IN THE UNITED STATES DISTRICT COURT 


FOR THE DISTRICT OF OREGON 


EUGENE DIVISION 


GAIL ANN SIGHTS, Case No. 6:15-cv-00717-AA 

OPINION AND ORDER 

Plaintiff, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of Social Security, 

Defendant. 

Alan Stuart Graf, P.C. 

208 Pine Street 

Floyd, Virginia 24091 

Attorney for plaintiff 

Janice E. Hebe1t 

Assistant United States Attorney 

United States Attorney's Office 

1000 S.W. Third Avenue, Suite 600 

Po1tland, Oregon 97201 

Sarah L. Martin 

Special Assistant United States Attorney 

Office of General Counsel 

Social Security Administration 

701 Fifth Avenue, Suite 2900 MIS 221A 

Seattle, Washington 98104 

Attorneys for defendant 

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Case 6:15-cv-00717-AA Document 32 Filed 09/26/16 Page 1 of 12
AIKEN, Judge: 

Plaintiff Gail Ann Sights brings this action pursuant to the Social Security Act, 42 U.S.C. § 

405(g), to obtain judicial review of a final decision of the Commissioner of Social Security 

("Commissioner"). The Commissioner denied plaintiffs application for Disability Insurance 

Benefits ("DIB"). For the reasons set forth below, the Commissioner's decision is affi1med. 

BACKGROUND 

On April 2, 2012, plaintiff protectively filed for DIB. 131-39. She alleges disability beginning 

April 12, 2012, 1 due to learning disability, memmy loss, varicose veins, back problems, dyslexia, 

and seizures. Tr. 67, 156. The claim was denied initially and upon reconsideration. Tr. 16. On April 

22, 2014, a hearing was held before an Administrative Law Judge ("ALJ"). Tr. 30. Plaintiff, 

represented by counsel, testified, as did a vocational expert ("VE"). Tr. 30. On June 5, 2014, the ALJ 

issued an unfavorable decision. Tr. 25. On February23, 2015, the Appeals Council declined review, 

making the ALJ's decision the final decision of the Commissioner. Tr. I. Plaintiff then filed a 

complaint in this Court. 

STANDARD OF REVIEW 

The district court must affi1m the Commissioner's decision ifit is based upon proper legal 

standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); 

Beny 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 support a conclusion." Gutierrezv. Comm 'rofSoc. Sec., 740 F.3d 519, 522 (9th Cir. 

1 Plaintiff originally asserted a disability onset date ofNovembcr 23, 2011, the day she 

was in a car accident that caused her back pain and other problems. Tr. 36, 152. At the hearing, 

she amended her onset date to April 12, 2012, the day she left her most recent job. Tr. 37. 

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Case 6:15-cv-00717-AA Document 32 Filed 09/26/16 Page 2 of 12
2014) (internal quotations marks omitted). The court must weigh "both the evidence that supports 

and the evidence that detracts from the ALJ's conclusion." Aiayes v. lvfassanari, 276 F.3d 453, 459 

(9th Cir. 2001 ). Ifthe evidence is susceptible to more than one interpretation but the Commissioner's 

decision is rational, the Commissioner must be affirmed because "the court may not substitute its 

judgement for that of the Commissioner." Edlund v. lvfassanari, 253 F.3d 1152, 1156 (9th Cir. 

2001). 

COMMISSIONER'S DECISION 

The initial burden ofproofrests upon the plaintiff to establish disability. Howard v. Heckler, 

782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the plaintiff must demonstrate an 

"inability to engage in any substantial gainful activity by reason of any medically dete1minable 

physical or mental impairment which can be expected ... to last for a continuous period ofnot less 

than 12 months[.]" 42 U.S.C. § 423(d)(l)(A). 

The Commissioner has established a five-step sequential process for dete1mining whether 

a person is disabled. Brown v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4). At 

step one, the ALJ found plaintiff had not engaged in substantial gainful activity since April 12, 2012, 

the alleged disability onset date. Tr. 18; 20 C.F.R. §§ 04.1520(a)(4)(i), (b). At step two, the ALJ 

found plaintiff had the following severe impairments: degenerative disc disease and seizure disorder. 

Tr. 18; 20 C.F.R. §§ 1520(a)(4)(ii), ( c). At step t!n·ee, the ALJ determined plaintiff did not have an 

impairment or combination ofimpairments that met or medically equaled the severity ofone ofthe 

listed impairments "that the [Commissioner] acknowledges are so severe as to preclude substantial 

gainful activity." Tr. 20; 20 C.F.R. §§ 404. l 520(a)( 4)(iii), ( d). 

The ALJ found plaintiff retained the residual functional capacity ("RFC") 

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Case 6:15-cv-00717-AA Document 32 Filed 09/26/16 Page 3 of 12
to perfmm light work as defined in 20 C[.]F[.]R[. §] 404.1567(b) except the claimant 

is further limited to no more than occasional climbing ofropes, scaffolds, and ladders. 

The Claimant would also need to avoid more than occasional exposure to moving 

machine1y, unprotected heights, and similar hazards. 

Tr. 20; 20 C.F.R. § § 404.1520(e). At step four, the ALJ concluded plaintiff was capable of 

performing past relevant work as a sorter and ticket taker. Tr. 25; 20 C.F.R.§§ 404.1520(a)(4)(iv), 

(f). Accordingly, the ALJ found plaintiff had not been under a disability from April 12, 2012, 

through the date ofhis decision. Tr. 25. 

DISCUSSION 

Plaintiff argues theALJ eJTed when he (I) gave little weight to plaintiffs subjective symptom 

testimony; (2) rejected certain medical opinions by plaintiffs treating physicians; and (3) found 

plaintiffs carpal tmmel syndrome was not a severe impairment. 

I. Plaintiff's Subjective Symptom Testimony 

"In evaluating the credibility of a claimant's testimony regarding subjective pain, an ALJ 

must engage in a two-step analysis." i\10/ina v. Astme, 674 F.3d 1104, 1112 (9th Cir. 2012). 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. Id. Ifthe claimant meets this first test and there is no evidence ofmalingering, the ALJ can 

reject the claimant's testimony about the severity ofher symptoms only by offering specific, clear, 

and convincing reasons for doing so. Id. "General findings are insufficient; rather, the ALJ must 

identify what testimony is not credible and what evidence unde1mines the claimant's complaints." 

Beny, 622 F.3d at 1234 (citingLesterv. Chater, 81F.3d821, 834 (9th Cir. 1995)). 

Plaintiff states she has "sharp" pain in the "middle ofher back" and in her "lower back." Tr. 

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Case 6:15-cv-00717-AA Document 32 Filed 09/26/16 Page 4 of 12
206. She experiences the pain "all day [and] night long." Tr. 206. She stopped working in April 

2012 because her pain "became aggressively worse and finally was too much" to permit her to keep 

working. Tr. 38. The pain was so severe she could not move and was "crying a lot" at work. Tr. 198. 

"Standing or walking hnrts for any long period oftime." Tr. 39. She is able to go shopping, but not 

"for a ve1y long time because then it starts hurting [her] back." Tr. 41. She can walk for "[m]aybe 

a block" before she needs to rest. Tr. 45. She participated in a three-mile charity walk but "was in 

a lot of pain" by the end. Tr. 45. She is in pain "all day." Tr. 199. 

The ALJ found plaintiffs impahments could be expected to produce the symptoms alleged. 

Tr. 21. However, the ALJ dete1mined plaintiffs statements regarding the purported intensity, 

persistence, and limiting effects ofher impaim1ents were not entirely credible. Tr. 21. 

The ALJ first concluded the "obj ectivc medical evidence of]] record is inconsistent with 

[plaintiffs] alleged pain level." Tr. 23. An ALJ may consider inconsistencies between subjective 

symptom testimony and objective medical evidence in determining whether to credit that symptom 

testimony. See Johnson v. Shala/a, 60 F.3d 1428, 1434 (9th Cir. 1995) (listing identification of 

"several contradictions between claimant's testimony and the relevant medical evidence" among 

clear and convincing reasons supporting rejecting ofpain testimony). Here, the ALJ provided several 

clear, specific examples of inconsistency between objective medical evidence and plaintiffs 

proclaimed pain level. For example, the ALJ noted that during one doctor's visit plaintiff asserted 

"I 0/1 O" pain in her central back, but the physician observed plaintiff only displayed "some mild 

discomfort" when sitting, transitioning, or standing during the examination. Tr. 21-23, 278. TheALJ 

also cited a different doctor's notation of a discrepancy between plaintiffs subjective pain 

allegations and herappearance. Tr. 22-23, 427 ("I note that she rates her pain scale at a 9. She does 

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Case 6:15-cv-00717-AA Document 32 Filed 09/26/16 Page 5 of 12
not look overtly uncomfortable until she tries to get offthe bench in the room and then she winces."). 

Plaintiff cites Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986), for the proposition that 

"it is improper as a matter oflaw for an ALJ to discredit excess pain testimony solely on the ground 

that it is not fully con-oborated by objective medical findings." But the ALJ did not discredit 

plaintiffs pain complaints due to absence of medical evidence, she found those complaints 

inconsistent with the doctors' objective observations. The ALJ rationally considered assertions of 

9/10 and 10/10 pain inconsistent with demonstrating only mild to moderate discomfort. 

The ALJ also found plaintiffs pain testimony inconsistent with her reported activities of 

daily living ("ADL"). An ALJ may consider "whether the claimant engages in daily activities 

inconsistent with the alleged symptoms" in evaluating the credibility of symptom testimony. 

Lingenfelterv. Astrue, 504F.3d1028, 1040 (9th Cir. 2007). Here, theALJ noted plaintiff completed 

a three-mile charity walk, took partial responsibility for household chores, made short groce1y store 

trips, threw a Frisbee to her grandson's dog, visited with her neighbors, and perfmmed 2-3 hour 

stretches of yard work. Tr. 23-24. 

Plaintiff attempts to explain her ability to engage in these activities by asserting her pain 

waxes and wanes. Pl. 's Br. 8-9. There is ample evidence ofwaxing and waning pain in the record. 

For example, Dr. Gittins wrote plaintiffs self-reported pain levels "wax and wane." Tr. 348. In a 

questioru1aire, Dr. Beckstrand noted likely "flareups" ofpain. Tr. 463. Dr. Weller stated in January 

2012 that plaintiff reported "her pain is often worse first thing in the morning[.]" Tr. 270. In April 

2012, plaintiff told Dr. Gittins her pain levels were "mild in the morning" and progressively 

worsened throughout the day. Tr. 315. And at the hearing, plaintiff testified some days are worse 

than others in terms ofpain. Tr. 4 7. 

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Case 6:15-cv-00717-AA Document 32 Filed 09/26/16 Page 6 of 12
However, plaintiff repeatedly alleges she is always in pain. In a June 2012 pain and fatigue 

questionnaire, plaintiff reported "pain all the time and it is all day and night long." Tr. 206. In an 

adult function report filled out the same month, plaintiff stated she was "in pain all day" and she 

"go[ es] to bed ... in pain[,] sleep[ s] 3-4 [hours]," and then is up every hour due to pain. Tr. 199. In 

short, even accepting that plaintiffs pain waxes and wanes, plaintiff repeatedly stated her pain is 

severe even during the "waning" periods. The ALJ permissibly found plaintiffs AD Ls inconsistent 

with these allegations of constant pain. 

Next, the ALJ noted plaintiff chose not to take prescribed medications or engage in a set of 

other suggested treatments in favor ofhomeopathic remedies. Tr. 23. Electing conservative treatment 

permits an inference that symptoms are not as severe as alleged. Tommasetti v. Astnie, 533 F.3d 

1035, 1039 (9th Cir. 2008). 

The ALJ described a July 2012 doctor's visit in which plaintiff reported she had attended six 

physical therapy sessions without noticing any significant improvements. The ALJ stated "[t]here 

are no cmrnsponding treatment records in the file to support the claimant's statements that she 

attended PT." Tr. 22. With respect to a June 2012 independent medical exam by Dr. Muzzana, a 

chiropractor, the ALJ noted the record did not contain "a copy of the actual exam or the findings." 

Tr. 22. After the ALJ issued his decision, plaintiff submitted additional evidence to the Appeals 

Council. That evidence included physical therapy notes from visits in May through August 2012 and 

Dr. Muzzana's examination report. 

Plaintiff argues this new evidence "significantly changes" the credibility analysis. Pl.' s Br. 

14. I disagree. First, Dr. Muzzana confoms plaintiff suffers from back pain and numbness/tingling 

in her hand and states those symptoms stem from cerviothoracic injuries and carpal tunnel symptom. 

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Case 6:15-cv-00717-AA Document 32 Filed 09/26/16 Page 7 of 12
Tr. 472. However, Dr. Muzzana says nothing about the severity ofplaintiffs pain or how that pain 

affects plaintiffs ability to work. Dr. Mnzzana's report therefore does not affect the ALJ's 

evaluation ofplaintiffs testimony regarding symptom severity.' 

The supplemental evidence does undercut one ofthe ALJ' s reasons for discrediting plaintiffs 

testimony: the absence of the physical therapy and chiropractic examination notes is not a 

convincing reason to question plaintiffs pain testimony, as those records clearly exist. However, any 

e1rnr was hannless. The ALJ's decision also rested on inconsistencies between plaintiffs pain 

testimony and her ADLs, treatment choices, and doctors' observations, all of which are clear, 

convincing reasons for rejecting plaintiffs testimony. See Carmickle v. Comm 'r ofSoc. Sec. Admin., 

533 F.3d 1155, 1162 (9th Cir. 2008) (when ALJ's decision rested on at least one impem1issible 

consideration, "[t]he relevant inquiry ... is whether the ALJ's decision remains legally valid, despite 

such error"). The ALJ's decision to discredit plaintiffs subjective symptom testimony is supported 

by substantial evidence. 

11. ALJ's Rejection ofMedical Opinions 

Plaintiff next argues the ALJ did not give sufficient reasons to reject the opinions of two 

treating physicians, Dr. Weller and Dr. Beckstrand. The ALJ is the arbiter of conflicting and/or 

ambiguous evidence in the medical record. Edlund, 253 F.3d at 1156. If a treating physician's 

opinion is contradicted by another doctor's opinion, the ALJ may reject the treating opinion only by 

2 Defendant argues the Commissioner was free to disregard Dr. Muzzana's opinion 

because chiropractors are not acceptable medical sources. That is a misleading oversimplication 

of the law. Under the regulations, only an acceptable medical course may offer evidence to 

establish a medically determinable impairment. 20 C.F.R. § 416.913(a). But the regulations 

expressly provide for the use of chiropractors' opinions in evaluating impairment severity. Id. § 

416.913(d)(l). 

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Case 6:15-cv-00717-AA Document 32 Filed 09/26/16 Page 8 of 12
providing specific, legitimate reasons based on substantial evidence in the record. Valentine v. 

Comm 'r ofSoc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). Ifa treating doctor's opinion is not 

contradicted by another doctor, it may be rejected by the ALJ only for "clear and convincing" reasons 

supported by substantial evidence in the record. Ryan v. Comm 'r ofSoc. Sec., 528 F.3d 1194, 1198 

(9th Cir. 2008). 

First, plaintiff asserts the ALJ gave insufficiently specific reasons for rejecting Dr. Weller's 

April 23,2012 report. In that report, Dr. Weller noted plaintiff was applying for disability benefits 

"related especially to the thoracic pain, seizure disorder and carpal tunnel syndrome." Tr. 279. The 

ALJ gave Dr. Weller's opinion little weight because Dr. Weller "fail[ed] to note why these 

conditions are disabling and how they affect the claimant's actual level offunction." Tr. 24. The ALJ 

also considered Dr. Weller's objective findings of thoracic tenderness and some loss of range of 

motion inconsistent with total disability. Tr. 24. 

Any error in giving little weight to the April 23 report was harmless. The plaintiff's properly 

discredited subjective pain statements must be removed from that report. With those statements 

removed, the report - even if credited as true - would establish only that plaintiff had some 

tenderness and loss ofmotion and required further thoracic workup. The report contains no specific 

limitations about plaintiff's ability to function in the workplace. Moreover, the level of pain 

supported by Dr. Weller's objective clinical findings is adequately accounted for by the RFC's 

limitation to light work.3 

3 The ALJ apparently inte1preted Dr. Weller's April 23 note as an opinion that plaintiff 

was disabled. I find the note ambiguous on this point. Noting that a patient is applying for 

disability benefits is not the same as opining that patient is disabled. However, to the extent Dr. 

Weller opined plaintiff was disabled, the ALJ owed no deference to that opinion because it was a 

statement about the ultimate issue of disability. 20 C.F.R. § 404.1527(d)(l) ("We are responsible 

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Case 6:15-cv-00717-AA Document 32 Filed 09/26/16 Page 9 of 12
Second, plaintiff challenges the ALJ' s decision to discount a questionnaire filled out by Dr. 

Beckstrand. The questionnaire asks whether ( 1) plaintiffs pain would preclude her from performing 

basic work activities, (2) plaintiff would need to take additional breaks due to pain, and (3) plaintiff 

would be absent at least two work days per month even if employed in a low-stress, sedentary, 

simple job. Tr. 463-64. Dr. Beckstand responded "yes" to each ofthese questions. Tr. 463-64. The 

ALJ assigned little weight to the questionnaire. Tr. 24. Because the questioruiaire conflicts with other 

medical evidence in the record, the ALJ was required to reject it for specific, legitimate reasons. 

The ALJ's reasoning meets that standard. First, the ALJ explained Dr. Beckstrand had 

questioned the reliability ofplaintiff's assessment of her own pain, and noted plaintiff's pain had 

appeared to be so mild on a recent visit Dr. Beckstrand declined to conduct a physical spine 

examination. The ALJ rationally found those observations ofmild pain inconsistent with the severe 

limitations in the questiomiaire. Second, the ALJ noted Dr. Weller found plaintiff with full thoracic 

rotation on both sides with subjective pain complaints and normal neurological testing. Tr. 438. 

Again, the ALJ reasonably found those clinical results inconsistent with the level oflimitation in Dr. 

Beckstrand's opinion. Finally, the ALJ found the limitations assessed by Dr. Beckstrand inconsistent 

with plaintiff's failure to follow prescribed treatments and with plaintiffs ADLs, specifically 

referencing plaintiff's ability to do yard work, do housework, complete a three-mile walk, and care 

for her autistic grandson. As explained in section I of this opinion, those findings ofinconsistency 

arc supported by substantial evidence. The ALJ therefore provided specific, legitimate reasons to 

give little weight to the questionnaire. 

for making the determination of decision about whether you meet the statutory definition of 

disability. A statement by a medical source that you are 'disabled' ... does not mean that we 

will dctennine you are disabled.") 

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Case 6:15-cv-00717-AA Document 32 Filed 09/26/16 Page 10 of 12
III. ALi's Finding ofPlaintiff's Caipal Tunnel Syndrom as Not Severe 

Finally, plaintiff argues the ALJ erred in finding her carpal tunnel syndrome non-severe 

because "a finding that Plaintiff was limited in the use ofher left hand could result in a difference 

in the disability determination." Pl.'s Br. 17. At step two of the five-step sequential evaluation 

process, the ALJ decides whether plaintiff has a medically detenninable severe impainnent or 

combination ofimpairments that lasts or could be expected to last for a continuous period ofnot less 

than twelve months. 20 C.F.R. §§ 404.1505(a), 404.1509. 404.1520(a)(4)(ii), (c). Plaintiff must 

prove the physical or mental impairment by providing medical evidence consisting of signs, 

symptoms, and laboratory findings; the claimant's own statement ofsymptoms alone will not suffice. 

20 C.F.R. §§ 404.1508, 416.908. 

The ALJ's discussion ofplaintiffs carpal tunnel syndrome is ve1y brief, consisting of the 

following two sentences: 

The claimant also has exhibited symptoms ofor been diagnosed with carpal 

tunnel syndrome (Ex. 4F). The objective medical evidence does not indicate that 

these impaiiments have caused significant vocational limitations for at least 12 

consecutive months, therefore they arc deemed non-severe. 

Tr. 18. 

Exhibit 4F consists of twenty-five pages of medical records. Those records show the 

following: in Janumy 2012, Dr. Weller diagnosed plaintiff with "probable carpal tunnel syndrome 

left upper extremity" caused by injuries sustained in a car accident in November 2011. Tr. 272. 

After an evaluation at with Rehabilitation Medicine Associates, plaintiff was diagnosed with carpal 

tunnel syndrome; she was prescribed use of a splint "at night, while driving, and as needed during 

daytime," with a recommended surgical referral ifnumbness did not resolve within a month. Tr. 273. 

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Case 6:15-cv-00717-AA Document 32 Filed 09/26/16 Page 11 of 12
A May 2012 treatment note indicates plaintiff was "await[ing] surgical consultation." Tr. 280. No 

records indicate plaintiff consulted with a surgeon or obtained fmiher interventions for carpal tunnel 

syndrome. In her opening brief, plaintiff cites other records documenting numbness and tingling in 

her left hand; all ofthose records take place in the six-month span betweenNovember2011 and June 

2012. See Tr. 239, 322, 323, 354, 364, 472. Moreover, none of those records address severity with 

any specificity or suggest specific workplace limitations. Accordingly, the ALJ reasonably screened 

out plaintiffs carpal tunnel syndrome at step two because there is no evidence it persisted as a severe 

impaitment for twelve months. 

CONCLUSION 

The Commissioner's decision is AFFIRMED and this case is DISMISSED. 

IT IS SO ORDERED. 

Dated thi~ay of September, 2016. 

AnnAiken 


United States District Judge 


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