UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MICHAEL LEON COLLINS, )

)

Plaintiff, ) Case No. 3:15-cv-0062-MC

)

v. ) OPINION AND ORDER

)

CAROLYN W. COLVIN, )

Acting Commissioner of Social Security, )

)

Defendant. )

____________________________________)

Richard A. Sly, 610 S.W. Broadway Ste. 405, Portland, OR 97205; Linda S. Ziskin, P.O. Box 

753833, Las Vegas, NV 89136. Attorneys for Plaintiff.

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

Attorney, United States Attorney’s Office, District of Oregon, 1000 S.W. Third Avenue, 

Suite 600, Portland, OR 97204-2902; L. Jamala Edwards, 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.

McSHANE, District Judge.

Michael Leon Collins (“plaintiff”) seeks judicial review of the final decision of the 

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

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for Disability Insurance Benefits (“DIB”). Because the Commissioner’s decision is supported by 

substantial evidence, the decision is AFFIRMED.

I. BACKGROUND

A. The Application

Born in June, 1978, plaintiff was 35 years old on November 14, 2009, his alleged onset 

date. Tr. 16, 185. He completed one year of college and has past relevant work as a call center 

operator and as a receiving clerk. Tr. 211. He alleges disability due to juvenile-onset Type I 

diabetes mellitus with attendant gastric and renal complications, culminating in end-stage renal 

disease. Tr. 22, 97, 107, 210. 

Plaintiff filed his application for DIB on December 31, 2009, alleging disability as of 

November 14, 2009. Tr. 209-18. Plaintiff submitted a separate application for SSI that was 

granted in 2012, with an established onset date of March 29, 2012. After the Commissioner 

denied his DIB application initially and upon reconsideration, plaintiff requested a hearing 

before an Administrative Law Judge (“ALJ”). Tr. 153. An administrative hearing was held on

plaintiff’s DIB claim on July 30, 2013. Tr. 35-54. 

On August 12, 2013, ALJ Glenn Meyers issued a written decision finding plaintiff not to 

be disabled. Tr. 16-29. The Appeals Council denied plaintiff’s subsequent request for review on 

November 24, 2014, and the ALJ’s decision became the final decision of the Commissioner. Tr. 

1-6. 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

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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 20 C.F.R. 

§ 404.1520; 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.

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. §

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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 

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 (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

The ALJ performed the sequential analysis. At step one, he found that plaintiff had not 

engaged in substantial gainful activity from his alleged onset date of November 14, 2009 through 

his date last insured of June 30, 2010. Tr. 22. At step two, the ALJ concluded that plaintiff had 

the severe impairments of diabetes mellitus and diabetic nephropathy. Id. At step three, the ALJ 

determined that plaintiff did not have an impairment or combination of impairments that met or 

medically equaled a listed impairment. Tr. 25.

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The ALJ next assessed plaintiff’s residual functional capacity (“RFC”) and found that he 

retains the capacity to perform sedentary work with the following limitations: he can 

occasionally stoop, crouch, crawl, and kneel; he can occasionally climb ramps or stairs; he 

cannot climb ladders; and he should avoid workplace hazards. Tr. 25. Proceeding to step four, 

the ALJ found that plaintiff could perform his past relevant work as a call center operator. Tr. 

28. Accordingly, the ALJ found that plaintiff was not disabled between his alleged onset date 

and his date last insured. Id. 

II. 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). It means “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” Id. 

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, 359 F.3d 1190, 1193 (9th Cir. 2004). 

“However, 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) 

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(internal quotations omitted)). The 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.

III. DISCUSSION

Plaintiff argues that the Commissioner erred because he (1) failed to develop the medical 

record and (2) improperly rejected plaintiff’s credibility. For the reasons discussed below, the 

ALJ’s decision is affirmed.

A. Failure to Develop the Medical Record

Prior to the filing the application at issue in this case, plaintiff applied for benefits in 

2007 and received an unfavorable decision that he did not appeal. Tr. 55, 58. Plaintiff argues 

that the ALJ erred by failing to develop the record by including the medical evidence that was 

before the ALJ who considered the 2007 application.1

 

As an initial matter, the Court finds that the ALJ did not reopen the decision denying the 

2007 application for benefits, and this Court cannot review that decision. Krumpelman v. 

Heckler, 767 F.2d 586, 588 (9th Cir. 1985) (the Commissioner’s decision “not to re-open a 

previously adjudicated claim for social security benefits is purely discretionary and is therefore 

not considered a final decision” within the meaning of the Act); Lester v. Chater, 81 F.3d 821, 

827 (9th Cir. 1996). 

The ALJ has “broad latitude” in deciding whether to further develop the record, Reed v. 

Massanari, 270 F.3d 838, 842 (9th Cir. 2001), and the ALJ’s duty to further develop the record 

is triggered by “[a]mbiguous evidence, or the ALJ’s own finding that the record is inadequate to 

all for proper evaluation of the evidence.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 

2001). Here, the ALJ considered plaintiff’s request to add exhibits from the 2007 application to 

the record.. Tr. 731-914. Although he included two of the exhibits, the ALJ explained that 

 1 A portion of that record appears in the administrative record for this case at Tr. 739-914.

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inclusion of the entire 2007 medical file pertained to a prior adjudicated period and would not 

have changed his decision. Tr. 19-20. The Court finds that the ALJ did not err in his refusal to 

further develop the record. As discussed below, the ALJ properly considered the medical 

evidence that pertained to the plaintiff’s allegation of disability during the relevant period and 

was not presented with any ambiguity or inadequacy with respect to the evidence relied upon. 

Tonapetyan, 242 F.3d 1150.

Plaintiff contends that the ALJ erred because he failed at step two to find that he meets 

Listing 6.02, Impairment of Renal Function.

2

 Subcategory C3 provides that to prove disability, 

the claimant must show impairment of renal function due to any chronic renal disease expected 

to last 12 months, with “[c]hronic hemodialysis or peritoneal dialysis necessitated by irreversible 

renal failure.” The claimant must also show “persistent” creatinine level of 4 or greater for at 

least 3 months. Persistent is defined as at, “or expected to be at,” a certain level for at least 12 

months. In addition, a claimant must show one of the following:

1. Renal osteodystrophy ... manifested by severe bone pain and appropriate medically 

acceptable imaging demonstrating abnormalities such as osteitis fibrosa, significant 

osteoporosis, osteomalacia, or pathologic fractures; or

2. Persistent motor or sensory neuropathy (see 6.00E4); or

3. Persistent fluid overload syndrome with:

a. Diastolic hypertension greater than or equal to diastolic blood pressure of 110 

mm Hg; or

b. Persistent signs of vascular congestion despite prescribed therapy (see 6.00B5); 

or

4. Persistent anorexia with weight loss determined by body mass index (BMI) of less than 

18.0, calculated on at least two evaluations at least 30 days apart within a consecutive 6-

month period (see 5.00G2).

SSI Listing 6.02C.

 2 In 2012, plaintiff filed an application for SSI that was granted based on a finding that he meets Listing 6.02. Tr. 

64, 85, 94-96, 127. 3 It is clear the plaintiff did not meet Subcategories A or B at the time of the ALJ’s decision.

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The ALJ considered the medical evidence and found plaintiff did not meet the criteria for 

Listing 6.02C. Tr. 25. In support of this finding, the ALJ noted that plaintiff’s creatinine level 

was 3.4 in May, 2010 and reached 4 on June 24, 2010. Tr. 263, 265, 269, 291, 294, 297. By 

August 2010, plaintiff’s creatinine level had declined to less than 3.68. Tr. 294. Thus, the 

medical records from the relevant period do not support a finding that plaintiff’s creatinine level 

persisted at listing level severity. The ALJ concluded that plaintiff did not meet or equal Listing 

6.02C through his date last insured. Tr. 25. 

In support of his argument that he meets Listing 6.02, plaintiff cites record evidence of 

anorexia and references to his thinness. Tr. 294, 330, 360, 390, 429, 434, 443, 756, 791, 794-95. 

The ALJ’s finding that the record did not support anorexia during the relevant period, however, 

is supported by substantial evidence. Plaintiff was 5 feet tall and weighed 130 pounds, giving 

him a Body Mass Index of 19.2, which does not meet the weight requirement for Listing 6.02. 

Tr. 210. Plaintiff’s endocrinologist also reported that plaintiff’s weight fluctuated between 137 

and 152 pounds. Tr. 274. On this record, it was reasonable for the ALJ to find that plaintiff did 

not meet the weight requirement for Listing 6.02. Batson, 359 F.3d at 1193. Moreover, because 

plaintiff did not meet the criterion regarding creatinine levels, anorexia was not relevant to the 

ultimate disability determination. Even if the ALJ erred in his consideration of plaintiff’s 

anorexia, it was harmless. Molina v. Astrue, 674 F.3d 1104, 1117 (9th Cir. 2012) (an ALJ’s error 

is harmless if it is inconsequential to the ultimate nondisability determination). 

Plaintiff also argues that the issue of plaintiff’s gastric condition needs further 

development due to an “apparent misdiagnosis.” The Court rejects this argument. Here, a 

gastric emptying study in 2012 found that plaintiff did not have gastroparesis, and he had no 

hospital visits for ketoacidosis or related symptoms during the relevant period. Tr. 715-30. The 

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record for the relevant period is therefore not ambiguous as to the issue of gastroparesis, and the 

ALJ was not required to further develop the record on this issue. See Tonapetyan, 242 F.3d at 

1150. 

In sum, the ALJ’s finding that plaintiff did not meet a listed impairment is supported by 

substantial evidence in the record and is therefore affirmed. Batson, 359 F.3d at 1193. Because 

substantial evidence was available to support the ALJ’s decision, he was not required to further 

develop the record in his disability analysis. Tonapetyan, 242 F.3d 1150.

B. Plaintiff’s Credibility

Plaintiff also argues that the ALJ erred by rejecting his subjective symptom testimony. 

There is a two-step process for evaluating the credibility of a claimant’s own testimony about the 

severity and limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 

(9th Cir. 2009) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). “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, 504 F.3d at 1036 (quotation marks and citation omitted). 

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 

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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 v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991)).

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, 80 F.3d at 

1284. The Commissioner recommends assessing the claimant’s daily activities; the location, 

duration, frequency, and intensity of the individual's pain or other symptoms; factors that 

precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any 

medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other 

than medication, the individual receives or has received for relief of pain or other symptoms; and 

any measures other than treatment the individual uses or has used to relieve pain or other 

symptoms. See SSR 96–7p, 1996 WL 374186 (Jul. 2, 1996).

Further, the Ninth Circuit has said that an ALJ “may consider ... ordinary techniques of 

credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements 

concerning the symptoms, ... other testimony by the claimant that appears less than candid [, and] 

unexplained or inadequately explained failure to seek treatment or to follow a prescribed course 

of treatment.” Smolen, 80 F.3d at 1284. 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. The ALJ’s credibility decision may be 

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upheld even if not all of the ALJ’s reasons for rejecting the claimant’s testimony are upheld. See 

Batson, 359 F.3d at 1197.

At the hearing, plaintiff testified that he was completely disabled by his impairments, 

which included nausea and vomiting so severe that it caused him to miss work for more than half 

of the days in a month. Tr. 48-49. 

 The ALJ rejected plaintiff’s testimony as to the disabling nature of his limitations due to 

his noncompliance with and failure to seek treatment. Tr. 27. Unexplained or inadequately 

explained failure to seek treatment is a relevant credibility consideration. Orn, 495 F.3d at 636. 

The ALJ may also reject a claimant’s credibility due to failure to comply with treatment 

recommendations. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Here, while financial 

constraints were a significant obstacle to treatment, plaintiff’s noncompliance and failure to seek 

treatment support the ALJ’s credibility determination. For example, plaintiff testified that 

treating endocrinologist Nicholas Clarke, M.D. did not charge for his services. Tr. 26, 51.

Nevertheless, plaintiff rarely visited Dr. Clarke during the relevant period. See, e.g., Tr. 261-75. 

Plaintiff was also aware of opportunities to access free or low-cost medical care. While Dr. 

Clarke noted that plaintiff was unable to check his blood sugars regularly due to cost, Dr. Clarke 

advised plaintiff to get on Oregon Health Plan in order to properly comply with his diabetes 

treatment. Tr. 261-75. Despite this recommendation, plaintiff did not attain insurance. Tr. 51-

52, 726. On this record, plaintiff’s noncompliance and failure to seek appropriate treatment were

clear and convincing reasons for the ALJ to reject his credibility. Orn, 495 F.3d at 636; Fair, 

885 F.2d at 603.

The ALJ also found that plaintiff’s work activity during the relevant period was at odds 

with his testimony of debilitating limitations. Tr. 27. Daily activities that are inconsistent with 

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alleged symptoms are a relevant credibility consideration. Rollins v. Massanari, 261 F.3d 853, 

857 (9th Cir. 2001). Here, plaintiff performed work in 2009 and 2010 for a friend at the 

Hillsboro Air Show which involved setting up and taking down tents, taking inventory, light 

cleaning, and retrieving supplies. Tr. 22, 219, 254. At the hearing, plaintiff testified that he

completed some college in 2011. Tr. 48, 390. Plaintiff’s work activity during the relevant 

period adds some weight to the ALJ’s credibility determination. Rollins, 261 F.3d at 857.

IV. CONCLUSION

The Commissioner’s decision that plaintiff is not disabled was supported by substantial 

evidence in the record and is therefore AFFIRMED.

DATED this 28th day of April, 2016.

_/s/ Michael McShane 

Michael McShane

United States District Judge

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