IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CHARLENE WALKER, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Acting Commissioner of the Social Security 

Administration, 

Defendant. 

P ANNER, Judge: 

Civ. No. 3:16-cv-00008-PA 

OPINION AND ORDER 

Plaintiff Charlene Walker brings this action for judicial review of the final decision of the 

Commissioner of Social Security ("Commissioner") denying her application for Title II 

Disability Insurance Benefits under the Social Security Act. For the reasons set forth below, the 

Commissioner's decision is affirmed and this case is dismissed. 

1 - OPINION AND ORDER 

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PROCEDURAL BACKGROUND 

On December 21, 2011, plaintiff applied for Disability Insurance Benefits, alleging an 

onset date of July 1, 2010. Tr. 176-78. Her application was denied initially and upon 

reconsideration. Tr. 99-102, 104-06. On February 10, 2014, a hearing was held before an 

Administrative Law Judge ("ALJ"), wherein plaintiff was represented by counsel and testified, 

as did a vocational expert. Tr. 34-70. At the hearing, plaintiff amended her onset date to July 18, 

2011, to coincide with when she stopped working at substantial gainful levels. Tr. 66. On June 

13, 2014, the ALJ issued a partially favorable decision, finding plaintiff disabled as of September 

1, 2012. Tr. 16-28. After the Appeals Council denied her request for review, plaintiff filed a 

complaint in this Court. Tr. 1-6. 

STATEMENT OF FACTS 

B·om on September 16, 1949, plaintiff was 61 years old on the amended alleged onset 

date of disability and 64 years old at the time of the hearing. Tr. 176. Plaintiff obtained a fouryear college degree. Tr. 208. She worked previously as an administrative assistant to the dean of 

a liberal arts college. Tr. 63-64. 

STANDARD OF REVIEW 

The 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. Hammock v. 

Bowen, 879 F .2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It 

means such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations 

omitted). The court must weigh "both the evidence that supports and detracts from the 

2 - OPINION AND ORDER 

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[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 

Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is 

rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

The initial burden of proof rests upon the claimant to establish disability. Howard v. 

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the 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 person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First, 

the Commissioner determines whether a claimant is engaged in "substantial gainful activity." 

Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). Ifso, the claimant is not disabled. 

At step two, the Commissioner evaluates 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). If the claimant does not have a medically determinable, severe impairment, she is 

not disabled. 

At step three, the Commissioner determines whether the claimant's impairments, either 

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 140-41; 20 C.F.R. § 404.1520(d). If so,_ the claimant is presumptively disabled; if 

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

3 - OPINION AND ORDER 

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At step four, the Commissioner resolves whether the claimant can still perform "past 

relevant work." 20 C.F.R. § 404.1520(£). If the claimant can work, she is not disabled; if she 

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 existing in significant 

numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g). 

If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566. 

THE ALJ'S FINDINGS 

At step one of the five step sequential evaluation process outlined above, the ALJ found 

that plaintiff had not engaged in substantial gainful activity since the amended alleged onset date. 

Tr. 18. At step two, the ALJ determined that, as of July 18, 2011, plaintiffs status-post hip 

replacement, left hip degenerative joint disease, cervical degenerative disc disease, obesity, and 

skin lesions were medically determinable and severe. Tr. 19. Beginning September 1, 2012, 

plaintiff also suffered from the following impairment: status-post open reduction and internal 

fixation surgery. Tr. 26. At step three, the ALJ found plaintiffs impairments, either singly or in 

combination, did not meet or equal the requirements of a listed impairment prior to September 1, 

2012. Tr. 20-26. 

Because she did not establish presumptive disability at step three as of the amended 

alleged onset date, the ALJ continued to evaluate how plaintiffs impairments affected her ability 

to work. The ALJ resolved that, as of July 18, 2011, plaintiff had the residual functional capacity 

to perform sedentary work except she was "precluded . . . from exercising the high level of 

mental concentration and attention for a high level, skilled occupation." Tr. 20. 

4 - OPINION AND ORDER 

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At step four, the ALJ determined plaintiff was unable to perform any past relevant work. 

Tr. 24. At step five, the ALJ found that, between July 18, 2011, and August 31, 2012, plaintiff 

had acquired work skills which were transferrable to other representative occupations that 

existed in significant numbers in the national and local economy. Tr. 25. However, beginning on 

September 1, 2012, the ALJ found that plaintiff was disabled under listings l.02A and 1.06. Tr. 

26. 

DISCUSSION 

This case hinges on whether there is sufficient evidence in the record to establish an 

earlier disability onset date. Specifically, plaintiff argues that the ALJ erred by: (1) failing to find 

her enterocutaneous fistula medically determinable and severe as of the amended alleged onset 

date; and (2) improperly discrediting opinion evidence from Anthony Francis, M.D. 

I. Step Two Finding 

Plaintiff contends the ALJ erred at step two by failing to address her enterocutaneous 

fistula. At step two, the ALJ determines whether the claimant has an impairment, or combination 

of impairments, that is both medically determinable and severe. 20 C.F.R. § 404.1520(c). An 

impairment is medically determinable if it is diagnosed by an acceptable medical source and 

based upon acceptable medical evidence, such as "signs, symptoms, and laboratory findings." 

SSR 96-4p, available at 1996 WL 374187; 20 C.F.R. § 404.1513(a). An impairment is severe if 

it significantly limits the claimant's ability to do basic work activities. 20 C.F.R. § 404.1521. 

The step two threshold is low; the Ninth Circuit describes it as a "de minimus screening 

device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) 

(citation omitted). As such, any "error at step two [is] harmless [if] step two was decided in [the 

5 - OPINION AND ORDER 

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claimant's] favor with regard to other ailments." Mondragon v. Astrue, 364 Fed. Appx. 346, 348 

(9th Cir. 2010) (citing Burch, 400 F.3d at 682). 

At step two, the ALJ found that, as of the amended alleged onset date, plaintiffs statuspost hip replacement, left hip degenerative joint disease, cervical degenerative disc disease, 

obesity, and skin lesions were medically determinable and severe. Tr. 19. Accordingly, any 

alleged error at step two error was harmless because the ALJ continued the sequential evaluation 

process. See Stout v. Comm 'r of Soc. Sec. Adm in., 454 F .3d 1050, 1055 (9th Cir. 2006) (mistakes 

that are "nonprejudicial to the claimant or irrelevant to the ALJ' s ultimate disability conclusion" 

are harmless). 

Regardless, an independent review of the record reveals that plaintiffs enterocutaneous 

fistula was not active during the relevant time period. Plaintiff had surgery in November 2009 to 

address her enterocutaneous fistula and ventral hernia. Tr. 272-56. At her first postoperative 

appointment in January 2010, her surgical wound was "improving." Tr. 357. In May 2010, she 

had her second postoperative appointment; while her surgical wound was still open, she did not 

complain of any abdominal pain. Id. At her next postoperative appointment in September 2010, 

plaintiffs wound continued to "[i]mprove," appearing "[s]maller" with "[n]o signs of infection" 

and "[h]ealing ... scar tissue from the edges." Tr. 363; see also Tr. 361-62 (not reporting any 

abdominal pain when recounting her physical problems fo her counselor in August 2010). 

Although plaintiff noted some abdominal pain during a counseling session in March 2011, she 

did not seek any treatment for her physical impairments again until May 2011. Tr. 363-71. At 

that time, her surgical wound had not completely closed, however, she reported "[n]o abdominal 

pain" and the ability to "walk up a flight of stairs without stopping." Tr. 3 71-78. 

6 - OPINION AND ORDER 

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In the first medical record after the alleged onset date, from August 2011, plaintiff was 

"looking for a new job or temp job or even volunteer work," despite reporting pain in her "right 

shoulder, low back and left hip." Tr. 379-84. The only mention of any stomach-related issue 

states: "patient has started independent exercise ... Will explore aquatic therapy in the future 

once abdominal wound has completely resolved." Tr. 384-86; see also Tr. 387-405 (outside of 

medication management, plaintiff did not seek any medical care between August and December 

2011 ). In December 2011, plaintiff repeatedly denied any pain at the surgical site; even though 

there was a small area of the abdominal wound that remained open, her medical providers 

described it as "well-healed." See, e.g., Tr. 409, 418, 426, 439. Thereafter, plaintiff did not report 

any symptoms associated with her enterocutaneous fistula until 2013, when she presented with 

abdominal pain. Compare Tr. 272-642 (medical records predating 2013), with Tr. 643-73 

(medical evidence post-dating 2013). 1 

In sum, the record demonstrates that plaintiffs enterocutaneous fistula was diagnosed 

and surgically repaired prior to the alleged onset date. While her surgical wound did not 

immediately heal, plaintiff did not complain of any pain or restriction related thereto until well 

after the ALJ found that she was disabled. As a result, there is no acceptable medical evidence 

establishing that this condition impacted plaintiffs ability to complete basic work activities 

during the relevant time period. Finally, while not dispositive, the Court notes that the ALJ's 

residual functional capacity- which limited plaintiff to sedentary, unskilled work - would likely 

1 Plaintiff did not list enterocutaneous fistula, ventral hernia, or abdominal pain as the basis for 

her disability claim when applying benefits in December 2011, which further suggests she was 

not experiencing any limitations caused by these impairments during the relevant time period. 

Tr. 207. 

7 - OPINION AND ORDER 

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have accommodated any symptoms associated with plaintiffs enterocutaneous fistula. Tr. 20. 

Therefore, reversal is not appropriate in regard to this issue. 

II. Medical Opinion Evidence 

Plaintiff asserts that the ALJ erred by failing to afford controlling weight to the opinion 

of Dr. Francis. There are three types of acceptable medical opinions in Social Security cases: 

those from treating, examining, and non-examining doctors. Orn v. Astrue, 495 F.3d 625, 631 

(9th Cir. 2007). "Generally, the opinions of examining physicians are afforded more weight than 

those of non-examining physicians, and the opinions of examining non-treating physicians are 

afforded less weight than those of treating physicians." Id As such, the ALJ need only refer to 

"specific evidence in the medical record" in order to reject the opinion of a non-examining 

doctor. Sousa v. Callahan, 143 F .3d 1240, 1244 (9th Cir. 1998) (citation omitted). 

In March 2014, Dr. Francis reviewed the record and completed a medical source 

statement. Tr. 687-92. The narrative portion of his opinion consisted of a brief summary of the 

medical evidence and a list of plaintiffs diagnoses. Tr. 691-92. Dr. Francis concluded, in 

relevant part, that plaintiff "equals 5.06 for the enterocutaneous fistula and ventral hernia since 

the AOD of either [7/01/09] or [7/01/10]." Tr. 691 (brackets in original). 

The ALJ gave "little weight to this part of Dr. Francis' opinion" because it was 

"inconsistent with [plaintiffs] continued substantial gainful work activity through July 18, 2011, 

as well as [plaintiffs] testimony that she would have been able to continue working at her job 

had she not been terminated." Tr. 27. The ALJ also found that Dr. Francis' opinion was 

"inconsistent with [plaintiffs] weekly certification for State unemployment benefits." Id An 

8 - OPINION AND ORDER 

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ALJ may reject a medical opinion that is inconsistent with the evidence of record. Tommasetti v. 

Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 

Substantial evidence supports the ALJ's conclusion in the case at bar. Plaintiff worked at 

substantial gainful levels for years after Dr. Francis opined she became disabled under listing 

5.06. Tr. 195, 198; see also Weetman v. Sullivan, 877 F.2d 20, 22-23 (9th Cir. 1989) (affirming 

the ALJ's rejection of a treating doctor's opinion that that claimant was "totally" disabled as of 

1979 because, amongst other reasons, it was "clearly inconsistent [with the fact that the claimant] 

engaged in substantial gainful activity during the 1981 calendar year"). Further, plaintiff testified 

at the hearing that she would have continued working full-time had she not been terminated; she 

also filed for and received unemployment benefits from September 2011 through the end of 

2012. Tr. 42, 48, 185-86. 

Thus, Dr. Francis's disability determination, especially as it relates to timing, is wholly 

without support in the record. In fact, Dr. Francis' report does not reference any records prior to 

2013 indicating that plaintiff was suffering from pain or other complications as a result of her 

enterocutaneous fistula or ventral hernia. Tr. 691-92. This is consistent with the Court's 

independent review of the record; as addressed in section I, plaintiffs surgical wound was 

healing well, albeit in a delayed fashion, and plaintiff did not report any symptoms that could be 

fairly traced to those conditions until after the ALJ determined she was disabled. 

As such, even crediting Dr. Francis' opinion in its entirety, plaintiff would not have been 

entitled to benefits until two full years after he opined she became disabled under listing 5.06. 

See 20 C.F.R. § 404.1520(b) ("[if] the work you are doing is substantial gainful activity, we will 

find that you are not disabled regardless of your medical condition or your age, education, and 

9 - OPINION AND ORDER 

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work experience"). As the ALJ resolved, this discrepancy, especially in conjunction with the 

other evidence ofrecord, undermines Dr. Francis' medical conclusions. The ALJ's assessment of 

Dr. Francis' opinion is upheld. 

CONCLUSION 

For the foregoing reasons, the Commissioner's final decision is AFFIRMED and this 

case is DISMISSED. All pending motions are DENIED as moot. 

IT IS SO ORDERED. 

DATED this _:j_ day ofNovember 2016. 

~711~ Owen M. Panner 

United States District Judge 

10 - OPINION AND ORDER 

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