Doney v. Colvin

Filing 21

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. ; Motions terminated: 19 FINDINGS AND RECOMMENDATIONS re 16 MOTION for Summary Judgment filed by Carolyn W. Colvin, 13 MOTION for Summary Judgment filed by Rhonda R. Doney. Judge Magistrate Keith Strong termed case no longer referred., 16 MOTION for Summary Judgment filed by Carolyn W. Colvin, 13 MOTION for Summary Judgment filed by Rhonda R. Doney.; denying 13 Motion for Summary Judgment; granting 16 Motion for Summary Judgment; adopting Findings and Recommendations re 19 Findings and Recommendations. Signed by Judge Brian Morris on 1/6/2015. (SLL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

CV 14-01-GF-BMM

RHONDA R. DONEY,
Plaintiff,

MEMORANDUM
AND ORDER

vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

Plaintiff Rhonda R. Doney (Doney) initiated this action to obtain judicial
review of the final decision of the Acting Commissioner of Social Security
(Commisioner), denying her application for disability and disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434.
JURISDICTION
The Court has jurisdiction under 42 U.S.C. § 405(g). Venue is proper
because Doney resides in Blaine County, Montana. 28 U.S.C. § 1391(e)(1);
L.R. 1.2(c)(3).

PROCEDURAL BACKGROUND
Doney applied for Social Security disability benefits on November 2, 2010,
alleging a disability onset date of September 24, 2009. (Tr. 147-148). The Social
Security Administration denied her claim on April 6, 2011. (Tr. 99-101). Doney
requested reconsideration. (Tr. 102). Reconsideration was denied on June 10,
2011, following an independent review by a physician and a disability examiner.
(Tr. 104-105).
Doney requested a hearing with an Administrative Law Judge (ALJ).
(Tr. 109-110). The ALJ held a hearing on July 12, 2012. (Tr. 28-73). The ALJ
determined that Doney did not qualify for disability benefits because she was
capable of performing her prior work as a teacher, despite her impairments.
(Tr. 13-23). Doney appealed to the Social Security Administration Appeals
Council (Council). (Tr. 9). The Council denied review on November 25, 2013.
The Council’s denial made the ALJ’s decision the Commissioner’s final decision
for purposes of judicial review. (Tr. 3-5; 20 C.F.R. § 416.1481).
Doney instituted the present action on January 9, 2014. The Court referred
the case to United States Magistrate Judge Keith Strong for findings and
recommendations. Judge Strong entered his findings and recommendation on
October 21, 2014. He recommended that the Commissioner’s motion for summary

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judgment be granted, and that Doney’s motion for summary judgment be denied.
(Doc. 19). Doney timely filed objections on October 29, 2014. (Doc. 20).
STANDARD OF REVIEW
The Court reviews de novo findings and recommendations to which
objections are made. 28 U.S.C. § 636(b)(1)(C). The Court reviews for clear error
all other findings and recommendations. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
DISCUSSION
Judge Strong concluded that the ALJ’s determination should be affirmed
because it was supported by substantial evidence and was not based on legal error.
(Doc. 19 at 19). Doney claims that Judge Strong’s findings should be rejected
because the ALJ made numerous legal errors: 1) the ALJ discounted her testimony
regarding her limitations without adequate explanation; 2) the ALJ discounted the
findings and opinions of her treating physician, Dr. Gregory Tierney, without
adequate explanation; 3) the ALJ discounted the findings and opinions of her
occupational therapist, Deb Ammondson, without adequate explanation; 4) the
ALJ failed to include limitations described by Ms. Ammondson in a hypothetical
question posed to the vocational consultant; 5) the ALJ failed to develop
adequately the record regarding her ability to perform past work; 6) the ALJ failed

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to find that her anxiety constituted a severe impairment; and 7) the ALJ failed to
find that her impairments satisfied the Listing of Impairments.
A.

Plaintiff’s Testimony Regarding Her Limitations

Doney claims the ALJ failed to explain adequately why he found her
testimony regarding her limitations to be lacking in credibility. (Doc. 20 at 2-8).
An ALJ’s credibility findings “must be sufficiently specific to allow a reviewing
court to conclude that the adjudicator rejected the claimant’s testimony on
permissible grounds.” Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991).
The ALJ adequately explained why he discounted Doney’s testimony
regarding her limitations. The ALJ stated that Doney’s testimony was inconsistent
with the conservative medical treatment on her knee. The medical treatment did
not involve surgery. (Tr. 22). The ALJ further noted that Doney’s testimony was
inconsistent with her daily activities such as housework, driving, personal care,
preparing meals, washing clothes, sweeping and sewing. The ALJ concluded that
Doney’s testimony was not supported by the medical evidence. Id. No legal error
occurred.
B.

Opinion of Dr. Tierney

Dr. Tierney issued a progress note on May 12, 2010, in which he stated that
Doney should have a functional capacity evaluation to assess her ability to work:

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Rhonda returns for followup for her right patella fracture.
I have not seen her for a protracted period of time. She is
eight months out now. She says it still hurts her when
she stands. It still hurts if she tries to bend. I think at this
point she just needs a functional capacity evaluation to
see what she will be able to do and not do. Then we can
rate her out and move her into either an accommodated
job or retraining.
(Tr. 253). Doney claims that the ALJ erroneously rejected the stated opinion of
Dr. Tierney without providing an adequate explanation. (Doc. 20 at 8-13).
The ALJ did not reject Dr. Tierney’s opinion. The ALJ assessed Doney’s
functional capacity himself. The ALJ found that Doney had limitations with
respect to her ability to bend her knees and her ability to stand for prolonged
periods. The ALJ further determined, however, that those limitations did not
preclude Doney from working as a teacher. (Tr. 17-23). No legal error occurred.
C.

Findings and Opinions of Deb Ammondson

Doney claims that the ALJ failed to explain adequately why he discounted
certain limitations recommended by her occupational therapist, Deb Ammondson.
(Doc. 20 at 13-16). Ms. Ammondson is a lay witness.
An ALJ may discount the opinions of a lay witness so long as he provides
“reasons that are germane” to the witness. Molina v. Astrue, 674 F.3d 1104, 1114
(9th Cir. 2012). Inconsistency with the medical evidence constitutes a germane
reason to discount lay witness testimony. Bayliss v. Barnhart, 427 F.3d 1211,
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1218 (9th Cir. 2005). The ALJ explained that some of Ammondson’s opinions
regarding Doney’s limitations were inconsistent with Doney’s daily living
activities, and were contrary to the objective medical evidence. (Tr. 20). The ALJ
provided germane and proper reasons to discount Ammondson’s lay witness
testimony. No legal error occurred.
D.

Hypothetical Question Posed to Vocational Expert

Doney claims the ALJ erred when he presented a hypothetical question to
the vocational expert that did not include certain limitations described by
Ammondson. (Doc. 20 at 16-18).
The hypothetical question presented by the ALJ contained all of the
limitations that the ALJ found to be credible and supported by substantial
evidence. No more is required. Bayliss, 427 F.3d at 1218 (ALJ may limit
hypothetical to limitations supported by substantial evidence). No legal error
occurred.
E.

Plaintiff’s Ability to Perform Past Work

Doney claims the ALJ failed to explain adequately his finding that Doney
could perform her past work as a school teacher. (Doc. 20 at 19-21).
The ALJ determined that Doney could perform her past work as a school
teacher based upon the testimony of the vocational expert. The vocational expert

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testified that Doney’s residual functional capacity did not preclude her from
performing her past work as a school teacher. (Tr. 23). Substantial evidence
supports the ALJ’s determination that Doney could work as a school teacher. No
legal error occurred.
F.

Plaintiff’s Anxiety

Doney claims that the ALJ erred when he failed to find that her anxiety
amounted to a severe impairment. (Doc. 20 at 21-23).
A severe impairment significantly limits an individual’s ability to perform
basic work activities. 20 C.F.R. § 404.1521(a); Smolen v. Chater, 80 F.3d 1273,
1290 (9th Cir. 1996). The ALJ concluded that Doney’s anxiety did not constitute a
sever impairment because the anxiety did not cause more than a minimal limitation
on her ability to perform basic work activities. (Tr. 15). The ALJ considered the
four functional areas described in the disability regulations for evaluating mental
disorders: daily living; social functioning; concentration, persistence and pace; and
episodes of decompensation. Id. Substantial evidence supported the ALJ’s
determination. No legal error occurred.
G.

Listing of Impairments

Doney claims the ALJ erred when he failed to find that her right knee
impairment equaled the severity of Listing 1.02 of the Listing of Impairments.
(Doc. 20 at 23).
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Doney possessed the burden to prove that her knee impairment satisfied the
criteria of Listing 1.02. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005).
Doney failed to meet that burden. The ALJ reviewed the medical evidence and
properly concluded that Doney’s impairment did not equal the severity of Listing
1.02. (Tr. 16-17).
CONCLUSION
The Court agrees with Judge Strong that substantial evidence supports the
ALJ’s determination, and it is not based on legal error. I find no error in Judge
Strong’s Findings and Recommendations and adopt them in full.
ORDER
1.

Plaintiff’s Motion for Summary Judgment (Doc. 13) is DENIED.

2.

Defendant’s Motion for Summary Judgment (Doc. 16) is GRANTED.

3.

This case is DISMISSED with prejudice.

4.

The Clerk is directed to enter judgment accordingly.

DATED this 6th day of January, 2015.

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