IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

AMY SWAN, 

Plaintiff, 

v. 

NANCY A. BERRYHILL, 1 

Acting Conunissioner, Social 

Security Administration, 

Defendant. 

MERRILL SCHNEIDER 

Schneider Kerr & Robichaux 

P.O. Box 14490 

Portland, OR 97293 

(503) 255-9092 

Attorneys for Plaintiff 

BILLY J. WILLIAMS 

United States Attorney 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

(503) 727-1003 

6:15-cv-02430-BR 

OPINION AND ORDER 

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

Acting Commissioner of the Social Security Administration and 

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

as the Plaintiff in this action. 

1 - OPINION AND ORDER 

Case 6:15-cv-02430-BR Document 20 Filed 02/23/17 Page 1 of 12
DAVID MORADO 

Regional Chief Counsel 

LEISA A. WOLF 

Special Assistant United States Attorney 

Social Security Administration 

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

Seattle, WA 98104 

(206) 615-3621 

Attorneys for Defendant 

BROWN, Judge. 

Plaintiff Amy Swan seeks judicial review of the final 

decision of the Commissioner of the Social Security 

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

for Supplemental Security Income (SSI) under Title XVI of the 

Social Security Act. This Court has jurisdiction to review the 

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

For the reasons that follow, the Court AFFIRMS the decision 

of the Commissioner and DISMISSES this matter. 

ADMINISTRATIVE HISTORY 

Plaintiff protectively filed her application for SSI 

benefits on May 22, 2012. Tr. 19. 2 Plaintiff alleged a 

disability onset date of August 1, 2005. Tr. 19. Plaintiff's 

application was denied initially and on reconsideration. An 

Admi0istrative Law Judge (ALJ) held a hearing on May 19, 2014. 

2 Citations to the official transcript of record filed by 

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

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Case 6:15-cv-02430-BR Document 20 Filed 02/23/17 Page 2 of 12
Tr. 34-61. Plaintiff and a vocational expert (VE) testified. 

Plaintiff was represented by an attorney at the hearing. 

On June 24, 2014, the ALJ issued an opinion in which she 

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

to benefits. Tr. 19-29. On August 1, 2014, Plaintiff requested 

review by the Appeals Council. Tr. 14. On October 29, 2015, the 

Appeals Council denied Plaintiff's request to review the ALJ's 

decision, and the ALJ's decision became the final decision of the 

Commissioner. Tr. 1-3. See Sims v. Apfel, 530 U.S. 103, 106-07 

(2000). 

On December 30, 2015, Plaintiff filed a Complaint in this 

Court seeking review of the Commissioner's decision. 

BACKGROUND 

Plaintiff was born on May 10, 1966. Tr. 27. Plaintiff was 

48 years old at the time of the hearing. Plaintiff dropped out 

of high school after the 11th grade and has not completed her 

GED. Tr. 28. The ALJ found Plaintiff does not have any past 

relevant work experience. Tr. 27. 

Plaintiff alleges disability due to back injury, posttraumatic stress disorder (PTSD), rapid depression, panic 

attacks, and obsessive-compulsive disorder (OCD). Tr. 64-65. 

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

summary of the medical evidence. After carefully reviewing the 

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Case 6:15-cv-02430-BR Document 20 Filed 02/23/17 Page 3 of 12
medical records, this Court adopts the ALJ's summary of the 

medical evidence. See Tr. 21-23. 

STANDARDS 

The initial burden of proof rests on the claimant to 

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

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

inability "to engage in any substantial gainful activity by 

reason of any medically determinable physical or mental 

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

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

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

ambiguous evidence or when the record is inadequate to allow for 

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

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

453, 459-60 (9th Cir. 2001)). 

The district court must affirm the Commissioner's decision 

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

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

u.s.c. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin., 

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

"relevant evidence that a reasonable mind might accept as 

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

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

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Case 6:15-cv-02430-BR Document 20 Filed 02/23/17 Page 4 of 12
(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 evaluating a claimant's 

testimony, resolving conflicts in the medical evidence, and 

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

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

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

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

when the evidence is susceptible to more than one rational 

interpretation, the court must uphold the Commissioner's findings 

if they are supported by inferences reasonably drawn from the 

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

The court may not substitute its judgment for that of the 

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

2006) . 

DISABILITY ANALYSIS 

I. The Regulatory Sequential Evaluation 

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

gainful activity (SGA). 20 C.F.R. § 416.920(a) (4) (I). See also 

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

At Step Two the claimant is not disabled if the Commissioner 

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Case 6:15-cv-02430-BR Document 20 Filed 02/23/17 Page 5 of 12
determines the claimant does not have any medically severe 

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

§ 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. 

§ 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. 

§ 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 *l. In other 

words, the Social Security Act does not require complete 

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

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

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

At Step Four the claimant is not disabled if the 

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Case 6:15-cv-02430-BR Document 20 Filed 02/23/17 Page 6 of 12
Commissioner determines the claimant retains the RFC to perform 

work she has done in the past. 20 C.F.R. § 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. § 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. § 416.920(g) (1) 

ALJ'S FINDINGS 

At Step One the ALJ found Plaintiff has not engaged in 

substantial gainful activity since May 22, 2012, Plaintiff's 

application date. Tr. 21. 

At Step Two the ALJ found Plaintiff has the severe 

impairments of cervicalgia, general anxiety disorder, and 

adjustment disorder with depressed mood. Tr. 21. 

At Step Three the ALJ concluded Plaintiff's medically 

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Case 6:15-cv-02430-BR Document 20 Filed 02/23/17 Page 7 of 12
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. 22. The ALJ found Plaintiff has the RFC to 

perform less than light work; can occasionally climb ladders, 

ropes, or scaffolds; can occasionally crawl; and can understand 

and carry out simple instructions. Tr. 24. 

At Step Four the ALJ concluded Plaintiff does not have any 

past relevant work. Tr. 27. 

At Step Five the ALJ found Plaintiff could perform other 

jobs that exist in the national economy. Tr. 28-29. 

Accordingly, the ALJ found Plaintiff is not disabled. 

DISCUSSION 

Plaintiff contends the ALJ erred when she "assign[ed] 

anything less than great weightu to the opinion of Pamela Roman, 

Ph.D., Plaintiff's examining psychologist, and gave greater 

weight to the opinion of the nonexamining physician without 

providing legally sufficient reasons for rejecting Dr. Roman's 

opinion. 

I. Standards 

An ALJ may reject an examining or treating physician's 

opinion when it is inconsistent with the opinions of other 

treating or examining physicians if the ALJ makes "findings 

setting forth specific, legitimate reasons for doing so that are 

8 - OPINION AND ORDER 

Case 6:15-cv-02430-BR Document 20 Filed 02/23/17 Page 8 of 12
based on substantial evidence in the record." Thomas v. 

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

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

opinion of an examining or treating physician is uncontroverted, 

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

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

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

examining physician is entitled to greater weight than the 

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

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

A nonexamining physician is one who neither examines nor 

treats the claimant. Lester, 81 F.3d at 830. ''The opinion of a 

nonexamining physician cannot by itself constitute substantial 

evidence that justifies the rejection of the opinion of either an 

examining physician or a treating physician." Id. at 831. When 

a nonexamining physician's opinion contradicts an examining 

physician's opinion and the ALJ gives greater weight to the 

nonexamining physician's opinion, the ALJ must articulate his 

reasons for doing so. See, e.g., Morgan v. Comm'r of Soc. Sec. 

Admin, 169 F.3d 595, 600-01 (9th Cir. 1999). 

II. The ALJ properly considered the opinion of Dr. Roman. 

On January 12, 2013, Dr. Roman performed a psycho-diagnostic 

examination of Plaintiff and diagnosed Plaintiff with generalized 

anxiety disorder; adjustment disorder with depressed mood; "rule 

9 - OPINION AND ORDER 

Case 6:15-cv-02430-BR Document 20 Filed 02/23/17 Page 9 of 12
out personality disorder, NOS with some borderline and histrionic 

featuresff; and back and neck pain. Tr. 250. Dr. Roman reported 

Plaintiff was able to understand and to remember instructions 

during the interview, but noted "it is likely that she would have 

difficulty understanding and remembering more complicated 

instructions.ff Dr. Roman also indicated "it is likely 

[Plaintiff] would have a great deal of difficulty maintaining 

attention and concentration throughout a normal work week and 

work day.ff Tr. 251. 

On January 16, 2013, William Habjan, D.O., a nonexamining 

physician, reviewed Plaintiff's medical records and issued a 

determination that Plaintiff is not disabled. Tr. 73-86. 

Dr. Habjan reviewed Plaintiff's medical record, which included 

Dr. Roman's report. Dr. Habjan stated Dr. Roman's opinion, which 

arose from a single examination of Plaintiff, "is an overestimate 

of the severity of [Plaintiff's] restrictions/limitations based 

only on a snapshot of the individual's functioning.ff Tr. 84. 

After thoroughly reviewing Plaintiff's medical records, 

including Dr. Roman's opinion and Dr. Habjan's report, the ALJ 

noted: 

[The] [s]tate agency medical consultant [Dr. Habjan] 

gave Dr. Roman's assessment partial weight as it was a 

one-time evaluation, and Dr. Roman appears to have 

relied heavily on the [Plaintiff's] self-reports. 

Tr. 27. The ALJ, however, also noted: 

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Case 6:15-cv-02430-BR Document 20 Filed 02/23/17 Page 10 of 12
Tr. 27. 

[The] [s]tate agency medical consultant [Dr. Habjan] 

found that the {Plaintiff] could perform light residual 

functional capacity with additional postural and 

nonpostural limitations. 

When an ALJ's findings are not identical to but are 

consistent with a physician's assessed limitations of the 

claimant, those findings do not constitute a rejection of the 

physician's opinion. Turner v. Comm'r of Soc. Sec. Admin., 613 

F.3d 1217, 1222-23 (9th Cir. 2010). See also Thomas v. Colvin, 

No. 3:14-cv-00667-CL, 2015 WL 4603376, at *5 (D. Or. July 29, 

2015). Here after the ALJ thoroughly reviewed and summarized 

Plaintiff's medical records, including Dr. Roman's opinion, the 

ALJ concluded Plaintiff had the RFC to perform less than light 

work with the additional limitation of being able to follow only 

simple instructions. Tr. 27. Moreover, the ALJ incorporated the 

limitations set out in Dr. Roman's report in her evaluation of 

Plaintiff's RFC and supported her decision with a detailed and 

thorough summary of the facts and medical evidence. Thus, the 

ALJ did not "rejectn Dr. Roman's opinion. 

On this record the Court concludes the ALJ properly 

considered Dr. Roman's opinion, and the ALJ provided legally 

sufficient reasons for her decision supported by substantial 

evidence in the record. 

CONCLUSION 

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For these reasons, the Court AFFIRMS the decision of the 

Commissioner and DISMISSES this matter. 

IT IS 

DATED 

SO ORDERED. 

this 7Ji~ay 

12 - OPINION AND ORDER 

of February, 2017. 

ANNA J. BROWN 

United States District Judge 

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