Greene v. Colvin

Filing 21

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. ; denying 15 Social Security Opening Brief; adopting Findings and Recommendations re 20 Findings and Recommendations. Signed by Judge Brian Morris on 6/1/2016. (SLL, )

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

CV 15-53-GF-BMM

REBECCA R. GREENE,
Plaintiff,

MEMORANDUM
AND ORDER

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

Plaintiff Rebecca R. Greene (Greene) initiated this action to obtain judicial
review of the final decision of the Acting Commissioner of Social Security
(Commissioner), denying her application for disability benefits under Title II and
Title XVI of the Social Security Act, 42 U.S.C. §§ 401-433 and 1381-1383.
JURISDICTION
The Court has jurisdiction under 42 U.S.C. § 405(g). Venue is proper
because Greene resides in Pondera County, Montana. 28 U.S.C. § 1391(e)(1);
L.R. 1.2(c)(3).

PROCEDURAL BACKGROUND
An administrative law judge (ALJ) determined on February 6, 2014, that
Greene did not qualify for disability benefits under Title II or Title XVI of the
Social Security Act. (Tr. 12-22). The ALJ concluded that Greene was not disabled
because she was capable of performing work that exists in significant numbers in
the national economy, despite her severe impairments from diabetes mellitus and a
lumbar back disorder. Greene requested that the Social Security Administration
(Administration) review the ALJ’s decision. (Tr. 7). The Administration denied
Greene’s request for review on May 12, 2015. The Administration’s denial made
the ALJ’s decision the final decision of the Commissioner of Social Security
(Commissioner). (Tr. 1-4).
Greene instituted the present action on July 13, 2015. (Doc. 2). The Court
referred the case to United States Magistrate Judge John Johnston for findings and
recommendations. Judge Johnston entered his findings and recommendation on
April 5, 2016. (Doc. 20). Judge Johnston concluded that the Commissioner’s
decision should be affirmed because it was supported by substantial evidence and
was not based on legal error. (Doc. 20 at 7). Judge Johnston recommended that
this Court deny Greene’s motion for summary judgment and enter judgment in
favor of the Commissioner. (Doc. 20 at 20-21). No objections were filed.

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STANDARD OF REVIEW
The Court reviews for clear error findings and recommendations to which no
objections are filed. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,
656 F.2d 1309, 1313 (9th Cir. 1981).
DISCUSSION
Greene argued that the Commissioner’s decision should be reversed and the
case remanded for payment of benefits because: 1) the ALJ did not give proper
weight to her treating physician’s opinion that her impairments precluded her from
working; 2) the ALJ erred in determining that Greene’s symptom testimony was
less than credible; 3) the ALJ did not properly consider the testimony of her
mother and six statements of lay witnesses; 4) the ALJ erred by failing to address
the severity of her chronic obstructive pulmonary disease (COPD) when assessing
her residual functional capacity; and 5) the ALJ’s hypothetical to the vocational
expert was erroneous because it did not include all of her limitations. (Doc. 16 at
2-3).
A.

Treating Physician’s Opinion

Greene’s treating physician Dr. Marler opined that Greene’s limitations
prevented her from working. The ALJ gave “little weight” to Dr. Marler’s opinion
because the opinion was not supported by the objective medical evidence, and the

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opinion was not supported by Greene’s stated limitations or Greene’s testimony.
The ALJ provided specific and legitimate reasons for discounting Dr. Marler’s
opinion. The ALJ did not err in giving Dr. Marler’s opinion little weight.
B.

Greene’s Symptom Testimony

The ALJ determined that Greene’s statements regarding the intensity,
persistence and limiting effects of her symptoms were not entirely credible. The
ALJ discounted Greene’s symptom testimony because her complaints of disabling
symptoms and limitations were not consistent with her daily activities, and they
were not supported by the objective medical evidence. The ALJ provided specific
reasons for discounting Greene’s credibility. Substantial evidence in the record
supports the ALJ’s determination. The ALJ did not err in discounting Greene’s
symptom testimony.
C.

Testimony of Greene’s Mother and Third-Party Statements

Greene provided testimony from her mother and she provided statements
from six lay witnesses in support of her claim of disability. Greene argues that the
ALJ erred in failing to assign significant weight to her mother’s testimony and the
six statements. The ALJ discounted this evidence for the following reasons:
Greene’s mother, friends, and other relatives were not medically trained; Greene’s
mother, friends and relatives could not be considered disinterested witnesses; and

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the testimony of Greene’s mother and the statements of Greene’s friends and
relatives were inconsistent with the opinions and observations of the medical
providers. The ALJ provided valid, germane reasons for discrediting the testimony
of Greene’s mother and the six lay witness statements. No legal error occurred.
D.

The Residual Functional Capacity Assessment

Greene argues that the ALJ’s residual functional capacity assessment was
erroneous for the following reasons: the ALJ failed to assess the severity of her
COPD; the ALJ failed to consider her COPD in assessing her residual functional
capacity; and the residual functional capacity assessment was not supported by the
record.
The ALJ was required to assess a claimant’s residual functional capacity
based upon medical records, physicians’ opinions, and the claimant’s descriptions
of her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a)(3). The ALJ is not
required to take into account claimed limitations the ALJ found to be incredible or
not supported by the record. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.
2005).
The ALJ assessed Greene’s residual functional capacity consistent with
these rules. Substantial evidence supported the ALJ’s assessment. No legal error
occurred.

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E.

The ALJ’s Hypothetical to the Vocational Expert

Greene arues that the ALJ’s hypothetical to the vocational expert was
erroneous because it did not include all of her limitations.
The ALJ may limit a hypothetical to only those limitations supported by
substantial evidence in the record. Magallanes v. Bowen, 881 F.2d 747, 756-57
(9th Cir. 1989). ALJ’s hypothetical in this case included all of the limitations
supported by substantial evidence. No legal error occurred.
CONCLUSION
The Court agrees with Judge Johnston that substantial evidence supports the
ALJ’s determination. The ALJ’s determination was not based on legal error. I
find no error in Judge Johnston’s Findings and Recommendations and adopt them
in full.
ORDER
1.

Plaintiff’s Motion for Summary Judgment (Doc. 16) is DENIED.

2.

This case is DISMISSED with prejudice.

3.

The Clerk is directed to enter judgment in favor of the Defendant.

DATED this 1st day of June, 2016.

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