1 - OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

HEATHER KATHLEEN FONSECA, No. 6:16-cv-00477-HZ

Plaintiff, OPINION & ORDER

v.

NANCY A. BERRYHILL,

Acting Commissioner of Social Security,

Defendant.

Lisa R.J. Porter

JP Law PC

5200 SW Meadows Rd., Suite 150

Lake Oswego, OR 97035

Attorney for Plaintiff

Billy J. Williams

United States Attorney

Janice E. Hebert

Assistant United States Attorney

1000 SW Third Avenue, Suite 600

Portland, OR 97204
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Sarah Moum

Social Security Administration

701 Fifth Avenue, Suite 2900 M/S 221A

Seattle, WA 98104

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Heather Fonseca brings this action for judicial review of the Commissioner’s 

final decision denying her application for Supplemental Security Income (“SSI”) under Title 

XVI of the Social Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g) 

(incorporated by 42 U.S.C. § 1382(c)(3)). The Court AFFIRMS the Commissioner’s decision.

BACKGROUND

Plaintiff was born in 1971 and was forty-three years old at the time of her administrative 

hearing. Tr. 31, 159.

1

She has a high school education and past relevant work experience as a 

housekeeper and office clerk. Tr. 29–30. She applied for SSI on August 7, 2014, alleging her 

disability onset date as June 1, 2011. Tr. 159–64. Her application was initially denied on October 

29, 2014, and again on reconsideration on January 2, 2015. Tr. 69, 85. Plaintiff requested an 

administrative hearing which was held on June 30, 2015, before Administrative Law Judge 

(“ALJ”) Marilyn Mauer. Tr. 39. On October 8, 2015, ALJ Mauer issued a written opinion 

denying Plaintiff’s application. Tr. 18–32. The Appeals Counsel denied Plaintiff’s request for 

review, making the ALJ’s opinion the Commissioner’s final decision that Plaintiff now 

challenges in this Court. Tr. 1–7.

SEQUENTIAL DISABILITY ANALYSIS

A claimant is disabled if 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 

 

1 Citations to “Tr.” refer to pages of the administrative record transcript, filed here as ECF 14.
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be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. 

§ 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. Valentine v. 

Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate 

burden of proving disability. Id.

At the first step, the Commissioner determines whether a claimant is engaged in 

“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 

140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines 

whether the claimant has a “medically severe impairment or combination of impairments.” 

Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not 

disabled.

At step three, the Commissioner determines whether the claimant’s impairments, singly 

or in combination, meet or equal “one of a number of listed impairments that the [Commissioner] 

acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 

20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if 

not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

At step four, the Commissioner determines whether the claimant, despite any 

impairment(s), has the residual functional capacity (“RFC”) to perform “past relevant work.” 20

C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the 

claimant cannot perform past relevant work, the burden shifts to the Commissioner. At step five, 

the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 

141–42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets its burden 

and proves that the claimant is able to perform other work which exists in the national economy, 

the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
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THE ALJ’S DECISION

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity 

since July 3, 2014. Tr. 20.

At step two, the ALJ found that Plaintiff had the following severe impairments: “lumbar 

degenerative disc disease, obesity, carpal tunnel syndrome, bilateral patellofemoral syndrome, 

anxiety, and depression.” Id.

At step three, the ALJ found that Plaintiff did not have an impairment or combination of 

impairments that met or equaled the severity of one of the listed impairments. Id.

The ALJ found that Plaintiff had the following RFC:

[Plaintiff] has the residual functional capacity to perform light 

work . . . . She can lift 20 pounds occasionally and 10 pounds 

frequently. She can sit, stand and walk each six hours in an 8-hour 

day for a combined total of 8 hours of activity. She can frequently 

handle, finger, and feel. She can never climb ladders, ropes 

scaffolds. She must avoid hazards such as unprotected heights and 

large moving equipment. She can frequently climb ramps and 

stairs. She can occasionally crouch, stoop, kneel and crawl. She 

can balance without limitation. She can understand, remember and 

carry out simple instructions in a setting with no public contact, no 

teamwork assignments, and no strict production pace (defined as 

no strict hourly rate so long as adequate work is complete at the 

end of the workday).

Tr. 26.

At step four, the ALJ found that Plaintiff was capable of performing past relevant work as 

a housekeeper and office clerk. Tr. 29–30. Even though the ALJ had determined that Plaintiff 

was not disabled at step four, she proceeded to consider whether there were other jobs that 

existed in significant numbers in the national economy that Plaintiff could perform. Tr. 30. The

VE testified that, given Plaintiff’s RFC, past work experience, and education, she could perform 
5 - OPINION & ORDER

the jobs of polisher eyeglass frames, document preparer, and addresser. Tr. 30. The ALJ found 

that document preparer and addresser jobs existed in significant numbers in the national 

economy. Id.

STANDARD OF REVIEW

A court may set aside the Commissioner’s denial of benefits only when the 

Commissioner’s findings are based on legal error or are not supported by substantial evidence in 

the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “Substantial 

evidence means more than a mere scintilla but less than a preponderance; it is such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal 

quotation marks omitted). Courts consider the record as a whole, including both the evidence that 

supports and detracts from the Commissioner’s decision. Id.; Lingenfelter v. Astrue, 504 F.3d 

1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational 

interpretation, the ALJ’s decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal 

quotation marks omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) 

(“Where the evidence as a whole can support either a grant or a denial, [the court] may not 

substitute [its] judgment for the ALJ’s.”) (internal quotation marks omitted).

DISCUSSION

Plaintiff raises three challenges to the ALJ’s decision: (1) the ALJ did not provide clear 

and convincing reasons for finding Plaintiff less than fully credible; (2) the ALJ failed to provide 

legally sufficient reasons to reject or omit the medical opinion of Nicole Miller, MA; and (3) the 

ALJ failed to incorporate all medical findings into Plaintiff’s RFC. 

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I. The ALJ’s Determination of Plaintiff’s Credibility 

The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be 

expected to cause some of [her] alleged symptoms,” however, her “statements concerning the 

intensity, persistence and limiting effects of these symptoms are not entirely credible.” Tr. 23. 

An ALJ analyzes the credibility of a claimant’s testimony regarding her subjective pain and other 

symptoms in two steps. Lingenfelter, 504 F.3d at 1035–36. “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.” Id. at 1036 

(citation and internal quotation omitted). “The claimant, however, 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.” Id.

(citation and internal quotation omitted). “Second, if the claimant meets the first test, and there is 

no evidence of malingering, the ALJ can reject her testimony about the severity of his symptoms 

only by offering specific, clear and convincing reasons for doing so.” Id. (citation and internal 

quotation omitted). The ALJ may consider objective medical evidence and the claimant’s 

treatment history, as well as the claimant’s daily activities, work record, and observations of 

physicians and third parties with personal knowledge of the claimant’s functional limitations. 

Smolen v. Chater, 80 F.3d 1273, 1283 (9th Cir. 1996). The ALJ may additionally employ 

ordinary techniques of credibility evaluation, such as weighing inconsistent statements by the 

claimant. Id.

The ALJ found that Plaintiff’s subjective symptom testimony was not credible because it 

was inconsistent with evidence in the medical record and inconsistent with her daily activities. 

Plaintiff stated that she had many physical limitations, including: inability to sit for longer than 
7 - OPINION & ORDER

ten to fifteen minutes; extreme sharp back and hip pain; arthritis in her hands, hips and knees; 

inability to lift ten pounds; ability to lift only three to five pounds comfortably; inability to 

manipulate small objects; inability to use her hands without immediate numbness; bowel and 

urinary incontinences; inability to walk ten to fifteen feet without a cane; and that she would 

throw her back out every one to two months causing her to lay down for one to one and a half 

weeks. Tr. 48–58. 

The ALJ relied on several medical opinions which were inconsistent with Plaintiff’s

statements:

Dr. Knowlton repeatedly found she was neurologically grossly 

intact with normal gait. PA Jensen found she had full motor 

strength throughout and normal gait. NP Young found she had 

grossly intact sensation. Dr. Williams found she was able to 

transfer from the chair to the exam table, sit comfortably and was 

able to take her shoes off without difficulty, and walk to the exam 

room without difficulty. The doctor found she had normal gait and 

intact hop and squat. The doctor found she did not need a cane. 

The doctor found she showed intact gross and fine motor skills. 

The doctor found she had no paravertebral muscle spasms, 

tenderness, crepitus, effusions, deformities or trigger points. The 

doctor found she had full strength in the upper and lower 

extremities, near full grip strength, and grossly intact sensation. 

Diagnostic imaging of the left knee was unremarkable. Diagnostic 

imaging of the lumbar spine showed minimal abnormalities. 

Tr. 27 (internal citations omitted). The ALJ properly identified the testimony that was not 

credible and the objective medical evidence that undermined Plaintiff’s complaints. Berry, 622 

F.3d at 1234. Accordingly, the Court finds that the ALJ provided clear and convincing reasons 

supported by substantial evidence in the record for finding Plaintiff’s testimony incredible.

Plaintiff argues, however, that the ALJ failed to point to medical evidence contradicting her 

claimed bowel and urinary incontinence. At the administrative hearing, the ALJ questioned 

Plaintiff on this topic and Plaintiff stated that she could wear adult diapers, but did not. Tr. 60–
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61. Plaintiff also stated that she used hygiene products in response to her incontinence and does 

not otherwise indicate how it limited her. Id. In sum, the omission of Plaintiff’s incontinence

from the written opinion does not undermine the ALJ’s credibility determination because the 

majority of Plaintiff’s statements regarding her limitations were shown to be inconsistent with 

objective medical evidence.

Regarding Plaintiff’s mental impairments, she claims that she: feels very depressed, has 

panic attacks, is fatigued, is very anxious, that her ability to interact with others is impaired, she 

has difficulty concentrating and falling asleep, diminished interest or pleasure, guilt, loss of 

appetite, restlessness, and suicidal thoughts. Tr. 361–87. Here too, the ALJ found that Plaintiff’s 

testimony was inconsistent with medical evidence in the record. Tr. 27. For example, the ALJ 

noted that Dr. Knowlton “repeatedly found she had normal affect with good eye contact.” Tr. 27, 

320. The ALJ further noted that multiple providers found that she was emotionally stable, had an 

appropriate affect, and an unremarkable stream of mental activity. Tr. 27, 280, 301, 320, 356,

359, 404. Here, it was rational for the ALJ to interpret the medical evidence as inconsistent with 

the severity of Plaintiff’s claimed mental impairments. The ALJ provided substantial evidence 

supporting her credibility determination and the Court will not substitute its own judgment on the 

matter.

Lastly, the ALJ found that Plaintiff’s daily activities demonstrated that she was not as 

limited as her complaints would indicate. Tr. 27. The ALJ noted that Plaintiff reported she: 

showered and dressed herself; prepared meals; did dishes and laundry; traveled by walking; 

walked six miles a day; shopped in stores twice a month; handled her funds, and visited her 

parents twice a month. Id. The ALJ also found that Plaintiff’s claim that she could not be around 

more than two or three people was inconsistent with the fact that she lived in a homeless camp 
9 - OPINION & ORDER

with a communal kitchen. Id. With regards to that last point, the Court agrees with Plaintiff that 

the ALJ should not have considered the fact that the Plaintiff lived in a homeless camp as 

evidence inconsistent with her claimed social anxiety. The remainder of Plaintiff’s daily 

activities the ALJ relied on, however, were inconsistent with Plaintiff’s claims regarding her 

physical limitations. The Court finds that these inconsistencies also supported the ALJ’s 

credibility determination. 

II. The ALJ’s Treatment of MA Miller’s Medical Testimony

Next, Plaintiff argues that the ALJ did not provide sufficient reasons to reject MA 

Miller’s opinion. In Social Security cases, there is a hierarchy for weighing medical providers’ 

opinions. Generally, more weight is given to the opinion of a treating source than to an 

examining source and more weight is given to the opinion of an examining source than to a nonexamining source. Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1996). Furthermore, there is a 

distinction between “acceptable medical sources” and “other sources.” Mental health examiners, 

such as MA Miller, are considered “other sources.” See 20 C.F.R. § 416.913(a); SSR 06-03p. 

The opinions of “other sources” are entitled to less weight than “acceptable medical sources.” 

Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). While the ALJ must consider “other 

source” opinions, the ALJ need only provide germane reasons for rejecting such opinions. Id.

Furthermore, the ALJ may use evidence from “other sources” “to show the severity of the 

individual’s impairment(s) and how it affects the individual’s ability to function.” SSR 06-03p.

The ALJ gave germane reasons for discounting MA Miller’s opinion. The ALJ gave the 

opinion little weight because it did not specifically describe Plaintiff’s functional limitations. Tr. 

28, 270, 275. MA Miller’s opinion discusses Plaintiff’s anxiety but not how it impacts her 

functioning. Tr. 270. Further, she merely lists the severity of Plaintiff’s “occupational problems” 
10 - OPINION & ORDER

and “problems related to the social environment” as “moderate” without further explanation. Tr. 

275. This opinion in no way describes how Plaintiff’s impairments affect her ability to function.

The ALJ also noted that the opinion does not describe Plaintiff’s functioning during the relevant 

time period. Tr. 28. Instead, the ALJ gave great weight to the opinion of consultative 

psychological examiner Dr. Manuel Gomez. Id. Dr. Gomez provided specific testimony 

regarding the impact Plaintiff’s impairments had on her functioning, his opinion was based on an 

examination of Plaintiff, and his opinion was more consistent with his clinical findings. 

Accordingly, the Court finds that the ALJ gave reasons germane to MA Miller for according her 

opinion little weight. 2

III. The ALJ’s Formulation of Plaintiff’s RFC

Because the Court finds that the ALJ’s determinations regarding Plaintiff’s testimony and 

MA Miller’s opinion were not in error, it concludes that Plaintiff’s RFC was supported by 

substantial evidence and properly formulated. Therefore, the Court affirms the ALJ’s ultimate 

disability determination.

CONCLUSION

Based on the foregoing, the Commissioner’s decision is affirmed and this case is

dismissed.

IT IS SO ORDERED.

Dated this day of ________________, 2017

 

MARCO A. HERNÁNDEZ

United States District Judge

 

2

Plaintiff also argued, for the first time in her Reply, that the ALJ did not provide a germane reason to discount the 

opinion of lay witness Anthony Downing. The Court, in exercising its discretion, declines to entertain Plaintiff’s 

argument raised for the first time in her Reply. Weaving v. City of Hillsboro, No. 10-cv-1432-HZ, 2012 WL 526425, 

at *15 n.5 (D. Or. Feb. 16, 2012).