UNITED STATES DISTRICT COURT 

FOR THE DISTIUCT OF OREGON 

PORTLAND DIVISION 

BRUCE ALLEN WILLIAMS, ) Case No. 3:16-cv-0054-AC 

) 

Plaintiff, ) 

) 

V. ) 

) 

NANCY A BERRYHILL, ) 

Acting Commissioner of Social Security, ) 

) 

Defendant. ) 

ACOSTA, Magistrate Judge: 

FINDINGS AND 

RECOMMENDATION 

Bruce Williams ("plaintiff') seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration ("Commissioner") denying his applications 

for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Because 

the Commissioner's decision is suppo1ted by substantial evidence, the decision should be 

AFFIRMED. 

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1 - FINDINGS AND RECOMMEND A TIO NS 
Procedural Background 

Plaintiff filed his applications for SSI and DIB on November 7, 2012, alleging disability 

as of July 1, 2009. (Tr. 200-01.) The Commissioner denied his applications initially and upon 

reconsideration, and he requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 

110-13, 120-28.) An administrative hearing was held on November 21, 2014, and plaintiff 

amended his alleged onset date to April 27, 2011. (Tr. 26, 31.) After the hearing, the ALJ issued 

an unfavorable decision dated December 24, 2014. (Tr. 9-25.) The Appeals Council denied 

plaintiffs subsequent request for review on November 13, 2015, making the ALJ's decision 

final. (Tr. 1-6.) This appeal followed. 

Plaintiff argues that the ALI en-ed by: (I) rejecting the medical opinion of treating 

physician Kim Kelly, M.D.; (2) improperly rejecting his subjective symptom testimony; (3) 

improperly rejecting the lay testimony; and (4) failing to find his lmee impairment to be severe at 

step two. 

Factual Background 

Born in April, 1961, plaintiff was 53 years old at the time of the hearing. (Tr. 33-34, 

212.) He completed the twelfth grade and has past work experience framing and building 

houses. (Tr. 35, 50-51, 54, 217.) He alleges disability due to atrophy and wealmess in his left 

hand, degenerative disc disease of the lumbar spine, a torn meniscus, recurrent thrombophlebitis, 

and diabetes. (Tr. 216.) 

Standard of Review 

The court must affirm the Commissioner's decision if it is based on proper legal 

standards and the findings are supported by substantial evidence in the record. Hammock v. 

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. 

Page 2 - FINDINGS AND RECOMMENDATION 
It 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) (quoting Consol. Edison Co. v. 

N.L.R.B., 305 U.S. 197, 229 (1938)). The 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). "Where the evidence as a whole can support either a grant or a denial, [a court] may 

not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 

2007) (citation omitted). 

The initial burden of proof rests upon the claimant to establish disability. Howard v. 

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

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

determinable physical or mental impairment which can be expected ... to last for a continuous 

period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A). 

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, 

416.920. First, the Commissioner determines whether a claimant is engaged in "substantial 

gainful activity"; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 

404.1520(b), 416.920(b). 

At step two, the Commissioner determines whether the claimant has a "medically severe 

impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 

404.1520(c), 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. 

At step three, the Commissioner determines whether the impairment meets or equals "one 

of a number of listed impairments that the Secretary aclmowledges are so severe as to preclude 

substantial gainful activity." Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is 

Page 3 - FINDINGS AND RECOMMENDATION 
conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 

U.S. at 141. 

At step four, the Commissioner determines whether the claimant can still perform "past 

relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant 

can work, she is not disabled; if she cannot perfmm past relevant work, the burden shifts to the 

Commissioner. Yuckert, 482 U.S. at 141. At step five, the Commissioner must establish that the 

claimant can perform other work. Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). 

If the Commissioner meets this burden and proves that the claimant is able to perform other work 

which exists in the national economy, she is not disabled. 20 C.F.R. §§ 404.1566, 416.966. 

The ALJ's Findings 

The ALJ performed the sequential analysis. At step one, she found that plaintiff had not 

engaged in substantial gainful activity since his amended alleged onset date of April 27, 2011. 

(Tr. 14.) At step two, the ALJ concluded that plaintiff had the following severe impairments: 

mild degenerative disc disease of the lumbar spine, residuals from removal of lipoma of the left 

upper extremity, and diabetes. (Tr. 14.) At step three, the ALJ dete1mined that plaintiff did not 

have an impairment or combination of impairments that met or medically equaled a listed 

impairment. (Tr. 15.) 

The ALJ next assessed plaintiffs residual functional capacity ("RFC") and found that 

plaintiff could perform light work with the following limitations: he can lift and can'Y I 0 pounds 

frequently and 20 pounds occasionally; he can stand or walk for 4 hours and sit for 4 hours in an 

8-hour day; he can occasionally climb ramps and stairs but cannot climb ladders, ropes or 

scaffolds; he can occasionally stoop, kneel, crouch and crawl; he can do no overhead reaching 

with the left upper extremity; he can occasionally handle and finger with the left, non-dominant, 

Page 4- FINDINGS AND RECOMMENDATION 
upper extremity; and he should avoid exposure to hazards such as unprotected heights and 

dangerous machinery. (Tr. 15.) 

At step four, the ALJ found that plaintiff was unable to perform his past relevant work. 

(Tr. 19.) At step five, the ALI determined that plaintiff retained the residual functional capacity 

to perform jobs that exist in significant numbers in the national economy, including rental clerk 

and ticket taker. (Tr. 19-20.) The ALI therefore concluded that plaintiff was not disabled. (Tr. 

20.) 

Discussion 

I. Treating Physician Kim Kelly, M.D. 

Plaintiff first argues that the ALI erred by rejecting the opinion of treating physician Kim 

Kelly, M.D. The ALI is responsible for resolving conflicts in the medical record, including 

conflicts among physicians' opinions. Carmickle v. Comm 'r, 533 F.3d 1155, 1164 (9th Cir. 

2008). The Ninth Circuit distinguishes between the opinions of three types of physicians: 

treating physicians, examining physicians, and non-examining physicians. The opinions of 

treating physicians are generally accorded greater weight than the opinions of non-treating 

physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating doctor's opinion that 

is not contradicted by the opinion of another physician can be rejected only for "clear and 

convincing" reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). 

If a treating doctor's opinion is contradicted by the opinion of another physician, the ALI 

must provide "specific, legitimate reasons" for discrediting the treating doctor's opinion. 

Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). In addition, the ALJ generally must 

accord greater weight to the opinion of an examining physician than that of a non-examining 

physician. Lester, 81 F.3d at 830. As is the case with the opinion of a treating physician, the 

Page 5 -FINDINGS AND RECOMMENDATION 
ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of an 

examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). If the opinion of an 

examining physician is contradicted by another physician's opinion, the ALJ must provide 

"specific, legitimate reasons" for discrediting the examining physician's opinion. Lester, 81 F.3d 

at 830. Specific, legitimate reasons for rejecting a physician's opinion may include its reliance 

on a claimant's discredited subjective complaints, inconsistency with medical records, 

inconsistency with a claimant's testimony, and inconsistency with a claimant's daily activities. 

Tommasetti v. Astrue, 533 F.3d 1035, 1040-41 (9th Cir. 2008). 

Dr. Kelly opined that plaintiff would experience substantial difficulty with stamina, pain 

or fatigue if he were working full-time at light or sedentary levels. (Tr. 449.) She stated that 

plaintiff would need to change position or posture more than once every two hours because of 

back pain. (Tr. 451.) Dr. Kelly opined that plaintiff could stand and walk about four hours in an 

eight-hour day, and sit or stand for only 30 minutes before he would need to change position. Id. 

She opined that plaintiff must walk around every 20 minutes for about 10 minutes, and needed 

the opportunity to shift at will from sitting to standing or walking. (Tr. 452.) Dr. Kelly indicated 

that plaintiff had poor dexterity in his left hand and that he would be absent from work about 

once a month due to his impairments and treatments. (Tr. 453-54.) 

The ALJ rejected parts of Dr. Kelly's opinion that were inconsistent with other credible 

evidence in the record. (Tr. 18.) First, the ALJ found that pmts of Dr. Kelly's opinion were 

inconsistent with plaintiff's activities of daily living. The ALJ may discount a doctor's opinion 

to the extent that it conflicts with a claimant's daily activities. Morgan v. Comm 'r, 169 F.3d 595, 

601-02 (9th Cir. 1999). Here, the ALJ noted that plaintiff was able to complete extensive yard 

work, suggesting "greater abilities" than Dr. Kelly's opinion indicated. (Tr. 18, 467, 469.) It 

Page 6-FINDINGS AND RECOMMENDATION 
was reasonable for the ALJ to conclude that plaintiffs activities contradicted Dr. Kelly's opinion 

that he was significantly limited in his physical abilities. The ALJ therefore provided a legally 

sufficient reason for rejecting Dr. Kelly's opinion. Bayliss v. Barnhart, 427 F.3d 1211, 1216 

(9th Cir. 2005). The ALJ's rejection of Dr. Kelly's opinion was supported by substantial 

evidence and should be affirmed. 

The ALJ also found that Dr. Kelly's opinion was contradicted by medical evidence in the 

record. (Tr. 18.) Here, an examination in September 2012 revealed that plaintiff had full finger 

extension/flexion with no tenderness in plaintiffs left hand. (Tr. 333-34.) This evidence 

arguably conflicted with Dr. Kelly's opinion that plaintiff had poor dexterity in his left hand. 

The ALJ properly resolved this conflict in the medical record by rejecting part of Dr. Kelly's 

opinion. Carmickle, 533 F.3d at 1164. In sum, the ALJ provided legally sufficient reason for 

rejecting Dr. Kelly's opinion. While plaintiff provides an alternative, reasonable interpretation 

of the evidence, the ALJ's evaluation of the evidence was rational and should be affirmed. 

Massachi, 486 F.3d at 1152. 

)l. Plaintiffs Testimony 

Plaintiff next argues that the ALJ erred by rejecting his subjective symptom testimony. 

The Ninth Circuit has developed 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). Second, "ifthe claimant meets the first test, and there is no evidence 

of malingering, 'the ALJ can reject the claimant's testimony about the severity of her symptoms 

Page 7 - FINDINGS AND RECOMMENDATION 
only by offering specific, clear and convincing reasons for doing so."' Id., quoting Smolen v. 

Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). The ALJ's overall credibility determination may be 

upheld even if not all of the ALJ's reasons for rejecting the claimant's testimony are upheld. 

Batson v. Comm 'r, 359 F.3d 1190, 1197 (9th Cir. 2004). 

Plaintiff testified that he suffers from pain in his arm and cannot grip with his left hand or 

extend the fingers of his left hand. (Tr. 41.) He can perform minor tasks but cannot perform his 

past work framing houses or fixing siding due to back pain. (Tr. 42.) Plaintiff suffers from knee 

pain when he goes into a deep lmee bend, and a doctor instructed him not to lift over 10 pounds 

because of his back condition. (Tr. 44.) He stated that his lmees go out about once a week, 

depending on how active he is. Id. Plaintiff testified that he cannot sit for more than an hour 

before he needs to stand up, and he can stand for about an hour before he needs to sit down. (Tr. 

48.) Once or twice per week his pain is so intense that he cannot do anything and has to lie 

down. (Tr. 50.) 

The ALJ rejected plaintiffs testimony regarding the severity of his symptoms and 

limitations. (Tr. 16-19.) First, the ALJ found that plaintiffs alleged symptoms and limitations 

were not consistent with his daily activities. (Tr. 18.) An ALJ may reject a claimant's 

allegations when they are inconsistent with his reported activities, even if he has some difficulty 

completing those activities. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012). Here, the 

ALJ noted that plaintiff was able to perform extensive yard work and help a friend with 

construction work. (Tr. 18, 457, 467, 469.) The record also reveals that plaintiff was at work in 

August 2011, after his alleged onset date. (Tr. 348.) These activities reasonably indicate that 

plaintiff was less impaired than alleged in his testimony, and the ALJ's inference rejection of 

plaintiffs testimony was rational. Molina, 674 F.3d at 1112-13. 

Page 8 -FINDINGS AND RECOMMENDATION 
Second, the ALJ found that plaintiffs testimony was contradicted by the medical 

evidence of record. (Tr. 17-18.) Minimal objective findings can undermine a claimant's 

credibility when other legally sufficient reasons for rejecting her testimony are present. Burch v. 

Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). Here, the ALJ noted that there was minimal 

evidence related to plaintiffs back pain. For example, in October 2012 plaintiff exhibited no 

tenderness and full range of motion, full lower extremity strength and negative straight leg raise. 

(Tr. 411.) An examination in September 2012 revealed full finger extension/flexion with no 

tenderness in plaintiffs left hand, contradicting plaintiffs testimony that he cannot extend the 

fingers on his left hand. (Tr. 41, 333-34.) It was reasonable for the ALJ to conclude from this 

record that plaintiff was less limited than alleged in his testimony. Burch, 400 F.3d at 680-81. 

Because the ALJ provided legally sufficient reasons for rejecting plaintiffs subjective symptom 

testimony, the court should affirm his credibility finding. 

III. Lay Testimony of Toni Williams 

Plaintiff next argues that the ALJ erred by rejecting statements made by plaintiffs wife 

Toni Williams. The ALJ must provide "germane reasons" for rejecting lay witness testimony. 

20 C.F.R. §§ 404.1513(d)(l), 416.913(d)(l ); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 

Ms. Williams stated that plaintiff could not do much with his left hand. She stated that he 

suffered from neck, back, and knee pain, and could no longer fish or hunt. Ms. Williams 

repmied problems lifting, bending, standing, reaching, walldng, sitting, climbing stairs, and 

using his hand. (Tr. 266-72.) 

The ALJ found that Ms. Williams's testimony was generally credible, but rejected some 

of her opinion regarding the severity of plaintiffs limitations. (Tr. 18.) The ALJ found that Ms. 

Williams's opinion was inconsistent with plaintiff's daily activities, which, as discussed above, 

Page 9 - FINDINGS AND RECOMMENDATION 
include extensive ymd work and construction work. (Tr. 18, 467, 469.) Ms. Williams's opinion 

also conflicted with objective medical evidence in the record, including evidence that plaintiff 

had full finger extension and flexion in his left hand, with no tenderness. (Tr. 333-34.) On this 

record, the ALJ provided germane reasons for rejecting Ms. Williams's testimony and her 

evaluation of the lay testimony should be affirmed. Lewis, 236 F.3d at 511. 

IV. Step Two Findings 

Plaintiff also argues that the ALJ erred because she did not find his knee impaitment to 

be severe at step two of the sequential analysis. At step two, the Commissioner determines 

whether the claimant has a "medically severe impaimlent or combination of impairments." 

Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). "An impairment or 

combination of impairments can be found 'not severe' only if the evidence establishes a slight 

abnormality that has 'no more than a minimal effect on an individual's ability to work."' 

Smolen, 80 F.3d at 1290 (quoting Social Security Ruling (SSR) 85-28). To establish the 

existence of a medically determinable impairment, the claimant must provide medical evidence 

consisting of "signs - the results of 'medically acceptable clinical diagnostic techniques,' such 

as tests - as well as symptoms." Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). A 

claimant's own statement of symptoms alone is not enough to establish a medically detenninable 

impairment. See 20 C.F.R. §§ 404.1508, 416.908. 

The ALJ resolved step two in plaintiffs favor, but did not find plaintiffs knee condition 

to be a severe impairment. (Tr. 14-15.) Here, the ALJ considered the entire medical record and 

credited evidence that plaintiffs 2013 knee exam was normal and that he exhibited no objective 

symptoms to indicate a knee impairment. (Tr. 15, 446-4 7.) On this record, it was rational for the 

ALJ to infer that plaintiffs knee condition had no more than a minimal effect on his ability to 

Page IO-FINDINGS AND RECOMMENDATION 
work. Smolen, 80 F.3d at 1290. The ALJ's reasonable interpretation of the evidence regarding 

plaintiffs knee condition should not be disturbed. Massachi, 486 F.3d at 1152. 

Recommendation 

The Commissioner's decision is supported by substantial evidence in the record, and 

should therefore be AFFIRMED. 

The above Findings and Recommendation will be referred to a United States District 

Judge for review. Objections, if any, are due no later than fomieen days after the date this order 

is filed. The parties are advised that the failure to file objections within the specified time may 

waive the right to appeal the District Court's order. See Martinez v. Ylst, 951F.2d1153 (9th Cir. 

1991). If no objections are filed, review of the Findings and Recommendation will go under 

advisement on that date. If objections are filed, any party may file a response within fourteen 

days after the date the objections are filed. Review of the Findings and Recommendation will go 

under advisement when the response is due or filed, whichever date is earlier. 

DATED this tfi;?Jday of May, 2017. 

Page 11 - FINDINGS AND RECOMMENDATION 

HNV.ACOSTA 

States Magistrate Judge