UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

RUTH A. SCHNELLE, ) 

) 

Plaintiff, ) 

) 

v. ) 

) 

CAROLYN W. COL VIN, ) 

Acting Commissioner of Social Security, ) 

) 

Defendant. ) 

Jones, J., 

Case No. 6: 15-cv-01961-JO 

OPINION AND ORDER 

Plaintiff Ruth Schnelle (plaintiff) seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration (the Commissioner) denying her application 

for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. Because the 

Commissioner's decision is supported by substantial evidence, the decision is AFFIRMED. 

PRIOR PROCEEDINGS 

Plaintiff protectively filed an application for DIB on May 16, 2008. Admin. R. 185. Her 

application was denied initially and on reconsideration, and she requested a hearing before an 

Case 6:15-cv-01961-JO Document 20 Filed 02/27/17 Page 1 of 11
administrative law judge (ALJ). Admin. R. 121-24, 129-32. On January 20, 2011, a hearing was 

held before ALJ John Madden. Admin. R. 42. On February 18, 2011, ALJ Madden issued a 

decision finding plaintiff not disabled. Admin. R. 9-26. The Appeals Council denied plaintiffs 

request for review. Admin. R. 1-4. 

Plaintiff requested review in this comt and on May 2, 2013, Judge Hubel issued an Order 

of Remand based on the stipulation of the patties, reversing the ALJ' s decision and remanding 

the case for finther proceedings. Admin. R. 761-62. On remand, ALJ Kelly Wilson held an 

administrative hearing on April 22, 2015. Admin. R. 669. On June 22, 2015, ALJ Wilson issued 

a decision denying plaintiffs claim. Admin. R. 634-68. The Appeals Council denied review 

and the ALJ's decision became the final order of the Commissioner. Plaintiff now seeks review 

of that decision. 

Plaintiff was born 1960 and was 50 years old on her date last insured, March 31, 2010. 

Admin. R. 20, 51. She completed high school and attended two years of college. Admin. R. 52-

53. She has past work experience as a truck driver, a bottle washer, and a car deliverer. Admin. 

R. 147. Plaintiff alleges disability due to cervical and lumbar degenerative disc disease with 

radiculopathy after a cervical fusion, peripheral edema in the legs, fibromyalgia, morbid obesity, 

posttraumatic stress disorder, depressive disorder, and plantar fasciitis. 

The ALJ performed the sequential analysis described in 20 C.F.R section 404.1520. At 

step one, she found plaintiff had not engaged in substantial gainful activity since her alleged 

onset date of May I, 2005 tlu·ough her date last insured of March 31, 2010. Admin. R. 639. At 

step two, the ALJ concluded plaintiff suffered the following severe impairments: morbid obesity, 

sleep apnea, degenerative disc disease of the cervical spine status-post fusion surgery, 

degenerative disc disease of the lumbar spine, hypertension with edema, depressive disorder, and 

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anxiety disorder. Admin. R. 639-40. At step three, the ALJ determined plaintiff did not have an 

impairment or combination of impairments that met or medically equaled a listed impairment. 

Admin. R. 643. 

The ALJ next assessed plaintiffs residual functional capacity (RFC) and found that she 

retains the capacity to perform light work with the following limitations: she can lift and carry 20 

pounds occasionally and 10 pounds frequently, and sit in 2-hour intervals for a total of at least 6 

hours in an 8-hour workday; she can stand and/or walk in 30-minute intervals for up to 6 hours in 

an 8-hour workday; she can occasionally kneel, crouch, crawl, and climb ramps and stairs but 

cannot climb ladders, ropes, or scaffolds; she must avoid concentrated exposure to vibration, 

fumes, odors, gases, poor ventilation, and all exposure to hazards such as dangerous working 

machinery or unprotected heights; and she can perform simple tasks of reasoning level 1 to 3 in a 

low-stress job, defined as requiring only occasional decision making and occasionally adaptation 

to change that does not involve high-volume production pace, such as high-volume assembly 

line. Admin. R. 645. 

At step four, the ALJ found plaintiff is unable to perform any of her past relevant work. 

Admin. R. 658. At step five, the ALJ found that plaintiff retained the RFC to perform jobs that 

exist in significant numbers in the national economy, including photo copy machine operator, 

office helper, and ticket seller. Admin. R. 659. The ALJ therefore concluded plaintiff was not 

disabled. Admin. R. 660. 

STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if it is based on the proper 

legal standards and the findings are supp01ied by substantial evidence. 42 U.S.C. § 405(g); see 

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means 

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"more than a mere scintilla but less than a preponderance." Bray v. Comm 'r, 554 F.3d 1219, 

1222 (9th Cir. 2009). It means "such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion." Id. 

Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th 

Cir. 2005). Variable interpretations of the evidence are insignificant ifthe Commissioner's 

interpretation is a rational reading of the record, and this Court may not substitute its judgment 

for that of the Commissioner. See Batson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir. 2004). 

"However, a reviewing comt must consider the entire record as a whole and may not affirm 

simply by isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 

630 (9th Cir. 2007). The reviewing court, however, may not affirm the Commissioner on a 

ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226. 

DISCUSSION 

I. Claims of Error 

Plaintiff argues the Commissioner erred by (1) improperly evaluating the medical opinion 

evidence; and (2) rejecting her subjective symptom testimony. 

II. Medical Opinion Evidence 

Plaintiff first argues that the ALJ erred in her evaluation of the medical opinion evidence. 

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. Chafer, 

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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). Ifa treating or examining doctor's opinion is 

contradicted by another doctor's opinion, it may be rejected by specific and legitimate reasons. 

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 

1. Treating Physician's Assistant Amy Scheer, PA-C 

Plaintiff argues that the ALJ improperly rejected the opinion of treating physician's 

assistant Amy Scheer, PA-C. Ms. Scheer opined that plaintiff could not perform light or medium 

work due to her fibromyalgia. Admin. R. 582-83. She stated that plaintiff"may" be able to 

perform sedentary work. Id. As a physician's assistant, Ms. Scheer was an "other" medical 

source under the Regulations, and the ALJ was required to provide germane reasons for rejecting 

her opinion. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); 20 C.F.R. § 404.1513( d)(l ). 

Here, the ALJ noted that Ms. Scheer's opinion that plaintiff was limited by fibromyalgia 

was not suppmied by the medical record because plaintiffs fibromyalgia was not a medically 

determinable impairment. Admin. R. 640-41, 655. The ALJ may assign less weight to a medical 

opinion that is inconsistent with the overall medical record or unsupported by clinical findings. 

20 C.F.R. § 404.1527(c)(4). Here, there appears to be no examination or clinical findings in the 

record to suppoti a diagnosis of fibromyalgia. Further, the clinical findings in the record do not 

suppoti such a diagnosis. For example, plaintiff exhibited fair to good range of motion on 

examination in February, 2007. Admin. R. 506. Ms. Scheer also noted that plaintiff was able to 

go grocery shopping and perform activities such as packing and lifting, which conflicts with her 

opinion that plaintiff was capable of very little standing and lifting. Admin. R. 582. On this 

record, it was reasonable for the ALJ to reject Ms. Scheer's opinion as inconsistent with the 

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overall record and unsupported by clinical findings. The ALJ provided germane reasons for 

rejecting Ms. Scheer's opinion. Molina, 674 F.3d at 1111. 

2. Medical Expert Alexander White, M.D. 

Plaintiff also argues that the ALJ erred by rejecting the opinion of testifying medical 

expert Alexander White, M.D. At the administrative hearing, Dr. White testified that plaintiff 

was restricted to sedentary work during the relevant period. Admin. R. 692. He stated that 

plaintiffs weight affected her degenerative disc disease and he expected someone with obesity to 

experience a greater degree of symptoms related to degenerative disc disease and to 

fibromyalgia. Admin. R. 693. Dr. White testified that plaintiff could be on her feet for at least 

four hours and sit for six hours, if given the option to get up every hour to move her joints "for 

five to ten minutes" before she sat again. Admin. R. 693-94, 696. 

Plaintiff argues that the ALJ erred because he failed to acknowledge Dr. White's finding 

that plaintiff would need to move around when she stood up at her job. However, the ALJ 

considered Dr. White's testimony that "it was imp01tant for the claimant to move around and that 

it would be an 'injustice' to restrict [her] to a 'sedentary' job" and included this limitation in the 

RFC. Admin. R. 645-52. Specifically, the RFC limits plaintiff to light work with the limitation 

that plaintiff can sit for intervals of two hours, which allows for movement between intervals. 

Admin. R. 645. On this record, plaintiff has not shown that the ALJ rejected any of Dr. White's 

limitations, and the ALJ was therefore not required to provide legally sufficient reasons for 

rejecting Dr. White's opinion. 

3. Examining Psychologist Robert Kruger, Ph.D. 

Plaintiff next argues that the ALJ erred by rejecting the opinion of examining 

psychologist Robe1t Kruger, Ph.D. Dr. Kruger examined plaintiff once and wrote that she would 

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likely perform tasks on an inconsistent basis if she were required to perform anything other than 

simple, repetitive tasks; if the tasks consisted of multiple stages or were complex in nature; or if 

she were under even a modicum of stress. Admin. R. 591. 

The ALJ rejected Dr. Kruger's opinion, relying instead on the opinion of psychiatric 

expert Robert McDevitt, M.D., who opined that Dr. Kruger's conclusions were unsupported by 

the treatment record. Admin. R. 655-56. Dr. McDevitt testified that he saw no clinical evidence 

to support Dr. Kruger's finding of stress-related limitations. Admin. R. 712. The ALJ was 

therefore required to provide specific, legitimate reasons for rejecting Dr. Kruger's controverted 

medical opinion. Bayliss, 427 F.3d at 1216. 

The ALJ noted that Dr. Kruger's conclusion regarding plaintiffs stress was not based on 

clinical findings. An ALJ may reject the opinion of a physician if it is brief, conclusory or it is 

not adequately suppmied by clinical findings. Thomas v. Bamhart, 278 F.3d 947, 957 (9th Cir. 

2002). Here, Dr. Kruger only examined plaintiff once, and was not able to observe her 

performance under stress. Further, as the ALJ noted, the record shows that plaintiff did well on 

psychiatric medications, was less stressed out and anxious, and saw significant improvement in 

her symptoms of depression and agitation. Admin. R. 559, 649-50. On this record, the ALJ 

reasonably concluded that Dr. Kruger's opinion that plaintiff would perform inconsistently when 

under a modicum of stress was not adequately supported by the medical record. The ALJ 

therefore provided a legally sufficient reason for rejecting Dr. Kruger's controverted opinion. 

Thomas, 278 F.3d at 957. 

4. Treating Social Worker John Milnes, MSW 

Plaintiff next argues that the ALJ improperly rejected the opinion of treating social 

worker John Milnes, MSW. Mr. Milnes began treating plaintiff in July, 2010. Admin. R. 633. 

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In January, 2011, Mr. Milnes signed a letter authored by plaintiffs attorney, indicating plaintiff 

would have difficulty sustaining simple, routine tasks on a sustained basis. Admin. R. 627-28. 

He also opined that plaintiff would struggle in her interactions with coworkers and supervisors. 

Admin. R. 627-28. The ALJ assigned little weight to Mr. Milnes's opinion. Admin. R. 656. 

As a clinical social worker, Ms. Milnes was an "other" medical source under the 

Regulations, and the ALJ was required to provide germane reasons for rejecting his opinion. 

}dolina, 674 F.3d at l ll l; 20 C.F.R. § 404.1513(d)(l). Here, the ALJ found that Mr. Milnes did 

not treat plaintiff until after her date last insured, and therefore lacked sufficient foundation to 

assess plaintiffs functioning during the relevant period. Admin. R. 656. The ALJ may 

disregard a medical opinion formulated outside of the relevant time period. Turner v. Comm 'r, 

613 F.3d 1217, 1224 (9th Cir. 2010). Because Mr. Milnes based his opinion on his interactions 

with plaintiff after the period under review, the ALJ was entitled to favor the opinion of Dr. 

McDevitt, who rendered his opinion based on the relevant period and assessed fewer and less 

severe limitations. In sum, the ALJ reasonably weighed the evidence and provided a germane 

reason for rejecting Mr. Milnes's opinion. The ALJ provided legally sufficient reason to support 

her evaluation of the medical record. 

II. Plaintiff's Testimony 

Plaintiff also argues that the ALJ erred by rejecting her subjective symptom testimony. 

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 she must show the impairment or combination of impairments could 

reasonably be expected to produce some degree of symptom. Cotton v. Bowen, 799 F.2d 1403, 

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1407 (9th Cir. 1986). The claimant, however, need not produce objective medical evidence of the 

actual symptoms or their severity. Smolen v. Chafer, 80 F.3d 1273, 1284 (9th Cir. 1996). 

If the claimant satisfies the above test and there is not any affirmative evidence of 

malingering, the ALJ can reject the claimant's testimony only ifthe ALJ provides clear and 

convincing reasons for doing so. Parra v. As/rue, 481 F.3d 742, 750 (9th Cir. 2007). 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 that she suffered from constant pain in her back, neck, 

and shoulders, limiting her ability to perform household tasks. Admin. R. 71-73. She stated that 

she can perform tasks around the house for about 15 minutes before needing to stop. Admin. R. 

76. She has difficulty walking and experiences pain if she stands or sits for very long. Admin. 

R. 684-85. 

The ALJ rejected plaintiffs subjective symptom testimony to the extent that it conflicted 

with the RFC. Admin. R. 643-44. As a first reason for rejecting plaintiffs testimony, the ALJ 

found that plaintiffs activities of daily living were inconsistent with her allegations regarding the 

nature and extent of her limitations. Id. The ALJ may reject a claimant's testimony when it is 

inconsistent with her level of daily activity. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 

2001). Here, the ALJ noted that plaintiff was able to perform daily activities such as preparing 

meals, reading, caring for her very energetic daughter, shopping, gardening, and using a 

lawnmower. Admin. R. 643-44. Plaintiff also reported that she spent "a lot of time" packing, 

lifting, and otherwise exerting herself when she moved. Admin. R. 574. Plaintiffs only 

complaint on examination after moving was heel pain, not musculoskeletal pain, suggesting that 

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she was physically less limited than alleged despite her rep01ted difficulties. Admin. R. 225-27, 

574, 944. On this record, it was reasonable for the ALJ to infer that plaintiff was not as limited 

as alleged in her testimony. Plaintiffs activities therefore constitute a clear and convincing 

reason for rejecting her testimony. Rollins, 261 F.3d at 857. 

Second, the ALJ found plaintiffs testimony was not credible because her condition 

improved with medication and conservative treatment. Admin. R. 649-50. Improvement with 

conservative treatment is grounds for discounting allegations of totally disabling pain. 

Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). Here, plaintiff reported 

improvement in her depression with medication, although she suffered from unpleasant sideeffects including fatigue, anxiety, and depression. Admin. R. 558, 560, 573-74, 590-92. 

Plaintiff also experienced some improvement of her physical symptoms on Savella and with 

physical therapy, but continued to suffer from some pain. Admin. R. 487, 500, 503, 575, 578, 

647. In March, 2008, however, plaintiffrep01ted that her pain level was at 0 (on a scale of 10); 

and in June, 2010, she reported that her pain was well-controlled on medication. Admin. R. 491, 

573, 648. Plaintiff also reported improvement following injections and neck surgery. Admin. R. 

500, 506. This evidence supp01ts the ALJ's finding that plaintiff was not as limited as alleged in 

her testimony, because her symptoms improved with treatment. 1 Tommasetti, 533 F.3d at 1040. 

In sum, the ALJ provided legally sufficient reasons supported by substantial evidence in the 

record for her credibility finding, and her decision is therefore affirmed. 

Ill// 

Ill// 

1 The ALJ also found that plaintiff failed to report and seek treatment for her sleep apnea. 

However, because plaintiff reported that she had difficulty paying for consistent care, any failure 

to seek treatment due to insolvency is not a clear and convincing reason for rejecting plaintiffs 

testimony. 

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CONCLUSION 

For the foregoing reasons, the Commissioner's decision is AFFIRMED. 

Robert E. JOn , Se9ior Judge 

United States i trlct Court 

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