PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PETER PALMER CHETNEY,

Plaintiff,

v.

CAROLYN W. COLVIN,

Commissioner of Social Security,

Defendant.

Case No. 3:15-cv-01969-SI

OPINION AND ORDER

George J. Wall, 1336 E. Burnside Street, Suite 130, Portland, OR 97214. Attorney for Plaintiff.

Billy J. Williams, United States Attorney, and Janice E. Hebert, Assistant United States 

Attorney, UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, 

OR 97201-2902; Martha A. Boden, Special Assistant United States Attorney, OFFICE OF THE

GENERAL COUNSEL, SOCIAL SECURITY ADMINISTRATION, 701 Fifth Avenue, Suite 2900 M/S 

221A, Seattle, WA 98104-7075. Attorneys for Defendant.

Michael H. Simon, District Judge.

Peter Chetney (“Plaintiff”) seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration (“Commissioner”) denying his application 

for disability insurance benefits (“DIB”) under Title II of the Social Security Act. For the reasons 

discussed below, the Commissioner’s decision is affirmed.

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PAGE 2 – OPINION AND ORDER

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 supported 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 

“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r Soc. Sec. 

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 

(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

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 if the 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 Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th 

Cir. 2004). “[A] reviewing court 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) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) 

(quotation marks omitted)). A 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.

BACKGROUND

A. Plaintiff’s Application

Plaintiff was born in 1961. AR 126. He dropped out of school after completing the ninth 

grade. Id. His past work experience included work as a roofer and as a forklift operator. AR 170.

Plaintiff protectively filed for DIB on August 15, 2011, alleging disability as of August 30, 1999

due to a torn retina, broken ankle, and neck and back pain. AR 126, 184.

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Plaintiff’s applications were denied initially and upon reconsideration, and he requested a 

hearing before an ALJ. AR 61, 62, 70, 117. An administrative hearing was held before ALJ 

Paul Robeck on April 29, 2014. AR 21-41. On May 16, 2014, ALJ Robeck issued a written 

decision denying Plaintiff’s applications. AR 12-16. The Appeals Council denied Plaintiff’s 

subsequent request for review on September 2, 2015, making the ALJ’s decision final. AR 1-7. 

This appeal followed. 

B. The Sequential Analysis

A claimant is disabled if he or she is 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). “Social Security Regulations set out a five-step sequential process for 

determining whether an applicant is disabled within the meaning of the Social Security Act.” 

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. 

§ 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 

C.F.R. § 404.1520(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. 

§ 404.1520(a)(4)(i). This activity is work involving significant mental or 

physical duties done or intended to be done for pay or profit. 20 C.F.R. 

§ 404.1510. If the claimant is performing such work, she is not disabled 

within the meaning of the Act. 20 C.F.R. § 404.1520(a)(4)(i). If the 

claimant is not performing substantial gainful activity, the analysis 

proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s 

regulations? 20 C.F.R. § 404.1520(a)(4)(ii). Unless expected to result in 

death, an impairment is “severe” if it significantly limits the claimant’s 

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

§ 404.1521(a). This impairment must have lasted or must be expected to 

last for a continuous period of at least 12 months. 20 C.F.R. § 404.1509. If 

the claimant does not have a severe impairment, the analysis ends. 20 

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C.F.R. § 404.1520(a)(4)(ii). If the claimant has a severe impairment, the 

analysis proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii). If the 

impairment does not meet or equal one or more of the listed impairments, 

the analysis proceeds beyond step three. At that point, the ALJ must 

evaluate medical and other relevant evidence to assess and determine the 

claimant’s “residual functional capacity” (“RFC”). This is an assessment 

of work-related activities that the claimant may still perform on a regular 

and continuing basis, despite any limitations imposed by his or her 

impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c). After the ALJ 

determines the claimant’s RFC, the analysis proceeds to step four.

4. Can the claimant perform his or her “past relevant work” with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F.R.

§ 404.1520(a)(4)(iv). If the claimant cannot perform his or her past 

relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 

significant numbers in the national economy? If so, then the claimant is 

not disabled. §§ 404.1520(a)(4)(v); 404.1560(c). If the claimant cannot 

perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 953; see also 

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The 

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the 

Commissioner must show that the claimant can perform other work that exists in significant 

numbers in the national economy, “taking into consideration the claimant’s residual functional 

capacity, age, education, and work experience.” Id.; see also 20 C.F.R. § 404.1566 (describing 

“work which exists in the national economy”). If the Commissioner fails to meet this burden, the 

claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(v). If, however, the Commissioner proves that 

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PAGE 5 – OPINION AND ORDER

the claimant is able to perform other work existing in significant numbers in the national 

economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d 

at 1099.

C. The ALJ’s Decision

The ALJ found that Plaintiff met the insured status requirements of the Social Security 

Act through June 30, 2006. AR 12. Thus, Plaintiff must show that he became disabled on or 

before that date. In evaluating Plaintiffs’ claim of disability, the ALJ performed the sequential 

analysis. AR 14. At step one, the ALJ determined that Plaintiff had not engaged in substantial 

gainful activity after August 30, 1999, the alleged disability onset date. Id. At step two, the ALJ 

found that Plaintiff did not suffer from a medically determinable impairment during the relevant 

period. AR 14-16. Accordingly, the ALJ concluded that Plaintiff was not disabled at any time 

from his alleged onset date through his date last insured. Id.

DISCUSSION

Plaintiff argues that the ALJ erred at step two by failing to find his torn retina and 

degenerative disc disease to be “severe.” At step two, the ALJ determines whether the claimant 

has an impairment that is medically determinable and severe. 20 C.F.R. § 404.1520(a)(4)(ii). To 

establish the existence of a medically determinable impairment, the claimant must provide 

medical evidence consisting of “signs—the results of ‘medically acceptable clinical diagnostic 

techniques,’ such as tests—as well as symptoms,” a claimant’s own perception or description of 

his physical or mental impairment. Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). A 

claimant’s own statement of symptoms alone is not enough to establish a medically determinable 

impairment. See 42 U.S.C. § 423(d)(3); 20 C.F.R. § 404.1508; Social Security Rule (“SSR”) 96-

4p, available at 1996 WL 374187, at *1. Only “acceptable medical sources” such as licensed 

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PAGE 6 – OPINION AND ORDER

physicians may provide evidence to establish a medically determinable impairment. 20 C.F.R. 

§ 404.1513(a); SSR 06-03p, available at 2006 WL 2329939, at *2.

“An impairment is not severe if it is merely ‘a slight abnormality (or combination of 

slight abnormalities) that has no more than a minimal effect on the ability to do basic work 

activities.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting SSR 96-3p, available 

at 1996 WL 374181, at *1). The claimant bears the burden of proof at this stage and the “severity 

requirement cannot be satisfied when medical evidence shows that the person has the ability to 

perform basic work activities, as required in most jobs.” SSR 85-28 available at 1985 WL 

56856, at *3. Basic work activities include: “walking, standing, sitting, lifting, pushing, pulling, 

reaching, carrying, or handling; seeing, hearing, speaking; understanding, carrying out and 

remembering simple instructions; responding appropriately to supervision, coworkers, and usual 

work situation.” Id. “Omissions at step two are harmless if the ALJ’s subsequent evaluation 

considered the effect of the impairment omitted at step two.” Harrison v. Astrue, 2011 WL 

2619504, *7 (D. Or. July 1, 2011) (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007)).

At step two, the ALJ found that Plaintiff had not shown “medical signs or laboratory 

findings” to indicate that he suffered from a medically determinable impairment before his date 

last insured of June 30, 2006. AR 14-16. Plaintiff did not seek treatment for his alleged 

symptoms and limitations from 1999 through 2010. AR 15. Plaintiff’s treatment records from 

1996 and 1999 do not indicate a medically determinable severe impairment. In May 1996, a 

physician reviewed x-rays of Plaintiff’s cervical spine and found them to be “essentially 

negative.” AR 369. In November 1996, imaging of Plaintiff’s cervical spine was again 

“essentially negative” and imaging of his lumbar spine showed only mild degenerative changes. 

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PAGE 7 – OPINION AND ORDER

AR 370. No acceptable medical source diagnosed an impairment in Plaintiff’s neck or lumbar 

spine during the relevant period.1

When Plaintiff sought treatment in May 2010, he did not complain of neck or back pain 

or vision problems. AR 249, 252. He denied having any musculoskeletal pain, weakness, loss of 

sensation, instability, or loss of range of motion. Id. His physician noted normal range of motion 

in Plaintiff’s neck, without tenderness. Id. Plaintiff also displayed normal strength, normal range 

of motion, normal response to palpation, normal gait, normal coordination, intact sensation, and 

pupils that were equally round and responsive to light. Id.

When Plaintiff sought treatment in November and December 2010, it was for pain in his 

ankle. AR 254, 256. He again did not report any pain in his neck or back or problems with his 

eyes. He was treated in January 2011 for pneumonia and showed no musculoskeletal symptoms. 

AR 259. He had no tenderness of the cervical, thoracic, or lumbar spine. AR 262. Plaintiff did 

not report neck or back pain until February 2011. AR 264, 267. In 2011, Plaintiff reported that 

his upper extremity numbness began in 2010, unaccompanied by neck pain. AR 228. He later 

reported having “very little” neck pain associated with his neurological symptoms. AR 289.

In sum, Plaintiff’s allegations that his torn retina causes lack of depth perception in his 

right eye, and that his cervical and lumbar degenerative disc disease causes pain and numbness in 

his arms are not supported by any medical evidence from the relevant period. On this record, the 

ALJ’s step two findings were based upon a reasonable evaluation of the medical evidence 

consistent with the Regulations. See 20 C.F.R. § 404.1520(a) (step two findings must be based 

 

1

In May 1996, before the alleged onset date, a chiropractor diagnosed Plaintiff with a 

sprain of the cervical spine. AR 368. This diagnosis, however, was not from an acceptable 

medical source and therefore cannot establish a medically determinable impairment. See 20 

C.F.R. § 404.1513(a) (only “acceptable medical sources” such as licensed physicians may 

provide evidence to establish a medically determinable impairment).

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PAGE 8 – OPINION AND ORDER

upon medical evidence). Because the ALJ’s decision reflects a reasonable evaluation of the 

record and is based on substantial evidence, his opinion is affirmed.

CONCLUSION

The Commissioner’s decision that Plaintiff is not disabled is AFFIRMED.

IT IS SO ORDERED.

DATED this 2nd day of August, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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