PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MARK A. DIFABIO,

Plaintiff,

v.

CAROLYN W. COLVIN, Acting 

Commissioner of Social Security,

Defendant.

Case No. 3:15-cv-1018-SI

OPINION AND ORDER

Tim Wilborn, WILBORN LAW OFFICE, P.C., P.O. Box 370578, Las Vegas, NV 89137. Of 

Attorneys for Plaintiff.

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

Attorney, U.S. ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204; 

Thomas M. Elsberry, Special Assistant United States Attorney, OFFICE OF THE GENERAL 

COUNSEL, SOCIAL SECURITY ADMINISTRATION, 701 Fifth Avenue, Suite 2900 Mailstop 221A, 

Seattle, WA 98104. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Mr. Mark A. Difabio (“Plaintiff”) seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration (“Commissioner”) denying Plaintiff’s 

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

the following reasons, the Commissioner’s decision is affirmed.

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 1 of 22
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 of Soc. Sec. 

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

(9th Cir. 1995)). It 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 of Soc. Sec. Admin., 359 F.3d 1190, 1193, 

1196 (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 protectively filed an application for DIB on November 17, 2011, alleging 

disability beginning June 16, 2007. AR 199. He was 54 years old at the alleged disability onset 

date, and is currently 63 years old. Id. He alleges disability due to the following medical 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 2 of 22
PAGE 3 – OPINION AND ORDER

conditions: heart disease, back and hip pain, hernia, fatigue, and muscle pain. AR 99. The 

Commissioner denied his application initially on February 2, 2012 and upon reconsideration on 

May 3, 2012. AR 97-98. Plaintiff requested a hearing before an Administrative Law Judge 

(“ALJ”). AR 133. Plaintiff appeared for hearings on April 24, 2013, and August 9, 2013, and 

was represented by counsel. AR 15. At the first hearing, the ALJ heard testimony from Plaintiff

and vocational expert (“VE”) Paul K. Morrison. AR 59-96. At the second hearing, the ALJ heard 

testimony from Plaintiff. AR 27-58. After considering all the evidence in the record, the ALJ 

concluded that Plaintiff is not disabled under the Social Security Act. AR 22. 

Plaintiff petitioned the Appeals Council for review of the ALJ’s decision. AR 10-11. On 

April 6, 2015, the Appeals council denied the request for review, rendering the ALJ’s decision 

the final decision of the Commissioner. AR 1. Plaintiff now seeks review of the ALJ’s decision.

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 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is 

potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(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), 416.920(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, 416.910. If the claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 3 of 22
PAGE 4 – OPINION AND ORDER

§§ 404.1520(a)(4)(i), 416.920(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), 416.920(a)(4)(ii). An 

impairment or combination of impairments 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), 416.921(a). Unless expected to result in death, 

this impairment must have lasted or be expected to last for a continuous 

period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the 

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

§§ 404.1520(a)(4)(ii), 416.920(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),

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis continues. 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), 416.920(e), 

416.945(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), 416.920(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. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),

404.1560(c), 416.960(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).

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 4 of 22
PAGE 5 – OPINION AND ORDER

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

Tackett v. Apfel, 180 F.3d 1094, 1098 (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, 416.966 

(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), 416.920(a)(4)(v). If, however, 

the Commissioner proves that 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 began his opinion by noting that Plaintiff met the insured status requirements of 

the Social Security Act during two separate periods. AR 15. The first period began on April 1, 

2007, and ended on March 31, 2011. Id. The second period began on July 1, 2012 and ended on 

September 30, 2014. Id. The ALJ then applied the sequential process for each insured period.

AR 17-22. Plaintiff, however, only contests the ALJ’s decision regarding the first insured period. 

Thus, the Court’s discussion is limited to the first insured period.

At step one for the first period of coverage, the ALJ determined that Plaintiff had not 

engaged in substantial gainful activity after June 16, 2007, the alleged onset date. AR 17. At step 

two, the ALJ determined that Plaintiff had a severe impairment as a result of his acute inferior 

myocardial infarction. Id. The ALJ determined that Plaintiff’s other symptoms and complaints 

were transient. AR 18. 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 5 of 22
PAGE 6 – OPINION AND ORDER

At step three, the ALJ found that Plaintiff did not have an impairment or combination of 

impairments that meets or medically equals the severity of one of the listed impairments in 

20 C.F.R. Part 404, Subpart P, Appendix 1. Id. The ALJ next found that Plaintiff had the RFC to 

perform light work, with some limitations. Id. The ALJ concluded that Plaintiff could stoop, 

kneel, crouch, and crawl occasionally, but that he was not to climb ladders, ropes, or scaffolds. 

Id. In making this determination, the ALJ concluded that Plaintiff’s testimony was not entirely 

credible in light of the evidence from Dr. Ronald Petersen, M.D., and Plaintiff’s work history. 

AR 19.

At step four, the ALJ found that Plaintiff was able to perform his past relevant work in 

advertising sales, as an estimator, or as vice president of sales. AR 21. Accordingly, the ALJ 

found Plaintiff was not disabled during the first insured period. Id.

DISCUSSION

Plaintiff argues that the ALJ erred by: (A) failing to find that Plaintiff’s hip and back 

complaints were severe impairments at step two of the sequential analysis; (B) improperly 

rejecting testimony from Plaintiff and his chiropractor, Dr. Cory Ann Imhof, D.C.; and 

(C) reaching a conclusion at step four of the sequential analysis that was not supported by 

substantial evidence.

A. Severe Impairments at Step Two of the Sequential Analysis

At step two, the ALJ noted that Plaintiff’s impairments, other than status post myocardial 

infarction, “[are] not . . . severe medically determinable impairment[s] because no objective, 

acceptable medical documentation supports such a finding . . . the objective evidence regarding 

the claimant’s hip, knee and back conditions [began] in 2012, well after the first date last 

insured.” AR 18. Under step two of the sequential analysis, a claimant bears the burden of proof 

that he has a severe medically determinable physical impairment. See Bustamante, 262 F.3d at 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 6 of 22
PAGE 7 – OPINION AND ORDER

953 (holding that the claimant bears the burden of proof through the first four steps of the 

sequential process). The claimant must present “evidence from acceptable medical sources to 

establish whether [the claimant has] a medically determinable impairment(s).” 20 C.F.R. § 

404.1513. The claimant must present “complete and detailed objective medical reports of his or 

her condition from licensed medical professionals.” Meanel v. Apfel, 172 F.3d 1111, 1113 (9th 

Cir. 1999) (quotation marks omitted).

A claimant’s reported pain and symptoms alone are not enough to establish a “medically 

determinable” impairment: “A physical or mental impairment must be established by medical 

evidence consisting of signs, symptoms, and laboratory findings, not only by [claimant’s]

statement of symptoms.” 20 C.F.R. § 404.1508. Symptoms are the patient’s “own description of 

[his or her] physical or mental impairment.” 20 C.F.R. § 404.1528(a). Signs are “abnormalities 

which can be observed, apart from your statements (symptoms)[,]” and “must be shown by 

medically acceptable clinical diagnostic techniques.” 20 C.F.R. § 404.1528(b). Laboratory 

findings must be shown by “medically acceptable laboratory diagnostic techniques,” such as xrays. 20 C.F.R. § 404.1528(b)-(c). The ALJ also must evaluate all medical opinions, which are 

“statements from physicians and psychologists or other acceptable medical sources that reflect 

judgments about the nature and severity of your impairment(s), including your symptoms, 

diagnosis and prognosis, what you can still do despite impairment(s), and your physical or 

mental restrictions.” 20 C.F.R. § 404.1527(a)(2).

Under the applicable regulations, only licensed physicians and certain other qualified 

specialists are considered “[a]cceptable medical sources.” 20 C.F.R. § 404.1513(a); see also

Social Security Ruling (“SSR”) 06–03p, available at 2006 WL 2329939 (Aug. 9, 2006) (defining 

“acceptable medical sources” as licensed physicians, licensed or certified psychologists, licensed 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 7 of 22
PAGE 8 – OPINION AND ORDER

optometrists, licensed podiatrists, and qualified speech pathologists). Other health care providers 

who are not “acceptable medical sources,” such as “nurse practitioners, physician assistants, 

naturopaths, chiropractors, audiologists, and therapists,” are still considered “medical sources” 

under the regulations, and the ALJ can use these other medical source opinions in determining 

the “severity of [the individual’s] impairment(s) and how it affects [the individual’s] ability to 

work.” 20 C.F.R. § 404.1513(d).

1. The ALJ’s Step Two Analysis

Although Plaintiff sought treatment for pain in his hip and back before his last insured 

date, the earliest diagnostic medical record relating to Plaintiff’s hip and back conditions is the

x-ray report dated October 16, 2012, about one and one-half years after the relevant date last 

insured. AR 392. That x-ray report, by Dr. Allen F. Avbel, M.D., noted “marked” degeneration 

in Plaintiff’s left hip joint, and calcification or ossification of ligaments in Plaintiff’s lower back.

Id. On December 27, 2012, Dr. Bret H. Dales examined Plaintiff and noted that Plaintiff’s 

October x-rays showed “severe end-stage arthritis of the left hip” and the “lower lumbar spine 

shows considerable degeneration with disc space narrowing . . . .” AR 395-96. Plaintiff received 

a corticosteroid injection to the left hip from on January 16, 2013, AR 524, and underwent total 

hip replacement surgery for his left hip on March 4, 2013, AR 529-31. The ALJ concluded at 

step two of the sequential analysis that Plaintiff did not have severe impairments related to his 

hip, knee, or back conditions because these medical records were dated after the relevant date 

last insured (March 31, 2011). AR 18.

The Commissioner argues that the lack of objective medical evidence to establish 

Plaintiff’s impairment during his insurance coverage requires the rejection of his claim, citing 

Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). In Ukolov, the plaintiff submitted medical 

records from two neurologists. Id. at 1005-06. The first neurologist noted that there was 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 8 of 22
PAGE 9 – OPINION AND ORDER

“insufficient evidence to make a diagnosis,” and the records of the second neurologist did not 

contain a diagnosis or a finding of impairment. Id. Furthermore, the Ninth Circuit explained that 

the neurological examination method used by the second neurologist “is susceptible to subject 

manipulation.” Id. at 1006. The Ninth Circuit held that a single positive result of a non-objective 

diagnostic technique that is “unaccompanied by a diagnosis or finding of impairment, does not 

and cannot establish the existence of a disability.” Id. Unlike the claimant in Ukolov, whose

medical opinions failed to include “a finding of impairment, a diagnosis, or objective test 

results,” Plaintiff has introduced evidence from an objective diagnostic technique (x-ray) and a 

diagnosis from acceptable medical sources (Drs. Avbel and Dales) that show that Plaintiff 

suffered from a medically determinable impairment. See id. (contrasting the non-objective 

diagnostic technique used in Ukolov with objective diagnostic tests such as blood pressure 

screening, electrocardiograms, and computer axial tomography scans).

The ALJ determined that the evidence Plaintiff submitted from Drs. Avbel and Dales was 

not relevant because it was from after the last insured date. The ALJ provided no reason to 

discount the x-ray report or the records from Dr. Dales, other than that they did not appear in the 

record until after the date last insured. AR 18. The Ninth Circuit, however, has held that

“[m]edical evaluations made after the expiration of a claimant’s insured status are relevant to an 

evaluation of the pre-expiration condition.” Sampson v. Chater, 103 F.3d 918, 922 (9th 

Cir. 1996) (quoting Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988)). “In fact, it is not 

uncommon that a physician’s examination completed two or more years after the insured status 

expiration date is considered relevant.” Barnard v. Comm’r of Soc. Sec. Admin., 286 F. 

App’x 989, 994 (9th Cir. 2008); see also McCartey v. Massanari, 298 F.3d 1072, 1077 n.7 (9th 

Cir. 2002) (finding that the Appeals Council erred in determining that medical records after the 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 9 of 22
PAGE 10 – OPINION AND ORDER

date last insured were immaterial because they were probative of the fact that the claimant was 

disabled before the date last insured).

Here, there is objective medical evidence of severe end-stage arthritis and considerable

degeneration of the lower lumbar spine less than two years after the date last insured. The ALJ 

therefore erred in summarily concluding that this medical evidence was not “relevant to an 

evaluation of the pre-expiration condition.” Sampson, 103 F.3d at 922 (quotation marks omitted). 

Because the reports from Drs. Avbel and Dales, although dated after the date last insured, 

demonstrate impairments at an end stage, they may well be evidence of Plaintiff’s condition 

before the last insured date. The ALJ erred by not considering when these significant 

impairments began, and substantial evidence does not support the ALJ’s conclusion that Plaintiff 

did not have a significant impairment relating to his back or hips before the date last insured. See 

Smith, 849 F.2d at 1226 (finding that the ALJ’s conclusion was not supported by substantial 

evidence when the ALJ failed to consider, as evidence of the claimant’s condition before the last 

insured date, reports from doctors after that date).

2. Harmless Error

The Court finds that the ALJ erred at step two by failing properly to consider whether 

Plaintiff had additional severe impairments relating to his back and hips. “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)). In Lewis, the ALJ failed to consider one of the 

plaintiff’s medical conditions at step two of the sequential analysis. Lewis, 498 F.3d at 911. 

Nevertheless, the ALJ considered the effect of the impairment at step four of the sequential 

analysis. Id. (“The decision reflects that the ALJ considered any limitations posed by the 

[impairment] at Step 4.”). Likewise, in the present case, the ALJ considered the evidence 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 10 of 22
PAGE 11 – OPINION AND ORDER

pertaining to Plaintiff’s hip and back impairments and included limitations from those 

impairments in the RFC. AR 20 (“The light [RFC] accounts for the claimant’s cardiac condition, 

with postural limitations that anticipate the development of hip and back problems after 

March 31, 2011.”). The Court thus finds that the ALJ’s error at step two was harmless. See

Lewis, 498 F.3d at 911 (“As such, any error that the ALJ made in failing to include the 

[impairment] at Step 2 was harmless.”).

B. ALJ’s Credibility Determinations

Plaintiff next argues that the ALJ erred by improperly rejecting testimony from Plaintiff 

and his chiropractor, Dr. Imhof.

1. Plaintiff’s Credibility

There is a two-step process for evaluating the credibility of a claimant’s own testimony 

about the severity and limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 

F.3d 586, 591 (9th Cir. 2009). “First, the ALJ must determine whether the claimant has presented 

objective medical evidence of an underlying impairment ‘which could reasonably be expected to 

produce the pain or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 

Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When 

doing so, “the claimant need not show that her impairment could reasonably be expected to cause 

the severity of the symptom she has alleged; she need only show that it could reasonably have 

caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the 

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering 

specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting 

Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must 

state which pain testimony is not credible and what evidence suggests the complaints are not 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 11 of 22
PAGE 12 – OPINION AND ORDER

credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be 

“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily 

discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing

Bunnell, 947 F.2d at 345-46).

An ALJ may consider objective medical evidence and the claimant’s treatment history, as 

well as the claimant’s daily activities, work record, and observations of physicians and third 

parties with personal knowledge of the claimant’s functional limitations. Smolen, 80 F.3d 

at 1284. The Commissioner recommends assessing the claimant’s daily activities; the location, 

duration, frequency, and intensity of the individual’s pain or other symptoms; factors that 

precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any 

medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other 

than medication, the individual receives or has received for relief of pain or other symptoms; and 

any measures other than treatment the individual uses or has used to relieve pain or other 

symptoms. See SSR 16-3p, available at 2016 WL 1119029. An ALJ may not, however, make a 

negative credibility finding “solely because” the claimant’s symptom testimony “is not 

substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d at 883.

Further, the Ninth Circuit has said that an ALJ also “may consider . . . ordinary 

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

statements concerning the symptoms, . . . other testimony by the claimant that appears less than 

candid[,] [and] unexplained or inadequately explained failure to seek treatment or to follow a 

prescribed course of treatment . . . .” Smolen, 80 F.3d at 1284. The ALJ’s credibility decision 

may be upheld overall even if not all of the ALJ’s reasons for rejecting the claimant’s testimony 

are upheld. See Batson, 359 F.3d at 1197.

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 12 of 22
PAGE 13 – OPINION AND ORDER

At the first step of the credibility framework, the ALJ found that Plaintiff’s “medically 

determinable impairment could reasonably be expected to cause the alleged symptoms . . . .” 

AR 19. At the second step, the ALJ found that Plaintiff’s “statements concerning the intensity, 

persistence and limiting effects of these symptoms are not entirely credible . . . .” Id. The ALJ 

offered three reasons for his adverse credibility finding: (a) Plaintiff’s testimony at the hearings 

was inconsistent with his own prior statements; (b) Plaintiff’s testimony was inconsistent with 

the medical evidence; and (c) Plaintiff received conservative treatment for his impairment. 

AR 19-20.

a. Plaintiff’s testimony and prior statements

In evaluating a claimant’s credibility, an ALJ may consider evidence of the claimant 

making false statements and the claimant’s prior inconsistent statements. Tommasetti v. Astrue, 

533 F.3d 1035, 1039-40 (9th Cir. 2008). Indeed, when assessing credibility, an ALJ must 

consider any “evidence that bears on the consistency and veracity of the claimant’s statements.” 

Petrosino v. Colvin, 2016 WL 270909, at *2 (D. Or. Jan. 21, 2016).

At the April 24, 2013, hearing Plaintiff testified that he could not work more than 30 

hours per week due to physical and mental fatigue. AR 85-86. At the August 9, 2013, hearing 

Plaintiff testified that he erred in stating that he was working 30 hours a week when he was 

actually only able to work approximately 20 hours per week. AR 36-37. The ALJ wrote that 

Plaintiff “testified that he worked up to thirty hours a week as a contractor, primarily arranging 

bids for his subcontractors because the physical work became too difficult.” AR 19. At the 

April 24, 2013 hearing, the ALJ asked Plaintiff if, in 2008, he “[was] doing any part of the 

physical part of the job, or was it all being done by sub-contractors?” AR 67. Plaintiff responded 

that “[i]t was all being done by sub-contractors.” Id. Plaintiff testified to a similar labor 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 13 of 22
PAGE 14 – OPINION AND ORDER

arrangement in 2009 and 2010. AR 68. Plaintiff next testified that he did not do the physical 

work of installing floors in 2011 and that he continued to use subcontractors. AR 69.

The ALJ concluded that Plaintiff’s testimony that he was not doing any physical labor 

from 2008 through 2011 was inconsistent with the Work Activity Report dated December 7, 

2011, and statements Plaintiff made to Dr. Petersen. AR 19. In December 2011, Plaintiff told a 

field office representative complete Plaintiff’s Work Activity Report that Plaintiff spent

about 16 hours each week doing physical work from 2009 to 2011. AR 299. On April 5, 2011, 

five days after the last insured date, Plaintiff had an appointment with Dr. Petersen. AR 380. Dr. 

Petersen wrote in his notes that Plaintiff told him that “[Plaintiff’s] job has been quite physical.” 

Id. The Court agrees that Plaintiff’s testimony at the hearing that all the physical labor associated 

with installing floors from 2008 through 2011 was performed by subcontractors is inconsistent 

with Plaintiff’s prior statements in which he claimed to be performing physical labor during that 

same time period.

A material inconsistency in Plaintiff’s statements is a clear and convincing reason that is 

sufficient to support an ALJ’s adverse credibility finding. Tommasetti, 533 F.3d at 1039-40 

(citing Smolen, 80 F.3d at 1284). The Court finds that the ALJ has provided a specific and clear 

and convincing reason to discredit Plaintiff’s credibility.

b. Plaintiff’s testimony and the medical evidence

One of the factors that an ALJ may consider in assessing the credibility of a claimant is 

“whether the alleged symptoms are consistent with the medical evidence.” Lingenfelter, 504 F.3d 

at 1040. In his decision, the ALJ noted that the limitations suggested by Drs. Petersen and Imhof

were consistent with Plaintiff’s work activity, which the ALJ determined showed fewer 

limitations than Plaintiff alleged. AR 19-20.

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 14 of 22
PAGE 15 – OPINION AND ORDER

Dr. Petersen commented on Plaintiff’s care from December 2006 through April 2011 in a 

letter dated January 12, 2012. AR 376-77. In that letter, Dr. Petersen noted that Plaintiff had

good cardiovascular function, Plaintiff was not limited by chest pain, and a stress test placed 

Plaintiff at a low risk for cardiac issues. AR 376. Dr. Petersen opined that Plaintiff’s cardiac 

condition would not place any limitation on his ability to work while sitting, but he may not be 

able to walk and stand for a full eight-hour shift. Id. Dr. Petersen also opined that Plaintiff should 

avoid repeated heavy lifting. Id. Dr. Imhof submitted a report dated October 18, 2011, 

concerning Plaintiff’s ability to do work-related activities before his last insured date. AR 370-

75. Dr. Imhof indicated that Plaintiff would not experience substantial difficulty with stamina, 

pain, or fatigue if he was working full-time. AR 370. Although Dr. Imhof noted that it would be 

reasonable to expect Plaintiff to need to work at a reduced work pace if employed full-time at 

light or sedentary levels of exertion, Dr. Imhof also noted that Plaintiff’s ability to maintain a 

normal work pace while working full-time was “fair.” Id.

The limitations Plaintiff described are inconsistent with the medical evidence. The ALJ 

noted that Plaintiff testified to only being able to work up to 30 hours a week. AR 19. Both of 

Plaintiff’s medical providers indicated that his medical conditions would not prevent Plaintiff 

from working 40 hours a week. AR 370, 376. The ALJ’s conclusion that Plaintiff’s reported 

limitations are not consistent with the medical record is supported by substantial evidence.

c. Conservative treatment

The ALJ noted in his decision that Plaintiff received conservative treatment.

1 AR 20.

Instead of explaining this conclusion, the ALJ instead summarized Plaintiff’s cardiac treatment 

 

1 Conservative treatment may be defined: “The withholding of treatments and 

management of disease by observation, or conversely, the use of surgery when observation only 

would depart from the usual care.” Taber’s Cyclopedic Medical Dictionary 512 (Donald Venes, 

et al., eds., 21st ed. 2009). 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 15 of 22
PAGE 16 – OPINION AND ORDER

history. Id. An ALJ “must specifically identify the testimony she or he finds not to be credible 

and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 

1195, 1208 (9th Cir. 2001). Those reasons must be “sufficiently specific to permit the reviewing 

court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.” Orteza, 50 

F.3d at 750. Because the ALJ did not explain in what manner Plaintiff’s treatment was 

conservative, or why such a course of treatment undermines Plaintiff’s testimony, conservative 

treatment is not a clear and convincing reason, supported by substantial evidence, to discredit 

Plaintiff’s testimony.

The ALJ, however, provided two other clear and convincing reasons, supported by 

substantial evidence, to discredit Plaintiff’s testimony. Therefore, the ALJ’s decision regarding 

conservative treatment is harmless error. The ALJ’s overall adverse credibility finding is upheld.

2. Dr. Cory Ann Imhof, D.C.

In August 2009, Plaintiff went to the Back Pain & Accident Chiropractic Clinic, LLC in 

Portland, Oregon, to obtain treatment for pain in his lower back and upper right leg. AR 348. 

Plaintiff was initially seen by Drs. Donald Ferrante, D.C., and Kelly Yakiwchuk, D.C. AR 356-

65. Plaintiff returned for additional treatment in September 2011, and was treated this time by 

Dr. Imhof. AR 352-55. Plaintiff had at least two appointments with Dr. Imhof, both after

Plaintiff’s last insured date. AR 350-55, 366-68. Dr. Imhof submitted a report, dated October 18, 

2011, concerning Plaintiff’s health issues. AR 370-75. The ALJ accorded Dr. Imhof’s report 

little weight. AR 20.

Health care providers who are not “acceptable medical sources,” such as “nurse 

practitioners, physician’s assistants, chiropractors, audiologists, and therapists,” are still 

considered “medical sources” under the regulations, and the ALJ can use these other medical 

source opinions in determining the “severity of [the individual’s] impairment(s) and how it 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 16 of 22
PAGE 17 – OPINION AND ORDER

affects [the individual’s] ability to work.” 20 C.F.R. § 404.1513(d). Because Dr. Imhof is a 

chiropractor, she is considered an “other” medical source.

To reject the competent testimony of “other” medical sources like Dr. Imhof, the ALJ 

need only give “reasons germane to each witness for doing so.” Molina v. Astrue, 674 F.3d 1104, 

1111 (9th Cir. 2012) (quoting Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 

(9th Cir. 2010)). In rejecting such testimony, the ALJ need not cite the specific record so long as 

“arguably germane reasons” for dismissing the testimony are noted, even though the ALJ does 

“not clearly link his determination to those reasons,” and substantial evidence supports the ALJ’s 

decision. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). The ALJ also may “draw inferences 

logically flowing from the evidence.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

Plaintiff argues that the ALJ erred by not providing a germane reason for discounting 

Dr. Imhof’s report. The Commissioner responds that the reasons provided by the ALJ were 

germane. Additionally, the Commissioner argues that if an error was made, it was harmless

because there was no diagnosed impairment underlying the symptoms assessed by Dr. Imhof.

The ALJ provided three reasons for why he gave little weight to Dr. Imhof’s opinion: 

(a) the record contradicts the exertional limitations provided by Dr. Imhof; (b) Dr. Imhof’s

opinion was provided several months after the date last insured; and (c) chiropractors are not 

acceptable medical sources as defined in 20 C.F.R. § 404.1513. The Commissioner also argues 

that the Court should infer from the context of the ALJ’s reasoning that the ALJ also relied on a 

contradiction between Plaintiff’s cardiologist, Dr. Petersen, and Dr. Imhof as another reason why 

the ALJ gave little weight to Dr. Imhof’s opinion.

a. Consistency with work history

Dr. Imhof opined that Plaintiff could, in a competitive work situation, lift and carry up 

to 20 pounds frequently and 50 pounds occasionally. AR 373. This roughly corresponds to 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 17 of 22
PAGE 18 – OPINION AND ORDER

medium work. See 20 C.F.R. § 404.1567 (“Medium work involves lifting no more than 50 

pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.”). In 

considering Dr. Imhof’s opinion, the ALJ noted that it was inconsistent with Plaintiff’s ability to 

perform heavy work. AR 20. The ALJ also noted that Plaintiff testified that the heavy physical 

aspect of floor installation required the ability to lift up to one-hundred and fifty pounds, which 

is greater than the lifting limitations opined by Dr. Imhof. AR 19. 

The Court has already found that the ALJ provided a clear and convincing reason to 

discount Plaintiff’s testimony that he was not performing any physical labor in the period 

from 2008 through the last insured date. See supra Discussion Section B(1)(a). The question 

here, therefore, is whether the evidence supports the ALJ’s inference that Plaintiff was 

performing some of the “heavy” required labor, which involved lifting up to one-hundred and 

fifty pounds in March 2011, after the onset date opined by Dr. Imhof. 

On or about December 7, 2011, Plaintiff told a field office representative that Plaintiff 

spent approximately 16 hours a week doing physical work from 2009 through 2011. AR 299. 

The field office representative then completed a portion of the Work Activity Report. On the 

portion of the Work Activity Report that Plaintiff completed on November 22, 2011, Plaintiff 

reported earning approximately $700 per month in every month of 2011. AR 296. Further, on 

April 5, 2011, five days after the last insured date, Plaintiff told Dr. Petersen that “[Plaintiff’s] 

job has been quite physical.” AR 380. The Court finds that the ALJ’s conclusion that Plaintiff 

was lifting up to one-hundred and fifty pounds in March 2011 is a reasonable inference from the 

evidence. See Tommasetti, 533 F.3d at 1040 (noting that “we cannot say that the ALJ’s inference 

regarding [claimant] . . . was unreasonable” (citing Sample, 694 F.2d at 642) (noting that an ALJ 

may “draw inferences logically flowing from the evidence”). Although there may be other 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 18 of 22
PAGE 19 – OPINION AND ORDER

reasonable interpretations of the evidence, the Court cannot say that the ALJ’s conclusion is 

irrational, and thus the ALJ’s conclusion must be upheld. Burch, 400 F.3d at 679; see also

Batson, 359 F.3d at 1193, 1196 (“When evidence reasonably supports either confirming or 

reversing the ALJ’s decision, we may not substitute our judgment for that of the ALJ.”). The 

limitations opined to by Dr. Imhof are inconsistent with the ALJ’s conclusion that Plaintiff was 

performing much heavier lifting after the date of onset provided by Dr. Imhof. This is a germane 

reason to discount the opinion of Dr. Imhof.

b. Relevant time period

The ALJ also concluded that Dr. Imhof’s opinion was entitled to little weight because it 

was provided after the last insured date. AR 20. The Commissioner argues that Dr. Imhof’s 

opinion does not concern Plaintiff’s condition before the last insured date. The fact that a 

medical opinion is rendered after the last insured date is not a valid reason, in and of itself, to 

reject the opinion. Sampson, 103 F.3d at 922; see supra Discussion Section A. Furthermore, 

Dr. Imhof reported that the onset date of Plaintiff’s impairment was in March 2011. AR 366. 

Thus, Dr. Imhof’s opinion applies to a time before the last insured date. On this issue, the ALJ 

did not provide a germane reason to discount Dr. Imhof’s opinion.

c. Other medical source

The ALJ’s comment that chiropractors are not acceptable medical sources as defined 

in 20 C.F.R. § 404.1513 is simply a restatement of what types of sources the regulations permit 

to be used to establish the existence of an impairment. Section 404.1513 also sets the degree of 

deference to be accorded to the opinions provided by medical sources. Thus, on this issue, the 

ALJ did not provide a germane reason to discount the credibility of an “other” medical source.

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 19 of 22
PAGE 20 – OPINION AND ORDER

d. Dr. Petersen’s opinion

The Commissioner also argues that the Court should infer from the context of the ALJ’s 

reasoning that the ALJ also relied on a contradiction between Plaintiff’s cardiologist, Dr. Ronald 

Petersen, M.D., and Dr. Imhof as a further reason why the ALJ gave little weight to Dr. Imhof’s 

opinion. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (“As a reviewing court, we 

are not deprived of our faculties for drawing specific and legitimate inferences from the ALJ’s 

opinion. It is proper for us to read the paragraph discussing [one doctor’s] findings and opinion, 

and draw inferences relevant to [another doctor’s] findings and opinion, if those inferences are 

there to be drawn.”); see also Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (holding 

that an inconsistency with medical evidence is a germane reason to reject testimony (citing 

Lewis, 236 F.3d at 511)). The Commissioner argues that by mentioning the lack of objective 

evidence in the entire file in a transition sentence between the paragraphs discussing Dr. Petersen

and Dr. Imhof, the ALJ provided sufficient reasoning to allow the Court to draw the inference 

that the ALJ was using Dr. Peterson’s records to discredit Dr. Imhof. AR 20 (“The file does not 

contain objective evidence of hip, back, or knee limitations before the date last insured.”).

The Court rejects the Commissioner’s argument for three reasons. First, the Court does 

not read the transition sentence as an inference by the ALJ that he was relying on an 

inconsistency with Dr. Petersen to discredit Dr. Imhof. Thus, this is an improper post-hoc

rationalization. Bray, 554 F.3d at 1225 (“Long-standing principles of administrative law require 

us to review the ALJ’s decision based on the reasoning and factual findings offered by the 

ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been 

thinking.” (citing Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947))). 

Second, to the extent that the ALJ may have intended to imply such a reason to discredit 

Dr. Imhof, the Court has already found that the ALJ’s conclusion that the record did not contain

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 20 of 22
PAGE 21 – OPINION AND ORDER

objective evidence of a hip and back impairment is in error. Thus, such an inference, even if it 

could be drawn, would not be legitimate because it relies upon an incorrect assumption. 

Third, as Plaintiff points out, Dr. Petersen’s opinion addresses Plaintiff’s cardiac health 

and its impact on his ability to work, not Plaintiff’s hip, back, or knee issues. See AR 376 

(commenting that his practice is limited to cardiology and describing Plaintiff’s exertional 

limitations as “cardiac limitations”). This is not a case of “conflicting medical viewpoints[,]” but 

one in which differing opinions “are not drawn from the same facts.” Sprague v. Bowen, 812 

F.2d 1226, 1231 (9th Cir. 1987) (quotation marks omitted). The Court finds that the 

Commissioner’s argument that the ALJ discounted Dr. Imhof’s opinion because it conflicted 

with Dr. Petersen’s opinion is without merit.

Because the ALJ provided at least one germane reason for discounting Dr. Imhof’s 

testimony, however, the ALJ’s determination on this point is upheld.

C. Plaintiff’s Ability to Perform Past Relevant Work

Plaintiff next argues that the testimony of the VE had no evidentiary value and that the 

ALJ’s reliance upon it in concluding that Plaintiff could perform past relevant work was 

reversible error. When posing a hypothetical question to a VE, the ALJ’s “depiction of the 

claimant’s disability must be accurate, detailed, and supported by the medical record.” Tackett, 

180 F.3d at 1101. “‘The testimony of a [VE] is valuable only to the extent that it is supported by 

medical evidence’ and has ‘no evidentiary value if the assumptions in the hypothetical are not 

supported by the record.’” Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014) (alteration in 

original) (quoting Magallanes, 881 F.2d at 756). “Hypothetical questions asked of the vocational 

expert must ‘set out all of the claimant’s impairments.’” Lewis, 236 F.3d at 517 (quoting Gamer 

v. Sec’y of Health & Human Servs., 815 F.2d 1275, 1279 (9th Cir. 1987)). Dr. Imhof expressed 

his opinion that Plaintiff had greater limitations than the ALJ presented to the VE. Because the 

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 21 of 22
PAGE 22 – OPINION AND ORDER

ALJ provided a germane reason to discount Dr. Imhof’s testimony, however, the hypothetical 

question put to the VE was adequate. Accordingly, the ALJ’s finding that Plaintiff could perform 

past relevant work is supported by substantial evidence.

CONCLUSION

The Commissioner’s decision is based on substantial evidence in the record, and the 

ALJ’s decision that Plaintiff is not disabled is AFFIRMED.

IT IS SO ORDERED.

DATED this 31st day of May, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

Case 3:15-cv-01018-SI Document 14 Filed 05/31/16 Page 22 of 22