IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CHERYL L. ALO, 1:16-CV-00180-BR

Plaintiff, OPINION AND ORDER

v.

NANCY A. BERRYHILL,1

Acting Commissioner, Social 

Security Administration,

Defendant.

KATHERINE EITENMILLER

MARK A. MANNING

Harder Wells Baron & Manning

474 Willamette Street

Eugene, OR 97401

(541) 686-1969 

Attorneys for Plaintiff

1

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

Acting Commissioner of Social Security and pursuant to Federal

Rule of Civil Procedure 25(d) is substituted as Defendant in this

action. 

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BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

DAVID MORADO

Regional Chief Counsel

MARTHA A. BODEN 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/A 221A

Seattle, WA 98104

(206) 615-3710

Attorneys for Defendant

BROWN, Judge.

Plaintiff Cheryl L. Alo seeks judicial review of a final

decision of the Commissioner of the Social Security

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

for Supplemental Security Income (SSI) and Disability Insurance

Benefits (DIB) under Titles XVI and II of the Social Security

Act. This Court has jurisdiction to review the Commissioner's

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

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff filed her applications for DIB and SSI on 

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March 5, 2012. Tr. 149, 156.2 Plaintiff alleged a disability

onset date of July 31, 2008. Her applications were denied

initially and on reconsideration. An Administrative Law Judge

(ALJ) held a hearing on January 21, 2014. Tr. 31-55. At the

hearing Plaintiff was represented by an attorney. Plaintiff and

a vocational expert (VE) testified at the hearing. 

The ALJ issued a decision on April 15, 2014, in which she

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

to benefits. Tr. 18-30. Pursuant to 20 C.F.R. § 404.984(d) that

decision became the final decision of the Commissioner on

December 7, 2015, when the Appeals Council denied Plaintiff's

request for review. Tr. 3-6. See Sims v. Apfel, 530 U.S. 103,

106-07 (2000). 

BACKGROUND

Plaintiff was born on January 3, 1986, and was 28 years old

at the time of the hearing. Tr. 149. Plaintiff graduated from

high school. Tr. 35. Plaintiff has past relevant work

experience as a deli worker and produce clerk. Tr. 48. 

Plaintiff alleges disability due to lymphedema in her lower

extremities. Tr. 20. 

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

2

 Citations to the official transcript of record filed by

the Commissioner on July 12, 2016, are referred to as "Tr."

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summary of the medical evidence. After carefully reviewing the

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

medical evidence. See Tr. 21, 23-24.

STANDARDS

The initial burden of proof rests on the claimant to

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

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

inability "to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which . . . has lasted or can be expected to last for

a continuous period of not less than 12 months." 42 U.S.C. 

§ 423(d)(1)(A). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

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

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

453, 459–60 (9th Cir. 2001)). 

The district court must affirm the Commissioner's decision

if it is based on proper legal standards and the findings are

supported by substantial evidence in the record as a whole. 42

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

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

“relevant evidence that a reasonable mind might accept as

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

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

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

but less than a preponderance. Id. (citing Valentine, 574 F.3d

at 690). 

The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

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

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

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

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

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

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

The court may not substitute its judgment for that of the

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

2006). 

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). See

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

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2011).

At Step Two the claimant is not disabled if the 

Commissioner determines the claimant does not have any medically

severe impairments or combination of impairments. 20 C.F.R. 

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also Keyser, 648

F.3d at 724.

At Step Three the claimant is disabled if the Commissioner

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

listed impairments that the Commissioner acknowledges are so

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

§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). See also Keyser, 648

F.3d at 724. The criteria for the listed impairments, known as

Listings, are enumerated in 20 C.F.R. part 404, subpart P,

appendix 1 (Listed Impairments). 

If the Commissioner proceeds beyond Step Three, she must

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

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

physical and mental activities the claimant can still do on a

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

§§ 404.1520(e), 416.920(e). See also Social Security Ruling

(SSR) 96-8p. “A 'regular and continuing basis' means 8 hours a

day, for 5 days a week, or an equivalent schedule." SSR 96-8p,

at *1. In other words, the Social Security Act does not require

complete incapacity to be disabled. Taylor v. Comm’r of Soc.

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Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work she has done in the past. 20 C.F.R. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine

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

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

416.920(a)(4)(v). See also Keyser, 648 F.3d at 724-25. Here the

burden shifts to the Commissioner to show a significant number of

jobs exist in the national economy that the claimant can perform. 

Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th

Cir. 2010). The Commissioner may satisfy this burden through the

testimony of a VE or by reference to the Medical-Vocational

Guidelines set forth in the regulations at 20 C.F.R. part 404,

subpart P, appendix 2. If the Commissioner meets this burden,

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

416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since her July 31, 2008, alleged

onset date. Tr. 20.

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At Step Two the ALJ found Plaintiff has the severe

impairments of morbid obesity and lymphedema. Tr. 20. The ALJ

found Plaintiff’s impairments of plantar fasciitis and

hypertension are nonsevere. Tr. 20. 

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or medically equal one of

the listed impairments in 20 C.F.R. part 404, subpart P, appendix

1. Tr. 21. The ALJ found Plaintiff has the RFC to perform “a

range of light work.” Tr. 21. The ALJ found Plaintiff is able

to lift and/or to carry ten pounds frequently and “up to twenty

pounds” occasionally, to stand and/or to walk two hours in an

eight-hour work day, and to sit for six hours in an eight-hour

work day. Tr. 22. The ALJ found Plaintiff “requires the

opportunity to sit or stand at will while still performing

essential tasks . . . [and] to elevate her legs during the usual

breaks that occur in the work place at intervals of 10 to 15

minutes every two hours and 30 to 60 minutes at the lunch break.” 

Tr. 22. The ALJ also found Plaintiff can climb ramps and stairs,

stoop, crouch, crawl, and kneel occasionally but should never

climb ladders, ropes, or scaffolds. Tr. 22. 

At Step Four the ALJ concluded Plaintiff could not perform

her past relevant work. Tr. 25. 

At Step Five the ALJ concluded Plaintiff could perform jobs

that exist in significant numbers in the national economy. 

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Tr. 25. Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION

Plaintiff contends the ALJ erred when she (1) partially

rejected Plaintiff’s testimony; (2) gave “little weight” to the

Third Party Statement of Plaintiff’s aunt, Sherri Hopkins; 

(3) failed to address the November 2013 statement of Physician’s

Assistant (PA) Tamara Tuttle; and (4) failed to include all of

Plaintiff’s limitations in her hypothetical to the VE.

I. The ALJ did not err when she partially rejected Plaintiff’s

testimony.

Plaintiff alleges the ALJ erred when she failed to provide

clear and convincing reasons for partially rejecting Plaintiff's

hearing testimony.

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment

or combination of impairments could reasonably be expected to

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

1986), aff'd in Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.

1991). The claimant, however, need not produce objective medical

evidence of the actual symptoms or their severity. Smolen, 80

F.3d at 1284.

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If the claimant satisfies the above test and there is not

any affirmative evidence of malingering, the ALJ can reject the

claimant's pain testimony only if she provides clear and

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

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

Cir. 1995)). General assertions that the claimant's testimony is

not credible are insufficient. Id. The ALJ must identify "what

testimony is not credible and what evidence undermines the

claimant's complaints." Id. (quoting Lester, 81 F.3d at 834).

Plaintiff testified at the hearing that she was unable to

work due to the swelling in her legs caused by the lymphedema. 

Tr. 38. Plaintiff noted she left her last job because it was

painful for her to stand and to walk for eight hours even with a

break every two hours. Tr. 43. Plaintiff testified she wears

compression stockings during the day when she is up and around

and gives herself a lymphatic massage once a day, but she still

has pain and swelling in her legs. Plaintiff noted she elevates

her legs every two-to-three hours for thirty minutes at a time to

relieve the pain and swelling. Tr. 39. Plaintiff stated she has

had swelling in her legs since she was 16 years old, but it has

been getting worse over time. Plaintiff noted she did not

elevate her legs for thirty minutes every two-to-three hours in

the past when she was working, but she had to elevate her legs

when she got home from work. Tr. 40. “[S]ince not working[,

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however, she’s] been doing it more.” Tr. 40. Plaintiff

explained her husband works from home and is able to watch their

two young children when she has to elevate her legs.

The ALJ found Plaintiff’s “medically determinable

impairments could reasonably be expected to cause some of the

alleged symptoms,” but the ALJ did “not find all of [Plaintiff’s]

symptom allegations to be credible.” Tr. 22. The ALJ noted

there is objective evidence in the record that Plaintiff has

“extensive edema in her feet and ankles bilaterally,” but

Plaintiff does not appear to be as limited as she alleges. 

Specifically, the ALJ noted in August 2011 Plaintiff had normal

range of motion, no joint swelling, and adequate and equal muscle

tone. Tr. 258. In August 2011 Plaintiff asked treating

physician Ryan Tran, M.D., for a handicap parking placard and

“disability from work.” Tr. 258. Dr. Tran approved Plaintiff

for the handicap placard, but he did not provide Plaintiff with a

statement of disability from work.

The ALJ also noted Plaintiff was examined in September 2013

by Raymond Nolan, M.D., who noted Plaintiff has “marked

lymphedema involving both legs” and feet. Tr. 317. Plaintiff

had normal tandem gait, negative Romberg, and normal lowerextremity strength. Dr. Nolan opined Plaintiff can sit for

“greater than six hours in an eight hour day” and stand and/or

walk for at least four hours in an eight-hour work day, but she

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is limited in her ability to squat or to kneel. Tr. 317.

The ALJ also noted although Plaintiff testified she must

elevate her legs for thirty minutes every two to three hours,

there is not any indication in the record that Plaintiff was

directed to do so by any treating doctor and Plaintiff did not

report doing so to any medical professional before November 2013,

which is after she first applied for disability benefits. 

Nevertheless, the ALJ included in her evaluation of Plaintiff’s

RFC that Plaintiff should be allowed to elevate her legs.

 Finally, the ALJ noted Plaintiff cares for two children

under the age of five, completes household chores, drives her

children to school, and drives herself to appointments.

On this record the Court finds the ALJ did not err when she

partially rejected Plaintiff's testimony because the ALJ provided

clear and convincing reasons supported by substantial evidence in

the record for doing so.

II. The ALJ did not err when she gave little weight to the Third

Party Adult Function Report of Plaintiff’s aunt, Sherri

Hopkins.

Plaintiff alleges the ALJ erred when she failed to provide

reasons for giving only little weight to Hopkins’s Third Party

Adult Function Report.

Lay testimony regarding a claimant's symptoms is competent

evidence that the ALJ must consider unless she "expressly

determines to disregard such testimony and gives reasons germane

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to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511

(9th Cir. 2001). See also Merrill ex rel. Merrill v. Apfel, 224

F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a

claimant's disability, must give full consideration to the

testimony of friends and family members."). The ALJ's reasons

for rejecting lay-witness testimony must also be "specific." 

Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006). When "the

ALJ's error lies in a failure to properly discuss competent lay

testimony favorable to the claimant, a reviewing court cannot

consider the error harmless unless it can confidently conclude

that no reasonable ALJ, when fully crediting the testimony, could

have reached a different disability determination." Stout, 454

F.3d at 1056.

On April 8, 2012, Hopkins provided a Third Party Adult

Function Report in which she states Plaintiff cannot work because

she cannot be on her feet “for very long” due to the fact that

her legs are filled with fluid and they hurt. Tr. 191. Hopkins

reports Plaintiff cannot wear pants, socks, or shoes because they

hurt her legs and feet. Tr. 192. Hopkins notes Plaintiff cannot

stand for long and, therefore, has trouble preparing meals, doing

yard work, shopping for more than 15 minutes at a time, and

getting down on the floor to play with her children. Tr. 194-95. 

Hopkins reports Plaintiff cannot stand for more than 20 minutes

without pain in her legs and cannot walk for more than four or

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five minutes before she needs to rest for 15 to 20 minutes. 

Tr. 196. Hopkins notes Plaintiff has had difficulty walking and

standing “for years,” but her condition has become worse in “the

past few years.” Tr. 198. 

The ALJ gave Hopkins’s Report little weight on the ground

that Hopkins ascribed limitations to Plaintiff that were greater

than those described by Plaintiff herself. For example, Hopkins

stated Plaintiff could stand for only 20 minutes without pain,

but Plaintiff testified she can stand for two-to-three hours. 

Similarly, Plaintiff reported she cooks meals, but Hopkins stated

Plaintiff tries to make one meal per week and Hopkins usually

finishes making the one meal because Plaintiff’s legs hurt. 

Tr. 193.

On this record the Court finds the ALJ did not err when she

gave little weight to Hopkins’s Report because the ALJ provided

reasons germane to Hopkins and supported by substantial evidence

in the record for doing so.

III. The ALJ did not err when she did not address PA Tuttle’s

November 2013 statement.

Plaintiff alleges the ALJ erred when she did not address 

PA Tuttle’s November 2013 statement that Plaintiff “will need to

find work in which she can elevate her legs frequently throughout

the day.” Tr. 328. 

Medical sources are divided into two categories: 

"acceptable" and "not acceptable." 20 C.F.R. § 416.902. 

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Acceptable medical sources include licensed physicians and

psychologists. 20 C.F.R. § 416.902. Medical sources classified

as "not acceptable" include, but are not limited to, physicians’

assistants. SSR 06-03p, at *2. The ALJ may assign a notacceptable medical source either greater or lesser weight than

that of an acceptable medical source. SSR 06-03p, at *5-6. The

ALJ, however, must explain the weight assigned to such sources to

the extent that a claimant or subsequent reviewer may follow the

ALJ's reasoning. SSR 06-03p, at *6.

PA Tuttle examined Plaintiff on November 26, 2013. 

Plaintiff reported the swelling in her legs was “continuous” and

that she needs to “elevate every few hours for about 30 minutes

to keep it under control.” Tr. 327. PA Tuttle directed

Plaintiff to wear compression stockings and to elevate her legs

“as needed.” Tr. 328.

The ALJ did not specifically comment on PA Tuttle’s

statement that Plaintiff would need to find work in which she can

elevate her legs frequently throughout the day. Although

Defendant concedes the ALJ did not expressly address PA Tuttle’s

statement, Defendant asserts the omission was harmless because

the ALJ incorporated in her assessment of Plaintiff’s RFC that

Plaintiff should be allowed to elevate her legs throughout the

work day. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th

Cir. 2008)(An ALJ’s error is harmless when it is clear from the

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record that the ALJ’s error was inconsequential to the ultimate

nondisability determination). Specifically, the ALJ’s assessment

of Plaintiff’s RFC required Plaintiff to be allowed to elevate

her legs for ten-to-fifteen minutes every two hours and 30-60

minutes at the lunch break. The Court agrees the ALJ’s

hypothetical sufficiently encompassed PA Tuttle’s statement that

Plaintiff “will need to find work in which she can elevate her

legs frequently throughout the day.” Tr. 328. 

Accordingly, the Court concludes the ALJ did not err when

she failed to address PA Tuttle’s statement, and, in any event,

any such error was harmless. 

IV. The ALJ did not err at Step Five.

Plaintiff asserts the ALJ erred at Step Five when she failed

to include all of the limitations identified by Plaintiff,

Hopkins, and PA Tuttle in her hypothetical to the VE.

The Court has already concluded the ALJ did not err when she

rejected the limitations asserted by Plaintiff, Hopkins, and PA

Tuttle. On this record, therefore, the Court also concludes the

ALJ did not err at Step Five when she failed to include those

limitations in her hypothetical to the VE. 

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the 

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Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 8th day of May, 2017.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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