Barrington v. Commissioner Social Security Administration

Filing 24

OPINION AND ORDER. Signed on 10/20/2014 by Judge Robert E. Jones. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

CRYSTAL G. BARRINGTON,
Plaintiff,
v.

CAROLYNW. COLVIN,
Acting Commissioner of Social Security,

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1:13-CV-01512-JO

OPINION AND ORDER

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JONES, J.,

Plaintiff Crystal Barrington appeals the Commissioner's decision denying in part her
concmTent applications for disability insurance benefits and supplemental security income under
Titles II and XVI of the Social Security Act. This court has jurisdiction under 42 U.S.C. § 405(g).
I AFFIRM the Commissioner's decision.
PRIOR PROCEEDINGS

Barrington alleged disability beginning September 16, 2009, due to epilepsy, migraines,
degenerative disc disease, obesity, depression, anxiety, memory loss, confusion, insomnia, and
osteoporosis. Admin. R. 221. In June 2009, Banington experienced a generalized seizure and began
treatment with anticonvulsant medication. Admin. R. 27, 408-10. On September 30, 2009,
Barrington reported a second, milder seizure while in bed at night. Admin. R. 27, 412. She stopped
working on September 16, 2009, the alleged onset date of her disability. Admin. R. 26, 191.
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The ALJ applied the five-step sequential process described in 20 C.F.R. § 404.1520, to
dete1mine whether Barrington was disabled. Admin. R. 26-33. The ALJ found that, from September
16, 2009 through March 31, 2011, Barrington's combined impairments satisfied the diagnostic
and severity criteria for presumptively disabling epilepsy under Listing 11.03 of20 C.F.R., Part 404,
Subpart P, Appendix 1. Admin. R. 26. Accordingly, the ALJ found that Ban"ington was disabled
for the purposes of the Social Security Act for that period. Admin. R. 28.
The ALJ dete1mined that Banington's medical condition improved with treatment and that
by April 1, 2011, her impairments no longer satisfied the severity criteria for Listing 11.03. Admin.
R. 29. The ALJ found that Barrington's ability to work continued to be limited, although to a lesser
degree, by the combined effects of a seizure disorder, migraines, degenerative disc disease,
arthropathy and osteopenia in the lumbosacral spine, obesity, depression, and anxiety. Admin. R.
26, 28.
The ALJ then assessed Ban"ington's residual functional capacity ("RFC") beginning April
1, 2011. He concluded that she could perform a wide range of work at all exe1iional levels, provided
the work did not involve climbing or concentrated exposure to hazards. Admin. R. 30. The ALJ
found that Banington's past relevant work as an Accounting Clerk and Office Manager did not
require work related activities precluded by the limitations in her RFC. Admin. R. 33. Accordingly,
the ALJ concluded that Ban"ington's disability ended by April 1, 2011, and she was not disabled
within the meaning of the Social Security Act on or after that date. Admin. R. 33.
Banington requested review by the Appeals Council and submitted additional evidence
created after the ALJ' s decision, including a Jackson County Mental Health assessment and chart
notes from appointments she had with her neurologist after the ALJ issued his decision. Admin. R.
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2. The Appeals Council found that the new evidence related to a later time than the period under
consideration by the ALJ. The Appeals Council did not consider the new documentation or include
it in the administrative record for Barrington's present claim. Admin. R. 2, 6. When the Appeals
Council declined to review the matter, the ALJ' s decision became the final agency decision which
is now on appeal to this court. Admin. R. 2. 20 C.F.R. § 404.981; Brewes v. Comm 'r ofSoc. Sec.

Admin., 682 F.3d 1157, 1161-62 (9th Cir. 2012).
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings of fact are supported by substantial evidence in the record as a whole. 42
U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant
evidence that a reasonable person might accept as adequate to support a conclusion. Robbins v. Soc.

Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). The Commissioner's factual findings must be
upheld if supported by inferences reasonably drawn from the record, even if evidence exists to
support another rational interpretation. Batson, 359 F.3d at 1193; Andrews v. Shala/a, 53 F.3d 1035,
1039-40 (9th Cir. 1995).
DISCUSSION

I.

Claims of Error
Banington contends the ALJ improperly discounted her credibility and rejected the lay

witness statement of Kimberly Fjarli-Owen. Banington contends the ALJ improperly rejected the
opinion ofKevin Sullivan, M.D., the neurologist who treated her for seizures. She contends the ALJ
failed to consider the combined effects of her impairments. Barrington contends the ALJ elicited

3 - OPINION AND ORDER

testimony from the vocational expert ("VE") with hypothetical questions that did not accurately
reflect her functional limitations. Finally, Barrington contends the Appeals Council e!l'ed by
excluding the evidence produced after the ALJ' s decision.

II.

Credibility Determination
· In her application, Barrington alleged she could not work because of seizures, depression,

anxiety, insomnia, migraines, and osteoporosis. Admin. R. 221. She said each seizure was typically
followed bytempora1ymemory loss, difficulty communicating, confusion, and anxiety about dealing
with strangers. Admin. R. 243- 44. Ba!l'ington suggested her depression and migraines were not
adequately treated because medications for those conditions increased the likelihood that she would
have seizures. Admin. R. 57-58, 260, 266, 282. She said the medications for insomnia that were
available from her health insurance plan had undesirable side effects. Admin. R. 55.
At the hearing, the ALJ noted that in 2009, Ba!l'ington had reported as many as three seizures
in a week and asked if the frequency of seizures had diminished during 2011. Ball'ington replied that
it had not diminished. Admin. R. 51. She experienced migraines about twice a week. Admin. R.
58. Ba!l'ington said that neither the degeneration in her spine nor her weight caused work related
limitations. Admin. R. 57, 59. She said her medications slowed her down and caused slurred speech
and bluffed vision. Admin. R. 56-57, 59-60, 61. Ba!l'ington said she could walk about 30 minutes,
but then would become unsteady. Admin. R. 61. She could sit for 30 minutes, but then she would
develop lower back pain. Admin. R. 62. She said she could lift about ten pounds, but would become
unsteady and lose her balance if she tried to cany ten pounds. Admin. R. 63.
The ALJ found that Ball'ington's statements credibly described her limitations during the
period from September 16, 2009 to March 31, 2011. Admin. R. 27. He found that her medical

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condition improved with treatment, but continued to impose some degree of limitation after March
2011.

Admin. R. 28, 30. The ALJ found that BaiTington's statements about the intensity,

persistence and limiting effects of her symptoms were not credible insofar as she claimed that her
symptoms remained so severe after March 2011 that they imposed limitations that precluded all
work. Admin. R. 27, 30.
An adverse credibility detennination must include specific findings supported by substantial
evidence and a clear and convincing explanation. Carmickle v. Comm 'r, Soc. Sec. Adm in., 533 F.3d
1155, 1160 (9th Cir. 2008); Smolen v. Chafer, 80 F.3d 1273, 1281-82 (9th Cir. 1996). The findings
must be sufficiently specific to pennit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant's testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
The ALJ must consider all the evidence in the case record when assessing a claimant's
credibility, including objective medical evidence, medical opinions, treatment history, daily
activities, work histo1y, third party observations of the claimant's functional limitations, and any
other evidence that bears on the consistency and veracity of the claimant's statements. Tommasetti,
533 F.3d at 1039; Smolen, 80 F.3d at 1284; SSR 96-97p, 1996 WL 374186, at *5. Additionally, the
ALJ may consider ordinary techniques of credibility evaluation, such as inconsistent statements,
testimony that appeai·s less than candid, and an unexplained failure to follow a prescribed course of
treatment. Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 587,
602-04 (9th Cir. 1989).
The ALJ considered the proper factors here. He found the objective medical evidence and
treatment hist01y inconsistent with Barrington's assertion of disabling symptoms persisting past
March 2011. Admin. R. 30. The ALJ's finding is supported by the record. Barrington's seizure

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disorder is suppo1ied by a 24-hour ambulato1y EEG performed in Janumy 2010. Admin. R. 398.
The remainder of the objective evidence is generally quite benign, so that BmTington's physicians
necessarily relied on her subjective histo1y for information about the frequency, severity, and
functional consequences ofher seizures. As summarized below, the treatment notes show that, after
a protracted period of medication trials and adjustments, Ban'ington's symptoms were controlled to
a large extent by her medication regimen. Impaiiments that can be effectively controlled by
medication are not disabling for Social Security purposes. Warre v. Comm 'r ofSoc. Sec. Admin, 439
F.3d 1001, 1006 (9th Cir. 2006).
Dr. Sullivan did a neurology consultation in August 2009 and began administering
Barrington's seizure medications. Admin. R. 410. Through 2009 and 2010, Dr. Sullivan tried
various combinations of medications. Admin. R. 411-19, 436, 528, 563-65. Barrington had some
periods without seizures, but they recuned after changes in her insomnia and depression
medications. For example, in March 2010, Banington reported that she had no seizures except when
illness prevented her from taking her medications. Admin. R. 436. In August 2010, Ban'ington told
Dr. Sullivan she had experienced no seizures for five weeks. Admin. R. 563.
In October 2010, Dr. Sullivan began a new anticonvulsant medication called Vimpat.
Admin. R. 647. In November, Barrington told her primary care physician that she had not had any
seizures since beginning the new medication. Admin. R. 593. In December 2010, she told Dr.
Sullivan she had experienced no seizures since starting Vimpat. Dr. Sullivan continued to adjust her
medications, however, because her liver function tests were mildly elevated and she continued to
report problems with insomnia. Admin. R. 619. In Janumy 2011, Barrington thought she might
have had a couple of seizures while adjusting to the medication change. Admin. R. 618.

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In June 2011, Hanington told Dr. Sullivan she had not had any seizures since April. Admin.
R. 652. Thereafter, Ban'ington reported infrequent seizures until December 2011, when she
inadvertently ran out of one of her medications. Admin. R. 650, 651, 654, 655. Both her doctors
indicated that her seizure disorder had improved on the medication regimen including Vimpat.
Admin. R. 623, 652. Where the record shows medical improvement from treatment, the ALJ may
reasonably doubt a claimant's allegations of ongoing disabling symptoms. 1Vforgan v. Comm 'r 169
F.3d 595, 599 (9th Cir. 1999); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998).
This treatment history and the objective medical evidence support an inference that
Harrington's seizures decreased in both frequency and severity by April 2011, and remained under
control when she adhered to the prescribed medication regimen. Unlike her early seizures,
Harrington's seizures after March 2011 happened infrequently, primarily at night, and did not
involve loss of consciousness. Notably, when pressed by the ALJ regarding the frequency of her
seizures in the months preceding the hearing in October 2011, Barrington said she could not
remember. Admin. R. 52. This evidence supports an adverse inference as to the credibility of
Ban'ington's testimony denying that the frequency of her seizures had diminished and claiming
ongoing symptoms that remained as severe as she initially alleged. 2vlorgan, 169 F.3d at 599.
With respect to Banington's claim of debilitating migraines occuning twice a week, the
treatment notes reflect a significant history of migraines but no complaints of current symptoms
during the relevant period. Admin. R. 350, 351-52, 410, 644. Regarding Harrington's allegation that
insomnia prevented her from sleeping more than two hours per night, the only objective evidence
is a sleep study during which Barrington slept 6.9 hours and which resulted in no evidence of a sleep
disorder. Admin. R. 26, 640-44. Regarding Ban'ington's allegations of debilitating back pain from
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degenerative changes in her spine, the objective imaging revealed only minimal degenerative
changes that were unlikely to be clinically significant. Admin R. 30, 385-86. Such conflicts
between a claimant's subjective complaints and the objective medical evidence provide a proper
basis to question the claimant's credibility. 1'1/organ, 169 F.3d at 600.
Banington alleged that she continued to have debilitating depression and anxiety. As the
ALJ found, Barrington's primmy care physician and Dr. Sullivan noted Banington's complaints
regarding anxiety and depression and repeatedly adjusted her medications accordingly. Admin. R.
344, 352, 413, 418, 564. The treatment notes from2011 show very few, ifany, complaints ofcurrent
depression or anxiety symptoms. Neither physician suggested BmTington should undergo psychiatric
evaluation. Neither refened Bwington for any mental health therapy other than the antidepressant
medications she was taking. Admin. R. 31, 60. At the hearing in October 2011, Banington said her
depression and anxiety symptoms were improved with her cunent medications. Admin. R. 31, 6061. The ALJ reasonably concluded that Banington's mental health symptoms were adequately
managed with medications and did not impose debilitating limitations as she alleged. Admin. R. 31.
Where physicians engage in conservative treatment and forego other available therapies for a
condition, it supports an inference that the allegedly disabling condition is not as severe as claimed.

Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007).
Similarly, the ALJ considered BmTington's assertion that her medications made her feel
drowsy, tired, dizzy, and weak. Admin. R. 31, 67-68, 263, 278, 280. The treatment notes from 2011
do not reflect complaints of intolerable side effects from medications. Indeed, the treatment histoty
of repeated adjustments in medications demonstrates that Dr. Sullivan responded to all of
Barrington's complaints of side effects by changing medications and dosages. It is reasonable to

8 - OPINION AND ORDER

infer, as the ALJ did, that Dr. Sullivan would have changed her medications in 2011 if there were
signs of debilitating side effects. Admin. R. 31. Instead, Dr. Sullivan chose to continue the
prescribed regimen. Admin. R. 31, 650. This supports an inference that Barrington did not
experience debilitating side effects after March 2011. The ALJ reasonably concluded any limitation
posed by the side effects of Ban'ington's medications could be accommodated by restricting her
exposure to hazards, such as climbing and moving machinery. Admin. R. 31.
Finally, the ALJ found that BatTington's reported daily activities were inconsistent with her
alleged degree of impairment. Inconsistencies within the claimant's testimony or between her
testimony and conduct can indicate that the claimant is not credible. Light v. Soc. Sec. Admin., 119
F.3d 789, 792 (9th Cir. 1997). The ALJ noted that BatTington engaged in typical household and
social activities. Admin. R. 32, 230-34, 238, 240-42. While somewhat limited, Barrington has not
curtailed her activities to an extent that would suggest complete disability. Notably, Barrington
continued to drive and to transp01i her daughter during the period under consideration. Admin. R.
53-54, 238, 241. She said she did so only when she felt stable, but conceded that she could not
predict when seizures would occur. Admin. R. 51, 53-54. The ALJ could reasonably believe that
BatTington's activities were not consistent with the degree of limitation she alleged.
The ALJ's findings are supported by substantial evidence in the record and are sufficiently
specific to satisfy me that the ALJ did not arbitrarily reject BatTington's subjective statements. His .
reasoning is clear and convincing. Accordingly, the ALJ's credibility determination was not
erroneous. Tommasetti, 533 F.3d at 1039; Carmickle, 533 F.3d at 1160.

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III.

Lay Witness Statement
Barrington's former coworker, Kimberly Fjarli-Owen, provided a written statement in

support of Barrington. Fjarli-Owen said BatTington had changed emotionally and mentally since
stopping work. She described one seizure she observed Barrington experience in 2009. She
described symptoms of disorientation, slutTed speech, poor communication, and poor memory when
she spoke on the telephone with Ban'ington during the recovery period after a seizure episode.
Fjarli-Owen did not think Ban'ington's condition had improved. Admin. R. 284-88.
An ALJ must consider the declarations of a lay witness, but may discount them for reasons
ge1mane to the witness. Valentine v. Comm 'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.
2009); Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). The ALJ considered Fjarli-Owen's
statement, but found it did not establish disability. Admin. R. 32. He noted that Fjarli-Owen's
observations did not specify dates, frequency, or intensity of the symptoms she described. FjarliOwen conceded that she saw Barrington at two-month intervals and that her statements about
Barrington's activities were based on Barrington's self reporting. Admin. R. 285, 287. The ALJ
found that Fjarli-Owen's statement was entitled to diminished weight primarily because it was
inconsistent with the medical records and treatment history that showed medical improvement as
described previously. Admin. R. 32. The ALJ's reasoning is suppo1ied by the record and germane
to the witness. Accordingly, his evaluation of the lay witness statement will not be disturbed.
The ALJ also commented that Fjarli-Owen could not be viewed as a disinterested third paiiy
whose statement would not be colored by affection for Barrington because of their friendship.
Admin. R. 32. This is an improper reason for discounting the statement of a lay witness, because
it is not germane to the particular witness. Indeed, such reasoning would exclude statements from
10- OPINION AND ORDER

all the friends and family of any claimant. Friends and family members and others in a position to
observe a claimant's symptoms and daily activities are competent sources of relevant information
about the claimant's condition. Dodrill v. Shala/a, 12 F.3d 915, 918 (9th Cir. 1993). Their
statements cannot be discounted solely because of their relationship to the claimant. However,
because the ALJ provided a proper basis for discounting Fjarli-Owen' s statement independent of her
friendship with Barrington, the introduction of the additional commentaiy was inconsequential.

Batson, 359 F.3d at 1197.

IV.

Dr. Sullivan's Opinion
In Januaiy 2010, Dr. Sullivan opined that BatTington should not work at heights, around

heavy machinety, or in dangerous activities. Admin. R. 393. The ALJ incorporated similar
restrictions into the RFC assessment. Admin. R. 30. In August 2010, Dr. Sullivan completed a
worksheet indicating that Barrington was incapable of working due to frequent seizures resulting in
loss of consciousness followed by confusion, exhaustion, lethargy, and memory loss. Admin. ·R.
567-70. The ALJ found that Ban'ington was disabled at the time Dr. Sullivan offered this opinion.
Admin. R. 32. He found, however, that the opinion was entitled to less weight in assessing
Barrington' s limitations after March 2011, because the evidence demonstrated medical improvement
resulting in diminished frequency and intensity of her seizures.

Admin. R. 32. The ALJ's

explanation for giving Dr. Sullivan's opinion diminished weight is clear and convincing and
suppotted by substantial evidence. Thomas v. Barnhart, 278 F.3d 948, 757 (9th Cir. 2002).
Barrington also argues that the ALJ improperly rejected Dr. Sullivan's unstated opinion in
his treatment notes from June 2011. Pltfs Br. 26-28. Essentially, Barrington argues that the ALJ
erred by interpreting these notes differently than she thinks he should have. A careful reading of the

11 - OPINION AND ORDER

entire record satisfies me that the ALJ interpreted Dr. Sullivan's findings in a reasonable manner,
consistent with the record as a whole. The ALJ's rational interpretation must be upheld, even
if Dr. Sullivan's notes are susceptible to a reasonable interpretation more favorable to Banington.

Batson, 359 F.3d at 1193; Andrews v. Shala/a, 53 F.3d at 1039-40.
I also reject Barrington's contention that the ALJ improperly substituted his own medical
opinion for that of her physicians. It is the ALJ' s duty to consider the medical and opinion evidence
and resolve any conflicts or ambiguities. Tommasetti, 533 F.3d at 1041; Thomas, 278 F.3d at 75657. Here the ALJ reasonably resolved the conflicts and ambiguities in the medical evidence assisted
by the expert opinions of agency medical consultants. Admin. R. 32, 80, 88, 104, 114. In doing so,
he fulfilled his duty as the final arbiter of the facts and reached a reasonable conclusion. I find no
enor.

V.

Impairments in Combination
Ban'ington's argument that the ALJ failed to take into account her multiple impairments in

combination has no merit. The ALJ' s decision reflects that he considered the combined effects of
all ofBaningtons's impainnents, symptoms, and functional limitations. Admin. R. 26-30. The ALJ
considered all ofBanington' s allegations of functional limitations and accounted for all the evidence
she presented of functional limitations. In doing so, the ALJ properly considered the combined
effects of her impahments and medications. Banington does not identify any functional limitation
arising from the combination of her impairments and side effects of medications that the ALJ failed
to address.

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VI.

Vocational Evidence
Barrington contends the ALJ erroneously elicited testimony from the vocational expert with

hypothetical assumptions that did not accurately reflect all of her functional limitations. The ALJ
foimed his vocational hypothetical based on the RFC assessment he reached. Barrington contends
he should have included additional limitations, including that she would be absent from work at least
two times per month.
These additional limitations are supported only by Barrington's subjective statements and
opinion evidence that the ALJ discounted. Her present argument, therefore, simply restates her
challenges to the ALJ' s evaluation of that evidence, which I have rejected for reasons already given.

See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). An ALJ is not required
to incorporate limitations he found unsupported by the evidence in the record. Bayliss v. Barnhart,
427 F.3d 1211, 1217 (9th Cir. 2005); Batson, 359 F.3d at 1197-98; Osenbrock v. Apfel, 240 F.3d
1157, 1164-65 (9th Cir. 2001). Accordingly, Barrington's challenge to the vocational expert's
testimony must be rejected as well.

VII.

New Evidence Submitted to the Appeals Council
On August 21, 2012, several months after the ALJ issued his decision, Barrington submitted

additional evidence to the Appeals Council with her request for review. This evidence is not in the
record, but was appended to Barrington's submission to the court. It included Dr. Sullivan's chart
notes from office visits after the ALJ' s decision, and a mental health assessment by a county mental
health provider who did not examine Barrington during the period under review.
The Appeals Council declined to review the ALJ' s decision. Admin. R. 1-6. In doing so,
the Appeals Council declined to consider the evidence created after the ALJ's decision because it

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did not relate to the period under review by the ALJ. Admin. R. 2. I do not have jurisdiction to
review the action of the Appeals Council because it was not a final decision of the agency. Brewes,
682 F.3d at 1161; Taylor v. Comm 'r ofSoc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011).
Barrington's reliance on Brewes and Ramirez v. Shala/a, 8 F.3d 1449 (9th Cir. 1993), is
misplaced. Those cases hold that the district court must review the ALJ' s decision based on the
record as a whole, including evidence produced after the ALJ' s decision that was considered by the
Appeals Council and made part of the administrative record. Brewes, 682 F.3d at 1162; Ramirez,
8 F .3d at 1251-52. Here the Appeals Council did not consider the additional evidence or make it part
of the administrative record. Accordingly, it is not properly before me in this appeal.
CONCLUSION
For the foregoing reasons, the Commissioner's final decision is AFFIRMED.
DATED this

~c "day of October, 2014.

nes, Senior Judge
tates District Court

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