IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KAREN SUE MAINWARING, 

Plaintiff, 

v. 

NANCY A. BERRYHILL, 

Acting Commissioner, Social 

Security Administration, 1 

Defendant. 

KATHERINE L. EITENMILLER 

MARK A. MANNING 

Harder, Wells, Baron & Manning 

474 Willamette, Suite 200 

Eugene, OR 97401 

(541) 686-1969 

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 

6:16-cv-00082-BR 

OPINION AND ORDER 

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

Acting Commissioner of the Social Security Administration and 

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

as Plaintiff in this action. 

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Case 6:16-cv-00082-BR Document 16 Filed 03/07/17 Page 1 of 18
DAVID MORADO 

Regional Chief Counsel 

ALEXIS L. TOMA 

Special Assistant United States Attorney 

Social Security Administration 

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

Seattle, WA 98104 

(206) 615-2950 

Attorneys for Defendant 

BROWN, Judge. 

Plaintiff Karen Sue Mainwaring seeks judicial review of the 

final decision of the Commissioner of the Social Security 

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

for Disability Insurance Benefits (DIB) under Title II of the 

Social Security Act and 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 DIB and SSI 

benefits on March 29, 2012. Tr. 24. 2 Plaintiff alleged a 

disability onset date of December 12, 2007. Tr. 24. Plaintiff's 

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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application was denied initially and on reconsideration. An 

Administrative Law Judge (ALJ) held a hearing on January 24, 

2014. Tr. 42-80. Plaintiff and a vocational expert (VE) 

testified. Plaintiff was represented by an attorney at the 

hearing. 

On June 6, 2014, the ALJ issued an opinion in which she 

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

to benefits. Tr. 24-35. On June 23, 2014, Plaintiff requested 

review by the Appeals Council. Tr. 18. On November 13, 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. 2-5. See Sims v. Apfel, 530 U.S. 103, 

106-07 (2000). 

On January 19, 2016, Plaintiff filed a Complaint in this 

Court seeking review of the Commissioner's decision. 

BACKGROUND 

Plaintiff was born on September 30, 1962. Tr. 34. 

Plaintiff was 51 years old at the time of the hearing. Plaintiff 

achieved a GED and completed some college, but she did not earn a 

degree. Tr. 50-51. The ALJ found Plaintiff has worked as a 

flagger and warehouse worker, but she is unable to perform any 

past relevant work. Tr. 34. 

Plaintiff alleges disability due to severe migraines, post3 - OPINION AND ORDER 

Case 6:16-cv-00082-BR Document 16 Filed 03/07/17 Page 3 of 18
traumatic stress disorder (PTSD), hypertension, depression, 

adjustment disorder, and suicidal tendencies and thoughts. 

Tr. 81. 

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

summary of the medical evidence. After carefully reviewing the 

medical records, this Court adopts the ALJ's summary of the 

medical evidence. See Tr. 29-34. 

ST.ANDARDS 

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 

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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 

(9th Cir. 2009)). It is more than a mere scintilla [of evidence] 

but less than a preponderance. 

at 690). 

Id. (citing Valentine, 574 F.3d 

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). 

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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. §§ 404.1520(a) (4) (I), 

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 

determines the claimant does not have any medically severe 

impairment or combination of impairments. 20 C.F.R. §§ 404.1509, 

404.1520(a) (4) (ii), 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. 

§§ 404.1520(a) (4) (iii), 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 

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regular and continuing basis despite her limitations. 20 C.F.R. 

§§ 404.1520(e), 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 . Adm in . , 6 5 9 F . 3 d 12 2 8 , 12 3 4 - 3 5 ( 9th Cir . 2 0 11 ) ( citing Fair 

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the 

Commissioner determines the claimant retains the RFC to perform 

work she has done in the past. 20 C.F.R. §§ 404.1520(a) (4) (iv), 

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. §§ 404.1520 (a) (4) (v), 

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. §§ 404.1520 (g) (1), 

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Case 6:16-cv-00082-BR Document 16 Filed 03/07/17 Page 7 of 18
416. 920 (g) (1). 

ALJ'S FINDINGS 

At Step One the ALJ found Plaintiff has not engaged in 

substantial gainful activity since December 12, 2007, the alleged 

date of onset. Tr. 26. 

At Step Two the ALJ found Plaintiff has the severe 

impairments of migraine headaches, hypertension, major depressive 

disorder, anxiety disorder, right-knee degenerative joint 

disease, and undifferentiated somatoform disorder. Tr. 26. 

At Step Three the ALJ concluded Plaintiff's medically 

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. 27. The ALJ found Plaintiff has the RFC to 

perform light work; can lift/carry 20 pounds occasionally and 10 

pounds frequently; can sit for six hours in an eight-hour 

workday; can stand/walk for about six hours in an eight-hour 

workday with the ability to change positions every 30 minutes; 

should avoid ladders, ropes, and scaffolds; can occasionally 

climb stairs and ramps; can occasionally stoop and crouch; should 

avoid kneeling and crawling; must avoid workplace hazards such as 

unprotected heights or dangerous machinery; must not be exposed 

to noise or flashing lights in concentrations greater than those 

generally found in the ordinary office-type environment; can 

8 - OPINION AND ORDER 

Case 6:16-cv-00082-BR Document 16 Filed 03/07/17 Page 8 of 18
understand, remember, and carry out only simple instructions that 

can be learned in 30 days or less; and can have occasional 

contact with the public. Tr. 29. 

At Step Four the ALJ concluded Plaintiff is unable to 

perform any past relevant work. Tr. 34. 

At Step Five the ALJ found Plaintiff could perform other 

jobs that exist in the national economy. Tr. 34-35. 

Accordingly, the ALJ found Plaintiff is not disabled. 

DISCUSSION 

Plaintiff contends the ALJ erred when she (1) discredited 

Plaintiff's symptom testimony, (2) improperly evaluated the 

medical evidence, and (3) failed to meet her burden at Step Five. 

I. The ALJ did not err when she found Plaintiff's testimony was 

not credible. 

Plaintiff contends the ALJ erred by failing to provide clear 

and convincing reasons to support her finding that Plaintiff's 

testimony was not entirely credible. 

A. Standards 

In Cotton v. Bowen the Ninth Circuit established two 

requirements for a claimant to present credible symptom 

testimony: The claimant must produce objective medical evidence 

of an impairment or impairments and must show the impairment or 

combination of impairments could reasonably be expected to 

produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th 

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Case 6:16-cv-00082-BR Document 16 Filed 03/07/17 Page 9 of 18
Cir. 1986). The claimant, however, need not produce objective 

medical evidence of the actual symptoms or their severity. 

Smolen, 80 F.3d at 1284. 

If the claimant satisfies the above test and there is 

not any affirmative evidence of malingering, the ALJ can reject 

the claimant's testimony only if she provides clear and 

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742, 

750 (9th Cir. 2007) (citing Lester v. Chater, 81 F.3d 821, 834 

(9th Cir. 1995)). General assertions that the claimant's 

testimony is not credible are insufficient. Id. The ALJ must 

identify "what testimony is not credible and what evidence 

undermines the claimant's complaints." Id. (quoting Lester, 81 

F.3d at 834). 

B. Analysis 

Plaintiff testified at the hearing on January 14, 2014, 

that she cannot work due to migraines that she suffers from "six 

to seven times a month, sometimes more," and that last from "two 

to 14 days." Tr. 53. At the time of the hearing Plaintiff wore 

sunglasses because she had a headache. Tr. 45. Plaintiff also 

testified her migraines have "never been controlled with 

medication," but she stated she takes Valium for them and that 

"sometimes" Valium makes her "functional." Tr. 54. Plaintiff 

further testified her fibromyalgia, bad knee, and back problems 

cause her pain, limit her ability to walk and to stand, require 

10 - OPINION AND ORDER 

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her to use a cane, and make it difficult for her to sit for more 

than 20 minutes. Tr. 54, 58-59. Plaintiff also stated she can't 

"focus" and "get[s] confused." Tr. 55. 

The ALJ concluded Plaintiff's "medically determinable 

impairments could reasonably be expected to cause some of the 

alleged symptoms; however, [Plaintiff's] statements concerning 

the intensity, persistence and limiting effect of these symptoms 

are not entirely credible." Tr. 30. The ALJ identified specific 

evidence in the record to support her determination that 

Plaintiff's testimony was not credible. Tr. 30-32. For example, 

although Plaintiff alleged significant pain from her 

f ibromyalgia, the medical records indicate Plaintiff tends to 

"exaggerate" or to "overstate" her complaints, and she was 

"somewhat dramatic" when describing her pain. Tr. 31, 389, 409. 

The ALJ also noted Plaintiff's demeanor at the time of the 

hearing "did not have the appearance of a person who was 

suffering from a debilitating headache." Although an ALJ cannot 

rely on her personal observations of a plaintiff's purported lack 

of pain behavior as a basis for discrediting the plaintiff's 

testimony, inclusion of the ALJ's personal observations does not 

render her decision improper. Verduzco v. Apfel, 188 F.3d 1087, 

1090 (9th Cir. 1999) (rejecting the "sit and squirm" test of 

credibility). Here the ALJ stated, however, that Plaintiff's 

lack of pain behavior was "only one among many observations" she 

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relied on to reach her conclusion that Plaintiff's testimony was 

not credible. Tr. 30. 

Although Plaintiff testified she had significant 

anxiety and depression symptoms, the ALJ noted these symptoms 

were not reported to physicians with any frequency. The ALJ 

noted Scott Alvord, Psy.D., a consultative psychological 

examiner, observed Plaintiff downplayed psychiatric distress in 

favor of other pain and migraine headaches. Tr. 31, 389-90. The 

ALJ also noted Plaintiff had substantial gainful employment in 

only one of the past fifteen years, and that poor work history 

raised credibility concerns regarding Plaintiff's motivation to 

seek and to maintain employment. Tr. 32. 

On this record the Court finds the ALJ did not err when 

she found Plaintiff's testimony was not credible because the ALJ 

provided legally sufficient reasons supported by substantial 

evidence in the record for doing so. 

II. The ALJ did not err in her evaluation of the medical 

evidence. 

Plaintiff contends the ALJ failed to provide legally 

sufficient reasons for discounting the opinions of Plaintiff's 

treating physicians Gulrukh Rizvi, M.D., and James Kiley, M.D., 

and the opinion of Plaintiff's mental-health clinician Noelle 

Osborn, MEd, MFR, QMHP. 

A. Standards 

An ALJ may reject an examining or treating physician's 

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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 

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). 

Medical sources are divided into two categories: 

"acceptable" and "not acceptable." 20 C.F.R. § 416.902. 

Acceptable medical sources include licensed physicians and 

psychologists. 20 C.F.R. § 416.902. Medical sources classified 

as "not acceptable" include, but are not limited to, nurse 

practitioners, therapists, licensed clinical social workers, and 

chiropractors. SSR 06-03p, at *2. Factors the ALJ should 

consider when determining the weight to give an opinion from 

those "important" sources include the length of time the source 

has known the claimant and the number of times and frequency that 

the source has seen the claimant, the consistency of the source's 

13 - OPINION AND ORDER 

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opinion with other evidence in the record, the relevance of the 

source's opinion, the quality of the source's explanation of his 

opinion, and the source's training and expertise. SSR 06-03p, at 

*4. On the basis of the particular facts and the above factors, 

the ALJ may assign a "not acceptable" medical source opinion 

either greater or lesser weight than that of an acceptable 

medical source. SSR 06-03p, at *5-6. The ALJ, however, must 

explain the weight assigned to such sources to allow the claimant 

or subsequent reviewer to follow the ALJ's reasoning. SSR 06-

03p, at *6. 

B. Drs. Rizvi and Kiley. 

Plaintiff contends the ALJ did not provide a legally 

sufficient basis to discredit the reports of Plaintiff's treating 

physicians. 

On September 19, 2013, Dr. Rizvi prepared an Impairment 

Questionnaire at the request of Plaintiff's attorney. Tr. 440-

44. Dr. Rizvi estimated Plaintiff was able to perform a job in a 

seated position for less than one hour, perform a job in a 

standing and/or walking position for one hour, and needed to take 

unscheduled breaks to rest every half-hour. Tr. 442. Dr. Rizvi 

indicated his evaluation was completed "per patient report" with 

Plaintiff "answering questions about her ability to do certain 

tasks as [Dr. Rizvi] had no way to assess this without a PT 

referral which [Plaintiff] cannot afford." Tr. 518. 

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On October 2, 2013, Dr. Kiley prepared a Headaches 

Impairment Questionnaire. Tr. 452-457. Dr. Riley also indicated 

he relied on Plaintiff's self-reported symptoms and limitations 

in making his assessments that included Plaintiff's inability to 

tolerate even "low stress" work. Tr. 456. 

The ALJ may reasonably discount a treating physician's 

opinion if it is based largely on the claimant's self-reporting. 

Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). 

Here the ALJ gave "little weight" to the reports of 

Drs. Rizvi and Kiley because they were dependent on Plaintiff's 

self-reporting and "not based on clinical findings or other 

objective evidence." Tr. 32. 

Accordingly, on this record the Court concludes the ALJ did 

not err when she gave little weight to the reports of Plaintiff's 

treating physicians because the ALJ provided legally sufficient 

reasons supported by the record for doing so. 

C. Mental-Health Clinician (MHC) Osborn 

The Plaintiff also contends the ALJ improperly 

discredited the opinion of MHC Osborn. 

On October 8, 2013, MHC Osborn submitted a letter in 

support of Plaintiff's application for disability benefits. She 

stated Plaintiff has "symptoms of anxiety and depression" and 

"becomes easily overwhelmed by being over stimulated and requires 

opportunities to ground herself when her anxiety spikes." 

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Tr. 458. MHC Osborn concluded Plaintiff's "mental health 

symptoms hinder her ability to participate in employment." 

Tr. 458. Because MHC Osborn, a mental-health clinician, is 

classified as a "not acceptable'' medical source, the ALJ may 

properly discount MHC Osborn's assessment by providing reasons 

that are "germane" to her opinion. 

The ALJ gave "little weight" to MHC Osborn's opinion on 

the grounds that "she provided no functional limits" to support 

her assessment of Plaintiff mental health and Plaintiff had 

refused mental-health medications to aid in the treatment of any 

such mental impairments. Tr. 33. 

On this record the Court concludes the ALJ provided 

sufficient "germane" reasons for discounting the opinion of 

MHC Osborn. 

III. The ALJ did not fail to meet her burden at Step Five. 

Plaintiff contends the ALJ failed to meet her burden at Step 

Five on the ground that the ALJ's hypothetical to the VE did not 

include all of Plaintiff's limitations as a result of improperly 

discounting the reports of Dr. Rizvi, Dr. Kiley, MHC Osborn, and 

Plaintiff herself. 

If the ALJ finds Plaintiff is unable to perform her past 

relevant work at Step Five, the ALJ bears the burden to establish 

that Plaintiff has the ability to perform other work. Here, as 

noted, the ALJ determined Plaintiff was unable to perform any 

16 - OPINION AND ORDER 

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past relevant work. Tr. 34. The ALJ, however, concluded 

Plaintiff has the RFC to perform the full range of light work3 

with the additional limitations that she can sit for six hours in 

an eight-hour workday; can stand/walk for about six hours in an 

eight-hour workday with the ability to change positions every 30 

minutes; should avoid ladders, ropes, and scaffolds; can 

occasionally climb stairs and ramps; can occasionally stoop and 

crouch; should avoid kneeling and crawling; must avoid workplace 

hazards such as unprotected heights or dangerous machinery; must 

not be exposed to noise or flashing lights in concentrations 

greater than those generally found in the ordinary off ice-type 

environment; can understand, remember, and carry out only simple 

instructions that can be learned in 30 days or less; and can have 

occasional contact with the public. The ALJ's hypothetical posed 

to the VE properly included the limitations of light work and was 

based on substantial medical evidence in the record. See 

Osenbrock v. Apfel, 240 F3.d 1157, 1165 (9th Cir. 2001). The 

ALJ's hypothetical also included Plaintiff's age, education, work 

experience, and the limitations set out in the ALJ's evaluation 

of Plaintiff's RFC. 

Based on the ALJ's hypothetical, the VE testified there are 

jobs that exist in significant numbers in the national economy 

3 Light work involves lifting no more than 20 pounds at a 

time with frequent lifting or carrying of objects weighing up to 

10 pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). 

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that Plaintiff can perform such as part sorter, linen folder, and 

hand packager. The ALJ, therefore, found Plaintiff is not 

disabled. Tr. 34. 

On this record the Court concludes the ALJ did not err at 

Step Five when she found Plaintiff is able to perform jobs that 

exist in significant numbers in the economy. 

CONCLUSION 

For these reasons, the Court AFFIRMS the decision of the 

Commissioner and DISMISSES this matter. 

IT IS SO ORDERED. 

"'-' DATED this 'l day of March, 2017. 

ANN~ United States District Judge 

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