Hayes v Commissioner Social Security Admin.
Filing
18
OPINION AND ORDER: The Court AFFIRMS the Commissioner's decision and DISMISSES this matter. See 17-page opinion and order attached. Signed on 6/3/2014 by Judge Anna J. Brown. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHRISTLE LYNN HAYES,
Plaintiff,
1:13-cv-00995-BR
OPINION AND ORDER
v.
CAROLYN W. COLVIN, Acting
Conunissioner, Social Security
Administration, 1
Defendant.
MARLENE R. YESQUEN
Black, Chapman, Webber & Stevens
221 Stewart Avenue, #209
Medford, OR 97501
(541) 722-9850
Attorneys for Plaintiff
1
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013.
Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this case. No
further action need be taken to continue this case by reason of
the last sentence of section 205(g) of the Social Security Act,
42 u.s.c. § 405.
1 - OPINION AND ORDER
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
DAVID MORADO
Regional Chief Counsel
LARS J. NELSON
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2909
Attorneys for Defendant
BROWN, Judge.
Plaintiff Cristle Lynn Hayes seeks judicial review of a
final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application for Supplemental Security Income (SSI) payments under
Title XVI of the Social Security Act.
This Court has juris-
diction to review the Commissioner's decision pursuant to 42
u.s.c.
§
405(g).
For the reasons that follow, the Court AFFIRMS the
Commissioner's final decision and DISMISSES this matter.
2 - OPINION AND ORDER
ADMINISTRATIVE HISTORY
Plaintiff filed her application for SSI on November 16,
Tr. 154. 2
2009.
reconsideration.
The application was denied initially and on
An Administrative Law Judge (ALJ) held a video
hearing on May 1, 2012.
Tr. 22.
represented by an attorney.
At the hearing Plaintiff was
Plaintiff and a vocational expert
(VE) testified at the hearing.
Tr. 22.
The ALJ issued a decision on May 24, 2012, in which he found
Plaintiff is not entitled to benefits.
Tr. 30.
That decision
became the final decision of the Commissioner on April 16, 2013,
when the Appeals Council denied Plaintiff's request for review.
Tr. 1.
BACKGROUND
Plaintiff was born on October 24, 1962, and was 49 years old
at the time of the hearing.
Tr. 154.
school and two years of college.
Plaintiff completed high
Tr. 42.
Plaintiff has past
relevant work experience as a fast-food worker and medical
transcriber.
Tr. 61.
Plaintiff alleges disability since October 29, 2009, 3 due to
2
Citations to the official transcript of record filed by
the Commissioner on October 22, 2013, are referred to as "Tr."
3
Plaintiff alleged an onset date of June 7, 2007, in her
application, but at the hearing she amended her alleged onset
date to October 29, 2009. Tr. 41.
3 - OPINION AND ORDER
fibromyalgia,
sciatica, neuropathy, bursitis, spondylosis,
depression, high-blood pressure, asthma, and "right leg
problems."
Tr. 41, 177.
Except when 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. 24-30.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110
(9th
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
has lasted or can be expected to last for
impairment which .
a continuous period of not less than 12 months."
§
423(d) (1) (A).
42 U.S.C.
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.
881, 885
453
I
(9th Cir.
McLeod v. Astrue, 640 F.3d
2011) (quoting Mayes v. Massanari, 276 F.3d
4 5 9 - 6 0 ( 9th cir • 2 0 0 1 ) ) •
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.
4 - OPINION AND ORDER
42
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,
(9th Cir. 2009)).
690
It is more than a "mere scintilla" of evidence
but less than a preponderance.
Id.
(citing Valentine,
574 F.3d
at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009) .
Vasquez v. Astrue, 572 F.3d 586, 591
(9th Cir.
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).
5 - OPINION AND ORDER
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
Keyser v. Comm'r of Soc. Sec. Admin., 648
F.3d 721, 724
(9th Cir. 2011).
See also Parra v. Astrue, 481
F.3d 742, 746
(9th Cir. 2007); 20 C.F.R.
§
416.920.
Each step is
potentially dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R.
§
416.920(a) (4) (I).
See also Keyser, 648
F. 3d at 724.
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.
§
416. 920 (a) (4) (ii).
20 C.F.R.
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.
§
416. 920 (a) (4) (iii) .
See also Keyser,
20 C.F.R.
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) .
6 - OPINION AND ORDER
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
regular and continuing basis despite her limitations.
§
416.920(e).
See also Social Security Ruling (SSR)
20 C.F.R.
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. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011) (citing Fair v. Bowen, 885
F.2d 597, 603
(9th Cir. 1989)).
The assessment of a claimant's
RFC is at the heart of Steps Four and Five of the sequential
analysis when the ALJ is determining whether a claimant can still
work despite severe medical impairments.
An improper evaluation
of the claimant's ability to perform specific work-related
functions "could make the difference between a finding of
'disabled' and 'not disabled.'"
SSR 96-8p, at *4.
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.
§
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
7 - OPINION AND ORDER
the national economy.
20 C.F.R.
Keyser, 648 F.3d at 724-25.
§
416.920(a) (4) (v).
See also
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.
§
416.920(g) (1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since October 29, 2009, her
alleged onset date.
Tr. 24.
At Step Two the ALJ found Plaintiff has the severe
impairments of nerve sheath tumor of the lumbosacral spine with
post-operative scarring, degenerative disc disease of the
lumbosacral spine, degenerative disc disease of the cervical
spine, hypertension, and asthma. 4
Tr. 24.
At Step Three the ALJ found Plaintiff's impairments do not
4
The Court notes the ALJ based his findings as to these
impairments on the medical diagnoses of Plaintiff that appear in
the record rather than statements in Plaintiff's applications.
See Tr. 24, 177.
8 - OPINION AND ORDER
meet or equal the criteria for any impairment in the Listing of
Impairments.
Tr. 26.
Based on Plaintiff's application dated
July 9, 2010, the ALJ found Plaintiff had the RFC to perform a
full range of sedentary work.
The ALJ also found Plaintiff has
had the RFC since August 1, 2010, to perform light work except
she only "is able to lift and/or carry 20 pounds occasionally and
10 pounds frequently, stand and/or walk about six hours in an
eight-hour day, and sit about six hours in an eight-hour day, can
no more than occasionally climb, stoop, kneel, crouch, or crawl,
and can frequently balance."
Tr. 26-27.
At Step Four the ALJ concluded Plaintiff is capable of
performing her past relevant work as a medical transcriber and a
fast-food worker.
Tr. 30.
Accordingly, the ALJ found Plaintiff
is not disabled and, therefore, is not entitled to benefits.
DISCUSSION
Plaintiff contends the ALJ erred by (1)
discrediting Plaintiff's testimony;
improperly
(2) improperly rejecting
the opinions of treating physician Richard Julyan, M.D.; and
(3) posing an incomplete hypothetical to the VE.
I.
Plaintiff's Testimony
Plaintiff alleges the ALJ erred by failing to give clear
and convincing reasons for rejecting her testimony as to the
intensity, persistence, and limiting effects of her symptoms.
9 - OPINION AND ORDER
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 she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).
Cotton, 799 F.2d 1403, 1407 (9th
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 pain testimony only if he provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d at
750 (citing Lester, 81 F.3d at 834.
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).
At the hearing Plaintiff testified some of her pain symptoms
went away after her back surgery in May 2011, but she is still
unable to stand in one spot very long and experiences pain if she
walks more than a block.
Tr. 47.
Plaintiff stated she was
diagnosed with fibromyalgia "years ago," and it has spread to
both legs.
Tr. 48.
10- OPINION AND ORDER
Plaintiff complained of numbness, pain, and
swelling in her hands and stated she drops things often.
Tr. 49.
Plaintiff testified her daily activities include watching
television, reading, and making simple meals, but she needs
assistance with tasks like vacuuming and cleaning.
Tr. 53-54.
The ALJ found Plaintiff's medically determinable impairments
could reasonably be expected to cause some of her alleged
symptoms, but her statements concerning the intensity,
persistence, and limiting effects of her symptoms were not
credible to the extent that they were inconsistent with
Plaintiff's RFC.
Tr. 27.
The ALJ found Plaintiff's "allegations
of continuing, significant difficulty with standing, walking, and
sitting post-surgically are contradicted by the objective medical
evidence and her relatively routine treatment history post
surgery."
Tr. 29.
The ALJ also found Plaintiff's testimony
regarding "such extreme symptoms" was "flatly contradict[ed]" by
the post-operative progress notes of treating physician Thomas J.
Altstadt, M.D., in which he noted Plaintiff was "doing well" and
was "quite happy with the results."
Tr. 29, 314-15.
The ALJ
also found Plaintiff's daily activities of watching television,
reading, driving, preparing simple meals, and traveling outside
of Oregon by car in October 2011 were inconsistent with her
alleged limitations.
Tr. 29.
The ALJ also found some of Plaintiff's alleged medical
impairments were not medically determinable and not supported by
11- OPINION AND ORDER
medical evidence or her treatment history.
Tr. 25.
For example,
although Jim Shames, M.D., noted in September 2008 that Plaintiff
"describes herself as having fibromyalgia" and Dr. Julyan
"appears to have accepted [Plaintiff's] assertion of her
condition [of fibromyalgia] ," the record does not reflect any
testing for f ibromyalgia or any formal diagnosis of this
condition by any treating or examining physician.
538.
Tr. 25, 375,
Moreover, although Plaintiff testified fibromyalgia was
specifically affecting her legs, the ALJ noted the condition
generally "affects patients globally."
Tr. 25 (citing SSR
99-20 n.3).
The Court concludes on this record that the ALJ did not err
when he rejected Plaintiff's testimony because he provided clear
and convincing reasons for doing so.
II.
Medical Opinion Evidence
An ALJ may reject an examining or treating physician's
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."
Barnhart,
Bowen,
Thomas v.
278 F.3d 947, 957 (9th Cir. 2002) (quoting Magallanes v.
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
12- OPINION AND ORDER
rejecting it.
Thomas, 278 F.3d at 957.
Chater, 81 F.3d 821, 830-32
See also Lester v.
(9th Cir. 1995).
Generally the more
consistent an opinion is with the record as a whole, the more
weight an opinion should be given.
20 C.F.R.
§
416.927(c) (4).
A nonexamining physician is one who neither examines nor
treats the claimant.
Lester, 81 F.3d at 830.
"The opinion of a
nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician."
Id. at 831.
When
a nonexamining physician's opinion contradicts an examining
physician's opinion and the ALJ gives greater weight to the
nonexamining physician's opinion, the ALJ must articulate his
reasons for doing so.
See, e.g., Morgan v. Comm'r of Soc. Sec.
Ad.min, 169 F.3d 595, 600-01 (9th Cir. 1999).
A nonexamining
physician's opinion can constitute substantial evidence if it is
supported by other evidence in the record.
Id. at 600.
Plaintiff contends the ALJ improperly rejected the opinion
of treating physician Dr. Julyan.
On August 9, 2011, Dr. Julyan
completed a Physical Residual Functional Capacity Questionnaire
regarding Plaintiff.
In the questionnaire Dr. Julyan explained
he has treated Plaintiff for three years and has seen her on a
monthly basis.
Tr. 538.
13- OPINION AND ORDER
He diagnosed Plaintiff with lumbar
radicular pain, cervical radicular pain, f ibromyalgia, and an
abnormal gait.
Tr. 538.
Dr. Julyan stated Plaintiff has
moderate-to-severe pain in her spine, pelvis, and extremities on
a daily basis.
Tr. 538.
Dr. Julyan also stated Plaintiff has a
decreased range of motion in her neck, lower back, hips, and
upper extremities and weakness in her upper left extremity.
Tr. 538.
Dr. Julyan opined Plaintiff also suffers from
depression and anxiety and is incapable of tolerating even a "low
stress" job due to the fact that Plaintiff experiences moderateto-severe pain with light exertion.
Tr. 539.
Dr. Julyan opined
Plaintiff is only able to sit or to stand for five minutes at a
time before changing position, and in an eight-hour work day she
can stand or walk for less than two hours and can sit for at
least six hours.
Tr. 540.
Dr. Julyan stated Plaintiff would
need to take five-to-ten minute breaks every hour during an
eight-hour workday and would need a cane when standing or
walking.
Tr. 540.
Dr. Julyan also opined Plaintiff is
capable of lifting ten pounds rarely and is unable to tilt her
head down or up, twist, stoop, crouch, or climb ladders.
Tr. 541.
He also stated Plaintiff has significant limitations
with reaching or fingering and can only use her right hand
eighty-percent of the time and her left hand ten-percent of the
14- OPINION AND ORDER
time in an eight-hour workday.
Tr. 541.
Dr. Julyan stated he
would expect Plaintiff to miss more than four days of work per
month as a result of her impairments.
Tr. 541.
The ALJ gave less weight to Dr. Julyan's opinion than the
opinion of Sharon Eder, M.D., a Disability Determination
Services 5 medical consultant who opined Plaintiff was capable of
light work with some postural limitations.
Tr. 29, 300-07.
The
ALJ gave less weight to Dr. Julyan's opinion in part because
Dr. Julyan relied on conditions that Plaintiff failed to
establish as medically determinable such as f ibromyalgia and
cervical radicular pain and because Dr. Julyan relied heavily on
the subjective complaints of Plaintiff, who the ALJ found was not
entirely credible.
Tr. 29.
The ALJ also noted Dr. Julyan was
"vague with respect to some findings" and noted some
inconsistencies between Dr. Julyan's progress notes and his
August 9, 2011, opinion.
For example, Dr. Julyan stated in the
August 9, 2011, questionnaire that Plaintiff has decreased range
of motion in her extremities, but he noted in May 24, 2011, that
Plaintiff had full range of motion.
5
Tr. 493, 538.
The ALJ also
Disability Determination Services (DDS) is a federally
funded state agency that makes eligibility determinations on
behalf and under the supervision of the Social Security
Administration pursuant to 42 U.S.C. § 42l(a).
15- OPINION AND ORDER
found the treatment regimen prescribed by Dr. Julyan and other
treating sources was not commensurate with Dr. Julyan's "rather
extreme" opinion.
For example, the ALJ found Dr. Julyan's
opinion as to Plaintiff's physical limitations was not supported
by other treating sources such as Dr. Altstadt, a neurological
and orthopedics specialist.
Dr. Altstadt performed Plaintiff's
back surgery in May 2010 to remove a nerve sheath tumor.
Tr. 261-63.
Dr. Altstadt's post-operative notes state Plaintiff
was "doing well," her leg pain was significantly improved, the
paresthesias she experienced was much less severe and frequent
than before surgery, and Plaintiff was "quite happy with the
results" of the operation.
Tr. 314-15.
The Court concludes on this record that the ALJ did not err
when he rejected Dr. Julyan's opinion because the ALJ provided
legally sufficient reasons supported by the record for doing so.
III. The ALJ's hypothetical to the VE was complete.
Plaintiff contends the ALJ's hypothetical to the VE was
inadequate because it did not contain all of Plaintiff's alleged
limitations.
The Court has already found the ALJ did not err
when he found Plaintiff was not entirely credible regarding her
limitations and when he discounted the opinion of Dr. Julyan.
Accordingly, on this record the Court concludes the ALJ's
hypothetical to the VE was not inadequate.
16- OPINION AND ORDER
CONCLUSION
For these reasons, the Court AFFIRMS the Commissioner's
decision and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 3rd day of June, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
17- OPINION AND ORDER
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