Wolfe v. Commissioner Social Security Administration
Filing
18
OPINION and ORDER - For the reasons stated, the decision of the Commissioner is affirmed and this matter is dismissed. IT IS SO ORDERED. DATED this 18th day of May, 2015, by United States Magistrate Judge John V. Acosta. (peg)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
RHONDA A. WOLFE,
Plaintiff,
1: l 4-CV-00560-AC
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
A COSTA, Magistrate Judge:
Plaintiff Rhonda Wolfe seeks judicial review of a final decision of the Commissioner of the
Social Security Administration (SSA) in which she denied Plaintiffs applications for Supplemental
Security Income (SS!) under Title XVI and for Disability Insurance Benefits (DIB) under Title II
of the Social Security Act. This court has jurisdiction to review the Commissioner's final decision
pursuant to 42 U.S.C. § 405(g).
Following a review of the record, the court finds the decision of the Commissioner is
1- OPINION AND ORDER
supported by substantial evidence in the record and the ALJ' s decision is affirmed.
Administrative Hist01y
Plaintiff filed her applications for DIB and SSI on February 25, 2010, and alleged a disability
onset date of February 16, 2009, due to "diabetes gastritis cataracts narrowing in the neck anxiety
panic attack PTSD vertigo, high blood pressure, cholesterol." Tr. 186-201. 1 The applications were
denied initially and on reconsideration. An Administrative Law Judge (ALJ) held a hearing on July
9, 2012. Tr. 42-88. At the hearing Plaintiff was represented by an attorney. Plaintiff, a lay witness,
and a vocational expert (VE) testified.
The ALJ issued a decision on August 6, 2012, in which he found Plaintiff was not disabled.
Tr. 57-66. That decision became the final decision of the Commissioner on Januaty 31, 2014, when
the Appeals Council denied Plaintiff's request for review. Tr. 1-5.
On April 4, 2014, Plaintiff filed a complaint in this court seeking review of the
Commissioner's decision.
Background
Plaintiff was born in April, 1962, and was 50 years old at the time of the hearing. Tr. 89.
She completed the ninth grade. Tr. 192.
Standards
The initial burden of proofrests on the claimant to establish disability. Molina v. Astrue, 674
F.3d 1104, 1110 (9th Cir. 2012). 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
1
Citations to the official transcript of record filed by the Commissioner on September
24, 2014, are referred to as "Tr."
2- OPINION AND ORDER
impairment which ... has lasted or can be expected to last for a continuous period of not less than
12 months." 42 U.S.C. § 423(d)(l)(A). 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. McLeod
v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011 )(quoting Mayes v. Massanari, 276 F.3d 453, 459-60 (9th
Cir. 2001) ).
The district court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings are supp01ied by substantial evidence in the record as a whole. 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, 690 (9th Cir. 2009)). 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. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 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).
Disability Evaluation
At Step One the claimant is not disabled if the Commissioner determines the claimant is
3- OPINION AND ORDER
engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(1). See also Keyser v. Comm 'r
o/Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
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.
20 C.F.R. §
416.920(a)(4)(ii). 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. 20 C.F.R. § 416.920(a)(4)(iii). See also Keyser,
648 F.3d at 724. The criteria for the listed impairments, known as Listings, are enumerated in 20
C.F.R. part 404, subpatt P, appendix 1 (Listed Impairments).
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 his
limitations. 20 C.F.R. § 416.920(e). See also Social Security Ruling (SSR) 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 *1. In other words, the Social Security Act does not require complete incapacity to be disabled.
Taylor v. Comm 'r ofSoc. Sec. Adm in., 659 F.3d 1228, 1234-35 (9th Cir. 2011 )(citing Fair v. Bowen,
885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled ifthe 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
4- OPINION AND ORDER
do any other work that exists in the national economy. 20 C.F.R. § 416.920(a)(4)(v). See also
Keyser, 648 F.3d at 724-25. 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)(l).
AL.J's Findings
At Step One the ALJ found Plaintiff has not engaged in substantial gainful activity since her
February 16, 2009, alleged onset date. Tr. 19.
At Step Two the ALJ found Plaintiff has severe impairments of diabetes mellitus, obesity,
tachycardia, and lumbar strain. Id.
At Step Three the ALJ determined Plaintiff's impairments did not equal in severity a listed
impairment, and found Plaintiff retained the RFC to perform less than a full range oflight work. The
ALJ found Plaintiff can lift/carry/push/pull 20 pounds occasionally and 10 pounds frequently. She
can stand/walk for six hours in an eight hour workday, and she can sit for six hours in an eight hour
workday. The ALJ found Plaintiff can occasionally stoop, kneel, crawl, balance, climb and crouch.
She should avoid exposure to vibration, moving machine1y, and unprotected heights. Tr. 22-23.
At Step Four, the ALJ found Plaintiff retained the ability to perform her past relevant work
as a cashier II. Tr. 26.
At Step Five, the ALJ found Plaintiff was capable of performing other work, including
stuffer, marking clerk, and rug cleaner. Id.
5- OPINION AND ORDER
Medical Evidence and Testimony
I. The Medical Record
On December 2, 2007, Plaintiff was seen in the emergency room for chest pain. Tr. 735. She
reported she had a heart attack in June, but the record indicates "[o]n my review of chart, this is
actually an indeterminate troponin elevation followed by a negative isotope scan." Id. On March
12, 2008, Plaintiff was seen in the emergency room for back pain. Tr. 728. On April 15 Plaintiff
was seen in the emergency room for pancreatitis. Tr. 720. She was advised to follow a bland non-fat
diet. On April 24 Plaintiff was seen in the emergency room for abdominal pain. Tr. 695. On May
8, 2008, Plaintiff was seen in the emergency room for foot pain with a fractured toe. Tr. 688. On
May 28 Plaintiff was seen in the emergency room for back pain. Tr. 673. On August 8, 2008,
Plaintiff called an ambulance after experiencing chest pain. Tr. 433. On September 8 Plaintiff was
seen in the emergency room for chest pain. Tr. 646. She stated she had had a heart attack in June
2007. Id. An EKG was normal. Tr. 650. Plaintiff was seen in the emergency room on September
26 for neck spasms, and on October 17 for migraine. Tr. 636.
On November 20 Plaintiff was seen in the emergency room for neck pain following a motor
vehicle accident. Tr. 631. On November 21, 2008, Plaintiff returned to the emergency room with
increased neck pain. Tr. 618. CT scans of the cervical spine and brain were negative. Tr. 623. On
December 23 Plaintiff was seen in the emergency room for abdominal pain and pancreatitis was
diagnosed. Tr. 609. Imaging studies ofthe lumbar spine on December24 showed minor osteophytes
without other abnormalities. Tr. 603. On December 26, 2008, Plaintiff was seen in the emergency
room for abdominal pain. Tr. 592. On December 29 Plaintiff returned to the emergency room for
left upper quadrant pain. Tr. 577. She admitted she did not follow dietary recommendations. On
6- OPINION AND ORDER
January 8, 2009, Plaintiff was seen in the emergency room for left upper quadrant pain radiating to
the left flank. Tr. 563.
Plaintiff established care with Karin Kuhl, M.D., on January 30, 2009. Tr. 417. Plaintiff
reported acute pancreatitis the prior April and December, and denied back pain. Tr. 418. She denied
depression and anxiety. On Februaty 9, 2009, Plaintiffrepo1ted shoulder and abdominal pain. Tr.
413. Dr. Kuhl noted her left shoulder and lower back pain with normal strength and no numbness
and that Plaintiff"injured it while moving friend yesterday." Id On Februaty 12 Plaintiff was seen
in the emergency room with tachycardia.
Tr. 548. On February 16, her alleged onset date of
disability, Plaintiff reported depression and loss of appetite. Tr. 405. She had chronic neck and knee
pain for which she took ibuprofen and an occasional vicodin. Dr. Kuhl prescribed Wellbutrin.
On February 29, 2009, Katherine Greene, Psy.D., conducted a psychodiagnostic evaluation
of Plaintiff. Tr. 279-83. Plaintiff said she abused methamphetamine from age 23 for about 15 years,
and has been sober since July2003. Her mood and affect were depressed and anxious. Tr. 281. She
repotted depression about once a week that can last all day. She is itTitable and moody and gets
anxious in public. She fears stairs, heights, and close spaces, and if she is inside with too many
people "she hyperventilates, starts bawling and runs outside to calm down." Id Plaintiff was bullied
in school and quit talking from age 15 to 18. She is vigilant and does not trust other people.
Dr. Greene administered the Symptom Assessment Questionnaire, the Personality
Assessment Screener (PAS), and the Beck Depression Invento1y. On the PAS Plaintiff received a
score of31, "reflecting an overall marked level of emotional problems." Id She was in the marked
range for Negative Affect, Health Problems, and Social Withdraw!. Plaintiffs symptom assessment
reflected elevated levels of somatization, phobic anxiety, and anxiety.
7- OPINION AND ORDER
Tr. 282.
The Beck
Depression Invent01y reflected a moderate level of depression.
Dr. Greene recommended
psychotherapy, and her diagnostic impression was Social Anxiety Disorder, Adjustment Disorder
with Mixed Emotions, PTSD, and methamphetamine abuse in full remission. She assessed a GAF
of61. Tr. 283.
On March 2, 2009, Dr. Kuhl advised Plaintiff to continue ibuprofen for knee pain and noted
no depression or anxiety. Tr. 402. On March 6 an imaging rep01t on both knees showed minimal
scattered degenerative changes and ossification of the medial collateral ligament of the left knee.
Tr. 398. On March 18 Plaintiff was seen in the emergency room for abdominal pain. Tr. 534.
Imaging studies of the abdomen were normal. Tr. 544. On March 27 Dr. Kuhl noted continued
neck and knee pain since a November 20, 2008 motor vehicle accident. Tr. 388. Plaintiff denied
depression or anxiety, and her diabetes was poorly controlled. Dr. Kuhl encouraged her to walk
daily.
In April 2009 Plaintiff complained of neck pain and knee pain, as well as numbness in her
left hand fingers. Tr. 383. She denied depression and anxiety. Dr. Kuhn reviewed imaging studies
from Plaintiffs November 2008 emergency room visits and noted that unenhanced CT of the head
was normal, unenhanced CT of the cervical spine showed no fracture, there was no evidence of
canal or foraminal steno sis, soft tissues appeared normal, and there was mild dextroscoliosis of the
lumbar spine. Tr. 386. Dr. Kuhl diagnosed cervical strain and prescribed aspirin. In May 2009,
Dr. Kuhl noted physical therapy was helping with neck pain, and knee pain had resolved. Tr. 379.
She denied depression and anxiety. Tr. 381. On May 22 Plaintiff was seen in the emergency room
for vertigo and nausea. Tr. 528. On May 27 Plaintiff was seen in the emergency room for a left foot
injmy after dropping a gallon of ice cream on it. Tr. 523.
8- OPINION AND ORDER
On June 2, 2009, Plaintiff denied depression and anxiety, and was noncompliant with her
blood pressure medication. Tr. 377. On June 19 Plaintiff was eating poorly and denied depression
or anxiety. Tr. 373. On July 24 Plaintiff had vertigo arising from an ear infection. Tr. 364. She
denied depression or anxiety. Tr. 366.
On August 18, Plaintiff saw Dr. Kuhl for allergies. Tr. 360. She had spent a week camping
on the coast, and was not eating correctly for her diabetes.
Plaintiff saw Dr. Kuhl on September 18, 2009, with cold symptoms lasting two weeks. Tr.
356. Her diabetes was not well controlled. Plaintiff was seen in the emergency room on September
19 for chest pain. Tr. 491. An abdominal ultrasound was normal. Id.
On September 29, 2009, Plaintiff reported she was vety anxious "and stressed out all of the
time." Tr. 351. Her glucose was not well controlled, and Plaintiff admitted she was not eating
appropriately.
On October 6, 2009, Plaintiff complained of anxiety and neck pain. Tr. 346. Dr. Kuhl noted
"counseling may really help, but she declines for now." Id.
In November 2009, Plaintiff told a physician she had not used methamphetamine for four
years. Tr. 327.
In December 2009, Plaintiff said her gastritis resolved with pepcid. Tr. 318.
On January 4, 2010, Plaintiff reported muscle spasms in her neck. Dr. Kuhl advised her to
walk briskly for 20 minutes daily. Tr. 317. On January 18 Dr. Kuhl noted Plaintiff was taking
valium and Norco 2-3 times per week. Tr. 311. On Februaty 2 Plaintiff was seen in the emergency
room with uncontrolled diabetes. Tr. 488.
On Februaty 16, 2010, Plaintiff repotied right lower quadrant pain. Tr. 302. She thought she
9- OPINION AND ORDER
had pulled a muscle. Hyperlipidemia was much improved on statins, though "compliance is an issue
at times." Tr. 305.
On March 15 Plaintiff was taking valium sparingly, and taking Norco
occasionally for back and knee pain. Tr. 298. On March 20 Plaintiff went to the emergency room
with a migraine but left without being seen. Tr. 485.
On April 2, 2010, Plaintiff was seen in the emergency room after a fall with pain in her jaw.
Tr. 478. Xrays were normal. Tr. 483.
On April 12, 2010, Plaintiff reported migraine headaches about once a week which last 2-3
days. She was depressed but denied counseling and medication. Tr. 295. Plaintiff was given a wrist
splint for carpal tunnel syndrome.
On May 17, 2010, Dr. Kuhl noted Plaintiffs blood pressure went up when she went to the
grocery store. Tr. 290. She had no headaches or chest pain. Plaintiff stopped taking her blood
pressure and cholesterol medications because she thought those issues had been addressed.
Plaintiff was seen in the emergency room on June 1, 2010, for chest wall pain. Tr. 472.
On June 22, 2010, Plaintiff saw Dr. Kuhl for shoulder pain much improved with daily
exercises. Tr. 286. Her neck was sore "off and on" but better since working less. Blood sugar was
under control. Plaintiff took valium a couple of times per week for anxiety. She had no depression,
anxiety or agitation. Tr. 288. She declined an SSRI or counseling.
Plaintiff was seen in the emergency room on July 14, 2010, after falling at work. She had
an avulsion fracture of the left medial maleolus and an xray of the left knee showed chronic
dystrophic calcification along the MCL consistent with remote injury, but no acute fracture,
dislocation, or joint effusion. Tr. 461, 464.
Plaintiff was seen in the emergency room on August 10 and 23, 20 I 0, for reasons that are not
10- OPINION AND ORDER
clear. Tr. 459-60. On December 4, 2010, Plaintiff was seen in the emergency room for diarrhea and
mild gastroenteritis. Tr. 450. On December 26, 2010, Plaintiff was seen in the emergency room for
a knee and ankle sprain. Tr. 442. On that occasion she reported last using methamphetamine in
2002. Tr. 443. An x-ray of the knee showed chronic post traumatic change in the medial tibial
plateau unchanged from prior studies. Tr. 446.
On January 11, 2011, Dr. Kuhn examined Plaintiffs left leg and ankle and referred her to
physical therapy, and noted that her gastric symptoms were much improved with a reduced coffee
intake. Tr. 1036. Plaintiff requested referral to an orthopedist for her left leg and ankle. Tr. 1034.
On April 7, 2011, Dr. Kuhl noted knee pain though she was able to walk and bear weight.
Tr. 1118. Plaintiff was not compliant with medications, and took 1-2 valium daily for anxiety.
On April 20, 2011, Plaintiff was discharged from physical therapy. Tr. 1024. She attended
her initial evaluation of left leg and ankle sprain, and was scheduled for seven more appointments,
but cancelled three and did not show for another and was therefore discharged.
On June 10 Plaintiff was seen in the emergency room for abdominal pain and was advised
to reduce her caffeine intake often cups of coffee a day. Tr. 991, 994. On August 9 Dr. Kuhn
reported Plaintiff was not taking her blood pressure or cholesterol medications, and had not needed
valium lately. Tr. 1100.
On August 20 Plaintiff was seen in the emergency room with unstable angina. Tr. 903.
An angiogram of the pulmonary arteries was negative for pulmonaiy embolic disease or acute
thoracic abnormality to explain chest pain. Tr. 1160.
On October 1, 2011, Plaintiff was seen in the emergency room for tachycardia. On October
25, 2011, Dr. Kuhl noted Plaintiff was not medically compliant and did not take her cholesterol and
11- OPINION AND ORDER
blood pressure medications as prescribed. Tr. I 080. On December 1 Plaintiff had an atrial ablation.
Tr. 1170.
On March 27, 20 I 2, Michael F. 0 'Connell, Ph.D., conducted a psychodiagnostic interview.
Tr. I I 87-97. Dr. 0 'Connell reviewed some medical records. Plaintiff reported drinking 20-24 cups
of coffee per day. Tr. 1191. Her affect was depressed and tearful. Dr. O'Connell diagnosed
Dysthymic Disorder; Caffeine-Induced Anxiety Disorder v. Panic Disorder with Agoraphobia;
Amphetamine Dependence, reported in sustained full remission; Polysubstance Abuse, reported in
sustained full remission; and rule out Somatoform Disorder NOS. Tr. I I 93. Dr. O'Connell
concluded Plaintiff had mild impairment of the ability to interact appropriately with the public. Tr.
I 196.
On June 22, 2012, Plaintiff was seen in the emergency room for tachycardia. Tr. I 199.
II. Testimony at July 9, 2012 Hearing
Sandy Bergman testified that Plaintiff has worked for her for about five years. Tr. 49.
Plaintiff worked three days a week, nine hours a day, for a time, but "it's just too much for her." Tr.
5 I. Ms. Bergman testified that Plaintiff was working two days a week, and could work a third day
in an emergency, but if she works three days a week for two or three weeks Plaintiff gets sick. When
Plaintiff gets sick her voice gets hoarse, she has optical migraines, her blood pressure goes up, she
has heart issues, and she gets colds. Ms. Bergman testified that she believed Plaintiff was
legitimately sick, and that Plaintiff was a dependable, honest employee on a part-time schedule. Tr.
52. Plaintiff had worked the two-day-a-week schedule for about six months to a year. Tr. 54.
Plaintiff testified she had worked two days a week since about 2009. When she worked more
than two days a week she got sick with anxiety attacks and depression. Tr. 57. She said "I just, I
12- OPINION AND ORDER
can't do it. I don't want to get out of my house. I don't want to go nowhere, don't even want to go
to work. I get sick really super easy. People come in and they'll have a bug and I'll get it, and then
I'm sick for weeks at a time, and so two days a week is all I can do." Id.
Plaintiff testified that she works as a cashier, and it is stressful because people come in drunk
and she has to refuse to sell them alcohol and this causes her anxiety. Some customers are abusive.
Plaintiff testified that if she did not work with the public she "would probably stress out making sure
that I got everything done exactly right, which I would be getting sick." Tr. 60. She has been fired
because of illness.
Plaintiff has medication for anxiety, but she does not take it often. Id It causes drowsiness.
She was diagnosed with PTSD in 2002, and violent men trigger her symptoms. Tr. 62. She has had
tachycardia and a cardio ablation in 2011. Tr. 62. The tachycardia returned two weeks prior to the
hearing.
Plaintiff has neck spasms, lower back pain, left knee and ankle problems, and her hands swell
and go numb. Tr. 63. She can stand for a maximum of ninety minutes. Tr. 64. She cannot sit for
more than an hour because of her back, and most of the time when she is home she lies down. Id.
Plaintiff testified she can walk about a block, and she can go up stairs but when she gets to the top
"my hip has either gone out, my ankle's either started hurting or I can't breathe." Tr. 65.
Plaintiff testified she has pain in her left knee because "apparently I broke it years ago.
Didn't know." Id. One doctor told her she should have surgery. She has to be very careful when
bending from the waist or she will pull a muscle. She has had vertigo since 2009. Tr. 66.
Plaintiff stated she has problems with her hands. She can do something for about an hour
and then she loses the strength in her hands. After work her hands swell and in the morning she has
13- OPINION AND ORDER
no feeling in them. When she is at work she can take breaks when she needs to. Tr. 73.
Plaintiff testified she becomes anxious "in most circumstances" when asked to do something
for an extended period oftime. Tr. 74. She has not sought mental health treatment.
When she tries to work tluee days a week she "started having panic attacks to the point that I stmted
crying before I had to go to work." Tr. 78. She is an insulin dependent diabetic.
The VE testified that an individual with Plaintiffs RFC could perform work as a stuffer or
rug cleaner. Tr. 83.
Discussion
Plaintiff contends the ALJ erred by (1) failing to credit lay testimony; (2) finding Plaintiff
less than fully credible; and (3) improperly weighing the medical evidence.
I. Lay Witness Testimony
The ALJ has a duty to consider lay witness testimony.
20 C.F.R. § 404.1513(d);
404.1545(a)(3); 416.945(a)(3); 416.913(d); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).
Friends and family members in a position to observe the claimant's symptoms and daily activities
are competent to testify regarding the claimant's condition. Dodrill v. Sha/ala, 12 F.3d 915, 918-19
(9th Cir. 1993). The ALJ may not reject such testimony without comment and must give reasons
germane to the witness for rejecting her testimony. Nguyen v. Chafer, 100 F.3d 1462, 1467 (9th Cir.
1996). However, inconsistency with the medical evidence may constitute a germane reason. Lewis,
236 F.3d at 512. The ALJ may also reject lay testimony predicated upon the testimony of a claimant
properly found not credible. Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009).
The ALJ noted Ms. Bergman's testimony, as set out above, and gave it little weight as
unsupported by the medical evidence. Tr. 25-26. Ms. Bergman testified that if Plaintiff worked
14- OPINION AND ORDER
more than 18 hours per week Plaintiff would get a hoarse voice, optical migraines, elevated blood
pressure, heart issues, and colds. Tr. 52.
There is no evidence in the medical record of a hoarse voice. There is evidence that Plaintiff
had a migraine on October 17, 2008, March 20, 2010, and April 12, 2010. Tr. 636, 485, 295. The
medical record does not support Ms. Bergman's assertion that Plaintiff had migraines with any
frequency either before or after she limited her work to 18 hours per week.
The record does show periods of poorly controlled hype1iension. However, the record also
shows Plaintiff was not always medically compliant regarding her blood pressure medication. Tr.
377, 290, 1118, 1100, 1080.
There is evidence of treatment for chest pain and tachycardia. Plaintiff complained of chest
pain on December 2, 2007 (normal chest xray and normal EKG), September 8, 2008 (normal chest
xray and normal EKG, negative cardiac enzymes), February 12, 2009 (tachycardia), September 19,
2009 (diagnosis atypical chest pain, noncardiac), June 1, 2010 (chest wall pain), August 20, 2011
(negative angiogram of pulmonary arteries), October 1, 2011 (tachycardia), and June 22, 2012
(tachycardia). Tr. 735, 646, 548, 491, 472, 1199. There is no significantevidencethatwo rkingmore
than 18 hours per week caused Plaintiff to have cardiac issues.
The ALJ properly found Ms. Bergman's testimony not supported by the medical evidence
and his treatment of that testimony is supported by substantial evidence.
II. Credibility
The ALJ is responsible for determining credibility, resolving conflicts in medical testimony,
and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). See also
Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th Cir. 2008). The ALJ's findings, however, must be
15- OPINION AND ORDER
supported by specific, cogent reasons. Reddick v. Chafer, 157 F.3d 715, 722 (9th Cir. 1998). See
also Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). Unless there is affirmative
evidence that shows the claimant is malingering, the Commissioner's reason for rejecting the
claimant's testimony must be "clear and convincing." Id. The ALJ must identify the testimony that
is not credible and the evidence that undermines the claimant's complaints. Id. The evidence upon
which the ALJ relies must be substantial. Id. at 724. See also Holohan, 246 F.3d at 1208. General
findings (e.g., "record in general" indicates improvement) are an insufficient basis to support an
adverse credibility determination. Reddick, 157 F.3d at 722. See also Holohan, 246 F.3d at 1208.
The ALJ must make a credibility determination with findings sufficiently specific to permit the court
to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Thomas v. Barnhart,
278 F.3d 947, 958 (9th Cir. 2002).
In deciding whether to accept a claimant's subjective symptom testimony, "an ALJ must
perform two stages of analysis: the Cotton analysis and an analysis of the credibility of the
claimant's testimony regarding the severity of her symptoms." Smolen v. Chafer, 80 F .3d 1273, 1281
(9th Cir. 1996).
Under the Cotton test, a claimant who alleges disability based on subjective
symptoms "must produce objective medical evidence of an under-lying impairment
which could reasonably be expected to produce the pain or other symptoms alleged."
Bunnell, 947 F.2d at 344 (quoting 42 U.S.C. § 423(d)(5)(A) (1988)); Cotton, 799
F.2d at 1407-08. The Cotton test imposes only two requirements on the claimant:(!)
she must produce objective medical evidence of an impairment or impairments; and
(2) she must show that the impairment or combination of impairments could
reasonably be expected to (not that it did in fact) produce some degree of symptom.
Smolen, 80 F.3d at 1282. See also Carmickle v. Comm 'r Soc. Sec. Adm in., 533 F.3d 1155, 1160 (9th
Cir. 2008).
16- OPINION AND ORDER
The ALJ found Plaintiffs statements as to the severity of her impairments less than fully
credible. Tr. 25. The ALJ cited Plaintiffs daily activities as inconsistent with her alleged limitations.
"Her statements concerning her impairments and their impact on her ability to work are considerably
more limited and restricted than is established by the medical evidence. Despite alleging continuing
disability, no persuasive medical statement from a treating source has been submitted to substantiate
her claim for benefits." Id The ALJ noted Plaintiff performed household chores, drove, and
worked. The ALJ cited the lay witness statement submitted by Plaintiffs mother, Bonnie Holland,
who reported Plaintiff prepared meals, fishes, visits friends, and talks on the phone. Tr. 26. The ALJ
cited Plaintiffs report to Dr. O'Connell that she could concentrate satisfactorily at work, her pace
was average, and she had no problem with persistence. Tr. 25, 1193. The ALJ noted Plaintiffs
periodic noncompliance with medication and treatment, and inconsistencies in Plaintiffs reports of
drug use. Part-time work after an alleged onset date undermines credibility. Bray v. Comm 'r Soc.
Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
The ALJ atticulated clear and convincing reasons to find Plaintiffs symptom testimony less
than fully credible. The ALJ's credibility determination is supported by substantial evidence.
III. The Medical Evidence
Disability opinions are reserved for the Commissioner. 20 C.F.R. §§ 404.1527(e)(l);
416.927(e)(l ). Ifno conflict arises between medical source opinions, the ALJ generally must accord
greater weight to the opinion of a treating physician than that of an examining physician. Lester v.
Chat er, 81 F.3d 821, 830 (9th Cir. 1995). More weight is given to the opinion of a treating physician
because the person has a greater opportunity to know and observe the patient as an individual. Orn
v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). In such circumstances the ALJ should also give greater
17- OPINION AND ORDER
weight to the opinion of an examining physician over that of a reviewing physician. Id. If a treating
or examining physician's opinion is not contradicted by another physician, the A1J may only reject
it for clear and convincing reasons. Id. (treating physician); Widmark v. Barnhart, 454 F.3d I 063,
I 067 (9th Cir. 2006) (examining physician). Even if one physician is contradicted by another
physician, the A1J may not reject the opinion without providing specific and legitimate reasons
supported by substantial evidence in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066.
The opinion of a nonexamining physician, by itself, is insufficient to constitute substantial evidence
to reject the opinion of a treating or examining physician. Widmark, 454 F.3d at I 066 n.2. The A1J
may reject physician opinions that are "brief, conclusory, and inadequately supported by clinical
findings." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
Plaintiff contends the A1J erred in assessing Plaintiffs lumbar strain and by stating that
"imaging ofher back was never conducted." Tr. 24; Plaintiffs Brief at 24. Plaintiff is correct in that
the A1J erred by stating imaging studies were not conducted. However, the November 2011
imaging studies showed only mild dextroscoliosis of the lumbar spine. Tr. 386. Plaintiff contends
the A1J failed to consider lumbar degenerative changes in her posterior facets of her lower back,
citing Ex. 7F/108. That exhibit is an analysis ofa CT scan of Plaintiffs abdomen and pelvis, in
which the radiologist notes "There is minimal degenerative change seen of the posterior facets of the
lower lumbar spine." Tr. 545. Finally, Plaintiff cites December2008 imaging studies of the lumbar
spine which showed "minor anterior osteophytes are present at 13 and 14." Tr. 603.
Plaintiff concedes that the A1J found lumbar strain to be a severe impairment, and argues
that the A1J failed to consider the role of lumbar strain in evaluating the combined effect of
Plaintiffs impairments. Plaintiff does not point to any medical evidence of physical limitations
18- OPINION AND ORDER
arising from lumbar strain that are not accommodated by the RFC.
Plaintiff contends the ALJ erred by relying on the opinions of the non-examining record
reviewing physicians. Plaintiff does not point to any evidence that these opinions conflict with any
other medical opinion.
The ALJ' s consideration of the medical evidence is supported by substantial evidence.
IV. Duty to Develop the Record
Plaintiff contends the ALJ erred by failing to order a psychological examination. Plaintiffs
counsel requested an examination in July 2011. Tr. 221.
The ALJ has an independent "'duty to fully and fairly develop the record and to assure that
the claimant's interests are considered."' Smolen, 80 F.3d at 1288 (quoting Brown v. Heckler, 713
F.2d 441, 443 (9th Cir. 1983)). This duty extends to the represented as well as to the unrepresented
claimant. Id The ALJ's duty to develop the record fully is heightened where the claimant may be
mentally ill and thus unable to protect her own interests. Higbee v. Sullivan,974 F.2d 558, 562 (9th
Cir. 1992). Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow
for proper evaluation of the evidence, triggers the ALJ's duty to "conduct an appropriate inquiry."
Smolen, 80 F.3d at 1288; Armstrongv. Commissioner o/Soc. Sec. Admin., 160 F.3d 587, 590 (9th
Cir. 1998).
Plaintiff contends that Dr. O'Connell's assessment of rule-out somatoform disorder and
reference to the benefit a medical evaluation may provide in determining the degree to which her
somatic complaints related to organic dysfunction triggered the ALJ' s duty to develop the record
further. Plaintiff argues that Dr. 0 'Connell' s opinion establishes an ambiguity requiring a medical
opinion before it can be determined whether Plaintiff is disabled.. Plaintiff contends the ALJ erred
19- OPINION AND ORDER
by relying on the agency's reviewing physicians June 2010 opinions rendered before Dr. 0' Connell' s
examination. However, the ALJ also referred multiple times to Dr. Kuhn's records and reports and
emergency room reports through November 2011. Tr. 23-25. The record is not ambiguous and the
ALJ did not err by failing to order another medical opinion.
Conclusion
For these reasons, the decision of the Commissioner is affirmed and this matter is dismissed.
IT IS SO ORDERED.
Dated this
/
O~ay of May, 2015.
10
United]. ates Magistrate Judge
"'·
20- OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?