UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON

CHARLENE GEHRING,

Plaintiff,

v. 

CAROLYN COLVIN, Acting

Commissioner, Social Security

Administration,

Defendant.

Case No. 2:14-cv-01830-KI

OPINION AND ORDER

Rory Linerud

Linerud Law Firm

P.O. Box 1105

Salem, OR 97308

Attorney for Plaintiff

Billy J. Williams

United States Attorney

District of Oregon

Janice E. Hebert

Assistant United States Attorney

Page 1 - OPINION AND ORDER

Case 2:14-cv-01830-KI Document 15 Filed 01/13/16 Page 1 of 9
1000 SW Third Ave., Ste. 600

Portland, OR 97204-2902

Leisa A. Wolf

Special Assistant United States Attorney

Office of the General Counsel

Social Security Administration

701 Fifth Ave., Ste. 2900 M/S 221A

Seattle, WA 98104-7075

Attorneys for Defendant

KING, Judge:

Plaintiff Charlene Gehring brings this action pursuant to section 205(g) of the Social

Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the

Commissioner denying her application for disability insurance benefits (“DIB”). I affirm the

decision of the Commissioner.

BACKGROUND

Gehring protectively filed an application for DIB on January 11, 2010, alleging disability

beginning June 1, 2007. The application was denied initially and upon reconsideration. After a

timely request for a hearing, Gehring, represented by counsel, appeared and testified before an

Administrative Law Judge (“ALJ”) on February 21, 2012. Hearings were also held on May 3,

July 23, and finally on August 8, 2012 in an effort to obtain medical expert testimony.

On August 23, 2012, the ALJ issued a decision finding Gehring not disabled within the

meaning of the Act and therefore not entitled to benefits because she failed to show she became

disabled on or before her date last insured of March 31, 2009. This decision became the final

Page 2 - OPINION AND ORDER

Case 2:14-cv-01830-KI Document 15 Filed 01/13/16 Page 2 of 9
decision of the Commissioner when the Appeals Council declined to review the decision of the

ALJ on September 12, 2014. 

DISABILITY ANALYSIS

The Social Security Act (the “Act”) provides for payment of disability insurance benefits 

to people who have contributed to the Social Security program and who suffer from a physical or

mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security

income benefits may be available to individuals who are age 65 or over, blind, or disabled, but

who do not have insured status under the Act. 42 U.S.C. § 1382(a).

The claimant must demonstrate an inability to engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can be expected to

cause death or to last for a continuous period of at least twelve months. 42 U.S.C.

§§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will be determined to be disabled only if his

physical or mental impairments are of such severity that he is not only unable to do his previous

work but cannot, considering his age, education, and work experience, engage in any other kind

of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) and

1382c(a)(3)(B).

The Commissioner has established a five-step sequential evaluation process for

determining if a person is eligible for either DIB or SSI due to disability. The evaluation is

carried out by the ALJ. The claimant has the burden of proof on the first four steps. Parra v.

Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ

determines whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. 

Page 3 - OPINION AND ORDER

Case 2:14-cv-01830-KI Document 15 Filed 01/13/16 Page 3 of 9
§§ 404.1520(b) and 416.920(b). If the claimant is engaged in such activity, disability benefits are

denied. Otherwise, the ALJ proceeds to step two and determines whether the claimant has a

medically severe impairment or combination of impairments. A severe impairment is one

“which significantly limits [the claimant’s] physical or mental ability to do basic work

activities[.]” 20 C.F.R. §§ 404.1520(c) and 416.920(c). If the claimant does not have a severe

impairment or combination of impairments, disability benefits are denied. 

If the impairment is severe, the ALJ proceeds to the third step to determine whether the

impairment is equivalent to one of a number of listed impairments that the Commissioner

acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d)

and 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is

conclusively presumed to be disabled. If the impairment is not one that is presumed to be

disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the

claimant from performing work which the claimant performed in the past. If the claimant is able

to perform work she performed in the past, a finding of “not disabled” is made and disability

benefits are denied. 20 C.F.R. §§ 404.1520(f) and 416.920(f).

If the claimant is unable to perform work performed in the past, the ALJ proceeds to the

fifth and final step to determine if the claimant can perform other work in the national economy

in light of his age, education, and work experience. The burden shifts to the Commissioner to

show what gainful work activities are within the claimant’s capabilities. Parra, 481 F.3d at 746. 

The claimant is entitled to disability benefits only if he is not able to perform other work. 20

C.F.R. §§ 404.1520(g) and 416.920(g). 

Page 4 - OPINION AND ORDER

Case 2:14-cv-01830-KI Document 15 Filed 01/13/16 Page 4 of 9
STANDARD OF REVIEW

The court must affirm a denial of benefits if the denial is supported by substantial

evidence and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion” and is more than a “mere scintilla” of the evidence but less

than a preponderance. Id. (internal quotation omitted). The court must uphold the ALJ’s

findings if they “are supported by inferences reasonably drawn from the record[,]” even if the

evidence is susceptible to multiple rational interpretations. Id.

THE ALJ’S DECISION

The ALJ identified only the severe impairment of back pain. He concluded Gehring’s

other complaints of hypertension, vertigo, Bell’s palsy, Meniere’s disease and other conditions

were not severe impairments as of Gehring’s date last insured. The ALJ also found Gehring’s

impairment did not meet or equal any of the impairments listed in 20 C.F.R. § 404, Subpart P,

Appendix 1. 

The ALJ concluded Gehring could perform the full range of medium work. Such work

requires: lifting and carrying 50 pounds occasionally and 25 pounds frequently; standing or

walking about six hours in an eight-hour work day; sitting about six hours in an eight-hour work

day; and unlimited pushing or pulling with the bilateral upper and lower extremities within

medium exertional level lifting and carrying weight descriptions. Given this residual functional

capacity (“RFC”), although Gehring had no relevant past work, the ALJ found Gehring could

perform other work in the national economy such as cook helper, dishwasher, and hand packer.

Page 5 - OPINION AND ORDER

Case 2:14-cv-01830-KI Document 15 Filed 01/13/16 Page 5 of 9
FACTS

Fifty-eight years old on her alleged onset date of disability, Gehring had been a military

wife and had moved around much of her working life. As a result, her work history consisted of

part-time work as a clerk in a food store, a retail sales clerk, and an accounting instructor. She

has a high school diploma. 

Gehring sought treatment from a chiropractor for her neck and back pain from October of

2002 to August of 2009; she found the treatments helpful. She was in a rollover car accident in

2004. At that time, she reported achiness in her left upper back as well as shoulder pain, both of

which worsened when lying down. She had significant hypertension. By January 2005,

Gehring’s back pain had improved and she felt she had returned to pre-accident status.

In January 2010, nearly ten months after her date last insured, Gehring reported to the

emergency room complaining of pain and ringing in her left ear, left side facial numbness, and

dizziness. The impression was TIA and hypertension. She followed up with her primary care

provider Jacquelyn Serrano, M.D., continuing to complain of vertigo, numbness in her left jaw

and cheek, and deafness in her left ear. Gehring reported a history of chronic hypertension. 

Gehring was initially assessed with hypertension, essential and malignant; CVA with left facial

hemiparesis; vertigo/dizziness with tinnitus and hearing loss; hyperlipidemia; and obesity. 

In March 2010, however, Richard Flaiz, M.D., noted that the symptoms compelling

Gehring to the emergency room were actually caused by a virus, although he agreed she had

vascular, cholesterol, and hypertension issues as well. Later that month, Dr. Serrano reported

Gehring had been “healthy until this year when she developed severe blood pressure problems.” 

Page 6 - OPINION AND ORDER

Case 2:14-cv-01830-KI Document 15 Filed 01/13/16 Page 6 of 9
Tr. 545. In June 2010, Gehring reported to her physical therapist experiencing zero pain, with

her worst pain at a level two.

DISCUSSION

I. Severe Impairments

Gehring contends the ALJ erred in treating her hypertension as a non-severe impairment. 

A medically determinable impairment must be established through signs, symptoms, and

medically acceptable clinical or laboratory findings but under no circumstances can be

established through symptoms, namely the individual’s own perception of the impact of the

impairment, alone. Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). Additionally, in

order to constitute a “severe” impairment, the impairment must have “more than a minimal effect

on the person’s physical or mental ability(ies) to perform basic work activities.” SSR 85-28,

1985 WL 56856, at *3 (January 1, 1985); see also SSR 96-3p, 1996 WL 374181, at *1 (July 2,

1996) (restating policy that “an impairment(s) is considered ‘not severe’ if it is a slight

abnormality(ies) that causes no more than minimal limitation in the individual’s ability to

function independently, appropriately, and effectively in an age-appropriate manner.”). 

Nevertheless, the threshold at step two is a low one. It is a “de minimis screening device [used]

to dispose of groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th

 Cir. 2005) (internal

quotation omitted). 

The ALJ discussed Gehring’s hypertension, noting that the records did not indicate any

treatment for the impairment, nor any complications from it. Gehring disputes this conclusion. 

However, the ALJ relied on the testimony of medical expert, Joselyn E. Bailey, M.D., who

Page 7 - OPINION AND ORDER

Case 2:14-cv-01830-KI Document 15 Filed 01/13/16 Page 7 of 9
testified that while the medical records reflect Gehring’s history of high blood pressure, they did

not provide any evidence indicative of disability.

Gehring also points to evidence that when she was hospitalized in January 2010, she was

thought to have left ventricular hypertrophy from “longstanding, uncontrolled hypertension.” Tr.

483. The ALJ addressed this issue, noting that Gehring’s symptoms were later determined to be

caused by a viral infection, rather than hypertension. Tr. 22. Gehring does not offer any

evidence to dispute this later, corrected diagnosis.

In sum, the ALJ’s determination that Gehring did not have a medically severe impairment

of hypertension is supported by substantial evidence in the record. As a result, the ALJ did not

commit any legal error.

II. Residual Functional Capacity

Even if the hypertension is not a severe impairment, Gehring contends the ALJ should

have considered it in assessing her RFC. Gehring speculates the ALJ would have found her more

limited and unable to perform medium level work had he adequately accounted for her

hypertension. Additionally, Gehring asserts the RFC is not based on any evidence, suggesting

the ALJ made it up out of whole cloth. She insists no evidence supports a conclusion that she is

capable of performing medium work.

RFC “is an assessment of an individual’s ability to do sustained work-related physical

and mental activities in a work setting on a regular and continuing basis,” meaning eight hours a

day, five days a week, or equivalent. SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). RFC is

the most a person can do in spite of limitations or restrictions. Id. “The RFC assessment must

Page 8 - OPINION AND ORDER

Case 2:14-cv-01830-KI Document 15 Filed 01/13/16 Page 8 of 9
include a discussion of why reported symptom-related functional limitations and restrictions can

or cannot reasonably be accepted as consistent with the medical and other evidence.” Id. at *2.

Gehring points to no medical evidence or opinion supporting the notion that her

hypertension caused additional limitations that should have been included in the RFC. As for

medical evidence supporting the RFC, the ALJ relied on Dr. Bailey’s testimony in concluding

that Gehring had no physical or mental limitations of any consequence. Gehring does not

challenge the ALJ’s decision to give great weight to Dr. Bailey’s opinion, and she has no

contrary medical opinion to rely on. Accordingly, the ALJ’s RFC is consistent with the medical

evidence. The ALJ did not err.

CONCLUSION

The findings of the Commissioner are based upon substantial evidence in the record and

the correct legal standards. For these reasons, the court affirms the decision of the

Commissioner.

IT IS SO ORDERED.

DATED this 13th day of January, 2016. 

 /s/ Garr M. King 

Garr M. King

United States District Judge

Page 9 - OPINION AND ORDER

Case 2:14-cv-01830-KI Document 15 Filed 01/13/16 Page 9 of 9