IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

PATRICIA G. BOWLIN, Case No. 6:15-cv-01454-PK 

Plaintiff, FINDINGS AND RECOMMENDATION 

v. 

CAROLYN W. COLVIN, 

Acting Commissioner of Social 

Security, 

Defendant. 

PAPAK, Magistrate Judge: 

Patricia G. Bowlin ("Plaintiff'') seeks judicial review of the Commissioner of Social 

Security's ("Commissioner") decision denying her application for supplemental security income 

("SSI") under Title XVI of the Social Security Act ("the Act"). This Court has jurisdiction over 

Plaintiffs action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). 

Plaintiff assigns the following errors to the decision of the Administrative Law Judge 

("ALJ"): (1) the ALJ failed to fully develop the record, which resulted in an incomplete and 

flawed sequential analysis and residual function capacity determination; (2) the ALJ failed to 

find depression and fibromyalgia to be "severe" impairments at step two; (3) the ALJ failed to 

provide specific, clear and convincing reasons to discredit her testimony; and ( 4) the 

Commissioner failed to meet her burden at step five of her analysis. 

I have considered the parties' briefs and all of the evidence in the administrative record. 

For the reasons set forth below, the Commissioner's final decision should be AFFIRMED. 

1 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 1 of 25
PROCEDURAL BACKGROUND 

Plaintiff protectively filed an application for SSI on September 14, 2011, alleging 

disability beginning January 1, 2006. Tr. 23 1

• Following a denial of benefits, Plaintiff requested 

a hearing before an ALJ. On December 2, 2013, ALJ John Michaelsen held a hearing. Plaintiff 

was umepresented by counsel and testified, as did Vocational Expett ("VE") Mark Mann. On 

December 16, 2013, the ALJ issued a decision finding Plaintiff not disabled within the meaning 

of the Act. Tr. 32. The Appeals Council denied review on June 1, 2015, and this action followed. 

Tr. 1. 

DISABILITY ANALYSIS 

To establish disability within the meaning of the Act, a 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 claimant has made the requisite demonstration. See 

Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. § 404.1520(a)(4). At the first 

four steps of the process, the burden of proof is on the claimant; only at the fifth and final step 

does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 

(9th Cir. 1999). 

At the first step, the ALJ considers the claimant's work activity, if any. See Bowen, 482 

U.S. at 140; see also 20 C.F.R. § 416.920(a)(4)(i). If the ALJ finds that the claimant is engaged 

in substantial gainful activity, the claimant will be found not disabled. See Bowen, 482 U.S. at 

1 Citations to "Tr." Refer to the page(s) indicated in the official transcript of the Administrative Record filed herein 

as Docket No. lO. 

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Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 2 of 25
140; see also 20 C.F.R. §§ 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will proceed 

to the second step. 

At the second step, the ALJ considers the medical severity of the claimant's impairments. 

See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is 

"severe" ifit significantly limits the claimant's ability to perform basic work activities and is 

expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 

20 C.F.R. § 404.1520(c). The ability to perform basic work activities is defined as possessing 

"the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.152l(b); see also Bowen, 

482 U.S. at 141. If the ALJ finds that the claimant's impairments are not severe or do not meet 

the duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; 

see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c). Nevetiheless, it is well established that 

"the step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen 

v. Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 153-154. "An 

impairment or combination of impairments can be found 'not severe' only ifthe evidence 

establishes a slight abnormality that has 'no more than a minimal effect' on an individual[']s 

ability to work." Id, quoting S.S.R. 85-28, 1985 SSR LEXIS 19 (1985). 

If the claimant's impairments are severe, the evaluation will proceed to the third step, at 

which the ALJ determines whether the claimant's impairments meet or equal "one of a number 

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

substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 

404.1520( d). If the claimant's impairments are equivalent to one of the impairments enumerated 

in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See 

Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d). 

3 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 3 of 25
If the claimant's impairments are not equivalent to one of the enumerated impairments, 

betweenthe third and the fourth steps the ALJ is required to assess the claimant's residual 

functional capacity ("RFC"), based on all the relevant medical and other evidence in the 

claimant's case record. See 20 C.F.R. § 404.1520(e). The RFC is an estimate of the claimant's 

capacity to perform sustained, work-related physical and/or mental activities on a regular and 

continuing basis,2 despite the limitations imposed by the claimant's impairments. See 20 C.F.R. 

§ 404.1545(a); see also S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996). 

At the foutth step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. § 

416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can 

still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 

482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(a)(4)(iv), 404.1520(£). In 

the event the claimant is no longer capable of performing his or her past relevant work, the 

evaluation will proceed to the fifth and final step, at which the burden of proof shifts, for the first 

time, to the Commissioner. 

At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the 

claimant's age, education, and work experience to determine whether a person with those 

characteristics and RFC could perform any jobs that exist in significant numbers in the national 

economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 

404.1560( c), 404.1566. If the Commissioner meets her burden to demonstrate the existence in 

significant numbers in the national economy of jobs capable of being performed by a person with 

the RFC assessed by the ALJ between the third and foutth steps of the five-step process, the 

2 "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." S.S.R. 

No. 96-Sp, 1996 SSR Lexis 5 (July 2, 1996). 

4 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 4 of 25
claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 

404.1520(a)( 4)(v), 404, 1520(g), 404.1560( c ), 404.1566. A claimant will be found entitled to 

benefits ifthe Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 

142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g). 

LEGAL STANDARD 

A reviewing comi must affirm an Administrative Law Judge's decision ifthe ALJ 

applied proper legal standards and his or her findings are supported by substantial evidence in 

the record. 42 U.S.C. § 405(g); Batson v. Comm 'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th 

Cir. 2004). Substantial evidence is "more than a mere scintilla. It means such relevant evidence 

as a reasonable mind might accept as adequate to suppoti a conclusion." Lingenfelter v. As true, 

504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th 

Cir. 2006)). 

The comi must review the record as a whole, "weighing both the evidence that suppotis 

and the evidence that detracts from the Commissioner's conclusion." Id (quoting Reddick v. 

Chafer, 157 F.3d 715, 720 (9th Cir. 1998)). The court may not substitute its judgment for that of 

the Commissioner. See id (citing Robbins, 466 F.3d at 882); see also Edlund v. Massanari, 253 

F.3d 1152, 1156 (9th Cir. 200 I). Moreover, the court may not rely upon its own independent 

findings of fact in determining whether the ALJ' s findings are suppotied by substantial evidence 

ofrecord. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (citing SEC v. Chenery 

Corp., 332 U.S. 194, 196 (1947)). Variable interpretations of the evidence are insignificant ifthe 

Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

If the ALJ's interpretation of the evidence is rational, it is immaterial that the evidence may be 

5 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 5 of 25
"susceptible [of] more than one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750 

(9th Cir. 1989) (citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984)). 

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, 1041 (9th Cir. 1995). A reviewing court, however, "cannot affirm the 

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

decision." Stout v. Comm 'r Soc. Sec. Adm in., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation 

omitted). Finally, a comt 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). 

SUMMARY OF ADMINISTRATIVE RECORD 

Plaintiff was 39 years old on her alleged onset date of January 1, 2006. Tr. 23. She 

completed the seventh grade. Tr. 56. Prior to her claimed disability onset date, Plaintiff worked 

as a sh01t-order cook from 1987 to 2002, and a waitress from 2004 to 2006. Tr. 57, 216, 217, 

218. Plaintiff alleges that she is unable to work due to "knee joint pain, prolapsed vagina, 

depression, and degenerative disc disease." Tr. 174. Plaintiff also cites tuberculosis, panic 

attacks, irritable bowel syndrome ("IBS"), diabetes, carpal tunnel syndrome ("CTS"), Hepatitis 

C, chronic back pain, fibromyalgia, abdominal pain, post-traumatic stress disorder ("PTSD") and 

anxiety as additional aggravating conditions. Tr. 25, 48, 54, 185, 20 I. 

I. Hearing Testimony 

On December 2, 2013, a hearing was conducted before an ALJ regarding Plaintiffs 

application for SSL Tr. 39-58. Plaintiff and a Vocational Expert were present. Tr. 39. Plaintiff 

was umepresented by counsel. Id. 

6 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 6 of 25
Plaintiff testified that she was 4 7 years old. Plaintiff does not have a valid driver's license 

and was driven to the hearing by her sister, making no stops during their hour long drive. Tr. 47-

48. Plaintiff last worked in January of 2006, citing knee pain, Hepatitis C, and degenerative 

bone disease as reasons she was unable to continue working. Id. Plaintiff also cited fibromyalgia 

as affecting her ability to function, stating that the slightest of touches causes her pain and that 

she is unable to sit or stand. Tr. 49. Plaintiff experienced liver pain related to her Hepatitis. Tr. 

49. Additionally, Plaintiff stated that her stomach hurts no matter what she eats or drinks due to 

her IBS, which "she would not wish on anyone." Id. 

Since 2006, Plaintiff has held four different jobs. Tr. 160-61. Plaintiff was employed as 

recently as 2011 by Superior Staffing, a temporary staffing agency. Tr. 160. Plaintiff stated that 

she quit those jobs due to back pain and because they required too much lifting. Tr. 49. Although 

Plaintiff continued to look for work after 2011, she received no calls regarding employment. Tr. 

50. 

Plaintiff stated she received injections for her knee and hip pain, though they did not 

help. Id. Plaintiff also takes Percocet, which relieves her pain "a little" if she takes two pills-but 

not much. Id. Plaintiff stated that she was unable to stand for more than one minute or two 

without needing to sit. Tr. 51. Plaintiff stated that she was able to walk to and from the grocery 

store, which is located one block from her home, before needing to rest. Id. Plaintiff specified 

that she uses an electric cart while shopping. Id. Plaintiff indicated difficulty with sitting for 

long periods, stating that she can remain seated only for about ten minutes at a time. Id. Plaintiff 

stated that she was unable to lift or carry more than five pounds. Id. 

Plaintiff stated that she lives alone and she has a hard time cleaning because she is unable 

to bend over or be on her hands and knees. Tr. 51-52. Plaintiff also stated that she has a medical 

7 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 7 of 25
companion cat. Id. When asked if she was able to prepare her own meals, Plaintiff stated that she 

hardly ever eats. Id. Plaintiff testified that her daughter, who lives nearby, does her laundry. Id. 

Plaintiff stated that when she needs to go somewhere, she gets rides from others. Id. 

During the day, Plaintiff reads frequently on her Kindle, and reports that she does not really 

watch television or go out, and does not have internet access. Id. Plaintiff stated that she used to 

ride her bike all the time, but that she is not able to any longer. Id. Plaintiff stated that she used to 

live in a homeless shelter, where she also did volunteer work, but she stopped volunteering at the 

shelter almost two years ago. Id. Plaintiff stated that she has frequent panic attacks, which she 

gets one to three times a day. Id. When asked how long her panic attacks normally last, she 

replied, "until I take my Lorazepam. It just calms me down. I took one before I got here." Id. 

ALJ FINDINGS 

At the first stop of the five-step sequential evaluation process, the ALJ found that 

Plaintiff had not engaged in substantial gainful activity since September 14, 2011, the application 

date. Tr. 25. Although Plaintiff worked after the application date, the duration of her employment 

and earnings were not sufficient to constitute substantial gainful employment for purposes of the 

Act, and were instead considered an unsuccessful work attempt. Tr. 25. 

At the second step, the ALJ found that Plaintiff had the following severe impairments: 

obesity, degenerative joint disease/osteoarthritis of the knees, post-traumatic stress disorder, and 

right rotator cuff syndrome. Tr. 25. The ALJ also indicated the RFC accommodated a 2013 

fibromyalgia diagnosis, although he did not find it "severe." Tr. 26. 

At the third step, the ALJ concluded that Plaintiffs impairments did not meet or equal the 

criteria for any condition in the Listing oflmpairments, 20 C.F.R. Pt. 404, Subpt. P, App. l. Id. 

8- FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 8 of 25
The ALJ found that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 

416.967(b), except: 

[Plaintiff! is further limited to no more than frequent crawling, kneeling, 

crouching, and climbing, and to no more than occasional overhead reaching on 

the right. [Plaintiff! is also limited to simple, repetitive, routine tasks. 

Tr. 27. At the fourth step, the ALJ concluded that Plaintiff was unable to perform any past 

relevant work. Tr. 31. At step five, the ALJ found jobs exist in significant numbers in the 

national economy that Plaintiff can perform, including counter clerk, bench assembler, and 

laundry s01ter. Tr. 32. As a result, the ALJ concluded Plaintiff has not been disabled from 

September 14, 2011, through the date of his decision. Id. 

DISCUSSION 

I. Consideration of New Evidence 

Plaintiff argues the ALJ failed to develop the record fully and ignored evidence 

establishing that the record was inadequate to allow for proper evaluation. Specifically, Plaintiff 

argues that the ALJ made no inquiry into medical records related to PTSD, depression and panic 

attacks from Linn County Mental Health ("LCMH") despite references to receiving treatment at 

LCMH appearing within the record. Plaintiff further contends that her testimony, as well as 

records from LCMH, first considered by the Appeals Council, suggest the likelihood that her 

mental impairments are more limiting than documented within the records relied upon by the 

ALJ. 

The ALJ is not a mere umpire, but has an independent duty to fully and fairly develop the 

record. Higbee v. Sullivan, 975 F.2d 558, 561-62 (9th Cir. 1992); Celaya v. Halter, 332 F.3d 

1177, 1183 (9th Cir. 2003). This duty ensures that the plaintiffs interests are considered, even in 

the absence of legal representation. Tonapetyan v. Halter, 242 F.3d 114, 1150 (9th Cir. 2001 ). 

9- FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 9 of 25
However, the ALJ' s duty to develop the record is triggered "only when there is ambiguous 

evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes 

v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001 ). The ALJ may discharge his or her duty to fully 

and fairly develop the record by "subpoenaing the claimant's physicians, submitting questions to 

the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to 

allow supplementation of the record." Tonapetyan, 242 F.3d at 1150. While it remains the 

plaintiff's burden to prove the existence of an impairment, Macri v. Chafer, 93 F.3d 540, 543-45 

(9th Cir. 1996); see also 42 U.S.C. § 423(d)(5), it is an ALJ's duty to resolve ambiguities within 

the record and to "conduct an appropriate inquiry" where the record lacks sufficient evidence. 

Tonapetyan, 242 F.3d at 1150 (quoting Smolen, 80 F.3d at 1288). 

Plaintiff argues that the evidence the ALJ considered is inadequate to allow for proper 

evaluation of the limiting effects of her PTSD, anxiety, and panic attacks. Plaintiff further argues 

that, despite numerous references to Plaintiff's treatment for said conditions at LCMH, (Tr. 545, 

601, 603, 607, 612) the ALJ made no inquiry into those records and made no effott to solicit 

adequate testimony with regard to her mental impairments. Tr. 54-55. The Court agrees that the 

ambiguous evidence before the ALJ, including the lack of treatment records from LCMH 

supporting Plaintiff's mental impairments, triggered the ALJ's duty to more fully develop the 

record and obtain additional evidence. Indeed, the ambiguity in the record is evident wherein the 

ALJ stated that there was "scant reference to debilitating panic attacks in the record". Tr. 29. The 

ALJ should have obtained or attempted to obtain records from LCMH to better inform his 

opinion of the severity of Plaintiff's mental impairments. Thus, the ALJ erred in failing to 

develop the record fully. 

10 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 10 of 25
However, "harmless error principles apply in the Social Security Act context." Molina v. 

Astrue, 674 F.3d 1104, 115 (9th Cir. 2012) (internal citations omitted). In the present case, the 

Coutt finds that the ALJ' s etTor to fully develop the record was harmless. The records submitted 

to the Appeals Council fail to identify any additional functional limitations and do not contain 

contradictory medical evidence that necessarily conflicts with the records already credited by the 

ALJ. Following Brewes v. Commissioner a/Social Security Administration, 682 F.3d 1157, 

1159-60 (9th Cir. 2012), once Plaintiff supplied additional records to the Appeals Council, those 

records became patt of the administrative record. Accordingly, this Court is required to consider 

that evidence "in determining whether the ALJ's decision is supported by substantial evidence." 

Id. at 1160. 

The ALJ concluded that there is "scant reference to debilitating panic attacks in the 

record, and given that they're well controlled with medication, this does not fmiher restrict her 

mental residual functional capacity" and factored this into his credibility analysis. Tr. 29. 

Plaintiff argues that the absent records, Tr. 637, 640, 644, 646, evidence ongoing, severe panic 

attacks, depression, and a mental disorder diagnosis of PTSD that are not controlled by 

medication, and their absence resulted in att incomplete treatment record. However, 

"[i]mpairments that can be controlled effectively with medication [and treatment] are not 

disabling." Warre ex rel. E.T. IV v. Comm 'r of the Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 

Cir. 2006). The absent records do not contradict any of the evidence relied upon by the ALJ 

when assessing the severity of Plaintiffs impairments. 

Plaintiffs statements to her treatment providers at LCMH are consistent with Plaintiffs 

hearing testimony that she experienced panic attacks; however, those panic attacks are well 

controlled with medications including Dilaudid, Lorazepam, attd Fluoxetine. Tr. 29, 54, 636, 

11 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 11 of 25
637, 640, 642, 646. Indeed, the new records show that Dr. Smolen, a psychiatrist at LCMH, 

noted Plaintiffs nighttime panic attacks completely stopped while taking Fluoxetine. Tr. 636-37. 

Dr. Smolen also continued Plaintiff on Lorazepam, a medication that Plaintiff and Dr. Latta, 

Plaintiffs Primary Care Physician at Geary Street Family Medicine, found effective in 

controlling Plaintiffs daytime panic attacks. Tr. 54, 605, 636. 

During her January 8, 2013, session with LCSW Charry Hattman, Plaintiffrepotied 

being "down" and that she had not gotten much rest due to caring for her sick sister. Tr. 646. 

Also during this session, Plaintiff reported that she had been having panic attacks, and had one 

such attack during her session. After being guided in "deep belly breathing," a form of clinical 

behavioral therapy, her panic attack was under control. During this visit, Plaintiff remarked that 

"she felt better every time [she] c[a]me" there. Tr. 646. 

During her February 13, 2013, visit with her psychiatrist, Dr. Gale Smolen, Plaintiff 

reported having panic attacks at night, one to two times per week. Tr. 644. Dr. Smolen 

suggested several medications to Plaintiff for panic attacks, including Prazosin for nightmares, as 

well as increasing the dosage of her Zoloft. Tr. 644. However, Plaintiff refused, and instead 

requested Klonopin or Lorazepam, despite being cautioned by Dr. Smolen that those medications 

were potentially addictive. Id. Nonetheless, Dr. Smolen prescribed Lorazepam, restricting 

Plaintiff to no more than two a day PRN3 for panic. Plaintiffs refusal of Dr. Smolen's prescribed 

course of treatment to treat her depression calls Plaintiffs credibility into serious question. 

Eckberg v. Colvin, 594 Fed. Appx. 390, 391 (9th Cir. 2015). While not determinative, seeking 

addictive medication over safer options impugns Plaintiffs credibility. See Edlund, 253 F.3d at 

1157 (suggesting that drug-seeking behavior undermines a claimant's credibility). 

3 Abbreviation1neaning "'vhen necessaryu (from the Latin 11 pro re nata 0 , for an occasion that has arisen, as 

circumstances require, as needed). http://www.medicinenet.com/script/main/a11.asp?ai1iclekey~8309 

12-FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 12 of 25
During Plaintiffs follow-up visit on July 5, 2013, Dr. Smolen continued Plaintiff on 

Lorazepam, making no changes to her dosage. Tr. 640. At Plaintiff's next follow-up with Dr. 

Smolen on October 25, 2013, Plaintiffrepo1ted having panic attacks once every two to three 

days. Plaintiff also repo1ted a severe panic attack that she sought treatment for in the ER and was 

given "three nitros which didn't help and Dilaudid which finally worked." Tr. 637. Plaintiff also 

stated that "if she remembers to take her medication (Lorazepam), she sleeps well. If not, she has 

trouble." Tr. 637, 642. Dr. Smolen continued her on Lorazepam and noted that she considers 

Plaintiff's "treatment to be appropriate." Tr. 637. 

Plaintiff was sexually abused when she was 15 years old, and Dr. Smolen opined that 

Plaintiff's panic attacks and PTSD stem from this traumatic event. Tr. 28, 30, 511, 643,644, 666. 

The ALJ credited PTSD as one of Plaintiff's four severe impairments. Tr. 25. The ALJ need not 

discuss all evidence presented. Howard ex rel. Woljfv. Barnhart, 341F.3d1006, 1012 (9th Cir. 

2003). Dr. Smolen found that Plaintiff has suffered from depression since the time of her abuse; 

the new records do not contradict Dr. Latta' s assessment that Plaintiff's depression can be 

controlled with medication, which was credited by the ALJ. Tr. 29, 511, 549, 603, 640. Notably, 

however, Plaintiff was able to maintain substantial gainful employment during the years 

following her abuse until her alleged disability onset date. Tr. 148-66. 

The new records supplied by Plaintiff from LCMH contain no evidence that Plaintiff's 

limitations were more severe than already aiticulated by the ALJ. Even if the ALJ had developed 

the record more fully, the inclusion of the new records from LCMH would not have changed the 

ALJ' s decision. Because the new evidence does not contradict the ALJ' s evaluation of the record 

as a whole, any error was harmless. Ludwig v. Astrue, 681 F.3d 1047, 1054-55 (9th Cir. 

13 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 13 of 25
2012).Thus, the ALJ's interpretation was rational and based on substantial evidence. Plaintiffs 

alternative interpretation is insufficient to disturb the ALJ's findings. Batson, 359 F.3d at 1198. 

II. Plaintiffs Symptom Allegations 

When evaluating the credibility of a plaintiffs testimony regarding the severity and 

limited effect of the plaintiffs symptoms, the ALJ must engage in a two-step analysis. 

Lingenfelter, 504 F.3d at 1035-36. "First, the ALJ must determine whether the [plaintiff] has 

presented objective medical evidence of an underlying impairment which could reasonably be 

expected to produce the pain or other symptoms alleged." Id. at 1036 (internal citations and 

quotation marks omitted); 20 C.F.R. §§ 404.1529, 416.929. The plaintiff is not required to 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." 

Id. (quoting Smolen, 80 F.3d at 1282). If the plaintiff meets the first test and there is no evidence 

of malingering, the ALJ can reject the plaintiffs testimony about the severity of the symptoms 

only if she gives "specific, clear and convincing reasons" for the rejection. Id. To support a lack 

of credibility finding, the ALJ is required to "point to specific facts in the record which 

demonstrate that [the plaintiff] is in less pain than she claims." Dodrill v. Shala/a, 12 F.3d 915, 

918 (9th Cir. 1993). 

Plaintiff assigns error in the adequacy of the ALJ' s rejection of her testimony by arguing 

the ALJ failed to provide specific, clear and convincing reasons for rejecting Plaintiffs 

characterization of the intensity, persistence, and limiting effects of her symptoms. Tr. 28. 

Plaintiff argues that the ALJ pointed to minor inconsistencies between the record and her 

testimony regarding her pain control and volunteer history at Helping Hands homeless shelter, 

Plaintiff asserts that those inconsistencies do not rise to the level of"clear and convincing" and 

14-FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 14 of 25
do not provide a basis upon which he may discredit her. Plaintiff cites office visits with Dr. Latta 

on January 17, 2011, September 13, 2011, and February 14, 2013, as evidence that her pain was 

inadequately controlled. 

During her September 13, 2011, visit with Dr. Latta, Plaintiff was seen for ongoing right 

upper quadrant ("RUQ") pain and bilateral hip pain. Tr. 484. Dr. Latta noted that Plaintiff's hip 

pain improved with cortisone injections. Tr. 484. Fmihermore, Dr. Latta confirmed the RUQ 

pain Plaintiff experienced was due to gallbladder disease, which was confirmed when she later 

had her gallbladder surgically removed via cholecystectomy on October 10, 2011, resolving her 

RUQ pain. Tr. 435-36, 573. 

During her January 17, 2013, visit with Dr. Latta, Plaintiff was seen for a routine followup exam. Tr. 607, 610. Plaintiff stated that she had been finishing her pain medication faster 

because the weather made her pain worse. Tr. 607. Dr. Latta performed an 18 point tenderness 

analysis, a diagnostic tool used to assess fibromyalgia. Tr. 609. Plaintiff exhibited 18of18 

tender points. Id. Dr. Latta diagnosed Plaintiff with fibromyalgia, noting that "[i]fwe do proceed 

with [a] diagnosis of fibromyalgia, I would like to wean her off of opioids altogether." Tr. 609-

10. Accordingly, Dr. Latta prescribed PlaintiffTramadol in lieu of Percocet for her pain. Tr. 609. 

Thus, the January 17 record indicates Plaintiff was experiencing a period of poor pain control. 

Tr. 610. However, the ALJ determined Plaintiff experienced good pain control overall. Tr. 28. If 

the ALJ' s interpretation of the evidence is rational, it is immaterial that the evidence may be 

"susceptible [ofl more than one rational interpretation." i\1agallanes, 881 F.2d at 750, citing 

Gallant, 753 F.2d at 1453. Although Plaintiff argues for a different reading of the record, the 

ALJ' s interpretation of the evidence was rational. 

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Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 15 of 25
During her February 14, 2013, visit with Dr. Latta, Plaintiff was seen on a follow-up 

basis for chronic pain syndrome, depression, and anxiety. Tr. 603. Impairments that can be 

controlled effectively with medication [and treatment] are not disabling. Warre ex rel. E.T. JV., 

439 F.3d at 1006 (9th Cir. 2006). During this visit, Plaintiff reported that Tramadol was 

ineffective in controlling her pain and requested to be put back on Percocet Tr. 603. Dr. Latta 

stressed that fibromyalgia treatment typically does not include the use of narcotic medications 

due to their exacerbative effect on fibromyalgia symptoms, but agreed to prescribe Percocet 

nonetheless. Tr. 605. 

Plaintiff argues that the ALJ' s consideration of the inconsistencies between her testimony 

and evidence regarding the timeline of her volunteer history at the shelter in his credibility 

analysis is "inappropriate given that there is no evidence suggesting her volunteer work 

contradicted her allegations of disability." At the time of Plaintiffs hearing, an ALJ considered 

"[a] plaintiffs reputation for truthfulness, inconsistencies either in his testimony or between his 

testimony and his conduct, his daily activities, his work record[.]" Light v. Soc. Sec. Admin., 119 

F.3d 789, 792 (9th Cir. 1997), as amended on reh 'g (Sept. 17, 1997); citing Smolen, 80 F.3d at 

1284; S.S.R 88-13. Consequently, inconsistencies between Plaintiffs testimony and evidence 

would have been relevant to the ALJ' s credibility analysis and ultimate disability determination. 

Id. However, the SSA no longer assesses the "credibility" of an applicant's statements, but 

instead focuses on determining the "intensity and persistence of [the applicant's] symptoms." 

Social Security Ruling l 6-3p, 2016 SSR LEXIS 4; "Titles II and XVI: Evaluation of Symptoms 

in Disability Claims," 81 Fed. Reg. 14166, 14167 (effective March 28, 2016). 

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Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 16 of 25
In addition to the inconsistencies between Plaintiff's testimony regarding her volunteer 

history and the record, the ALJ cited many other inconsistencies between Plaintiff's statements 

and evidence in support of his credibility determination, which are as follows: 

The ALJ discredited Plaintiff's claims that she is unable to do most physical activities, 

which includes walking, sitting for more than 10 minutes, standing, and lifting more than 10 

pounds. Tr. 28-29. The record shows that Plaintiff is able to shop for herself, walking to and 

from a grocery store located a block away from her home. Tr. 28. Additionally, Plaintiff utilized 

a treadmill to lose weight, and in 2012, tolerated the use of an elliptical machine for light 

exercise. Tr. 29. Furthermore, despite Plaintiff's symptom testimony that her pain would prevent 

her from sitting for more than 10 minutes at a time, Plaintiff remained seated for the entirety of 

her thirty-minute hearing as well as the preceding hour-long commute to the hearing location. Tr. 

28. 

The ALJ similarly discredited Plaintiff's claims that she has frequent, ongoing pain 

symptoms that are not controlled by medication. Id. Although Plaintiff claims that pain 

medication is of little help, the ALJ noted that the record shows that Plaintiff reports good pain 

control overall and has been on narcotics for many years. Id. Plaintiff stated that she stopped 

working in 2006 due to knee pain, yet despite this pain and her statements that it prevents her 

from being able to work, she has continued to look for and accepted work (though these work 

attempts were deemed unsuccessful) and continued her job search, though fruitlessly. Id. 

The ALJ discredited Plaintiff's claims that her panic attacks and anxiety preclude normal 

functioning because the record shows that her panic attacks and anxiety are well controlled with 

medication. Tr. 29. This conclusion was supported by statements made by Plaintiff during the 

hearing in which she stated that her attacks last only until she takes her medication, which calms 

17 - FINDINGS AND RECOMMENDATION 

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her right down. Id. Indeed, as of her February 14, 2013, visit with Dr. Latta, Plaintiff reported no 

anxiety and Dr. Latta noted that Lorazepam was"[ v ]ery effective for helping her sleep, which is 

her most significant mental health symptom." Tr. 603. 

Finally, the ALJ discredited Plaintiff's claims that she had not performed volunteer work 

at Helping Hands, her former residence, for at least two years. During her March 9, 2012, visit 

with Dr. Smolen, Plaintiff stated that she was actively volunteering at the shelter. Tr. 28, 510. 

The ALJ noted that, even if Plaintiff had quit the day after her visit with Dr. Smolen, her 

volunteerism could have ceased no earlier than 21 months prior - not "at least two years ago" as 

Plaintiff indicated in her testimony. Tr. 28. 

Plaintiff argues that the ALJ's attack on this statement does not undermine Plaintiff's 

symptom testimony of her disability. During a July 12, 2012 screening at LCMH, Plaintiff 

indicated that she was asked to leave Helping Hands as she was no longer able to do the chores 

they required of her. Tr. 664. However, the ALJ noted there was nothing in the medical evidence 

indicating that Plaintiff sustained any additional impairment or worsening in her condition that 

would have forced her to quit volunteering. Tr. 28. 

The discrepancy between Plaintiff's testimony and evidence of Plaintiff's volunteer 

history is one of many specific, clear and convincing reasons the ALJ provided for rejecting 

Plaintiff's testimony. Even if not all of the ALJ' s rationales are clear and convincing, the ALJ 

provided sufficient clear and convincing rationales to uphold the finding. Batson, 359 F.3d at 

1198. 

For the foregoing reasons, the ALJ did not err in discounting Plaintiff's credibility. The 

ALJ' s interpretation was rational and based on substantial evidence. Plaintiff's alternative 

interpretation is insufficient to disturb the ALJ' s findings. Id 

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III. Failure to Consider Depression and Fibromyalgia as Severe Impairments 

Plaintiff argues the ALJ erred in failing to find depression and fibromyalgia "severe" 

impairments at step two of the sequential analysis. Tr. 26, 29. Plaintiff contends the ALJ's failure 

to consider her depression and fibromyalgia at step two resulted in a flawed and incomplete RFC 

determination. Plaintiff also argues the ALJ disregarded objective medical evidence supp01ting 

Plaintiffs fibromyalgia diagnosis and provided no support for his assertion that fibromyalgia 

would be accommodated by the RFC as stated. The step-two inquiry is merely a de minimis 

screening device to dispose of groundless claims. Smolen, 80 F.3d at 1290 (citing Bowen, 482 

U.S. at 137, 153-154). 

As a preliminary matter, the Ninth Circuit has held that failure to list an impairment at 

step two is harmless error and does not require reversal where the step is neve1theless resolved in 

the Plaintiffs favor due to the presence of other severe impairments. Burch v. Barnhart. 400 

F.3d 676, 682 (9th Cir. 2005); see Bostic v. Astrue, 2012 WL 786828, *14 (D. Or. Feb. 8), 

adopted as modified by 2012 WL 786909 (D. Or. Mar. 9, 2012) (ALJ did not err at step two in 

determining that the plaintiffs depression, learning disorder, anxiety, and anorexia were nonsevere because he found other mental impairments to be severe, citing Gray v. Comm 'r, 365 Fed. 

Appx. 60, 61 (9th Cir. 2010)); and Mondragon v. Astrue, 364 Fed. Appx. 346, 348 (9th Cir. 

2010). Hickman v. Comm 'r, 399 Fed. Appx. 300, 302 (9th Cir. 2010) ("Any error in the ALJ's 

failure to include a reading disorder as one of Hickman's severe impairments at step two of the 

analysis is harmless. The ALJ found Hickman suffered from other severe impairments and, thus, 

step two was already resolved in Hickman's favor."). 

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Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 19 of 25
Here, step two was resolved in Plaintiffs favor. Tr. 25. The ALJ determined Plaintiff had 

severe impairments including obesity, degenerative joint disease/osteoatihritis of the knees, posttraumatic stress disorder, and right rotator cuff syndrome. Id. 

A. Depression 

Plaintiff contends that, while similar to PTSD in symptomology, depression is a distinct 

disorder and although the ALJ acknowledged that Plaintiff had been assessed with depression, 

Plaintiff maintains that depression should have been considered separately in the ALJ's analysis 

at step two. The ALJ expressly considered Plaintiffs depression diagnosis when assessing 

limitations caused by Plaintiffs mental impairments. Tr. 29. The ALJ acknowledged that 

Plaintiff was assessed with depression and noted that her mood was well controlled with 

medication (Cymbalta). Id. The ALJ also noted Plaintiffs subsequent voluntary discontinuance 

of her use of Cymbalta. Id. Because Plaintiffs depression was responsive to treatment, finding 

this impairment to be non-severe was appropriate. See Sample v. Schweiker, 694 F.2d 639, 642 

(9th Cir. 1992) (upholding ALJ's finding of no disability where the impairments were stabilized). 

When evaluating the severity of an affective disorder, such as depression, an ALJ must 

consider all criteria outlined in 20 C.F.R. Part 404, Subpati P, Appendix I, 12.04. Under this 

section, a depressive disorder is considered severe when (I) there is a medically documented 

persistence, either continuous or intermittent, of one or more specified symptoms that (2) results 

in at least two of the following "Paragraph B" criteria: (i) marked restriction of activities of daily 

living; (ii) marked difficulties in maintaining social function; (iii) marked difficulties in 

maintaining concentration, persistence, or pace or (iv) repeated episodes of decompensation, 

each of extended duration. 

20- FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 20 of 25
The ALJ found that Plaintiff had only a mild restriction in activities of daily living; a 

mild limitation in social functioning; a moderate limitation in concentration, persistence or pace; 

and no extended episodes of decompensation. Tr. 26-27. The ALJ's RFC determination is 

inclusive of the ALJ's assessment of the degree oflimitation caused by Plaintiffs mental 

impairments and stated that this would limit Plaintiff to light work comprised of simple, routine, 

repetitive tasks. Tr. 27. Futthermore, neither the records available to the ALJ nor the new 

evidence provided to the Appeals Council demonstrate Plaintiff experienced any functional 

limitations greater than that already considered by the ALJ that would have impacted his 

analysis. 

For the reasons set fmth above, the court concludes that the ALJ's determination that 

Plaintiffs depression was not a severe medically determinable impairment at step two is 

supported by substantial evidence. 

B. Fibromyalgia 

Plaintiff alleges that the ALJ disregarded Dr. Latta's comments from Plaintiffs date of 

diagnosis which stated that a diagnosis offibromyalgia made sense in consideration of Plaintiffs 

history of sexual abuse, methamphetamine use in the past, her long-term struggle with JBS, as 

well as a constellation of symptoms. Tr. 609. Plaintiff also alleges that the ALJ ignored Dr. 

Latta's observation of 18of18 tender points on examination consistent with fibromyalgia. Id 

The ALJ expressly considered Plaintiffs fibromyalgia diagnosis when determining 

Plaintiffs RFC. Tr. 26. The ALJ acknowledged Plaintiffs fibromyalgia diagnosis, stating that 

the diagnosis was made after Plaintiff relayed her families concern that she might suffer from the 

disease to Dr. Latta. Id. The ALJ continued, stating that the RFC would accommodate 

fibromyalgia even if it were to be considered a severe impairment. Tr. 26. Plaintiff argues that, in 

21 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 21 of 25
making this statement, the ALJ implied that Plaintiff persuaded Dr. Latta into making a 

fibromyalgia diagnosis. The court rejects this argument. The ALJ's statements are a chronology 

of events and we do not impute any negative treatment by the ALJ of Plaintiffs fibromyalgia 

diagnosis to this remark. 

Plaintiffs argument does not represent the full effect of Dr. Latta's comments to this 

cou1t. In addition to the above, Dr. Latta also stated that Plaintiffs treatment regimen "would not 

change much" aside from making a concerted effort to wean Plaintiff off of opioids due to their 

exacerbative effect on fibromyalgia pain. Tr. 609. Dr. Latta then switched Plaintiff from Percocet 

to Tramadol, a non-opioid pain reliever. Tr. 610. This seems to suggest that Dr. Latta felt 

Plaintiffs treatment for her pain was adequate except for necessitating a minor medication 

adjustment in light of her diagnosis. Plaintiff later requested that she be switched back to 

Percocet from Tramadol for pain because Percocet controlled her pain more effectively. Tr. 603. 

Plaintiff argues that the ALJ provided no basis for his assertion that his RFC 

determination would accommodate fibromyalgia. However, the ALJ is not required to discuss 

every piece of evidence. Howard, 341 F .3d at 1012 (in interpreting the evidence and developing 

the record, the ALJ need not discuss every piece of evidence). Plaintiff argues that the ALJ 

ignored objective medical evidence regarding her fibromyalgia diagnosis. However, Plaintiff 

makes no showing that the ALJ erroneously disregarded any evidence that her fibromyalgia 

resulted in greater functional limitation than the ALJ assessed. The records upon which Plaintiff 

relies show only that a diagnosis was made and do not speak to limitations beyond those already 

credited by the ALJ. The ALJ expressly contemplated fibromyalgia stating that, even if it were to 

be found severe, the RFC would still accommodate this impairment. Tr. 26. For this and the 

foregoing reasons, any error in failing to include fibromyalgia as a severe impairment is 

22- FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 22 of 25
harmless. See Lewis v. Astrue, 498 F. 3d 909, 911 (9th Cir. 2007) (holding that when an ALK 

accounts for resulting limitations later in the sequential evaluation process, any enor in finding 

the impairment non-severe at Step Two is harmless). 

Accordingly, the Court finds that the ALJ did not commit reversible error. 

IV. Commissioner's Burden at Step Five 

At step five, an ALJ must propose a hypothetical based on medical assumptions 

supported by substantial evidence reflecting the plaintiffs limitations. See Osenbrock v. Apfel, 

240 F .3d 1157, 1165 (9th Cir. 2001 ). However, an ALJ may omit any alleged limitations that the 

ALJ has found to be not credible from the vocational hypothetical promulgated to the VE. 

Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); see also Magallanes, 881 F.2d at 756-

57 (holding that it is proper for an ALJ to limit a hypothetical to restrictions supported by 

substantial evidence in the record). 

Here, the VE opined that a person of the same age, education, experience and RFC as 

Plaintiff could perform at least three jobs: counter clerk, bench assembler, and laundry so1ter. Tr. 

57-58. Plaintiff contends that the ALJ's RFC determination was in error because the ALJ did not 

perform a function-by-function analysis pursuant to S.S.R. 96-8p, which resulted in a flawed 

vocational hypothetical being given to the VE. She further maintains that the ALJ' s failure to 

explicitly address her alleged five-pound lifting restriction, the option to change positions at will, 

and the severity of her mental impairments within the vocational hypothetical was in error. Tr. 

51. 

We must affirm the ALJ' s determination of Plaintiffs RFC if the ALJ applied the proper 

legal standard and his decision is suppo1ted by substantial evidence. Morgan v. Comm 'r of the 

Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). In making his RFC determination, the ALJ 

23 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 23 of 25
properly took into account limitations that were supported by substantial evidence in the record. 

Tr. 31-32. A function-by-function analysis for medical conditions or impairments that the ALJ 

found neither credible nor supported by the record is unnecessary. See S.S.R 96-8p; Bayliss, 427 

F.3d at 1218. 

The hypothetical that the ALJ posed to the VE contained all of the limitations that the 

ALJ found credible and supported by substantial evidence in the record. Therefore, the ALJ may 

properly rely on testimony the VE gave in response to the vocational hypothetical. See 

Magallanes, 881 F.2d at 756-57 (holding that it is proper for an ALJ to limit a hypothetical to 

restrictions supported by substantial evidence in the record). A VE's recognized expe1iise 

provides the necessary foundation for his or her testimony. Bayliss, 427 F.3d at 1218. Thus, no 

additional foundation is required. 

The ALJ did not commit harmful error in the RFC formulation or hypothetical questions 

to the VE. Accordingly, the jobs identified by the ALJ were also valid. 

CONCLUSION 

Because the Commissioner's decision is based on proper legal standards and supported 

by substantial evidence, the Commissioner's final decision should be AFFIRMED and this case 

should be DISMISSED. 

SCHEDULING ORDER 

The Findings and Recommendation will be referred to a district judge. Objections, if any, 

are due fomieen (14) days from service of the Findings and Recommendation. Ifno objections 

are filed, the Findings and Recommendation will go under advisement on that date. 

24 - FINDINGS AND RECOMMENDATION 

Case 6:15-cv-01454-PK Document 15 Filed 08/18/16 Page 24 of 25
If objections are filed, a response is due fourteen (14) days after being served with a copy 

of the objections. When the response is due or filed, whichever date is earlier, the Findings and 

Recommendation will go under advisement. 

NOTICE 

A party's failure to timely file objections to any of these findings will be considered a 

waiver of that party's right to de novo consideration of the factual issues addressed herein and 

will constitute a waiver of the party's right to review of the findings of fact in any order or 

judgment entered by a district judge. These Findings and Recommendation are not immediately 

appealable to the Ninth Circuit Comt of Appeals. Any notice of appeal pursuant to Rule 4(a)(l) 

of the Federal Rules of Appellate Procedure should not be filed until entry of judgment. 

DATED this 181

h day of August 2016. 

Honorable Paul J. Pa ak 

United States Magistrate Judge 

25 - FINDINGS AND RECOMMENDATION 

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