administrative hearing 

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without difficulty. Tr. 51-52. The ALJ properly included his own observations of Plaintiff in 

discounting Plaintiff’s credibility.

Plaintiff challenges additional reasons cited by the ALJ in rejecting his testimony. 

Plaintiff argues that the ALJ improperly discounted his credibility based on Plaintiff’s failure to 

obtain medical treatment for his hand pain and Plaintiff’s testimony that he took amounts of 

Advil in excess of recommended dosage amounts. Even assuming that Plaintiff is correct that 

these two reasons are not supported by substantial evidence, the record as a whole demonstrates 

that the ALJ nevertheless provided sufficient specific, clear, and convincing reasons to reject 

Plaintiff’s credibility. 

Despite the fact that Plaintiff disagrees with the ALJ's interpretation of the evidence and 

offers an alternative, the Court must reject plaintiff's interpretation of the evidence because the 

ALJ's decision was rational. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (“Our sole 

inquiry is whether the record, read as a whole, yields such evidence as would allow a reasonable 

mind to accept the conclusions reached by the law judge.”). In sum, the ALJ provided sufficient 

clear and convincing reasons to reject plaintiff's subjective symptom testimony. The ALJ’s 

credibility finding is affirmed.

II. Treating Physician Dr. Heder

Plaintiff argues that the ALJ improperly rejected the opinion of Dr. James E. Heder, M.D. 

The ALJ is responsible for resolving conflicts in the medical record, including conflicts among 

physicians’ opinions. Carmickle v. Comm'r, 533 F.3d 1155, 1164 (9th Cir. 2008). The Ninth 

Circuit distinguishes between the opinions of three types of physicians: treating physicians, 

examining physicians, and non-examining physicians. The opinions of treating physicians are 

generally accorded greater weight than the opinions of non-treating physicians. Lester v. Chater,

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81 F.3d 821, 830 (9th Cir. 1995). A treating doctor’s opinion that is not contradicted by the 

opinion of another physician can be rejected only for “clear and convincing” reasons. Baxter v. 

Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If a treating doctor’s opinion is contradicted by 

the opinion of another physician, the ALJ must provide “specific, legitimate reasons” for 

discrediting the treating doctor’s opinion. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). 

Specific, legitimate reasons for rejecting a physician’s opinion may include its reliance on a 

claimant’s discredited subjective complaints, inconsistency with medical records, inconsistency 

with a claimant’s testimony, and inconsistency with a claimant’s daily activities. Tommasetti,

533 F.3d at 1040. 

Dr. Heder was Plaintiff’s treating physician for almost 20 years and performed multiple 

physical examinations. Tr. 356. However, Plaintiff did not see Dr. Heder for several years before 

he reestablished treatment on May 7, 2012, a few weeks after filing for disability benefits. Tr. 

288. At the May 7, 2012, visit, Dr. Heder found that Plaintiff had “Dupuytren’s contractures 

involving the left part of the palm” of Plaintiff’s left hand. Id. Dr. Heder stated that Plaintiff’s 

condition was causing “some disability” in his work. Id. Dr. Heder recommended that Plaintiff 

consult with a hand surgeon. Dr. Heder noted that Plaintiff took 20 Advil per day and had neck 

and back pain. Id. Finally, Plaintiff also had a “contusion to the thumb [from] dropping the tool 

box about three days ago.” Id. However, Dr. Heder noted that the contusion would “ease off 

gradually” and directed Plaintiff to “gently use the hand in normal activity.” Id.

Plaintiff contends that the ALJ offered no legitimate reasons for rejecting Dr. Heder’s 

opinion. Tr. 22. However, Plaintiff provides no argument as to how the ALJ’s ultimate 

determination of non-disability would change if Dr. Heder’s opinion was fully credited. Plaintiff 

contends that Dr. Heder’s opinion that Plaintiff should “gently use the hand” precludes the 

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mechanical work that the ALJ found Plaintiff capable of in steps four and five of the analysis. 

However, Dr. Heder’s direction to “gently use the hand” clearly only refers to the effect of 

Plaintiff’s contusion (which Dr. Heder says will “ease off gradually”) on the use of his hand, not 

the effect of the dupuytren’s contracture or any other permanent impairment. Dr. Heder’s 

statement that Plaintiff’s condition was causing him “some disability” is not a functional 

assessment of Plaintiff’s limitations and is based on Plaintiff’s self-reports, which are discounted 

for the reasons discussed above. 

The Court fails to see how crediting Dr. Heder’s opinion would make any difference in 

the ALJ’s determination of Plaintiff’s residual functional capacity. Therefore, even if the ALJ 

erred in rejecting Dr. Heder’s opinion, such error was harmless. Stout v. Comm'r, Soc. Sec. 

Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (errors that are “nonprejudicial to the claimant or 

irrelevant to the ALJ's ultimate disability conclusion” are harmless). 

CONCLUSION

Based on the foregoing, the Commissioner's decision is affirmed.

IT IS SO ORDERED.

Dated this ________ day of __________________________, 2016

______________________________________________________

MARCO A. HERNÁNDEZ

United States District Judge

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