IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CANDICE A. ERICKSEN, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, 

Commissioner of Social Security, 

Defendant. 

PAPAK, Magistrate Judge: 

6: 15-CV-00150-PK 

AMENDED OPINION 

AND ORDER 

Plaintiff Candice Ericksen ("Ericksen") seeks judicial review of the Commissioner of 

Social Security's final decision denying her application for disability insurance benefits ("DIB") 

under Title II of the Social Security Act (the "Act"). This Court has jurisdiction pursuant to 42 

U.S.C. § 405(g) and 1383(c)(3). I have considered all of the paiiies' briefs and all of the 

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evidence in the administrative record. For the reasons set foi1h below, the Commissioner's final 

decision is affirmed. 

DISABILITY ANALYSIS FRAMEWORK 

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 Administrative Law Judge considers the claimant's work activity, if 

any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. § 404.1520(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 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b). Otherwise, 

the evaluation will proceed to the second step. 

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

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 "the 

abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b); see also Bowen, 482 

2 - AMENDED OPINION AND ORDER 

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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). 

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

which the ALJ determines whether the claimant's impai1ments 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). 

If the claimant's impairments are not equivalent to one of the enumerated impairments, 

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, workrelated, physical and mental activities on a regular and continuing basis, despite the limitations 

imposed by the claimant's impairments. See 20 C.F.R. § 404.1545(a); see also SSR 96-8p, 1996 

WL 374184. 

At the fomih 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. § 

404.1520(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(f). In the event the claimant 

3 - AMENDED OPINION AND ORDER 

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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 is, for the first time, on 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 the claimant can perfo1m 

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 its burden to demonstrate that the claimant is capable of performing jobs 

existing in significant numbers in the national economy, the claimant is conclusively 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 its 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 Court must affom an Administrative Law Judge's decision ifthe ALJ 

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

record. See 42 U.S.C. § 405(g); see also Batson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir. 

2004). ·"'Substantial evidence' means more than a mere scintilla, but less than a preponderance; 

it is such relevant evidence as a reasonable person might accept as adequate to suppmi a 

conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing Robbins v. Soc. 

Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 

The Court must review the record as a whole, "weighing both the evidence that supports 

and the evidence that detracts from the Commissioner's conclusion." Id. at 1035. The Court 

may not substitute its judgment for that of the Commissioner. See id., citing Robbins, 466 F.3d 

4 - AMENDED OPINION AND ORDER 

Case 6:15-cv-00150-PK Document 21 Filed 07/27/16 Page 4 of 12
at 882; see also Edlund v. 1\lassanari, 253 F.3d 1152, 1156 (9th Cir. 2001). If the ALJ's 

interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible 

[ofj more than one rational interpretation." iV!agallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 

1989). 

BACKGROUND 

Born in April, 1970 Ericksen was 40 years old on her alleged onset date of September 10. 

2010. Tr. 18, 177, 202. 1 She filed for DIB on June 13, 2011, alleging disability due to 

fibromyalgia, degenerative disc disease, and osteoarthritis. Id. After her applications were 

denied initially and on reconsideration, Ericksen appeared and testified before an ALJ on March 

28, 2013. Tr. 34-66, 100, 107. On July 26, 2013 the ALJ issued a decision finding Ericksen not 

disabled. Tr. 15-29. The Appeals Council denied Ericksen's subsequent request for review on 

December 5, 2014, making the ALJ's decision the final decision of the Commissioner. Tr. 1-4; 

see 20 C.F.R. § 422.210(a); see also, e.g., Sims v. Apfel, 530 U.S. 103, 107 (2000). This appeal 

followed. 

SUMMARY OF ALJ FINDINGS 

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

Ericksen had not engaged in substantial gainful activity since her alleged onset date. Tr. 20. At 

the second step, the ALJ found that Ericksen had the severe impairments of degenerative disc 

disease, obesity, and diabetes mellitus with peripheral neuropathy. Id. The ALJ also found 

Ericksen suffered from the non-severe impairments of fibromyalgia, hypertension, and affective 

1 Citations to "Tr." refer to the page(s) indicated in the official transcript of the administrative 

record filed herein as Docket No. 17. 

5 - AMENDED OPINION AND ORDER 

Case 6:15-cv-00150-PK Document 21 Filed 07/27/16 Page 5 of 12
mood disorder. Tr. 20-21. Because Ericksen's impairments were deemed severe, the ALJ 

properly proceeded to the third step of the analysis. Id. 

At the third step, the ALJ found that none ofEricksen's impaitments met or equaled any 

of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. 1. Tr. 22. The ALJ therefore 

conducted an assessment ofEricksen's RFC and found that Ericksen could perfo1m light work 

with the following limitations: she can lift and carry 20 pounds occasionally and 10 pound 

frequently; she can stand and/or walk a total of six hours in an eight hour workday, and sit for six 

hours in an eight hour workday with normal breaks; she can frequently climb ramps or stairs up 

to one story; she can never climb ladders, ropes, or scaffolds; she can frequently stoop, kneel, 

crouch and crawl; she must avoid concentrated exposure to extreme cold, extreme heat, 

excessive vibration, and workplace hazards such as dangerous machinery and unprotected 

heights. Tr. 23. 

At the fourth step of the five-step process, the ALJ found that Ericksen was capable of 

performing her past relevant work as a nurse supervisor and as a pediatric nurse practitioner. Tr. 

28. The ALJ therefore concluded that Ericksen was not disabled. Tr. 28-29. 

ANALYSIS 

Ericksen argues that the Commissioner e11'ed because she (1) improperly evaluated the 

medical evidence and (2) failed to find her fibromyalgia and affective disorder to be "severe" at 

step two. 

I. Medical Evidence 

Ericksen argues that the ALJ improperly rejected the medical opinion of treating 

physician Giovanni Catalano, D.O., and of nurse practitioner Courtney Strand. The ALJ is 

responsible for resolving conflicts in the medical record, including conflicts among physicians' 

6 - AMENDED OPINION AND ORDER 

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opinions. Carmickle v. Comm 'r, 533 F.3d 1155, 1164 (9th Cir. 2008). The Ninth Circuit 

distinguishes between the opinions of treating, examining, and non-examining physicians. The 

opinion of a treating physician is generally accorded greater weight than the opinion of an 

examining physician, and the opinion of an examining physician is accorded greater weight than 

the opinion ofa non-examining physician. Lester v. Chafer, 81F.3d821, 830 (9th Cir. 1995). 

An uncontradicted treating physician's opinion can be rejected only for "clear and convincing" 

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

In contrast, ifthe opinion of an examining physician is contradicted by another 

physician's opinion, the ALJ must provide "specific, legitimate reasons" for discrediting the 

examining physician's opinion. Lester, 81 F3d at 830. Specific, legitimate reasons for rejecting 

a physician's opinion may include its reliance on a claimant's discredited subjective complaints, 

inconsistency with medical records, inconsistency with a claimant's testimony, and inconsistency 

with a claimant's daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). 

An ALJ may also discount a medical source's opinion that is inconsistent with the source's other 

findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). It is legal enor to ignore an 

examining physician's medical opinion without providing reasons for doing so, and an ALJ 

effectively rejects an opinion where he ignores it. Smolen v. Chafer, 80 F.3d 1273, 1286 (9th 

Cir. 1996). 

1. Treating Physician Giovanni Catalano, D.O. 

Dr. Catalano evaluated Ericksen's limitations on January 23, 2013. Tr. 454-65. He 

opined that Ericksen's pain would constantly interfere with her attention and concentration; that 

she could sit, stand, and walk for one hour each in an eight-hour workday; that she must walk 

every 15 minutes for 5 minutes, and that she needed an assistive device while standing and 

7 - Alv1ENDED OPINION AND ORDER 

Case 6:15-cv-00150-PK Document 21 Filed 07/27/16 Page 7 of 12
walking. Tr. 457-58, 461. Dr. Catalano stated that Ericksen should elevate her legs 90 percent 

of the time spent sitting during an eight-hour workday. Tr. 459. He concluded that Ericksen was 

disabled. 

The ALJ gave little weight to Dr. Catalano's opinion. Tr. 26. As an initial matter, Dr. 

Catalano's opinion was contradicted by the opinions of state agency medical consultants Neal 

Berner, M.D., and Richard Alley, M.D., who both assessed Ericksen's ability to work at the light 

exertional level. Tr. 27, 75-76, 90-91. The ALJ was therefore required to provide specific, 

legitimate reasons for rejecting Dr. Catalano's controverted opinion. Lester, 81 F3d at 830. 

The ALJ provided at least two such reasons. First, the ALJ noted that Dr. Catalano's 

opinion was inconsistent with the medical record and with his own treatment notes. Tr. 26. An 

ALJ may reject an opinion that is brief, conclusory, or unsupported by clinical findings. 

Chaudh1y v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). The ALJ may also reject a medical 

opinion that is inconsistent with the doctor's own treatment notes. Valentine v. Comm 'r, 574 

F .3d 685, 692-93 (9th Cir. 2009). Here, while Dr. Catalano noticed unsteadiness and opined that 

Ericksen required a cane or assistive device for ambulation (Tr. 458, 475), on multiple 

examinations he also noted that Ericksen walks with a normal gait. Tr. 468, 469, 478. 

Examining physician Clifford Roberson, M.D., also found that Ericksen was able to heel and toe 

walk fairly well despite a slow gait, and did not note any instability or weakness. Tr. 321. While 

susceptible to multiple interpretations, this inconsistency between Dr. Catalano's opinion and the 

objective medical record, including his own exam findings, constitutes a specific, legitimate 

reason for according less weight to his opinion. Chaudhry, 688 F.3d at 671; Valentine, 574 F.3d 

at 692-93; see also 1'vlagal/anes, 881 F.2d at 750 (the cou1i must uphold the ALJ's rational 

interpretation of the record). 

8 - AMENDED OPINION AND ORDER 

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The ALJ also noted that Dr. Catalano's opinion was belied by Ericksen's ability to 

perfo1m various activities of daily living. Tr. 26. The ALJ may assign less weight to a 

physician's opinion that conflicts with a claimant's rep01ied activities. }vlorgan v. Comm 'r, 169 

F.3d 595, 601-02 (9th Cir. 1999). Here, for example, while Dr. Catalano opined that Ericksen's 

pain would cause constant interference with her attention and concentration, Ericksen was able to 

attend school online and practice Reiki, and planned to run a business from her home. Tr. 26, 

180-86, 475. The ALJ also noted Ericksen was able to complete schoolwork every day, and to 

read for school and for entertainment several times a week. Tr. 22, 222-23. Because Ericksen's ., 

daily activities suggest a level of functioning greater than that assessed by Dr. Catalano, it was 

reasonable for the ALJ to assign less weight to Dr. Catalano's opinion. 1\forgan, 169 F.3d at 

601-02. In sum, the ALJ provided legally sufficient reasons to assign little weight to Dr. 

Catalano' s opinion. 

2. Nurse Practitioner Courtney Strand 

Nurse Strand submitted an assessment ofEricksen's functioning on September 8, 2011. 

Tr. 427-28. She opined that Ericksen can never lift any weight and that she can walk and stand 

for two hours and sit for six hours in an eight-hour workday. Tr. 427. In January, 2012, Nurse 

Strand submitted a statement opining that Ericksen had marked physical impahments, ambulated 

with limitations, and was unable to perform her past work. Tr. 437-42. She indicated that 

Ericksen would need to elevate her legs 75 percent of the time while sitting, and could never lift 

more than 10 pounds. Tr. 441. 

Nurse Strand's treatment notes from March, 2012 indicate that Ericksen's pain would 

frequently interfere with her attention and concentration; that she must walk every 30 minutes for 

9 - AMENDED OPINION AND ORDER 

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1 to 5 minutes, and that she would occasionally require the use of an assistive device for standing 

and walking. Tr. 339-40. 

The ALJ rejected Nurse Strand's opinion because it was inconsistent with the medical 

record as a whole. Tr. 25-26. Because Nurse Strand was an "other" source under the 

regulations, the ALJ was required to provide gennane reasons for rejecting her opinion. }vfolina 

v. Astrue, 674 F.3d 1104, 1111-12 (9th Cir. 2012). Here, while Nurse Strand opined that 

Ericksen could never lift anything, 2 Michael Malos, M.D., noted that Ericksen could lift up to 25 

pounds. Tr. 393. Further, Ericksen testified that she was not as limited as Nurse Strand alleged. 

Tr. 26, 47 (Ericksen's testimony that total limitation on lifting was "a little ridiculous"), 427. On 

this record, the ALJ provided a germane reason for rejecting Nurse Strand's opinion. },Jolina, 

674 F.3d at 1111-12. 

II. Step Two Findings 

Ericksen next argues that the Commissioner ell"ed because she omitted fibromyalgia from 

the list of severe impairments at step two and, as a result, formulated an inaccurate RFC. She 

also alleges that the ALJ eITed by finding her affective disorder to be non-severe. At step two of 

the sequential evaluation, the ALJ determines whether the claimant has a medically severe 

impainnent or combination of impaitments. 20 C.F.R. § 404.1520(a). Step two findings must be 

based upon medical evidence. Id. An impaitment is "not severe" if it "does not significantly 

limit [the claimant's] ability to do basic work activities." Id. "Omissions at step two are 

harmless ifthe ALJ's subsequent evaluation considered the effect of the impairment omitted at 

2 But see Tr. 441 (indicating that Eriksen could perhaps lift less than I 0 pounds, but not 

indicating frequency). 

JO-AMENDED OPINION AND ORDER 

Case 6:15-cv-00150-PK Document 21 Filed 07/27/16 Page 10 of 12
step two." Harrison v. Astrue, 2011 WL 2619504, *7 (D. Or. July!, 2011) (citing Lewis v. 

Astrue, 498 F.3d 909, 911 (9th Cir. 2007)). 

The ALJ resolved step two in Ericksen's favor. Tr. 20. While she found Ericksen's 

fibromyalgia to be non-severe, she neve1iheless included limitations related to fibromyalgia in 

the RFC by limiting Ericksen to occupations that do not require concentrated exposure to 

extreme cold or heat. Tr. 23. 

In support of her contention that her fibromyalgia was "severe," Ericksen cites the 

opinion evidence of Dr. Catalano and Nurse Strand. As discussed above, the ALJ provided 

legally sufficient reasons for assigning less weight to those opinions and therefore was not 

required to credit their opinions in the sequential evaluation process. Further, Ericksen does not 

argue that the ALJ omitted any specific fibromyalgia-associated limitations in the RFC; 

therefore, any e1rnr in the ALJ' s omission of her fibromyalgia in the listing of severe 

impairments at step two was harmless. Lewis, 498 F.3d at 911. 

Regarding Ericksen's affective disorder, the ALJ found it to be non-severe. Tr. 21. She 

reasoned that Ericksen' s mild depression and occasional complaints of anxiety did not cause 

significant work-related limitations. Tr. 21, 354, 368, 477. As Ericksen does not point to any 

limitations enoneously omitted from the RFC as a result of the ALJ' s step two reasoning 

regarding he1: affective disorder, she has failed to show harmful error. Lewis, 498 F.3d at 911. 

The ALJ's step two findings are afiirmed. 

11 -AMENDED OPINION AND ORDER 

Case 6:15-cv-00150-PK Document 21 Filed 07/27/16 Page 11 of 12
CONCLUSION 

The ALJ's decision finding Ericksen not disabled is suppmied by substantial evidence in 

the record and is therefore affomed. 

IT rs so ORDERED. 

DATED this 27th day of July, 2016. 

(~ ,(~) ~) \ Olil/f \ c: i:XZJ~ Honorable Paul Papak 

United States Magistrate Judge 

12 - AMENDED OPINION AND ORDER 

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