IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CATHERINE JOY MILLER 

Plaintiff, 

v. 

COMMISSIONER SOCIAL SECURITY 

ADMINISTRATION, 

LAURIE B. MAPES 

P.O. Box 1241 

Defendant. 

Scappoose, OR 97056-1241 

Attorney for Plaintiff 

BILLY J. WILLIAMS 

United States Attorney 

District of Oregon 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

LARS J. NELSON 

Social Security Administration 

Office of the General Counsel 

701 Fifth Avenue, Suite 2900 MIS 221A 

Seattle, WA 98104-7075 

Attorneys for Defendant 

1 - OPINION AND ORDER 

Case No. 3: 15-cv-02132-MA 

OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 1 of 24
MARSH, Judge 

Plaintiff Catherine Joy Miller seeks judicial review of the final decision of the Conunissioner 

of Social Security denying her application for disability insurance benefits ("DIB") under Title II of 

the Social Security Act, 42 U.S.C. §§ 401-403, and application for Supplemental Security Income 

("SSI") disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. 

This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that 

follow, I affirm the Commissioner's decision. 

FACTUAL AND PROCEDURAL BACKGROUND 

On March 3, 2012, Plaintiff protectively filed an application for a period of disability and 

disability insurance benefits. On August 2, 2012, Plaintiff filed an application for SSI disability 

benefits. In both applications, Plaintiff alleges disability beginning July 30, 2010, due to generalized 

anxiety disorder, ulnar neuropathy, acid reflux, post-traumatic stress disorder ("PTSD"), and carpal 

tunnel syndrome. Plaintiffs claim was denied initially and upon reconsideration. Plaintiff filed a 

request for a hearing before an administrative law judge ("ALJ"). An ALJ held a hearing on April 

15, 2014, at which Plaintiff appeared with her attorney and testified. A vocational expe1i, Richard 

M. Hincks, also attended the hearing and testified. On June 24, 2014, the ALJ issued an unfavorable 

decision. Plaintiff submitted additional evidence to the Appeals Councils, but the Appeals Council 

denied Plaintiffs request for review. Therefore, the ALJ' s decision became the final decision of the 

Conunissioner for purposes of review. 

Born in 1974, Plaintiff was 36 years old on her alleged onset of disability and 40 years old 

on the date of the ALJ's decision. Plaintiff has a high school diploma and has training in medical 

coding and billing, and one year of education as a medical assistant. Plaintifflias past relevant work 

2 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 2 of 24
as a barista, referral clerk, billing coding clerk, front desk receptionist, appointment clerk, and 

medical file clerk. 

THE ALJ'S DISABILITY ANALYSIS 

The Commissioner has established a five-step sequential process for determining whether 

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. Each step 

is potentially dispositive. The claimant bears the burden of proof at steps one through four. Molina 

· v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Valentine v. Commissioner Soc. Sec. Admin., 574 

F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner to show that the 

claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 

1161 (9th Cir. 2012). 

Plaintiff meets insured status requirements for a DIB application through December31, 2014. 

At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since July 

31, 2010, her alleged onset date. At step two, the ALJ found that Plaintiffhas the following severe 

impairments: bilateral ulnar neuropathy, left worse than right; carpal tunnel syndrome; 

PTSD/anxiety; and depression. At step three, the ALJ found that Plaintiffs impairment or 

combination of impairments, did not meet or medically equal a listed impairment. 

The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perform light work 

but with the following limitations: 

with the capacity to lift and carry 20 pounds occasionally and I 0 pounds frequently 

with otherwise no sitting, standing or walking limitation. She should do no climbing 

ofladders, ropes or scaffolds, do no more than occasional crawling, do no more than 

occasional overhead reaching the left (non-dominant) arm, and do no more than 

frequent fingering or handling bilaterally. She should avoid exposure to hazards such 

as unprotected heights and dangerous machinery. She should have no public 

3 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 3 of 24
interaction, but she is able to work in proximity to co-workers if the work does not 

require teamwork. 

Transcript of Record ("Tr.") at 26, ECF No. 10. 

At step four, the ALJ found that Plaintiff is able to perform her past relevant work as Nile 

clerk. Alternatively, the ALJ determined that considering Plaintiffs age, education, work 

experience, and residual functional capacity, jobs exist in significant numbers in the national 

economy that Plaintiff can perfotm, such as document scanner and mailroom clerk. Accordingly, 

the ALJ concluded that Plaintiff has not been under a disability under the Social Security Act from 

July 30, 2010, through the date of the ALJ's decision, June 24, 2014. 

ISSUES ON REVIEW 

On appeal to this comt, Plaintiff contends the following enors were committed: (1) the ALJ 

improperly evaluated her testimony; (2) the ALJ improperly evaluated the opinions of her treating 

physician Karen M. Ertle, M.D., and her counselor Leslie Ann Gellett, LCSW; (3) the ALJ 

improperly concluded she could "frequently" handle and finger; and (4) the ALJ's unfavorable 

determination is not supp01ted by substantial evidence because jobs do not exist in significant 

numbers that she can perform when her functional limitations are properly considered. 

STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if the Commissioner applied the 

proper legal standards and the findings are suppotted by substantial evidence in the record. 42 U.S.C. 

§ 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than 

a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind 

might accept as adequate to suppott a conclusion." Hill, 698 F.3d at 1159 (internal quotations 

4 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 4 of 24
omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether it supports or 

detracts from the Commissioner's decision. Martinezv. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 

The Commissioner's decision must be upheld, even ifthe evidence is susceptible to more than one 

rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 

2004). If the evidence supports the Commissioner's conclusion, the Commissioner must be 

affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. 

Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Garrison v. Colvin, 759 FJd 995, 1010 (9th Cir. 

2014). Where "the Appeals Council considers new evidence in deciding whether to review a 

decision of the ALJ, that evidence becomes part of the administrative record, which the district court 

must consider when reviewing the Commissioner's final decision for substantial evidence." Brew es 

v. Comm 'r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). 

DISCUSSION 

I. The ALJ Provided Clear and Convincing Reasons for Discounting Plaintiff's 

Credibility 

A. Standards 

To determine whether a claimant's testimony regarding subjective pain or symptoms is 

credible, an ALJ must perform two stages of analysis. 20 C.F.R. §§ 404.1529, 416.929. The first 

stage is a threshold test in which the claimant must produce objective medical evidence of an 

underlying impairment that could reasonably be expected to produce the symptoms alleged. A1olina, 

674 F.3d at 1112; Tommasetti v. As/rue, 533 FJd 1035, 1039 (9th Cir. 2008). Atthe second stage 

of the credibility analysis, absent affirmative evidence of malingering, the ALJ must provide clear 

and convincing reasons for discrediting the claimant's testimony regarding. the severity of the 

5 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 5 of 24
symptoms. Garrison, 759 F.3d at 1014-15; Carmickle, v. Commissioner Soc. Sec. Admin., 533 F.3d 

1155, 1166 (9th Cir. 2008). 

The ALJ must make findings that are sufficiently specific to permit the reviewing comt to 

conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763 

F.3d 1154, 1163 (9th Cir. 2014); Tommaselli, 533 F.3d at 1039. Factors theALJ may consider when 

making such credibility determinations include the objective medical evidence, the claimant's 

treatment histo1y, the claimant's daily activities, inconsistencies in testimony, effectiveness or 

adverse side effects of any pain medication, and relevant character evidence. Ghanim, 763 F.3d at 

1163; Tommasetti, 533 F.3d at 1039. 

At the hearing, Plaintiff testified that she lives with her eight yearold son who has Asperger' s 

syndrome, and previously worked for two years as a receptionist, answering the phone, filing, 

interacting with patients, scheduling appointments, and assisting doctors as needed. Plaintiff stated 

that she stopped doing this job because she was having difficulty remembering things. Plaintiff 

testified that she lost a job as a receptionist at a physician's office because she was absent too much 

due to difficulties with her roommate. Tr. 48. Plaintiff later stated that she was let go from her 

medical receptionist job in July 2010 because she was making mistakes and snapping at patients. 

Tr. 66. Plaintiff testified that her hands were not a factor in her termination in 2010. Tr. 67. 

Plaintiff has previously worked in medical records briefly as a referral coordinator. Tr. 49. Plaintiff 

stated that she worked full time as a barista and did some managing, including scheduling shifts, 

hiring, and cashiering. 

Plaintiff described a typical day as waking up, letting the dogs out, waking her son, getting 

him dressed, having coffee, then putting her son on the bus for school. Plaintiff described that she 

6 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 6 of 24
next checks emails, then perfonns housework or grocery shopping. Tr. 51. Plaintiff stated that after 

her son is done with school, she will take him to appointments, or assist with homework, take the 

dogs for a walk, then spend some family time together before bed. Tr. 54. Plaintiff testified that she 

needs to rest mentally for two to three hours each evening in order to function properly, otherwise 

she is frazzled. Tr. 73. 

Plaintiff stated that she volunteers with Meals on Wheels on Tuesdays and Fridays, and when 

she is finished with delivering meals, or doing chores, she takes a rest because she is anxious. Tr. 

51-52. Plaintiff described that when groce1y shopping, she cannot go down aisles with more than 

three or four people in them and she prefers to do her shopping first thing in the day so the store is 

not crowded. Plaintiff stated that she does not always deliver meals each week, that she will only 

go with her friends, and that it depends on how anxious she is when she wakes. Tr. 69. 

Plaintiff testified that she began to have difficulty with her hands in 2011, and can use the 

computer for 10 minutes before they start to go numb and can only work on the computer for an hour 

and a half before needing to stop. Tr. 55. Plaintiff testified she also has difficulty chopping 

vegetables and vacuuming because of her hands. Tr. 56. Plaintiff wears braces on her elbows so her 

arms stay straight and acknowledged that her doctor has recommended surge1y. Tr. 56. 

Plaintiff testified that she is in counseling due to her anxiety. Tr. 56. Plaintiff described that 

her relationship with her son's father was physically and emotionally abusive. Tr. 58. Plaintiff 

stated that she has been excessively worried about the father kidnapping her son. Tr. 59. Plaintiff 

described that she takes medications for insomnia and that she sleeps "so-so." Tr. 61. Plaintiff takes 

Lexipril for anxiety and Klonopin for her panic attacks, which makes her sleepy. Tr. 61. Plaintiff 

described that she has panic attacks a couple of times each month. Tr. 61. Plaintiff takes minipress 

7 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 7 of 24
for her nightmares. Tr. 63. Plaintiff does not take any pain medication for her wrists or arm pain. 

Tr. 62. 

In an April 19, 2012 Function Report - Adult, Plaintiff indicated that she cares for her son, 

cares for her pets, she prepares her own meals, and has no difficulty with self-care. Plaintiff noted 

she is able to do laund1y, clean the house, and plant flowers. Plaintiff noted that she is able to go 

outside eveiy day, can walk, drive and use public transpo1iation. Plaintiff shops for groceries once 

a month and clothing as necessary. Plaintiff has no difficulty with handling her own finances. 

Plaintiff indicated she enjoys reading, watching television, crossword puzzles, playing with her son, 

and cooking. Plaintiff is able to cheer her son while he plays soccer once a week, and goes to the 

park, community center and to homes of friends. Plaintiff described that she has weakness in her 

hands, that she has trouble lifting, squatting, standing, kneeling, climbing stairs, completing tasks, 

and with her memo1y and concentration. Plaintiff described that she can pay attention for two hours, 

but sometimes needs to have instructions repeated several times. Plaintiff noted that she does not 

handle stress well, and has a hard time with changes. Tr. 270-77. 

In a Pain & Fatigue Questionnaire, Plaintiff described aching and numbness in her hands and 

feet sometimes. She noted the pain is daily and can last for hours and is exacerbated by over-use of 

her hands and typing for more than one hour. Tr. 291. Plaintiff noted that she sometimes needs to 

nap for an hour to an hour and a half, and that she can be up and busy for five to six hours before 

needing to rest. Tr. 291. 

In a May 2012 disability report, Plaintiff indicated that the pain in her hands had worsened, 

so that she can no longer use a manual can opener; she has a sprained rotator cuff, and a new 

8 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 8 of 24
diagnosis of plantar faciatis. Tr. 297. Plaintiff noted she has difficulty lifting more than 15 pounds, 

difficulty with cold temperatures, dizziness, and that her anxiety has increased. Tr. 300-01. 

In the decision, the ALJ found that plaintiffs impaitments could reasonably be expected jo 

cause some symptoms, but that her statements concerning the limiting effects were not entirely 

credible. The ALJ cited three reasons for discounting plaintiff's credibility: ( 1) inconsistency with 

objective medical evidence; (2) history of conservative treatment; and (3) plaintiffs inconsistent 

statements. 

The ALJ provided specific, clear and convincing reasons, backed by substantial evidence, 

for discounting the severity of Plaintiffs symptoms. Chaudh1y v. Astrue, 688 F.3d 661, 671 (9th 

Cir. 2012). The ALJ discounted plaintiffs credibility because the severity of her upper extremity 

limitations was not supported by the objective medical evidence and was being treated 

conservatively. Here, as the ALJ accurately found, the medical record shows that plaintiffs ulnar 

neuropathy causes some difficulties and weakness, but it did not prevent her from performing all 

activities. To be sure, the ALJ thoroughly discussed that plaintiff sought treatment for pain, 

weakness, and numbness in her upper extremities. Tr. 27, 356, 411, 416. Indeed, her physicians 

reported it as mild, and that she was treating it with wrist and elbow braces. As the ALJ indicated, 

in a May 31, 2012 treatment note, Plaintiffs treating physician Dr. Ertle would not sign disability 

paperwork because her ulnar neuropathy is treatable and not a cause oflong term disability. Tr. 4 7 4. 

The record contains no evidence of the underlying EMO or nerve conduction studies themselves, and 

no evidence of continuing care with a neurologist. Tr. 411, 519. Although Plaintiff contends that 

her hands go numb after one hour on the computer, as the ALJ noted, there are no EMO/nerve 

conduction studies verifying carpal tunnel. Additionally, as the ALJ accurately noted, Plaintiff did 

9 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 9 of 24
not pursue any type of surgical consultation or intervention to alleviate her ulnar neuropathyand she 

takes no pain medication for the condition. Tr. 28. The ALJ's findings are supported by substantial 

evidence. Therefore, the ALJ reasonably found Plaintiffs upper extremity symptoms were not as 

limiting as she alleged, and the ALJ appropriately discounted her credibility on this basis. See 

Chaudhry, 688 F.3d at 672 (finding unexplained or inadequately explained failure to seek treatment 

is a specific, clear and convincing reason to discredit claimant); Tommasetti, 533 F.3d at 1039 

(finding conservative treatment for pain undennined claimant's allegation that it was disabling). 

With respect to plaintiffs PTSD and mental impairments, the ALJ discounted her allegations 

as unsupported by the objective medical record and that her symptoms were well managed with 

medication. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (stating that evidence of 

conservative treatment is sufficient to undermine claimant's credibility). This finding also is 

supported by substantial evidence. For example, as the ALJ discussed, plaintiff established care with 

Dr. Krishnasamy in September 2010 and complained of depression and anxiety. Tr. 445. As the 

ALJ indicated, Plaintiff was "significantly improved" by November 2010 after starting notiriptyline, 

and she repo1ted to Dr. Krishnasamy that she hardly needed the clonazepam for breakthrough 

anxiety. Tr. 439. Indeed, in an April 25, 2012 Mental Status Report, Dr. Krishnasamy opined that 

Plaintiffs depression was under control, although her anxiety was active. Tr. 406. Dr. Krishnasamy 

also indicated that Plaintiff was not limited in her activities by her anxiety, Plaintiffs social 

functioning was good, and that she repo1ied no limitations in concentration, persistence and pace. 

Tr. 407-08. As the ALJ noted, on May 31, 2012, Dr. Erde opined that Plaintiffs depression was not 

disabling. Tr. 28, 474. 

10 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 10 of 24
Plaintiff complains that the ALJ cherry-picked the record and that her mental health 

symptoms tended to wax and wane throughout her course of treatment. The ALJ reviewed Plaintiffs 

mental health records and found that they generally reflect positive responses to medication, with 

situational stressors, and concluded that her symptoms supported only mild impairments. Tr. 27-29, 

429, 435, 437, 439, 484, 506, 508, 510, 512, 516, 519, 521, 523, 531. Even ifthe record supports 

Plaintiffs interpretation, the ALJ's interpretation of the longitudinal record is a reasonable one, and 

it is not the court's role to second-guess it. See Rollins v. J'vlassanari, 261 F.3d at 857 (holding 

reasonable interpretations suppmied by substantial evidence may not be second-guessed). 

Finally, the ALJ discounted Plaintiffs credibility based on inconsistencies in Plaintiffs 

testimony concerning her motivation to work. Tr. 30. The ALJ highlighted treatment notes 

reflecting that Plaintiff wanted to go back to school instead of work to provide a better income, that 

Plaintiff described difficulties caring for her son and was having trouble with his school, and that 

she did not want to pursue surgery for her ulnar neuropathy because she had no one to care for her 

son while she recovered post-operatively. Tr. 30-31, 377, 380, 382, 383, 385, 429, 436, 437, 513, 

556. The ALJ explained that she empathized with Plaintiffs situation, but found her statements 

undermined her allegation that she is unable to work due to her impairments, as opposed to her 

desire to parent her special-needs son. Tr. 31. The ALJ's findings are backed by substantial 

evidence. The comi shares the ALJ's sentiments that caring for a child is a parent's greatest calling 

and recognizes that such a task is all the more difficult as a single parent. However, I cannot 

conclude that the ALJ' s adverse inference is an umeasonable interpretation of the evidence. See 

Tommasetti, 533 F.3d at 1040 (ALJ permissibly discredited claimant based on inconsistent 

statements about motivation to work); lvlolina, 674 F.3d at 1111 ("Even when the evidence is 

11 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 11 of 24
susceptible to more than one rational interpretation, we must uphold the ALJ's findings if they are 

suppotted by inferences reasonably drawn from the record."). 

In shoti, the ALJ articulated specific, clear and convincing reasons for the adverse credibility 

determination that are backed by substantial evidence in the record as a whole. The ALJ did not en-. 

II. The ALJ Properly Considered the Medical Evidence 

A. Standards 

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

among physicians' opinions. Carmickle, 533 F .3d at 1164. To reject the uncontrove1ted opinion of 

a treating or examining physician, the ALJ must present clear and convincing reasons. Bayliss v. 

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If a treating or examining doctor's opinion is 

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

Garrison, 759 F.3d at 1012; Ghanim, 763 F.3d at 1161. When evaluating conflicting opinions, an 

ALJ is not required to accept an opinion that is not supported by clinical findings, or is brief or 

conclus01y. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). In addition, a doctor's work 

restrictions based on a claimant's subjective statements about symptoms are reasonably discounted 

when the ALJ finds the claimant less than fully credible. Bray v. Comm 'r of Soc. Sec. Adm in., 554 

F.3d 1219, 1228 (9th Cir. 2009); Batson, 359 F.3d at 1195. 

Only physicians and certain other qualified specialists are considered"[ a ]cceptable medical 

sources." }vfolina, 674 F.3d at 1111 (alteration in original); see also 20 C.F.R. § 416.913(a). Nurse 

practitioners and therapists are considered "other sources." 20 C.F.R. § 416.913(d). An ALJ must 

evaluate the opinions from other sources, and may discount such testimony if the ALJ provides 

getmane reasons for doing so. Ghanim, 763 F.3d at 1161; 20 C.F.R. § 416.927(c). 

12 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 12 of 24
B. Treating Physician Dr. Erde 

Plaintiff contends that the ALJ failed to provide sufficient reasons for discounting two 

opinions of Dr. Erde, her treating physician from May 2012 through September 2014. In the first 

opinion, Dr. Erde completed a Work Release for the Oregon Department of Human Services 

Vocational Rehabilitation ("DHS work release") program on July 15, 2013, indicating that Plaintiff 

is capable of working two to three hours a day, five days a week. Tr. 482. Dr. Erde indicated that 

Plaintiff has been diagnosed with PTSD, ulnar neuropathy, and carpal tunnel, and needs to limit her 

computer time to less than one hour, and needs to work in a low stress environment. Tr. 482. In the 

second opinion dated April 2014, Dr. Erde opined that Plaintiff would miss four or more days per 

month of employment due to her panic disorder and PTSD. Tr. 587. Dr. Erde further indicated that 

Plaintiff would require additional breaks of one to two hours due to fatigue and overwhelming 

rumination from her anxiety. Tr. 587. Dr. Erde opined that Plaintiff does not have any limitations 

on standing, walking or sitting in an eight hour day, but could perform no reliable activity in the 

areas oflifting, can-ying, handling, or fingering, and could only occasionally reach. Tr. 588. Finally, 

in the April 2014 opinion, Dr. Erde opined that Plaintiff suffers no limitations with activities of daily 

living and social functioning, is markedly limited in the maintaining concentration, persistence and 

pace, and would suffer three episodes of decompensation within a 12 month period, each at least two 

weeks in duration. Tr. 590. 

Dr. Erde' s opinions are contradicted by those of Plaintiffs prior treating physician, Prasanna 

V. Krishnasamy, M.D., examining psychologist Keli J. Dean, Psy.D., and nonexamining agency 

physicians Kordell N. Kennemer, Psy.D., Joshua Boyd, Psy.D., Sharon B. Eder, M.D., and Richard 

13 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 13 of 24
Alley, M.D. Tr. 98, 101, 112, 115, 406-08. Therefore, the ALJ was required to provide specific and 

legitimate reasons for discounting Dr. Erde's opinions. 

In the decision, the ALJ discounted Dr. Ertle' s April 2014 opinion because it is not supported 

by other record evidence. Inconsistency with objective medical evidence is a specific and legitimate 

reason to discount a treating physician's opinion. Batson, 359 F.3d at 1196 (ALJ may discredit 

treating physicians' opinions that are unsupported by objective medical findings or the record as a 

whole); Johnson v. Shala/a, 60 F.3d 1428, 1432 (9th Cir. 1995) (inadequate clinical findings provide 

clear and convincing reasons for ALJ to reject treating physician's opinion). Here, the ALJ rejected 

Dr. Erde's opinion that Plaintiff would suffer three episodes of decompensation within 12 months, 

each for a duration of two weeks, because it is wholly unsupported by any record evidence 

whatsoever. As the ALJ detailed, the record is devoid of any evidence that Plaintiff has suffered 

even one episode of decompensation previously, let alone that she would suffer three in 12 months 

if she returned to full-time employment. Tr. 29. To the contrmy, the record demonstrates that 

Plaintiff repotied improvement inher PTSD, depression, and anxiety with medication. Tr. 429, 435, 

437, 439, 484, 506, 508, 510, 512, 516, 519,521, 523, 531. The ALJ's finding is suppo1ied by 

substantial evidence and singularly calls into question the validity of Dr. Ertle' s opinions. This 

reason alone provides a specific and legitimate basis for rejecting Dr. Erde's opinions and would 

constitute a clear and convincing reason if a higher level of justification was required. 

Additionally, the ALJ correctly found that Dr. Erde's opinion that Plaintiff suffers "marked" 

limitations with concentration, persistence and pace is inconsistent with other record evidence. As 

the ALJ detailed, Plaintiff repo1ied to Dr. Ertle that she is able to concentrate in school, despite some 

anxiety. Tr. 28-29, 473. Similarly, Plaintiff reported no difficulties with concentration, persistence 

14- OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 14 of 24
and pace to Dr. Krishnasamy. Tr. 406-08. And, as the ALJ detailed, Plaintiff's counselor Leslie Ann 

Gellert's treatment notes routinely reflect no difficulties with concentration, attention, or memory. 

Tr. 29, 503, 508, 510, 512, 513, 516, 547, 551, 554. Continuing, the ALJ found that Dr. Erde's 2014 

opinion that Plaintiff suffered no limitations in the area of social functioning was inconsistent with 

Plaintiff's report that she is uncomfo11able in crowds and groups of people. The ALJ' s findings are 

wholly supported by substantial evidence in the record. Thus, the ALJ reasonably discounted Dr. 

Erde' s 2014 opinion based on its inconsistency with other evidence, and readily provides a specific 

and legitimate basis for discounting the 2014 opinion. 

Turning to Dr. Erde's July 2013 DHS work release opinion that Plaintiff was limited to 

modified employment often hours of work per week, with only one hour of computer work, Plaintiff 

contends that the ALJ's reasoning is not suppo11ed by substantial evidence. I disagree. 

Here, the ALJ discounted that opinion as inconsistent with Dr. Erde's May 31, 2012 

treatment notes, an absence of clinical findings, and based on Plaintiff's previously discounted selfreport. The ALJ stated that the "assessment is given ve1y limited weight, paliicularly as it clashes 

with Dr. Erde['s] assessment ofless than one month prior." Tr. 28. 

Dr. Erde examined Plaintiff on July 15, 2013, at which time Plaintiff reported that she could 

not perfo1m computer work for more than one hour without her hands going numb. Tr. 556. Dr. 

Erde included this specific limitation in the July 2013 DHS work release opinion limiting Plaintiff 

to modified work. Tr. 482. Dr. Erde's contemporaneous July 15, 2013 treatment notes contain no 

objective examination findings, such as range of motion, grip strength, sens01y or other testing 

perfo1med by Dr. Erde. Therefore, the ALJ reasonably concluded that Plaintiff's allegation that she 

was limited to one hour of computer time was based on Plaintiff's self-report. As discussed above, 

15 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 15 of 24
the ALJ reasonably discounted Plaintiffs self-repo1ted symptoms concerning the severity of her 

upper extremity limitations, and therefore, the ALJ could discount the July 2013 opinion on this 

basis. See Tommasetti, 533 F.3d at 1041 (ALJ may discount treating physician's opinion when 

based on claimant's properly discounted self-rep01ts). This reasoning provides a specific and 

legitimate basis to reject Dr. Erde's July 2013 DHS work release opinion. 

Although ALJ appeared to consider Dr. Erde's May 31, 2012 treatment notes as occurring 

just one month prior to the July 2013 opinion (noting it "clashes"), I conclude any enor in the dates 

of Dr. Erde's examinations is haimless. 1vfolina, 674 F.3d at 1111 (the comt may "not reverse an 

ALJ's decision on account of an enor that is harmless"). The ALJ extensively discussed Dr. Erde's 

May 31, 2012 treatment notes. In the decision, the ALJ discussed that Plaintiff established care with 

Dr. Erde on May 31, 2012. As the ALJ noted, in the May 2012 examination, Dr. Erde noticed a 

decreased range of motion in Plaintiffs upper right extremity with a slight loss of finger grip 

bilaterally and sens01y deficit on the right digits four and five. Tr. 474. As the ALJ accurately 

indicated, despite these findings, Dr. Erde was unwilling to sign disability paperwork at that time 

because Plaintiffs ulnar neuropathy was treatable and she did not appear to have disabling 

depression. Tr. 28, 473-74. Moreover, the ALJ discussed that Plaintiff takes no pain medications 

for her alleged upper extremity pain, and that no surgical consultation had been ordered or pursued. 

As the ALJ noted, Plaintiff reported to Dr. Erde on July 15, 2013, that she felt she could not undergo 

surge1y because she had no one to care for her son while she recovered post-operatively. Tr. 28, 556. 

The ALJ' s findings in this regard are supp01ted by substantial evidence. Thus, the ALJ reasonably 

discounted Dr. Erde's 2013 opinion as inconsistent with her May 2012 treatment notes. Valentine, 

574 F.3d at 692-93 (holding that inconsistency with treatment notes is a specific atld legitimate 

16- OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 16 of 24
reason to reject treating physician's opinion). Accordingly, I conclude that the ALJ has provided 

specific and legitimate reasons fol' discounting Dr. Erde's July 2013 opinion. 

Contrary to the ALJ' s finding that no neurology consultation was ever conducted, Plaintiff 

was examined by Conrad Liang, M.D., a neurologist on December 7, 2012. Tr. 489. Thattreatment 

note shows that EMG testing indicated ulnar neuropathy in the right and left aims, but that Plaintiff 

complained of symptoms more consistent with carpal tunnel. Dr. Liang noted the studies indicated 

"pretty mild" symptoms and recommended elbow and wrist braces, and that if not successful, 

decompression surge1y is an option. Tr. 489. Additionally, a May 11, 2012 treatment note from Dr. 

Krishnasamy also indicates mild bilateral ulnar neuropathy on EMG or nerve conduction studies. 

Tr. 411. However, consistent with the ALJ's finding, the record does not contain the underlying 

objective nerve conduction or EMG test results nor is there any objective evidence or nerve 

conduction studies verifying carpal tunnel. Tr. 28. Additionally, as the ALJ co!1'ectly indicated, the 

record is devoid of any surgical consultation or fu1iher neurological work-up. Given the severity of 

Dr. Erde's July2013 opinion in light of Dr. Erde's records as a whole, I conclude that the ALJ could 

reasonably discount Dr. Erde's opinion based on its inconsistency and absence of clinical findings. 

Valentine, 574 F.3d at 692-93. Because the ALJ's interpretation of the evidence is a rational one, 

it will not be disturbed. Batson, 359 F.3d at 1193. Alternatively, even if the ALJ erred in 

discounting Dr. Erde's opinion because no neurological consultation was performed, any such e!1'or 

is harmless because the ALJ identified other reasons, when taken together, that readily supply 

specific and legitimate reasons for discounting Dr. Erde's opinions. l'vfolina, 674 F.3d at 1111. 

Ill/ 

Ill/ 

17 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 17 of 24
C. Leslie Ann Gellert, LCSW 

Although Ms. Gellert is not an acceptable medical source, she worked as a behavioral 

specialist in the same office as Dr. Erde. Although it is not clear from the record before me whether 

Ms. Gellett worked closely under the direction and supervision of Dr. Erde, I give Plaintiff the 

benefit of the doubt and apply the higher specific and legitimate standard to the ALJ's reasoning. 

See Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015)(discussing that for nurse practitioner to 

be an "acceptable medical source," there must be evidence of close supervision by physician); 

Bustamontev. Colvin, No. CV-13-2080-PHX-ESW, 2015 WL 136016, *6-8(D. Ariz. Jan. 9, 2015) 

(discussing application of germane reasons versus specific and legitimate standards to nurse 

practitioner's opinion). 

Ms. Gellett began treating Plaintiff in Janumy 2013 for her anxiety and PTSD. On July 5, 

2013 in a DHS work release, Ms. Gellert opined that Plaintiff is unable to work due to symptoms 

from her PTSD. Tr. 481. Gellett's opinion is contradicted by Drs. Krishnasamy, Kennemer, and 

Boyd. Tr. 98, 112, 406-08. In the decision, the ALJ gave this opinion "little weight" because it is 

inconsistent with Ms. Gellert' s own treatment notes, and inconsistent with Plaintiffs reported 

symptoms. Tr. 29. The ALJ's reasoning readily provides a specific and legitimate basis for 

discounting Ms. Gellett's opinion. 

As the ALJ detailed, despite opining that Plaintiff is unable to return to gainful employment, 

Ms. Gellett' s treatment notes consistently reflect relatively mild symptoms. As detailed above, Ms. 

Gellert routinely indicated that Plaintiffs mood, affect, orientation, judgment, insight, and memoty 

were all within notmal limits. Tr. 29, 503, 508, 510, 512, 513, 516, 547, 551, 554. And, as the ALJ 

accurately noted, Ms. Gellett's PHQ-9 scores consistently reflect mild or minimal symptoms. Tr. 

18 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 18 of 24
552 (indicating a score of four out of 27 in Plaintiffs previous three visits). And, as the ALJ 

indicated, the severity of symptoms in Ms. Gelle1i's opinion is inconsistent with other record 

evidence reflecting that Plaintiff reported she was rarely using Clonazepam for her panic attacks, was 

sleeping better with decreased nightmares, and in December 2013, Plaintiff reported only having one 

panic attack the previous year. Tr. 549, 569. The ALJ' s findings are wholly suppmied by substantial 

evidence in the record. Therefore, the ALJ reasonably could rely on these inconsistencies to discount 

Ms. Gelle1i's opinion. Valentine, 574 F.3d at 692-93 (inconsistencies between physician's opinion 

and own treatment notes is a specific and legitimate basis to reject opinion). Accordingly, the ALJ 

did not err. 

D. Dr. Erde and lvfs. Gellert 's opinions submitted to the Appeals Council 

While Plaintiffs appeal was pending before the Appeals Council, Plaintiff submitted a 

September 4, 2014 letter from Dr. Erde and a July 15, 2015 Mental Health Function Assessment 

from Ms. Gelle1i. The Appeals Council accepted and considered the evidence and made it pmi of 

the record. Tr. 5. Therefore, the comi must examine the administrative record as whole to determine 

whether in light of the new evidence that the ALJ' s opinion is suppo1ied by substantial evidence. 

Brewes, 682 F.3d at 1165. 

In the September 2014 letter, Dr. Erde wrote that Plaintiff has not improved since December 

of2013, and that it would be exceedingly difficult for Plaintiff to maintain fruitful employment. Tr. 

592. Dr. Erde indicated that the pressures and demands of working as an administrative assistant 

destabilized Plaintiffs emotional control. Tr. 592. According to Dr. Erde, upon reflection, she 

believes that her initial treatment notes did not adequately capture the severity of Plaintiffs 

condition. Dr. Erde then indicates that Ms. Gelle1i's treatment notes "bring out the degree of 

19 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 19 of 24
limitation" that Plaintiff suffers. Tr. 592. Dr. Erde's 2014 letter, in light of the record as a whole, 

does not alter the conclusion that the ALJ' s decision remains supported by substantial evidence. As 

discussed above, the ALJ appropriately discounted Dr. Erde and Ms. Gellert's opinions. Although 

Dr. Erde suggests that her notes be interpreted differently, the ALJ's interpretation is a reasonable 

one, and will not be disturbed. 1\!folina, 674 F.3d at 1111 (rational interpretations of the record must 

be upheld if they are supported inferences reasonably drawn from the record). 

In Ms. Gellert' s July 2015 Mental Health Function Assessment, Gelle1i opined that Plaintiff 

was substantially limited in her abilities to maintain regular attendance, make simple work decisions, 

and complete a normal workday without interruptions from psychologically based symptoms. Tr. 

594. Ms. Gelle1i indicated that Plaintiff may need more than customary breaks. Tr. 595. Ms. 

Gellert also opined that Plaintiff has marked limitations in her activities of daily living and that she 

would suffer three episodes of decompensation within a 12 month period, each lasting for two weeks 

in duration. Tr. 595. 

As discussed above when rejecting Dr. Erde's opinion, there is no evidence whatsoever in 

the record before me to support a finding that Plaintiff has suffered even one episode of 

decompensation, let alone that she would suffer three within 12 months if she were to retum to work. 

Thus, Ms. Gelle1i's opinion is so wildly off the mark it calls her opinions into doubt. As noted 

above, the severity of Ms. Gellert' s opinion conceming Plaintiffs functioning is undennined by her 

own treatment notes that reflect relatively mild findings. Additionally, Ms. Gelle1i's opinion that 

Plaintiff is markedly limited in her activities of daily living also is undermined by the record as a 

whole. To be sure, Plaintiff testified at the hearing that she cooks, cleans, does laundry, is able to 

care for her own finances, is capable of all self care, and is solely responsible for her special needs 

20 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 20 of 24
son. Plaintiff reported that she enjoys crossword puzzles and reading, cheers her son while he plays 

soccer, takes her son to appointments, walks, drives and is able to use public transportation. Tr. 273-

74. Additionally, Plaintiffs prior treating physician, Dr. Krishnasamy opined that Plaintiff had no 

limitations in her activities of daily living. Tr. 406-08. 

To be sure, as the ALJ indicated, the longitudinal picture of Plaintiff reveals that she suffers 

some anxiety, but that it has been adequately managed with medication and counseling. Although 

Plaintiffs mental health symptoms tend to wax and wane with situational stressors, contrmy to Ms. 

Gellert's and Dr. Erde's opinions, there is simply no evidence of decompensation in the record or 

marked restrictions in her activities of daily living. Thus, I conclude that the ALJ' s findings 

discounting Dr. Ertle and Ms. Gellert' s opinions are supported by substantial evidence in the record 

as a whole, even in light of the additional evidence submitted to the Appeals Council. Brewes, 682 

F.3dat 1163. 

III. ALJ's Misstatement about Handling and Fingering is Harmless 

Plaintiff contends that the ALJ erred in assessing her RFC, highlighting an inconsistency 

between the ALJ's stated RFC (Tr. 26) finding that Plaintiff can perform "frequent fingering or 

handling bilaterally" and the ALJ' s later statement in the narrative RFC discussion that she can do 

no more than "occasional fingering or handling bilaterally" (Tr. 31 ). According to Plaintiff, the 

correct interpretation of the record limits her to "occasional" fingering and handling because it is 

supported by Dr. Erde's opinion that Plaintiff has "no reliable ability" to handle and finger. Tr. 588. 

Plaintiff contends that when the ALJ's finding is properly credited, she is disabled based on the 

vocational expe1t's ("VE") testimony. Tr. 86-87. The Commissioner contends that the discrepancy 

between the RFC and later narrative discussion is a scrivner's error. The Commissioner is correct. 

21 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 21 of 24
Having reviewed the record, it appears that the ALJ' s mention of"occasional" handling and 

fingering is a typographical enor. When discussing Plaintiffs upper extremity limitations, the ALJ 

gave little weight to the opinion of Richard Alley, M.D., who opined that Plaintiff was limited to no 

more than occasional overhead reaching on the left, but otherwise could perfo1m unlimited fingering 

and handling. Tr. 30, 126-27. The ALJ found that Plaintiffs limitations with respect to 

manipulation, reaching, climbing and crawling would be greater than those assessed by Dr. Alley. 

Tr. 30. In contrast, the ALJ discredited Dr. Erde's opinion that Plaintiff had no reliable ability to 

lift, carry, finger or handle. Tr. 29, 588. At step four, the ALJ concluded that Plaintiff is capable 

of perfo1ming her past relevant work as a file clerk. The ALJ also made an alternative step five 

finding that a person with the same vocational profile as Plaintiff would be capable of perfmming 

the representative occupations of document seamier and mailroom clerk. Tr. 31-32. These 

occupations are consistent with the hypothetical questions posed to the VE at the hearing that 

included a limitation to frequent handling and fingering. Tr. 84-85. 

In short, Plaintiff identifies no credited testimony that she is limited to occasional handling 

and fingering bilaterally. As discussed at length above, the ALJ properly discounted Dr. Erde's 

opinion concerning Plaintiffs upper extremity limitations as inconsistent with Plaintiffs 

conservative treatment and lack of objective support. And, the ALJ properly discounted Plaintiffs 

own testimony of severe limitations from her ulnar neuropathy. Indeed, the ALJ' s mention of 

"occasional" in the RFC analysis appears to have been a typographical enor. To the extent that the 

ALJ ened in making the statement, the enor is harmless because that finding was not dete1minative 

of the ALJ' s overall analysis and the decision is othe1wise consistent with the medical evidence and 

the VE's testimony. See Jo,;Jo/ina, 674 F.3d at 1111 (discussing haimless error); Gervais v. Colvin, 

22 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 22 of 24
No. EDCV 12-1115-JPR, 2013 WL 3200518, *6 (C.D. Cal. June 24, 2013) (finding transcription 

error harmless); see also Wright v. Comm 'r Soc. Sec. Adm in., 386 F. App'x 105, 109 (3d Cir. 2010) 

(Tashima, J., sitting by designation) (ALJ's misstatement in decision harmless error where ALJ gave 

an adequate explanation supported by substantial evidence in the record); Tay/on>. As/rue, No. 4 :07-

CV-160-FL, 2009 WL 50156, at *10 (E.D. N.C. Jan.7, 2009) (ALJ's misstatement of claimant's 

RFC in one sentence of decision "akin to a typographical error and constitutes harmless error" where 

the ALJ correctly stated RFC elsewhere in opinion, was consistent with hypothetical posed to VE 

and was supported by substantial evidence). 

IV. The Commissioner Met His Burden at Step Five 

Plaintiff contends that the ALJ erred in relying upon the VE's testimony because it did not 

contain all of her limitations. I have not identified any harmful errors in the ALJ's evaluation of the 

evidence. The hypothetical posed to the vocational expert included all of Plaintiffs limitations 

credited by the ALJ and supported by substantial evidence in the record. Bayliss, 427 F.3d at 1217. 

Accordingly, the ALJ could rely upon the VE's testimony. The ALJ did not err at steps four and 

five. 

Ill/ 

Ill/ 

Ill/ 

/Ill 

Ill/ 

/Ill 

Ill/ 

23 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 23 of 24
CONCLUSION 

For the reasons set forth above, the Commissioner's final decision is AFFIRMED. This 

action is DISMISSED. 

IT IS SO ORDERED. 

DATED this 2/ day ofNOVEMBER, 2016. 

Malcolm F. Marsh 

United States District Judge 

24 - OPINION AND ORDER 

Case 3:15-cv-02132-MA Document 18 Filed 11/21/16 Page 24 of 24