IN THE UNITED STATES DISTRICT COURT 

JAQUELINE JOHNSON, 

Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

Defendant. 

FOR THE DISTRICT OF OREGON 

THOMAS COFFIN, Magistrate Judge. 

Civ. No. 3:15-cv-01995-TC 

OPINION & ORDER 

Plaintiff Jaqueline Johnson ("Plaintiff'), seeks judicial review of the final decision of the 

Commissioner of Social Security ("Commissioner") denying Supplemental Security Income 

("SSI") under Title XVI of the Social Security Act. For the reasons set forth below, the decision 

of the Commissioner is AFFIRMED. 

BACKGROUND 

Plaintiff was born on February 7, 1961, has a marginal education, and is able to 

communicate in English. Tr. 21. She has no relevant past work. Id Plaintiff filed her initial 

claim for SSI on June 20, 2012, alleging disability due to Raynaud's disease, arthritis, 

depression, "learning," stenosis of the spine, degenerative discs, fibromyalgia, asthma, and 

eczema of the right arm and shoulder beginning on March 31, 1994. Tr. 12, 68. She later 

amended her alleged onset date to June 20, 2012. Tr. 12. 

Plaintiffs claim was denied initially and upon reconsideration. Tr. 12. Plaintiff 

requested a hearing before an Administrative Law Judge ("ALJ"). Plaintiff appeared at a hearing 

and testified before ALJ S. Andrew Grace on August 13, 2014, in Portland, Oregon. Id. On 

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August 29, 2014, the ALJ determined that Plaintiff was not disabled. Tr. 23. On August 20, 

2015, the Appeals Council denied Plaintiffs subsequent request for review, making the ALJ's 

decision the final decision of the Commissioner of Social Security. Tr. 1. This appeal followed. 

DISABILITY 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)(l)(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, 648 F.3d 721, 724 (9th Cir. 2011). 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. 

§§ 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 is "severe" if it significantly limits the claimant's physical or 

mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c); 

416.920(c). This impairment must have lasted or must be expected to last 

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

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).1fthe impairment does not meet or equal one or more of 

the listed impairments, the analysis proceeds beyond step three. At that 

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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). 

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

Commissioner bears the burden of proof at step five. Id. at 953-54. 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." Tackett v. Apfel, 180 F .3d 1094, 1100 (9th Cir. 

1999); 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. 

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THE ALJ'S FINDINGS 

The ALJ performed the sequential analysis. At step one, the ALJ found that although 

Plaintiff had worked after the alleged onset date, her work activity did not rise to the level of 

substantial gainful activity. Tr. 14. At step two, the ALJ determined that Plaintiff had the 

following severe impairments: cervical degenerative disc disease, plantar fasciitis, neuroma, 

hallux varus, Raynaud's syndrome, and headaches. Id. At step 3, the ALJ determined that 

Plaintiffs impairments did not meet or medically equal one of the listed impairments. Tr. 16/ 

The ALJ then assessed Plaintiffs RFC and determined that Plaintiff could perform light 

exertion work with the following limitations: she can never climb ladders, ropes, or scaffolds; 

she can occasionally climb ramps or stairs; occasionally stoop or crawl; occasionally do 

overhead reaching bilaterally; she can frequently finger or handle bilaterally; she must avoid 

concentrated exposure to vibrations, hazards, pulmonary irritants, and extreme temperature; and 

she must be allowed to change position from sit to stand and from stand to sit at the work station 

approximately every thirty minutes. Tr. 17. 

At step four, the ALJ determined that Plaintiff had no relevant past work. Tr. 21. At step 

five, the ALJ found that Plaintiff had the RFC to perform work as a mailroom clerk or office 

helper. Tr. 22. Accordingly, the ALJ found Plaintiff not disabled. Tr. 22-23. 

ST AND ARD OF REVIEW 

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

proper legal standards and the legal findings are supported by substantial evidence in the record. 

42 U.S.C. § 405(g); Batson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial 

evidence "means such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal 

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quotations omitted). In reviewing the Commissioner's alleged errors, this court must weigh 

"both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez 

v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are 

insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 

679 (9th Cir. 2005). 

When the evidence before the ALJ is subject to more than one rational interpretation, we 

must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shalala, 53 

F.3d 1035, 1039-40 (9th Cir. 1995)). A reviewing court, however, cannot affirm the 

Commissioner's decision on a ground that the agency did not invoke in making its decision. 

Stout v. Comm 'r, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a court may not reverse an ALJ's 

decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that 

an error is harmful normally falls upon the party attacking the agency's determination." Shinseki 

v. Sanders, 556 U.S. 396, 409 (2009). 

DISCUSSION 

Plaintiff asserts that the ALJ erred by finding her subjective symptom testimony not fully 

credible. To determine whether a claimant's testimony is credible, an ALJ must perform a twostage analysis. 20 C.F.R. § 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. },!Jolina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 

2012). At the second stage of the credibility analysis, absent evidence of malingering, the ALJ 

must provide clear and convincing reasons for discrediting the claimant's testimony regarding 

the severity of symptoms. Carmickle v. Comm 'r, 533 F.3d 1155, 1160 (9th Cir. 2008). 

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

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

763 F.3d 1154, 1163 (9th Cir. 2014). Factors the ALJ must consider when making a credibility 

determination include the objective medical evidence, the claimant's treatment history, the 

claimant's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of 

any pain medications, and relevant character evidence. 1 Id 

An ALJ may use "ordinary techniques of credibility evaluation" in assessing a claimant's 

credibility, such as prior inconsistent statements concerning the symptoms, testimony that 

appears less than candid, or a claimant's daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 

1039 (9th Cir. 2008). A claimant's daily activities may undermine her allegations if the claimant 

spends a substantial part of her day engaged in activities that are transferrable to a work setting 

or if the activities contradict her testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). 

In this case, the ALJ found that Plaintiffs medically determinable impairments could 

reasonably be expected to cause the alleged symptoms, but found that Plaintiffs statements 

concerning the intensity, persistence, and limiting effects of the symptoms was not entirely 

credible based on: (1) a lack of supporting objective medical evidence; (2) inconsistencies 

between Plaintiffs daily activities and the claimed degree of limitation; (3) Plaintiff's limited 

treatment history and conservative treatment. 

1 The Court notes that the Social Security Administration recently "eliminate[ed] the use of the term 'credibility' 

from [its] sub-regulatory policy" to "clarify that subjective symptom evaluation is not an examination of an 

individual's character." SSR 16-3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 Fed. Reg. 

14167 (Mar. 16, 2016) (superseding SSR 96-7p). The changes to the agency's practice articulated in SSR 16-3p 

could not apply to the ALJ decision in this case because 42 U.S.C. § 405(g) does not contain any express 

authorization from Congress allowing the Commissioner to engage in retroactive rulemaking. Bowen v. 

Georgetown Univ. Hosp., 488 U.S. 204, 214-15, n.3 (1988); Garner v. Colvin, 626 F. App'x 699, 701 (9th Cir. 

2015). 

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I. Objective Medical Evidence 

It is proper for the ALJ to consider the objective medical evidence in making a credibility 

determination. 20 C.F.R. §§ 404.1529(c)(2); 416.929(c)(2). However, an ALJ may not make a 

negative credibility finding "solely because" the claimant's symptom testimony "is not 

substantiated affirmatively by objective medical evidence." Robbins v. Soc. Sec. Admin., 466 

F.3d 880, 883 (9th Cir. 2006). 

In this case, the ALJ noted that Plaintiff "alleged a high degree of limitation because of 

her impairments," but that Plaintiff's "clinical examinations and objective test results did not 

reveal the presence of any acute or chronic abnormalities that were severe enough to prevent 

[Plaintiff] from performing at least some light work activity." Tr. 20. The ALJ also noted that 

"[t]he record does not contain any opinions from treating or examining physicians indicating that 

[Plaintiff] is disabled or even has limitations greater than those determined in this decision[.]" 

Id. 

Plaintiff argues that the ALJ erred in assessing objective medical evidence in the record, 

in particular as it related to the flattening of Plaintiff's cervical spinal cord. "[I]n interpreting the 

evidence and developing the record, the ALJ does not need to discuss every piece of evidence." 

Howard ex rel. Woljjv. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (internal quotation marks 

and citation omitted). Furthermore, Plaintiff does not allege any specific limitations resulting 

from the flattening of her cervical spinal cord, beyond those already incorporated into the RFC. 

See Valentine v. Comm 'r, 574 F.3d 685, 692 n.2 (9th Cir. 2009) ("We reject any invitation to 

find that the ALJ failed to account for [the plaintiff's] injuries in some unspecified way."). The 

ALJ' s reading of the record is rational and the Court cannot substitute its judgment for that of the 

ALJ. See Batson, 359 F.3d at 1198. 

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Furthermore, the ALJ was careful to note that his adverse credibility finding was not 

based solely on the lack of supporting objective medical evidence. Tr. 20. Based on this record, 

the Court cannot conclude that the ALJ erred in weighing the objective medical evidence as a 

factor in assessing Plaintiffs credibility. 

II. Daily Activities 

Daily activities can support the discounting of a claimant's alleged limitations when the 

claimant's activities either contradict her other testimony or meet the threshold for transferable 

work skills. Molina, 674 F.3d at 1112-13. In evaluating a claimant's purported limitations, the 

ALJ need not consider whether the claimant's activities are equivalent to full-time work; it is 

sufficient that the claimant's activities "contradict claims of a totally debilitating impairment." 

Id. at 1113. 

In this case, the ALJ found that Plaintiffs activities of daily living were inconsistent with 

her claims of a totally disabling impairment. Specifically, the ALJ noted that Plaintiff had lived 

alone for much of the relevant period and that she now performed housecleaning in lieu of rent. 

Tr. 21. Plaintiff performed household chores and was able to drive, in addition to cleaning. Tr. 

46. Plaintiff was "active" and contemplating a lengthy relocation to Florida. Tr. 21. Her 

physician had noted a significant amount of physical activity. Id. Most significantly, the ALJ 

noted that Plaintiff was self-employed as a house cleaner for between two and fourteen hours per 

week. Id. 

Plaintiff asserts that~ ALJ erred by considering her part-time work. Performance of 

job duties on a part-time basis, while not sufficient to establish the capacity to work full time, 

can constitute a legitimate reason for discounting a claimant's assertion of disability. See, e.g., 

Bray v. Comm 'r, 554 F.3d 1219, 1227 (9th Cir. 2009); Martin v. Colvin, No. 6:12-CV-2306-PK, 

Page 8 - ORDER 
2014 WL 2772551, at *13 (D. Or. June 18, 2014). The ALJ did not err by considering Plaintiffs 

part-time work. The ALJ also reasonably concluded that Plaintiffs other daily activities were 

inconsistent with her claims of a totally disabling impairment. 

Although Plaintiff presents an alternative interpretation of the record, the ALJ' s 

interpretation is rational and the Court may not substitute its judgment for that of the 

Commissioner. See Batson, 359 F.3d at 1198. 

III. Limited Treatment History 

An ALJ may consider whether a claimant's level or frequency of treatment is inconsistent 

with the level of complaints in making a credibility finding. ~Molina, 674 F.3d at 1114. 

"[U]nexplained, or inadequately explained, failure to seek treatment may be the basis for an 

adverse credibility finding, ... but disability benefits may not be denied because of a claimant's 

failure to obtain treatment he cannot obtain for lack of funds." Orn, 495 F.3d at 638 (internal 

quotation marks and citation omitted). 

In this case, the ALJ noted that Plaintiff had only seen a treatment provider four times in 

two years. Tr. 20. Plaintiff testified that the last time she had ongoing treatment of any kind was 

in 2009. Tr. 40-41. At the hearing, the ALJ asked why Plaintiff had received less treatment 

recently and Plaintiff explained that she has limited insurance, which will cover initial 

consultations and x-rays, but will not cover treatment, although she later clarified that there were 

certain procedures that would be covered. Tr. 39, 41-42. The ALJ found this explanation 

unpersuasive in light of the alleged severity of Plaintiffs conditions, the fact that Plaintiff had 

health insurance, and the limited number of visits to medical providers. Tr. 20. 

Conservative treatment, such as managing pain with over-the-counter medication, may 

also be "sufficient to discount a claimant's testimony regarding [the] severity of an impairment." 

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Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007). Plaintiff alleges severe pain from her 

impairments. Tr. 35, 39, 42, 45. Plaintiff does not like to take prescription pain medication, 

however, and and uses ibuprofen, Epsom salts, Ben-Gay, and cold packs to manage her pain. Tr. 

40, 45-46. Plaintiff testified that she takes Lorazepam at night because it calms her down and 

helps her sleep. Tr. 50. An ALJ may infer that pain is not disabling if the claimant seeks only 

minimal conservative treatment. Tommasetti, 533 F.3d at 1039-40. The ALJ appropriately 

considered Plaintiffs limited treatment history and conservative treatment in weighing Plaintiffs 

credibility. 

CONCLUSION 

Based on the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), the decision 

of the Commissioner is AFFIRMED. 

r-t- t1AY 

It is so ORDERD and DATED this o day of ~2017. 

THOMAS CO 

Page 10 - ORDER