IN THE UNITED STATES DISTRICT COURT 

KEITH JOHN FINO, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Acting Commissioner of 

Social Security 

Defendant. 

P ANNER, District Judge: 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

Case No. 6:15-cv-01910-PA 

OPINION AND ORDER 

Plaintiff Keith John Fino ("Plaintiff') seeks judicial review of the final decision of the 

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

for a period of disability and disability insurance benefits ("DIB") under Title II of 

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Case 6:15-cv-01910-PA Document 19 Filed 09/23/16 Page 1 of 13
the Social Security Act. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). For 

the following reasons, the Commissioner's decision is AFFIRMED. 

BACKGROUND 

Born in January 1964, Plaintiff was 46 years old on his alleged onset date of January 2, 

2011. Tr. 70. Plaintiff filed an application for a period of disability and DIB on January 4, 2012, 

alleging disability due to back injury, diabetes, bladder dysfunction, lumbar degenerative disc 

disease, spondylosis, facet joint arthritis, and intervertebral disc syndrome with bowel 

dysfunction. Id. 

After Plaintiffs application was denied initially and on reconsideration, he requested a 

hearing before an Administrative Law Judge ("ALJ"). Tr. 101. Following an administrative 

hearing, the ALJ issued a decision finding Plaintiff not disabled on March 4, 2014. Tr. 20. The 

Appeals Council denied Plaintiffs subsequent request for review on August 5, 2015, and the 

ALJ's decision became the final decision of the Agency. 20 C.F.R. § 422.210. This appeal 

followed. 

DISABILITY ANALYSIS 

A claimant is disabled if he or she is unable to "engage in any substantial gainful activity 

by reason of any medically determinable physical or mental impairment which ... has lasted or 

can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 

423(d)(l)(A). "Social Security Regulations set out a five-step sequential process for determining 

whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. 

Comm 'r, 648 F .3d 721, 724 (9th Cir. 2011 ). Each step is potentially dispositive. 20 C.F .R. § 

416.920(a)(4). The five-step sequential process asks the following series of questions: 

1. Is the claimant performing "substantial gainful activity?" 20 C.F .R. § 

416.920(a)(4)(i). This activity is work involving significant mental or physical 

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duties done or intended to be done for pay or profit. 20 C.F.R. § 416.910. If 

the claimant is performing such work, she is not disabled within the meaning 

of the Act. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is not performing 

substantial gainful activity, the analysis proceeds to step two. 

2. Is the claimant's impairment "severe" under the Commissioner's 

regulations? 20 C.F.R. § 416.920(a)(4)(ii). Unless expected to result in death, 

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

mental ability to do basic work activities. 20 C.F.R. § 416.92l(a). This 

impairment must have lasted or must be expected to last for a continuous 

period of at least 12 months. 20 C.F.R. § 416.909. If the claimant does not 

have a severe impairment, the analysis ends. 20 C.F.R. § 416.920(a)(4)(h). If 

the claimant has a severe impairment, the analysis proceeds to step three. 

3. Does the claimant's severe impairment "meet or equal" one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then 

the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment does 

not meet or equal one or more of the listed impairments, the analysis proceeds 

beyond step three. At that point, the ALJ must evaluate medical and other 

relevant evidence to assess and determine the claimant's "residual functional 

capacity" ("RFC"). This is an assessment of work-related activities that the 

claimant may still perform on a regular and continuing basis, despite any 

limitations imposed by his or her impairments. 20 C.F.R. §§ 416.920(e); 

416.945(b}-{c). After the ALJ determines the claimant's RFC, the analysis 

proceeds to step four. 

4. Can the claimant perform his or her "past relevant work" with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F .R. § 

416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant 

work, the analysis proceeds to step five. 

5. Considering the claimant's RFC and age, education, and work experience, is 

the claimant able to make an adjustment to other work that exists in 

significant numbers in the national economy? If so, then the claimant is not 

disabled. 20 C.F.R. §§ 416.920(a)(4)(v); 416.960(c). If the claimant cannot 

perform such work, he or she is disabled. Id. 

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). 

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

Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the 

Commissioner must show the claimant can perform other work that exists in significant numbers 

in the national economy, "taking into consideration the claimant's residual functional capacity, 

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age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); see 

also 20 C.F.R. § 416.966 (describing "work which exists in the national economy"). If the 

Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(v). 

If, however, the Commissioner proves the claimant is able to perform other work existing in 

significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d 

at 953-54; Tackett, 180 F.3d at 1099. 

THE ALJ'S FINDINGS 

The ALJ performed the sequential analysis. At step one, the ALJ found Plaintiff had 

engaged in substantial gainful activity since the alleged onset date of January 2, 2011. Tr. 14. At 

step two, the ALJ found Plaintiff has the following severe impairments: multilevel degenerative 

disk disease, bladder dysfunction, bilateral lower extremity peripheral neuropathy, and glen 

humeral and acromioclavicular osteoarthritis. Id. At step three, the ALJ found Plaintiff did not 

have an impairment or combination of impairments that met or medically equaled the severity of 

a listed impairment. Tr. 16. 

In assessing Plaintiffs RFC, the ALJ found Plaintiff was able to perform medium work 

with the following limitations: he must have access to a bathroom on the premises; he must be 

allowed to alternate sitting and/or standing positions as needed throughout the day while 

remaining on task; he can occasionally balance; he is a right hand dominant individual that can 

engage in occasional overhead reaching with the left; and he must avoid all exposure to 

operational control of moving machinery, hazardous machinery, and unprotected heights. Id. 

At step four, the ALJ found Plaintiff was unable to perform any of his past relevant work. 

Tr. 19. At step five, the ALJ found Plaintiff was able to perform work that exists in the national 

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economy, including hand packager, small products assembler, and electronics worker. Tr. 20. 

Accordingly, the ALJ found Plaintiff not disabled. Id. 

STANDARD OF REVIEW 

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

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

also Hammock v. Bowen, 879 F .2d 498, 501 (9th Cir. 1989). "Substantial evidence" means 

"more than a mere scintilla, but less than a preponderance." Bray v. Comm 'r, 554 F.3d 1219, 

1222 (9th Cir. 2009) (quoting Andrews v. Shala/a, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means 

"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 

Id. 

Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner's conclusion must be upheld. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 

1982). Variable interpretations of the evidence are insignificant if the Commissioner's 

interpretation is a rational reading of the record, and this court may not substitute its judgment 

for that of the Commissioner. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "However, a 

reviewing court must consider the entire record as a whole and may not affirm simply by 

isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 

2007). 

Even where findings are supported by substantial evidence, "the decision should be set 

aside if the proper legal standards were not applied in weighing the evidence and making the 

decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 

U.S.C. § 405(g), the court has the power to enter, upon the pleadings and transcript record, a 

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I 

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judgment affirming, modifying, or reversing the decision of the Commissioner, with or without 

remanding the case for a rehearing. 

DISCUSSION 

Plaintiff argues the ALJ erred by: (1) improperly discrediting Plaintiffs testimony, (2) 

improperly finding Plaintiffs diabetes as a non-severe impairment, (3) improperly discounting 

the U.S. Department of Veterans Affairs (VA) disability rating decision, and (4) failing to fully 

develop the record. 

I. The ALJ properly rejected Plaintiff's testimony. 

First, Plaintiff contends the ALJ erred by failing to provide clear and convincing reasons 

for rejecting his testimony. 

There is a two-step process for evaluating a claimant's 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 there is objective medical evidence of an underlying 

impairment that could reasonably be expected to produce some degree of the alleged symptoms. 

Smolen v. Chafer, 80 F .3d 1273, 1282 (9th Cir. 1996). Second, if such evidence exists, barring 

affirmative evidence of malingering, 1 the ALJ must give clear and convincing reasons for 

discrediting the claimant's testimony regarding the severity of the symptoms. Id. at 1284; see 

also Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). A general assertion that a 

plaintiff is not credible is insufficient. The ALJ must identify what testimony is not credible and 

what evidence undermines the claimant's allegations. Dodrill v. Shala/a, 12 F.3d 915, 918 (9th 

Cir. 1993). 2 

1 The ALJ found no evidence of malingering in this case. 2 I note, pursuant to SSR 16-3p, the ALJ is no longer tasked with making an overarching credibility 

determination and instead must assess whether the claimant's subjective symptom statements are consistent with the 

record as a whole. See SSR 16-3p, available at 2016 WL 1119029 (superseding SSR 96-7p). The ALJ's March 2014 

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Here, Plaintiff testified he stopped working on the alleged onset date because his 

condition prevented him from climbing ladders, heavy lifting, carrying objects, and working 

without urinary incontinence. Tr. 34-36. He stated his legs give out occasionally and he cannot 

sit for prolonged periods of time. Tr. 39, 42. Plaintiff acknowledged he should exercise to control 

his diabetes, but he testified he cannot exercise due to issues with his back and arms. Id Plaintiff 

stated he injured his left shoulder in August 2013, and the injury was still an issue at the time of 

the hearing. Tr. 47. Further, he testified both of his shoulders suffer from arthritis and bursitis, 

which prevent him from doing repetitive motions as well as heavy lifting. Tr. 48. 

The ALJ found Plaintiffs medically determinable impairments could reasonably be 

expected to cause some of the alleged symptoms. Tr. 17. The ALJ nevertheless concluded 

Plaintiffs testimony was not credible because (1) the medical record did not support the severity 

of Plaintiffs symptoms and (2) Plaintiffs activity level was not consistent with his claimed 

limitations. Tr. 17-18. 

a. The ALJ reasonably found the medical record did not support the severity of 

Plaintiff's symptoms. 

The ALJ may consider objective medical evidence and the claimant's treatment history in 

assessing the claimant's testimony. Smolen, 80 F.3d at 1284. Here, the ALJ cited to a March 

2011 Magnetic Resonance Imaging ("MRI") of Plaintiffs lumbar spine that revealed mild 

degenerative disc disease without significant central spinal stenosis or signs of nerve 

impingement. Tr. 17, 255, 297. She also looked to an April 2012 consultative examination by 

decision was issued before SSR 16-3p became effective and there is no binding precedent interpreting this new 

ruling including whether it applies retroactively. Compare Ashlock v. Colvin, CASE NO. 3: 15-cv-05767 DWC, 2016 

WL 3438490, *5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to an ALJ decision issued prior to 

the effective date), with Lockwood v. Colvin, No. 15 C 192, 2016 WL 2622325, *3 n.1 (N.D. Ill. May 9, 2016) 

(applying SSR 16-3p retroactively to a 2013 ALJ decision). Because the ALJ's findings in regard to this issue pass 

muster irrespective of which standard governs, I need not resolve this issue. 

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Vincente Bernabe, D.O., in which Dr. Bernabe concluded Plaintiffs back and shoulder issues 

resulted in generally mild limitations.3 Tr. 17, 305-08. Lastly, the ALJ referred to October 2013 

x-rays of Plaintiffs shoulders, following his August 2013 injury, which revealed mild bilateral 

glen humeral and moderate bilateral acromioclavicular osteoarthritic changes. Tr. 17, 450. No 

joint effusion, acute fracture or dislocation, or soft tissue abnormalities were detected. Id. 

Further, the ALJ noted "claimant's treatment was [sic] been very conservative ... and he 

has not generally received the type of medical treatment one would expect for a totally disabled 

individual." Tr. 18. "[E]vidence of 'conservative treatment' is sufficient to discount a claimant's 

testimony regarding the severity of an impairment." Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 

2007) (quoting Johnson v. Shala/a, 60 F.3d 1428, 1434 (9th Cir. 1995)). The ALJ cited to an 

October 2013 treatment report, which indicates favorable rehabilitation potential of Plaintiffs 

shoulder with physical therapy. Tr. 499. More broadly, an independent review of the record 

shows Plaintiff has primarily sought and been treated with anti-inflammatories and pain 

medication. See, e.g., tr. 236, 242-43, 328, 432. I find the medical record supports the ALJ's 

credibility findings in this regard. 

b. The ALJ reasonably considered Plaintiff's activity level. 

The ALJ may also consider the claimant's daily activities when determining the 

credibility of a claimant's testimony. Smolen, 80 F.3d at 1284. "Even where those activities 

suggest some difficulty functioning, they may be grounds for discrediting the claimant's 

testimony to the extent that they contradict claims of a totally disabling impairment." Molina v. 

Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). 

3 Plaintiff argues Dr. Bemabe's report is ambiguous due to Plaintiffs testimony that Dr. Bernabe did not 

sufficiently perform an examination. However, for the reasons provided infra§ IV, I conclude the ALJ reasonably 

interpreted Dr. Bernabe's findings. 

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As the ALJ recognized, Plaintiff testified on a typical day he can prepare meals and 

coffee and perform self-care. Tr. 51. Further, she acknowledged Plaintiff testified he leaves his 

house to run errands or spend time with family. Id. The ALJ also noted Plaintiffs shoulder injury 

in August 2013 was the result of lifting weights. Tr. 18, 462. As indicated by other evidence in 

the record, weight lifting was part of a regimen frequently encouraged by treatment providers 

who stressed the effective role of exercise in controlling Plaintiffs pain, obesity, and diabetes. 

See, e.g., 237, 249, 330, 427, 463. This evidence supports the ALJ's finding that "[t]hese 

activities indicate a higher level of function than that alleged by the claimant." Tr. 18. 

I conclude the ALJ gave clear and convincing reasons for rejecting Plaintiffs testimony. 

II. The ALJ properly found Plaintiff's diabetes as a non-severe impairment. 

Plaintiff also contends the ALJ failed to find Plaintiffs diabetes as a severe impairment at 

step two, which resulted in a flawed sequential analysis and RFC determination. 

The step two inquiry is a de minimus screening device to dispose of groundless claims. 

Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987). "An impairment ... may 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."' Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting 

Smolen, 80 F.3d at 1290) (emphasis in original). 

The ALJ found Plaintiffs diabetes was non-severe because it is "well controlled with 

medication and [does] not cause significant vocational limitations." Tr. 15. "Impairments that 

can be controlled effectively with medication are not disabling for the purpose of determining 

eligibility for SSI benefits." Warre v. Comm 'r, 439 F.3d 1001, 1006 (9th Cir. 2006). An 

independent review of the record shows Plaintiff is managing his diabetes with insulin use. Tr. 

458. I find the record supports the ALJ's step-two findings in this regard. 

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III. The ALJ properly gave less weight to the VA disability rating. 

Plaintiff also contends the ALJ improperly gave less weight to the VA disability rating 

decision. 

'"[A]lthough a VA rating of disability does not necessarily compel the SSA to reach an 

identical result, 20 C.F.R. § 404.1504, the ALJ must consider the VA's finding in reaching his 

decision' and the ALJ 'must ordinarily give great weight to a VA determination of disability."' 

McLeod v. Astrue, 640 F.3d 881, 886 (9th Cir. 2010) (quoting McCartey v. Massanari, 298 F.3d 

1072, 1076 (9th Cir. 2002)). "Because the VA and SSA criteria for determining disability are not 

identical, however, the ALJ may give less weight to a VA disability rating if [s]he gives 

persuasive, specific, valid reasons for doing so that are supported by the record." McCartey, 298 

F.3d at 1076. 

The November 2011 VA decision concluded Plaintiff was 80% disabled due to 

degenerative arthritis of the spine, bladder dysfunction, and paralysis of the sciatic nerve in his 

lower extremities. Tr. 171, 410. The ALJ found the "partial VA disability rating does not support 

a conclusion that the claimant is unable to perform any work in light of the objective testing and 

treatment history." Tr. 19. Accordingly, the ALJ gave less weight to the VA's rating. Tr. 19. 

As discussed supra§ I, the "objective testing and treatment history" relied on by the ALJ 

reveals Plaintiff has mild degenerative disc disease that does not severely restrict his functioning. 

Tr. 255, 297, 305-08. The ALJ also recognized Plaintiff received conservative treatment. See 

supra§ I; see also Berry v. Astrue, 622 F.3d 1228, 1236 (9th Cir. 2010) (finding ALJ properly 

rejected VA disability rating because claimant's back pain was controlled with medication). 

Further, this evidence proceeded and was not considered in the VA decision. 

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I conclude the ALJ gave a specific and valid reason to give less weight to the VA 

decision, and I find the record supports this reasoning. 

IV. The ALJ fully developed the record. 

Finally, Plaintiff contends the ALJ failed to fully develop the record. Specifically, 

Plaintiff argues the ALJ erred by failing to: (1) supplement the record with Plaintiffs 

Compensation and Pension ("C&P") Examination report, (2) resolve ambiguity regarding Dr. 

Bemabe's consultative examination, and (3) leave the record open for Plaintiffs February 2014 

MRI. 

The plaintiff in a disability case is "ultimately responsible for providing the evidence to 

be used in making the RFC finding." Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006). 

However, "the ALJ has 'a special duty to fully and fairly develop the record and to assure that 

the claimant's interests are considered."' Id. (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th 

Cir. 1983)). This is "particularly true" when the claimant is not represented by counsel. Id. 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, 459-60 (9th Cir. 2001). 

a. The ALJ did not have to supplement the record with the C&P Examination. 

The VA decision relied on a C&P Examination, performed in August 2011, in finding 

Plaintiffs 80% disability rating. Tr. 172, 410. The decision summarizes and refers to the C&P 

Examination, including particular reports by Plaintiff and objective findings by the examiner. Tr. 

172-73, 174, 175. As discussed supra§ III, the ALJ gave less weight to the VA decision because 

the VA's finding of partial disability did not support a conclusion of total disability in light of the 

record. Tr. 19. 

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Plaintiff contends the ALJ should have supplemented the record with the C&P 

Examination report. However, the VA decision referred to the C&P Examination in coming to its 

disability rating, and the VA decision was before the ALJ. This is not an instance in which the 

ALJ failed to inquire into a VA rating. See McLeod, 640 F.3d at 888 (finding such error 

triggering duty to develop record). I find the record was adequate in this regard to allow for 

proper evaluation of the evidence. 

b. The ALJ reasonably interpreted Dr. Bernabe's examination. 

In April 2012, Dr. Bernabe performed a consultative examination on Plaintiff. See tr. 

303-08. Dr. Bernabe made findings as to Plaintiffs gait, neck and back range of motion, and 

upper and lower extremities; he also performed a neurological examination. Tr. 305-07. Dr. 

Bernabe concluded Plaintiff is able to lift and carry no more than 50 pounds occasionally and 25 

pounds frequently and walk and stand six hours out of an eight-hour day. Tr. 307-08. The ALJ 

placed significant weight on Dr. Bernabe's opinion in concluding Plaintiff is not disabled under 

the Act. Tr. 18. 

Plaintiff testified Dr. Bernabe did not perform the examination as extensively as the 

record indicates. Tr. 44--46. Now, Plaintiff contends the ALJ should have subpoenaed or 

submitted questions to Dr. Bernabe in light of this testimony. Although Plaintiff disagrees with 

the ALJ's interpretation of the medical record, "[w]hen the evidence before the ALJ is subject to 

more than one rational interpretation, we must defer to the ALJ's conclusion." Batson v. 

Comm 'r, 359 F.3d 1190, 1198 (9th Cir. 2004). No other evidence indicates Dr. Bernabe did not 

perform a full consultative examination. Ultimately, the ALJ is responsible for resolving 

conflicts in the medical testimony. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 

2008). I find the ALJ reasonably interpreted Dr. Bernabe's examination. 

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c. The ALJ did not have to hold the record open for the February 2014 MRI. 

Plaintiff scheduled an MRI for his shoulder in February 2014, less than a month after the 

hearing. Tr. 47. After the ALJ issued her decision in March 2014, Plaintiff submitted a statement 

summarizing the MRI results to the Appeals Council. Tr. 214. 

Plaintiff contends the ALJ should have held the record open for Plaintiff to submit the 

MRI results. After Plaintiff injured his shoulder in August 2013, however, x-rays were 

performed and revealed relatively benign findings. Tr. 456. Further, physical therapy records 

indicate that Plaintiff's rehabilitation potential was favorable following conservative treatment. 

Tr. 495. I find the record was adequate at the time of the ALJ's decision to allow for proper 

evaluation of the evidence. See, e.g., McLeod, 640 F.3d at 884-85 (finding ALJ did not have to 

develop record when there was substantial medical record evidence). 4 

In sum, I conclude the ALJ' s duty to develop the record was not triggered. 

CONCLUSION 

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

of the Commissioner is AFFIRMED and this action is DISMISSED. 

~ 

DATED this ~ day of September, 2016. 

United States District Judge 

4 Plaintiff argues in the alternative this Court should reopen the record because the February 2014 MRI 

warrants a sentence six remand. Considering the abovementioned evidence, I similarly conclude the MRI does not 

warrant a sentence six remand because Plaintiff has not "demonstrate[d] that there is a 'reasonable possibility' that 

the new evidence would have changed the outcome of the administrative hearing." Mayes, 276 F.3d at 462 (quoting 

Boozv. Sec. of Health & Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1983)). 

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