PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DIANE MCINNES,

Plaintiff,

v.

NANCY A. BERRYHILL,

1

Commissioner of Social Security,

Defendant.

Case No. 6:16-cv-272-SI

OPINION AND ORDER

Katherine L. Eitenmiller and Mark A. Manning, HARDER, WELLS, BARON & MANNING, P.C., 474 

Willamette, Suite 200, Eugene, OR 97401. Attorneys for Plaintiff.

Billy J. Williams, United States Attorney, and Janice E. Hebert, Assistant United States 

Attorney, UNITED STATES ATTORNEYS OFFICE, District of Oregon, 1000 S.W. Third Avenue, 

Suite 600, Portland, OR 97201-2902; Erin F. Highland, Special Assistant United States Attorney, 

OFFICE OF THE GENERAL COUNSEL, Social Security Administration, 701 Fifth Avenue, Suite 

2900 M/S 221A, Seattle, WA 98104-7075. Attorneys for Defendant.

Michael H. Simon, District Judge.

Diane McInnes (“Plaintiff”) seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration (“Commissioner”) denying her application 

 

1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to

Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting

Commissioner Carolyn W. Colvin as the defendant in this suit.

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for disability insurance benefits (“DIB”) under Title II of the Social Security Act. For the reasons 

discussed below, the Commissioner’s decision is affirmed.

STANDARD OF REVIEW

The district 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 Soc. Sec. 

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 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. (quoting Andrews, 53 F.3d at 1039).

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

Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 

(9th Cir. 2005). 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. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th 

Cir. 2004). “[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) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) 

(quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a 

ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.

BACKGROUND

A. Plaintiff’s Application

Plaintiff was born in November 1950 and was sixty-two years old at the time of the 

administrative hearing. AR 36, 125. She speaks English and earned a college degree in hotel and 

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restaurant management. AR 215. She has past work experience as a customer service 

representative, a purchasing agent, and an inventory clerk. AR 150. 

Plaintiff filed for disability insurance benefits on February 11, 2013, alleging disability as 

of September 9, 2011. AR 123-31. Plaintiff’s application was denied initially and upon 

reconsideration, and she requested a hearing before an ALJ. AR 68-71, 76-81. An administrative

hearing was held before ALJ John Michaelsen on November 19, 2014. AR 31-47. On January 5, 

2015, the ALJ issued a written decision denying Plaintiff’s application. AR 17-30. The Appeals 

Council denied Plaintiff’s subsequent request for review on December 11, 2015, making the 

ALJ’s decision final. AR 1-13. This appeal followed. 

B. The Sequential 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)(1)(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 Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. 

§ 404.1520 (DIB); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially 

dispositive. 20 C.F.R. § 404.1520(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. 

§ 404.1520(a)(4)(i). This activity is work involving significant mental or 

physical duties done or intended to be done for pay or profit. 20 C.F.R. 

§ 404.1510. If the claimant is performing such work, she is not disabled 

within the meaning of the Act. 20 C.F.R. § 404.1520(a)(4)(i). If the 

claimant is not performing substantial gainful activity, the analysis 

proceeds to step two.

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2. Is the claimant’s impairment “severe” under the Commissioner’s 

regulations? 20 C.F.R. § 404.1520(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. 

§ 404.1521(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. § 404.1509. If 

the claimant does not have a severe impairment, the analysis ends. 20 

C.F.R. § 404.1520(a)(4)(ii). 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. § 404.1520(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. §§ 404.1520(e); 404.1545(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. 

§ 404.1520(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. §§ 404.1520(a)(4)(v); 404.1560(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; see also 

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The 

Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the 

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

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numbers in the national economy, “taking into consideration the claimant’s residual functional 

capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566; 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. § 404.1520(a)(4)(v). If, however, the Commissioner 

proves that 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.

C. The ALJ’s Decision

After finding that Plaintiff met the insured status requirements of the Social Security Act

through December 31, 2014, the ALJ performed the sequential analysis. AR 22. At step one, the 

ALJ determined that Plaintiff had not engaged in substantial gainful activity since her alleged 

onset date of September 9, 2011. Id. At step two, the ALJ found Plaintiff suffered from the 

medically determinable impairments of anxiety and a history of possible alcohol 

abuse/dependence. AR 23. The ALJ then determined that Plaintiff did not have an impairment or 

combination of impairments that significantly limited her ability to perform basic work-related 

activities for 12 consecutive months; therefore, the ALJ found Plaintiff does not have a severe 

impairment of combination of impairments. AR 23 (citing 20 C.F.R. Part 404, Subpart P, 

Appendix 1. Accordingly, the ALJ concluded that Plaintiff was not disabled. AR 26.

DISCUSSION

Plaintiff argues that the ALJ erred by (1) rejecting her subjective symptom testimony; 

and (2) failing to find that her anxiety was a severe impairment.

A. Plaintiff’s Testimony

Plaintiff argues that the ALJ improperly evaluated her subjective symptom testimony. 

There is a two-step process for evaluating a claimant’s testimony about the severity and limiting 

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effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “First, 

the ALJ must determine whether the claimant has presented objective medical evidence of an 

underlying impairment ‘which could reasonably be expected to produce the pain or other 

symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting 

Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant 

need not 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.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the 

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering 

specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting 

Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must 

state which pain testimony is not credible and what evidence suggests the complaints are not 

credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be 

“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily 

discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing

Bunnell, 947 F.2d at 345-46).

Effective March 16, 2016, the Commissioner superseded Social Security Rule 

(“SSR”) 96-7p governing the assessment of a claimant’s “credibility” and replaced it with a new 

rule, SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the 

reference to “credibility,” clarifies that “subjective symptom evaluation is not an examination of 

an individual’s character,” and requires the ALJ to consider of all of the evidence in an 

individual’s record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The 

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Commissioner recommends that the ALJ examine “the entire case record, including the objective 

medical evidence; an individual’s statements about the intensity, persistence, and limiting effects 

of symptoms; statements and other information provided by medical sources and other persons; 

and any other relevant evidence in the individual’s case record.” Id. at *4. The Commissioner 

recommends assessing: (1) the claimant’s statements made to the Commissioner, medical 

providers, and others regarding the claimant’s location, frequency and duration of symptoms, the 

impact of the symptoms on daily living activities, factors that precipitate and aggravate 

symptoms, medications and treatments used, and other methods used to alleviate symptoms; 

(2) medical source opinions, statements, and medical reports regarding the claimant’s history, 

treatment, responses to treatment, prior work record, efforts to work, daily activities, and other 

information concerning the intensity, persistence, and limiting effects of an individual’s 

symptoms; and (3) non-medical source statements, considering how consistent those statements 

are with the claimant’s statements about his or her symptoms and other evidence in the file. See

id. at *6-7. 

The ALJ’s credibility decision may be upheld overall even if not all of the ALJ’s reasons 

for rejecting the claimant’s testimony are upheld. See Batson, 359 F.3d at 1197. The ALJ may 

not, however, make a negative credibility finding “solely because” the claimant’s symptom 

testimony “is not substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d 

at 883.

At the administrative hearing, Plaintiff testified that she was significantly limited by 

anxiety symptoms, which began in September 2011 and resulted in her termination from her 

most recent job. AR 37. She stated that she experienced significant panic attacks with each 

attempt to return to work after her alleged onset date. AR 37-38. Plaintiff testified that her panic 

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symptoms are exacerbated by new places and situations. AR 39. Although she avoids going out 

in public, she experiences panic attacks monthly. AR 38-39. 

The ALJ considered but rejected Plaintiff’s testimony to the extent that it conflicted with 

the RFC, following the two-step process articulated by the Ninth Circuit. AR 24; Vasquez, 572 

F.3d at 591. As a first reason for rejecting Plaintiff’s testimony, the ALJ noted that Plaintiff’s

activities of daily living contradicted her testimony regarding debilitating anxiety and panic 

attacks. AR 24. An ALJ may discount a claimant’s testimony if it is inconsistent with the 

claimant’s daily activities. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012).

The ALJ noted that Plaintiff reportedly went outside every day, walked, drove a car, and 

shopped in stores once per week for thirty minutes. AR 159. She was able to talk on the 

telephone and visit with others, and she had no problem getting along with family, friends, or 

neighbors. AR 160-61, 214, 216. Plaintiff also stated that on every other weekend she was able 

to visit her boyfriend who lived more than 50 miles away. AR 41. These activities arguably 

contradict Plaintiff’s testimony that she was incapacitated by anxiety and that panic symptoms

prevented her from going out of doors or engaging in new situations. The ALJ provided a clear 

and convincing reason for rejecting Plaintiff’s testimony regarding the severity of her anxietyand panic-related limitations. Molina, 674 F.3d at 1112-13.

As a second reason for rejecting Plaintiff’s testimony, the ALJ considered the gaps in 

Plaintiff’s treatment history. AR 24. Unexplained gaps in a claimant’s treatment record can 

constitute a clear and convincing reason to reject the claimant’s testimony. Fair v. Bowen, 885 

F.2d 597, 603 (9th Cir. 1989). The ALJ noted that Plaintiff sought no medical treatment between 

September 2011 and May 2013. AR 24. In June 2013 Plaintiff told psychologist Pamela Roman, 

Ph.D., that her doctor did not know about her anxiety and that she had never sought treatment for 

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anxiety. AR 216. Plaintiff also testified that she declined mental health counseling, even though 

it was available to her. AR 38. Although Plaintiff points out that she lost her insurance in 2011, 

she does not allege that her failure to seek treatment was due to insolvency or lack of insurance. 

The gap in Plaintiff’s treatment history therefore provides additional weight to the ALJ’s 

credibility determination. Fair, 885 F.2d at 603.

Third, the ALJ considered objective medical evidence that conflicted with Plaintiff’s 

testimony. AR 25. Medical evidence that conflicts with a claimant’s testimony can support an 

adverse credibility finding. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ 

reviewed the results of a May 2013 psychodiagnostic assessment, noting that Plaintiff had 

appropriate affect, logical and coherent though processes, adequate judgment, normal speech, 

and average concentration on examination. AR 25, 216-17. The medical record also contains a 

note from examining nurse practitioner Karen Woodson, NP, that Plaintiff had normal mood and 

affect and that Plaintiff’s anxiety was “mostly related to her concern over getting a job.” AR 230. 

In August 2013 Plaintiff’s therapist noted that Plaintiff had only “low-level” anxiety with a 

generally euthymic mood. AR 237. Treatment records dated December 2013 through June 2014 

reveal that Plaintiff’s mental status exams were normal and that she did not complain of 

debilitating anxiety or panic. AR 247, 249, 251, 253, 255, 257, 260, 262, 263, 309-10, 313-16, 

319-20. On this record, it was reasonable for the ALJ to conclude that Plaintiff’s testimony 

regarding the nature and extent of her limitations conflicted with the objective medical evidence. 

The ALJ therefore provided an additional clear and convincing reason for rejecting Plaintiff’s 

testimony. Rollins, 261 F.3d at 857. 

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Thus, the ALJ provided legally sufficient reasons supported by substantial evidence in 

the record for rejecting Plaintiff’s testimony regarding her subjective symptoms of anxiety and 

panic.

B. Step Two Findings

Plaintiff also argues that the ALJ erred by failing to find that her anxiety was a severe 

impairment at step two of the sequential evaluation process. Plaintiff argues that this error was a 

result of the ALJ’s erroneous credibility determination. Because the ALJ’s credibility finding 

was supported by substantial evidence, the court rejects Plaintiff’s argument and affirms the

ALJ’s findings at step two.

CONCLUSION

The ALJ’s decision is affirmed.

IT IS SO ORDERED.

DATED this 29th day of March, 2017.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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