IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CAROLYN LEE HERNANDEZ, 6:16-cv-00142-BR

Plaintiff, OPINION AND ORDER

v.

NANCY A. BERRYHILL,1

Acting Commissioner, Social 

Security Administration,

Defendant.

KATHERINE L. EITENMILLER

MARK A. MANNING

Harder, Wells, Baron & Manning

474 Willamette, Suite 200

Eugene, OR 97401 

(541) 686-1969 

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

1

 On January 23, 2017, Nancy A. Berryhill was appointed the

Acting Commissioner of the Social Security Administration and

pursuant to Federal Rule of Civil Procedure 25(d) is substituted

as Defendant in this action. 

1 - OPINION AND ORDER
DAVID MORADO

Regional Chief Counsel

ALEXIS L. TOMA

Special Assistant United States Attorney

Social Security Administration

701 5th Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-2950 

Attorneys for Defendant

BROWN, Judge.

Plaintiff Carolyn Lee Hernandez seeks judicial review of the

final decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff's application

for Disability Insurance Benefits (DIB) under Title II of the

Social Security Act. This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). 

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff protectively filed her application for DIB 

benefits on December 3, 2012. Tr. 18.2 Plaintiff alleged a

disability onset date of October 15, 2010. Tr. 18. Plaintiff’s

application was denied initially and on reconsideration. An

Administrative Law Judge (ALJ) held a hearing on June 11, 2014. 

2

 Citations to the official transcript of record filed by

the Commissioner on June 3, 2016, are referred to as "Tr."

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Tr. 31-56. Plaintiff and a vocational expert (VE) testified. 

Plaintiff was represented by an attorney at the hearing. 

On July 21, 2014, the ALJ issued an opinion in which he 

found Plaintiff is not disabled and, therefore, is not entitled

to benefits. Tr. 18-26. On July 30, 2014, Plaintiff requested

review by the Appeals Council. Tr. 12, 14. On December 1, 2015,

the Appeals Council denied Plaintiff’s request to review the

ALJ’s decision, and the ALJ’s decision became the final decision

of the Commissioner. Tr. 1-3. See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).

On January 26, 2016, Plaintiff filed a Complaint in this

Court seeking review of the Commissioner’s decision.

BACKGROUND

Plaintiff was born on July 10, 1953. Tr. 58. Plaintiff was

60 years old at the time of the hearing. Tr. 36. Plaintiff has

earned a GED. Tr. 52. The ALJ found Plaintiff has worked as an

accounting clerk and office assistant. Tr. 52-53. 

Plaintiff alleges disability due to obesity, degenerative

disc disease, and neuropathy in her feet due to chemotherapy. 

Tr. 23, 148. 

Except as noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

3 - OPINION AND ORDER
medical evidence. See Tr. 20-25.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden, a claimant must demonstrate her

inability “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). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)). 

The district 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 as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). It is more than a mere scintilla [of evidence]

4 - OPINION AND ORDER
but less than a preponderance. Id. (citing Valentine, 574 F.3d

at 690). 

The ALJ is responsible for evaluating a claimant’s

testimony, resolving conflicts in the medical evidence, and

resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th

Cir. 2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006). 

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

At Step One the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial 

gainful activity (SGA). 20 C.F.R. § 404.1520(a)(4)(I). See also

Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

5 - OPINION AND ORDER
impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii). See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R. 

§ 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. The

criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments). 

If the Commissioner proceeds beyond Step Three, she must

assess the claimant’s residual functional capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite her limitations. 20 C.F.R.

§ 404.1520(e). See also Social Security Ruling (SSR) 96-8p. “A

‘regular and continuing basis’ means 8 hours a day, for 5 days a

week, or an equivalent schedule.” SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete

incapacity to be disabled. Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885

F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

6 - OPINION AND ORDER
work she has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv). 

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 404.1520(a)(4)(v). See also

Keyser, 648 F.3d at 724-25. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 

The Commissioner may satisfy this burden through the testimony of

a VE or by reference to the Medical-Vocational Guidelines set

forth in the regulations at 20 C.F.R. part 404, subpart P,

appendix 2. If the Commissioner meets this burden, 

the claimant is not disabled. 20 C.F.R. § 404.1520(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since October 15, 2010, the alleged

date of onset. Tr. 20.

At Step Two the ALJ found Plaintiff has the severe

impairments of obesity and cervical degenerative disc disease

with a history of discectomy and fusion. Tr. 20. 

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or medically equal one of

7 - OPINION AND ORDER
the listed impairments in 20 C.F.R. part 404, subpart P, 

appendix 1. Tr. 22. The ALJ found Plaintiff has the RFC to 

lift/carry 20 pounds occasionally and 10 pounds frequently; to

stand about fours hours in an eight-hour workday; to walk between

two and four hours in an eight-hour workday; to sit about six

hours in an eight-hour workday; and occasionally to climb, kneel,

crouch, stoop, squat, crawl, twist, or turn. Tr. 22. 

At Step Four the ALJ concluded Plaintiff is able to perform

her past relevant work. Tr. 34.

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION

Plaintiff contends the ALJ erred when he (1) improperly

discredited Plaintiff’s symptom testimony, (2) improperly

evaluated the medical evidence, and (3) found Plaintiff could

perform her past relevant work at Step Four.

I. The ALJ did not err when he found Plaintiff’s testimony was

not credible.

Plaintiff contends the ALJ erred when he failed to provide

clear and convincing reasons for discrediting Plaintiff’s

testimony. 

A. Standards

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

8 - OPINION AND ORDER
testimony: The claimant must produce objective medical evidence

of an impairment or impairments and must show the impairment or

combination of impairments could reasonably be expected to

produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th

Cir. 1986). The claimant, however, need not produce objective

medical evidence of the actual symptoms or her severity. Smolen,

80 F.3d at 1284.

If the claimant satisfies the above test and there is

not any affirmative evidence of malingering, the ALJ can reject

the claimant's testimony only if she provides clear and

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)). General assertions that the claimant's

testimony is not credible are insufficient. Id. The ALJ must

identify "what testimony is not credible and what evidence

undermines the claimant's complaints." Id. (quoting Lester, 81

F.3d at 834).

B. Analysis

Plaintiff testified at the hearing on June 11, 2014,

that she retired in October 2010 from her prior employment in

California due to stress. Tr. 37. Plaintiff noted her employer

was “short staffed,” she was supervising a staff of 14, and she

was “constantly running back and forth, and my back was killing

me.” Tr. 37. Plaintiff moved to Oregon in November 2010 to

9 - OPINION AND ORDER
spend time with her parents. Tr. 41. Plaintiff testified her

ability to perform activities “changed” after her morphine pump

was “turned off” in November 2013. Tr. 38-39. Plaintiff

testified she could stand for about 30 minutes, perform household

chores for ten minutes at a time, shop for about 30 minutes

before needing to sit down, and sit for no more than an hour at a

time. 

Tr. 38, 41, 42, 44. 

The ALJ concluded Plaintiff’s “medically determinable

impairments could reasonably be expected to cause some of the

alleged symptoms; however, [Plaintiff’s] statements concerning

the intensity, persistence and limiting effect of these symptoms

are not entirely credible.” Tr. 23. The ALJ cited several

reasons, including examples from Plaintiff's medical records, for

his determination that the medical evidence did not support

Plaintiff’s statements. Tr. 23-25. For example, although

Plaintiff alleged significant hip and back pain, her medical

records indicate she had a consistent work history since her

cervical fusion in 1991 and continued to work until her

retirement in October 2010. Tr. 23. After Plaintiff moved to

Oregon she continued to travel from Coos Bay, Oregon, to Fresno,

California, approximately every other month for follow-up and

maintenance of her morphine pump. Tr. 271-75, 343-424, 452-71. 

Moreover, the ALJ noted Plaintiff’s ability to travel for

10 - OPINION AND ORDER
treatment without any indication of difficulty suggested 

Plaintiff’s alleged symptoms and limitations were overstated and

inconsistent with Plaintiff’s allegations of disabling pain. 

Tr. 24. 

The ALJ noted even though Plaintiff testified she had

stopped working due to significant pain and limitations, her

treatment records after that time indicated she was “enjoying

retirement.” Tr. 274, 385, 397, 402, 407, 413, 418, 423. The

ALJ also noted Plaintiff suggested in her testimony that she

stopped working for reasons other than her alleged impairments. 

Tr. 24.

On this record the Court concludes the ALJ did not err

when he found Plaintiff’s testimony was not entirely credible

because the ALJ provided legally sufficient reasons supported by

substantial evidence in the record for doing so. 

II. The ALJ did not err in his evaluation of the medical

evidence.

Plaintiff contends the ALJ failed to provide legally

sufficient reasons for discounting the opinion of Robert Salazar,

M.D., Plaintiff’s treating pain-management physician in Fresno,

California.

A. Standards

An ALJ may reject an examining or treating physician's

opinion when it is inconsistent with the opinions of other

treating or examining physicians if the ALJ makes "findings

11 - OPINION AND ORDER
setting forth specific, legitimate reasons for doing so that are

based on substantial evidence in the record." Thomas v.

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)(quoting Magallanes v.

Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). When the medical

opinion of an examining or treating physician is uncontroverted,

however, the ALJ must give "clear and convincing reasons" for

rejecting it. Thomas, 278 F.3d at 957. See also Lester v.

Chater, 81 F.3d 821, 830-32 (9th Cir. 1996). The opinion of an

examining physician is entitled to greater weight than the

opinion of a nonexamining physician. Garrison v. Colvin, 759

F.3d 995, 1012 (9th Cir. 2014). 

B. Analysis of the Medical Evidence

1. Dr. Salazar

Plaintiff contends the ALJ did not provide a legally

sufficient basis for discrediting Dr. Salazar’s opinion.

In various reports Dr. Salazar noted Plaintiff

experienced moderate to severe pain-related impairments when

performing activities of daily living. Tr. 379-80, 367, 353-54,

347, 368. Plaintiff asserts Dr. Salazar’s assessment is

consistent with Plaintiff’s reported limitations, which

significantly worsened after her morphine pump was turned off,

and with Plaintiff’s reported daily activities, which most

closely resemble a sedentary or sub-sedentary work setting.

The ALJ, however, gave “little weight” to Dr. Salazar’s

12 - OPINION AND ORDER
opinion on the grounds that Dr. Salazar did not provide a

“function by function assessment” of Plaintiff’s actual abilities

and limitations and his findings did not support a more

restrictive RFC. Tr. 25. 

“The ALJ need not accept the opinion of any physician,

including a treating physician, if that opinion is brief,

conclusory, and inadequately supported by clinical findings.”

Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.

2009). 

Although in some chart notes Dr. Salazar gave a “painrelated impairment score” (Tr. 347-48, 354, 361, 367-68, 379-380,

391-92, 455-56, 462-63, 469-70), he did not give such a score in

other chart notes because Plaintiff “did not fill out a total

pain-related impairment questionnaire” during the visit. 

Tr. 203, 207, 211, 274, 279, 373, 385, 397, 402, 407, 413, 418,

423. Dr. Salazar’s reports also specifically indicate the 

pain-related impairment score “is not an impairment rating.” 

Tr. 347, 354, 361, 367, 379, 391, 455, 462, 469. The ALJ found

Dr. Salazar’s report as to Plaintiff’s pain-related scores merely

reflected Plaintiff’s self-reported level of pain and did not

include Dr. Salazar’s opinion as to Plaintiff’s limitations, if

any. 

The ALJ may reasonably discount a treating physician’s

opinion if it is based largely on the claimant’s self-reporting. 

13 - OPINION AND ORDER
Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Here, as

noted, the Court has determined the ALJ did not err when he found

Plaintiff was not fully credible. 

2. Drs. Berner, Kehrli, and Nolan

The ALJ gave “great weight” to the findings of Neal E.

Berner, M.D., and Martin Kehrli, M.D., consultative physicians,

and gave “significant weight” to the opinion of Raymond Nolan,

M.D., Ph.D., an examining physician. These physicians opined

Plaintiff could perform less than the full range of light work. 

They also found Plaintiff could stand/walk for four hours and sit

for six hours, but only occasionally squat and kneel. Tr. 25-26.

Dr. Nolan’s assessment was based on his review of Plaintiff's

records and also a personal interview and examination of

Plaintiff. The ALJ found the RFC assessed by these physicians

was supported by the medical records and that Plaintiff could

perform a light level of physical assertion with additional

limitations as noted in the RFC assessment.

Accordingly, on this record the Court concludes the ALJ

did not err when he gave little weight to Dr. Salazar’s opinion

and more weight to the opinions of the examining physicians 

because the ALJ provided legally sufficient reasons supported by 

substantial evidence in the record for doing so.

14 - OPINION AND ORDER
III. The ALJ did not err at Step Four.

Plaintiff contends the ALJ erred when he found Plaintiff

could perform her past relevant work at Step Four. Plaintiff

also contends the ALJ’s hypothetical to the VE did not include

all of Plaintiff’s limitations because the ALJ improperly

discounted Dr. Salazar’s opinion and Plaintiff’s testimony. 

At Step Four the ALJ found Plaintiff retains the RFC to

perform work that she has done in the past, and, therefore, the

ALJ concluded Plaintiff is not disabled. The ALJ posed a

hypothetical to the VE based on Plaintiff’s age, education, work

experience, and his evaluation of Plaintiff’s RFC. Tr. 53. The

ALJ’s hypothetical posed to the VE appropriately included only

the credible limitations that were based on substantial medical

evidence in the record. See Osenbrock v. Apfel, 240 F3.d 1157,

1165 (9th Cir. 2001). As noted, the Court has already found the

ALJ properly discounted the opinion of Dr. Salazar, Plaintiff's

treating physician, and properly found Plaintiff’s testimony was

not fully credible regarding her symptoms and limitations. 

Based on the ALJ’s hypothetical, the VE testified Plaintiff

could perform her past relevant work. Tr. 53. The ALJ,

therefore, found Plaintiff’s past relevant work is not precluded

15 - OPINION AND ORDER
 by her RFC and Plaintiff is not disabled.3 Tr. 25-6.

On this record the Court concludes the ALJ did not err at

Step Four.

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 21st day of April, 2017.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

3

 At the time of the hearing Plaintiff was 60 years old. 

Under Social Security Regulations a person’s age is considered

when determining the ability to adjust to other work. See 

20 C.F.R. § 404.1563. Under the regulations Plaintiff was

considered to be of advanced age (55 or older). 20 C.F.R. 

§ 404.1563(e). A person of advanced age with severe

impairment(s) that limits them to sedentary or light work will be

considered disabled if they cannot make an adjustment to other

work unless they have skills that transfer to other work that can

be done despite any impairments. Here, however, the ALJ found

Plaintiff could perform her past relevant work despite her

impairments, and Plaintiff did not assert any error in the ALJ's

finding based on her age.

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