Clark v. Commissioner, Social Security Administration
Filing
14
Opinion and Order signed on 9/4/2014 by Judge Ancer L. Haggerty. The decision of the Acting Commissioner denying Sean B. Clark's application for DIB must be AFFIRMED. (sp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
SEAt"l B. CLARK,
Plaintiff,
Case No. 1:13-cv-01331-HA
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
_HAGGERTY, District Judge:
Plaintiff Sean B. Clark seeks judicial review of a final decision by the Acting
Commissioner of the Social Security Administration denying his application for Disability
Insurance Benefits (DIB). This cou1i has jurisdiction to review the Acting Commissioner's
decision under 42 U.S.C. § 405(g). After reviewing the record, this court concludes that the
Acting Commissioner's decision must be AFFIRMED.
OPINION AND ORDER - 1
STANDARDS
To establish eligibility for benefits, a plaintiff has the burden of proving an inability to
engage in any substantial gainful activity "by reason of any medically determinable physical or
mental impairment" that has lasted or can be expected to last for a continuous period of not less
than twelve months. 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step
sequential evaluation process for determining if a person is eligible for benefits. 20 C.F.R. §§
404.1520, 416.920. The claimant bears the burden of proof at steps one through four to establish
his or her disability.
At the fifth step, however, the burden shifts to the Commissioner to show that jobs exist
in a significant number in the national economy that the claimant can perform given his or her
residual functional capacity (RFC), age, education, and work experience. Gomez v. Chater, 74
F.3d 967, 970 (9th Cir. 1996). If the Commissioner cannot meet this burden, the claimant is
considered disabled for purposes of awarding benefits. 20 C.F.R. §§ 404.1520(f)(l), 416.920(a).
On the other hand, ifthe Commissioner can meet its burden, the claimant is deemed to be not
disabled for purposes of dete1mining benefits eligibility. Id
The Commissioner's decision must be affirmed if it is based on the proper legal standards
and its findings are supported by substantial evidence in the record as a whole. 42 U.S.C. §
405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Andrews v. Shala/a, 53 F.3d 1035,
1039 (9th Cir. 1995). Substantial evidence is more than a scintilla but less than a preponderance;
it is "such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Sandgathe v. Chafer, 108 F.3d 978, 980 (9th Cir. 1997} (citation omitted).
When reviewing the decision, the court must weigh all of the evidence, whether it
OPINION AND ORDER- 2
supports or detracts from the Commissioner's decision. Tackett, 180 F.3d at 1098. The
Commissioner, not the reviewing court, must resolve conflicts in the evidence, and the
Commissioner's decision must be upheld in instances where the evidence supports either
outcome. Reddickv. Chafer, 157 F.3d 715, 720-21 (9th Cir. 1998). If, however, the
Commissioner did not apply the proper legal standards in weighing the evidence and making the
decision, the decision must be set aside. Id. at 720.
BACKGROUND
Plaintiff was born in 1973 and was twenty-nine years old at the time of his alleged
disability onset date. He protectively filed his application for benefits on September 28, 2009,
alleging an onset date of June 1, 2002 based on a number of alleged impairments, including:
disorders of the thoracic spine, chronic synovitis of the right ankle, fibromyalgia, a major
depressive disorder, and Posttraumatic Stress Disorder (PTSD). His date last insured was
December 31, 2007. Plaintiffs application was denied initially and upon reconsideration.
An Administrative Law Judge (ALJ) conducted a hearing on November 7, 2011. The
ALJ heard testimony from plaintiff, who was represented by counsel, and from an impartial
vocational expe1t (VE). The ALJ found that plaintiff suffered from the following impahments,
which when considered in combination, are severe: early degenerative disc disease of the
thoracolumbar spine, a major depression disorder, and prescription drug dependence, by history.
Tr. 62, Finding 3.' The ALJ determined that plaintiff's severe impairments did not meet or equal
a listed impahment in 20 C.F.R. Pait 404, Subpmt P, Appendix 1. Tr. 63, Finding 4. The ALJ
determined that plaintiff has the RFC to perform less than the full range oflight work as defined
1
"Tr." refers to the transcript of the Administrative Record.
OPINION AND ORDER- 3
in 20 C.F.R. § 404. l 567(b). In particular, the ALJ found the plaintiff could lift/cany twenty
pounds occasionally and ten pound frequently, could stand/walk and/or sit for six hours each in
an eight-hour workday with normal breaks, could only perf01m occasional stooping, and could
only cany-out simple, routine tasks. Tr. 65, Finding 5.
Based on plaintiffs RFC and testimony from the VE, the ALJ determined that plaintiff
was unable to perform any past relevant work. Tr. 67, Finding 6. However, the ALJ did
dete1mine that plaintiff could perf01m other jobs existing in significant numbers in the national
economy in accordance with Medical Vocational Guidelines, 20 CFR Part 404, Subpart P,
Appendix 2. Therefore, on January 24, 2012, the ALJ issued a decision finding that plaintiff was
not disabled as defined in the Social Security Act. The Appeals Council denied plaintiffs request
for administrative review, making the ALJ's decision the final decision of the Acting
Commissioner. Plaintiff subsequently initiated this action seeking judicial review.
DISCUSSION
Plaintiff contends that this court must reverse and remand the Acting Commissioner's
final decision based on a number of alleged errors. Plaintiff argues that the ALJ improperly
rejected the opinions of treating and examining physicians, improperly rejected plaintiffs
subjective symptom testimony, misapplied the Medical Vocational Guidelines, and failed to give
proper weight to plaintiffs Veterans Administration's (VA) service-connected disability rating.
While plaintiffs counsel identifies each of these assignments of enor, they are largely
unsupported by any argument such that they can be said to have been fairly raised. In large part,
counsel merely quotes from the Administrative Record and urges this court to reach a different
conclusion than that reached by the ALJ. However, this court is not empowered to resolve
OPINION AND ORDER- 4
conflicts in the evidence.
1.
Treatment Providers' Opinions
Plaintiff contends that the ALJ improperly rejected the opinions of treating and
examining medical providers. In large part, it is difficult to discern which providers plaintiff is
referring to or how he alleges the ALJ's treatment of them was faulty. Rather, plaintiff offers a
different interpretation of the medical advice and appears to assert that the ALJ should have
concluded PTSD was a severe impairment.
An ALJ may reject the contradicted opinion of a treating or examining physician by
stating specific and legitimate reasons, and may reject an uncontradicted opinion from a treating
or examining physician by providing clear and convincing reasons, supported by substantial
evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ must
give weight not only to the treating physician's clinical findings and interpretation oftest results,
but also to the doctor's subjective judgments. Lester v. Chafer, 81 F.3d 821, 832-33 (9th Cir.
1995) (citation omitted).
The opinion of a non-examining physician alone cannot constitute substantial evidence
that justifies the rejection of the opinion of a treating physician. Id at 831 (citations omitted).
However, the ALJ may reject a treating physician's opinion in cases in which objective test
results, reports from other physicians, testimony from the claimant, or other evidence conflicts
with the opinion. 1Vlagallanes v. Bowen, 881 F.2d 747, 751-52 (9th Cir. 1989); see also
Burkhart v. Bowen, 856 F.2d 1335, 1339-40 (9th Cir. 1988) (holding that an ALJ may reject a
treating physician's opinion that is unsupported by medical findings, personal observations, or
objective testing).
OPINION AND ORDER- 5
As relayed above, plaintiff largely fails to identify how the ALJ ened in rejecting the
opinions of medical providers but instead argues the ALJ should have concluded that he had
PTSD and that he should have been found disabled. Plaintiff does contend that the ALJ failed to
discuss his Major Depressive Disorder and to mention the opinion of Dr. McKellar. However,
the record clearly demonstrates that the ALJ considered plaintiffs depression to be a severe
impainnent and that he rejected the opinion of Dr. McKellar because it was inconsistent with
other medical evidence. As for plaintiffs PTSD, the ALJ concluded it was not a severe
impairment because plaintiff was not diagnosed with it until approximately four years after his
date last insured. Moreover, plaintiff was provided with the opportunity to address his alleged
PTSD symptoms and had been screened for it prior to his date last insured, yet no treatment
provider identified it as a problem prior to the date last insured. The ALJ did not err in finding
plaintiffs PTSD to be non-severe during the time frame in question.
2.
Plaintiff's credibility
Plaintiff contends that the ALJ improperly rejected his subjective symptom testimony. In
assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of
symptoms, the ALJ must engage in a two-step analysis. J'vlolina v. Astrue, 674 F.3d 1104, 1112
(9th Cir. 2012) (citations omitted). First, the ALJ must determine whether there is "objective
medical evidence of an underlying impairment which could reasonably be expected to produce
the pain or other symptoms alleged." Id. (citations and quotation omitted). If the claimant has
presented such evidence, and no evidence of malingering exists, then the ALJ must give
"specific, clear and convincing reasons" to reject the claimant's testimony about the severity of
his or her symptoms. Id. (citation omitted).
OPINION Al"\/D ORDER- 6
The ALJ, however, is not "required to believe every allegation of disabling pain, or else
disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. §
423(d)(5)(A)." Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Instead, the ALJ may use
"ordinmy techniques of credibility evaluation" to evaluate the claimant's testimony. 1vfolina, 674
F.3d at 1112 (citation omitted). The ALJ may consider inconsistencies in the claimant's
testimony or between the testimony and the claimant's conduct; unexplained or inadequately
explained failures to seek treatment or to follow a prescribed course of treatment; and "whether
the claimant engages in daily activities inconsistent with the alleged symptoms." Id. (citations
and quotation omitted). The ALJ also may discredit a claimant's testimony when the claimant
"repo11s participation in eve1yday activities indicating capacities that are transferable to a work
setting." Id. at 1113 (citations omitted). "Even where those activities suggest some difficulty'
functioning, they may be grounds for discrediting the claimant's testimony to the extent that they
contradict claims of a totally debilitating impairment." Id.
Here, the ALJ concluded that plaintiffs statements concerning the intensity, persistence,
and limiting effects of his impahments were not fully credible. It is unclear how plaintiff
believes the ALJ ened in treating his subjective symptom testimony, but the com1 neve11heless
concludes that the ALJ provided clear, convincing, and specific reasons for rejecting that
testimony. The ALJ highlighted plaintiffs inconsistent statements regarding the effects of
antidepressants, plaintiffs statement that he had never had a problem with alcohol despite VA
records to the contrmy, plaintiffs failure to comply with treatment and failure to seek treatment,
and activities of daily living that were inconsistent with plaintiffs allegations. The court cannot
conclude that the ALJ e1Ted in rejecting plaintiffs testimony.
OPINION AND ORDER- 7
3.
Medical Vocational Guidelines
Plaintiff asserts that the ALJ improperly applied the Medical-Vocational Guidelines in
concluding that jobs exist in significant numbers that plaintiff can perform rather than by
consulting with a VE. There are two ways for the Commissioner to meet the government's
burden at Step Five: (!) through the testimony of a VE, or (b) by reference to the MedicalVocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. Tackett v. Apfel, 180 F.3d 1094,
1099 (9th Cir. 1999). A VE is required ifthere are "sufficiently severe" non-exertional ·
limitations not accounted for in the Medical-Vocational Guidelines such that the range of work
permitted by a claimant's exertional limitations is significantly limited. Hoopai v. Astrue, 499
F.3d 1071, 1075 (9th Cir. 2007) (citation omitted).
Plaintiff contends that his pain is a significant non-exertional limitation rendering use of
the Medical-Vocational Guidelines inappropriate. This assertion is largely unsupported by the
record or by plaintiff's argument. As plaintiff has not demonstrated that his pain significantly
limits his ability to perfo1m the range of work outlined by the ALJ on a non-exertional basis,
there is no rationale for rejecting the ALJ's use of the Medical-Vocational Guidelines. In light of
the fact that the ALJ appropriately applied the Medical-Vocational Guidelines and because he
conectly applied Social Security Rulings 83-12 and 83-14, the court finds no enor.
4.
VA Disability Rating
Plaintiff contends that the ALJ did not give proper weight to his VA service-connected
disability rating of seventy percent. However, at the time of plaintiff's date last insured, his
disability rating was twenty percent and would not be increased until nearly four years after his
date last insured. The ALJ discussed the twenty-percent rating and found it consistent with the
OPINION AND ORDER- 8
RFC assigned to plaintiff. The ALJ did not en- by failing to ascribe great weight to the later
disability rating.
CONCLUSION
For the reasons provided, this court concludes that the decision of the Acting
Commissioner denying Sean B. Clark's application for DIB must be AFFIRlvlED.
IT IS SO ORDERED.
DATED this _ti_ day of September, 2014.
Cuu,~
LHllggerty
Ancer
United States District Judge
OPINION AND ORDER- 9
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