Laplante v. Commissioner Social Security Administration
Filing
23
OPINION & ORDER: The Commissioner's final decision denying LaPlante's application for DIB and SSI is Affirmed. Signed on 8/6/15 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARGARET ANNE LAPLANTE,
Plaintiff,
1:14-CV-00860-PK
OPINION AND
ORDER
v.
CAROLYNW. COLVIN,
Acting Commissioner of Social Security,
Defendant.
PAP AK, Magistrate Judge:
Plaintiff Margaret Anne Laplante filed this action on December 29, 2014, seeking judicial
review of the Commissioner of Social Security's final decision denying her applications for
disability insurance benefits ("DIB") and supplemental security income ("SSI") under Title II of
the Social Security Act (the "Act"). This court has jurisdiction over LaP!ante's action pursuant to
42 U.S.C. § 405(g) and 1383(c)(3).
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LaPlante argues that the Administrative Law Judge ("ALJ") erred by: (1) improperly
rejecting her treating physicians' findings in favor of his own independent findings and
speculative inferences without stating specific and legitimate reasons supported by substantial
evidence; (2) failing to consider the combined effect of her impai1ments; (3) finding her
subjective symptom testimony less than fully credible; (4) opting not to hear testimony from a
vocational expe1i; and (5) failing to identify specific evidence to support his conclusion that she
was capable of substantial gainful activity after January 1, 2011. I have considered all of the
paiiies' briefs and all of the evidence in the administrative record. For the reasons set forth
below, the Commissioner's final decision is affirmed.
DISABILITY ANALYSIS FRAMEWORK
To establish disability within the meaning of the Act, a claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not
less than 12 months." 42 U.S.C. §423(d)(l)(A). The Commissioner has established a five-step
sequential process for determining whether a claimant has made the requisite demonstration. See
Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only
at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step, the Administrative Law Judge considers the claimant's work activity, if
any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If
the ALJ finds that the claimant is engaged in substantial gainful activity, the claimant will be
found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R.§§ 404.1520(a)(4)(i),
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404.1520(b), 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will proceed to the second
step.
At the second step, the ALJ considers the medical severity of the claimant's impahments.
See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(i). An
impai1ment is "severe" if it significantly limits the claimant's ability to perform basic work
activities and is expected to persist for a period of twelve months or longer. See Bowen, 482
U.S. at 141; see also 20 C.F.R. §§ 404.1520(c), 416.920(c). The ability to perform basic work.
activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§
404.1521(b), 416.921(b); see also Bowen, 482 U.S. at 141. If the ALJ finds the claimant's
impahments are not severe or do not meet the duration requirement, the claimant will be found
not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c),
416.920(a)(4)(ii), 416.920(c). Neve1iheless, it is well established that "the two-step inquiry is a
de minimis screening device to dispose of groundless claims." Smolden v. Chater, 80 F.3d 1273,
1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 153-154. "An impahment or combination of
impahments can be found 'not severe' only if the evidence establishes a slight abnormality that
'has no more than a minimal effect on an individual[']s ability to work." Id., quoting S.S.R. 8528, 1985 SSR LEXIS 19 (1985).
If the claimant's impai1ments are severe, the evaluation will proceed to the third step, at
which the ALJ dete1mines whether the claimant's impairments meet or equal "one of a number of
listed impairments that the [Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one
of the impahments enumerated in 20 C.F.R. §§ 404, subpt. P, app. 1, the claimant will
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conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920( d).
If the claimant's impairments are not equivalent to one of the enumerated impairments,
between the third and fomih steps the ALJ is required to assess the claimant's residual functional
capacity ("RFC"), based on all the relevant medical and other evidence in the claimant's case
record. See 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC is an estimate of the claimant's
capacity to perform sustained, work-related physical and/or mental activities on a regular and
continuing basis, 1 despite the limitations imposed by the claimant's impairments. See 20 C.F.R.
§§ 404.1545(a), 416.95(a); see also S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996).
At the fourth step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that
the claimant can still perform his or her past relevant work, the claimant will be found not
disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(±),
416.920(a)(4)(iv), 416.920(±). In the event the claimant is no longer capable of his or her past
relevant work, the evaluation will proceed to the fifth and final step, at which the burden of proof
shifts, for the first time, to the Commissioner.
At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's age, education, and work experience to determine whether a person with those
characteristics and RFC could perform any jobs that exist in significant numbers in the national
economy. See Bowen, 482 U.S. at 142; see also C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g),
1
"A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an
equivalent work schedule." S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996).
Page 4 - OPINION AND ORDER
404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. If the Commissioner
meets his burden to demonstrate the existence in significant numbers in the national economy of
jobs capable of being performed by a person with the RFC assessed by the ALJ between the third
and fourth steps of the five-step process, the claimant is found not to be disabled. See Bowen,
482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566,
416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. A claimant will be found entitled to benefits
ifthe Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see
also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
LEGAL STANDARD
A reviewing court must affirm an Administrative Law Judge's decision ifthe ALJ applied
proper legal standards and his or her findings are supported by substantial evidence in the record.
See 42 U.S.C. § 405(g); see also Batson v. Comm'r for Soc. Sec. Admin., 359 F.3d 1190, 1193
(9th Cir. 2004). "'Substantial evidence' means more than a mere scintilla, but less than a
preponderance; it is such relevant evidence as a reasonable person might accept as adequate to
support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
The court must review the record as a whole, "weighing both the evidence that supports
and the evidence that detracts from the Commissioner's conclusion." Id, citing Reddick v.
Chafer, 157 F.3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of
the Commissioner. See id., citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.
2006); see also Edlundv. 1\Iassanari, 253 F.3d 1152, 1156 (9th Cir. 2001). If the ALJ's
interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible
[of] more than one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
Page 5 - OPINION AND ORDER
1989), citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).
ADMINISTRATIVE HISTORY
LaPlante protectively filed for DIB and SSI on April 21, 2005. Tr. 101. LaPlante alleged
disability beginning November 1, 2004, based on her diagnosed systemic lupus erythematosus
(SLE), type II diabetes, knee injury, and left hand injury. Tr. 23. 101. The ALJ initially found
the claimant not disabled on October 26, 2007, and LaPlante appealed to the United States
District Court for the District of Oregon. Tr. 23. On remand, the ALJ issued a partially
favorable decision on September 9, 2010. Tr. 93. LaPlante was declared disabled under the
Social Security Act from November 1, 2004, to September 30, 2007, and awarded benefits. Tr.
97. She retumed to work after the closed period of disability and was thereafter capable of
substantial gainful activity. Tr. 43.
LaPlante then protectively filed concurrent applications for DIB and SSI on December
28, 2010. Tr. 23. Her claims were denied initially on March 24, 2011, and again upon
reconsideration on June 6, 2011. Tr. 23. She timely filed a written request for a hearing, which
was held via video conference on October 2, 2012. As of her amended alleged onset date of
January 1, 2011, LaPlante has only worked part-time because of her symptoms. Tr. 25.
On October 2, 2012, a hearing was conducted before an ALJ in connection with
LaPlante's DIB and SSI applications. Tr. 40. LaPlante and her attorney appeared at the hearing.
Tr. 40. A vocational expe1i, Frank Lucas, was also present but did not testify. Tr. 41.
On December 27, 2012, ALJ Neiswanger denied LaPlante's application for DIB and SSL
Tr. 20. LaPlante timely requested review of the ALJ's decision and the Appeals Council denied
her request on Mmch 28, 2014. Tr. 1, 19. Consequently, the ALJ's decision of December 27,
2012, became the Administration's final order for purposes of judicial review. See 20 C.F.R.
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§422.210(a); see also, e.g., Sims v. Apfel, 530 U.S. 103, 107 (2000). This action followed.
SUMMARY OF THE ADMINISTRATIVE RECORD
Laplante was born on December 20, 1962. Tr. 248. 2 She has a Bachelor of Science in
criminal justice. Tr. 45. According to the evidence ofrecord, LaPlante worked as a retail
associate and manager from August 1996 to September 2001 and September 2006 to July 2007,
as a legal assistant from September 2001through.November2004, and as a receptionist and
office clerk from February 2006 to present. Tr. 325. LaPlante states that she has been unable to
work full-time since September 2001 because of her symptoms. Tr. 62.
The earliest medical evidence in the administrative record shows that LaPlante saw
Bobbie Smith-Ede, F.N.P., on December 6, 2010, at the Medford Medical Clinic. Tr. 393.
LaPlante presented symptoms related to lupus, hypothyroidism, and diabetes. Id She sought to
resume treatment after a period ofuninsurance. Id. F.N.P. Smith-Ede ordered labs that indicated
LaPlante's TSH was significantly high, her creatine level was slightly elevated, and her LDL was
significantly raised. Tr. 398, 401-02.
F.N.P. Smith-Ede refened LaPlante to Rudy Greene, M.D., to discuss her lupus-related
symptoms. Tr. 394. Dr. Greene noted that he had previously treated LaPlante for the same
condition but had not seen her for nine years. Tr. 408. Dr. Greene also noted that LaPlante had
previously found some success managing her symptoms with Plaquenil, but had discontinued all
medications because of cost. Tr. 408. He stated that he would "consider" putting LaPlante back
on Plaquenil after her thyroid normalized. Tr. 409.
LaPlante visited Kathryn Warner, F.N.P ., on March 22, 2011. She stated that she had
2
Citations to "Tr." refer to the page(s) indicated in the official transcript of the
administrative record.
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taken the medicine that Dr. Greene had prescribed for her hypothyroidism, but reported
continuing fatigue and muscle aches. Lab work indicated that her Al C levels were at target and
that her sedimentation rate, CRP, and TSH were at normal levels. Tr. 440.
LaPlante visited William Palm, M.D., in May and August of201 l to address a right
facial cheek lesion. Tr. 429. Dr. Palm excised the lesion because it was "almost ce1iainly" basal
cell skin cancer based on its macroscopic appearance. Tr. 432, 435. LaPlante returned to Dr.
Palm on September 30, 2011, with "numerous somatic complaints" including bilateral leg
edema, shortness of breath, tremors daily, headaches daily, extreme fatigue, muscle fatigue,
muscle weakness, fever daily, muscle loss, mouth sores, and torn nail beds. Tr. 429. Dr. Palm
found only trace pitting edema upon examination. Tr. 429. Dr. Palm advised LaPlante that he
was seeing her only on dermatologic referral and recommended a follow-up with a
rheumatologist, but agreed to obtain updated labs. Tr. 429.
After a nine-month absence, LaPlante followed up with Dr. Greene. She presented with
the same symptoms, which had repo1iedly worsened. Tr. 406. She rep01ied oral ulcers, but there
were none present. Tr. 406. She reported shortness of breath, but exhibited no rales, rhonchi, or
wheezes. Tr. 406. Motor strength testing was also consistent with Dr. Greene's findings from
nine months prior. Tr. 477. Dr. Greene ordered new lab testing that showed LaPlante's TSH and
creatine levels within normal limits. Id. She also tested negative for ANA and essentially all
lupus panels. Id.
The record shows that in 2012 LaPlante primarily received treatment from Richard
Julyan, M.D. In May 2012, Dr. Julyan described LaPlante's hypothyroidism as well controlled
and her TSH as high, with symptoms. Tr. 421. He increased the dosage of her thyroid
medication. Tr. 421. LaPlante returned to Dr. Julyan in June after a fall that hyperextended her
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knee. Dr. Julyan diagnosed her injury as a leg strain. Tr. 418.
State agency non-examining medical advisors reviewed LaPlante's claim file in March
and June of2011. The advisors made note that none ofLaPlante's treating physicians had
concluded that she was unable to return to work as a typist or transcriptionist because of her
impairments. Tr. 29. They concluded that "the claimant should have the capacity to lift, carry,
push, and pull up to 10 pounds at all times, stand and/or walk six hours, and sit six hours." Tr.
29.
SUMMARY OF ALJ FINDINGS
At the first step of the five-step sequential evaluation process, the ALJ found that
LaPlante did not engage in substantial gainful activity based on her income after January 1,
2011. Tr. 25, 68. LaPlante amended her alleged onset date to conform with this finding. Tr. 6871. He therefore proceeded to the second step of the analysis.
At the second step, the ALJ found that LaP!ante's medical impairments of "systemic
lupus erythematous, hypothyroidism, obesity, and history of injury to the fingers and left hand in
a right-hand dominant individual" were "severe" for the purposes of the Act. Tr. 26. The ALJ
fu1iher found that LaPlante's medically determinable impaiiment of diabetes mellitus is not
"severe" because it can be controlled with dietary restrictions and her treating physicians
expressed "little concern" about its severity. Tr. 26. Because of LaPlante's several severe
impairments, the ALJ proceeded to the third step of the disability analysis.
At the third step, the ALJ found that none of LaPlante's impairments were equivalent to
the enumerated impaiiments found in 20 C.F.R. § 404, subpt P, app. 1. The ALJ found that
LaPlante's systemic lupus erythematosus did not meet the criteria in Listing 14.02 because none
of her treating physicians mentioned findings "equivalent in severity" to the criteria. Tr. 26. The
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ALJ stated that he made this conclusion in consideration ofLaPlante's obesity, in accordance
with SSR 02-lp, and endocrine disorders, in accordance with Listing 9.00. Tr. 26. The ALJ
found that none of these impaitments, alone or in combination, demonstrated the severity
described in any listing. Tr. 26.
Therefore, the ALJ properly proceeded to the assessment of LaPlante's residual
functional capacity. Specifically, the ALJ found that:
[LaPlante] has the residual functional capacity to lift, cany, push, and pull
10 pounds at all times. She can stand and/or walk for six hours in an eighthour workday with normal breaks and she also can sit for six hours in an
eight-hour workday with normal breaks. She is able to climb, stoop, kneel,
crouch, and crawl on an occasional basis. The claimant may use her upper
extremity frequently, not constantly, for handling and fingering activities.
Tr. 27. In reaching this finding, the ALJ considered all of the material objective medical
evidence in the record, LaPlante's own testimony, and a Work Activity Questionnaire completed
by her employer in January 2011 that indicated she was able to perform her job duties consistent
with a non-disabled person's performance. Tr. 29-31. The ALJ futther found LaPlante "less than
fully credible" in light of her lack of medical treatment, refusal to follow prescribed treatment,
and the supposedly coincidental reduction of her pay to ten dollars below sustainable gainful
activity levels after her alleged onset date. Tr. 30-31.
At the fourth step of the five-step process, the ALJ found that LaPlante was able to
perform her past relevant work as a clerk because it did not require performance of work-related
activities precluded by her residual functional capacity. Tr. 31. The ALJ based this
dete1mination in part on LaPlante's past relevant work as a clerk for the City of Medford, which
she had performed at SGA-level for periods in excess of six months over the course of 15 years.
Tr. 32. On that basis, the ALJ concluded that LaPlante was not disabled as defined by the Act at
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any time between January 1, 2011, and the date of his decision, December 27, 2012.
ANALYSIS
LaPlante challenges the Commissioner's assessment of her ability to perfmm her past
relevant work in light of her limited residual functional capacity on several grounds. LaPlante
argues: (1) the ALJ improperly rejected her treating physicians' findings in favor of his own
independent findings and speculative inferences without stating specific and legitimate reasons
supported by substantial evidence; (2) the ALJ erroneously failed to consider the combined
effect of her impairments; (3) the ALJ erroneously found her subjective and symptom testimony
less than fully credible; (4) the ALJ erred by not hearing testimony from a vocational expert; and
(5) the ALJ failed to identify specific evidence to support his conclusion that she was capable of
substantial gainful activity after January 1, 2011. I will address each of LaPlante's arguments in
turn.
I.
The ALJ's Rejection of LaPlante's Treating Physicians' Opinions and Substitutions
of His Own "Independent Findings and Speculative Inferences"
LaPlante broadly contends that the ALJ disregarded her physicians' opinions and
conclusions in favor of his own "independent findings and speculative inferences." Pl.'s Br. at 5.
LaPlante's briefing in support of this position takes the fo1m of a lengthy, chronological
recitation of her medical history in the record. Id. at 6-13. Defendant urges the court to
disregard these "arguments" as insufficient, however, because specific assigmnents of error with
respect to this issue are not clearly articulated in LaPlante's briefings. Def.'s Br. at 4. The Ninth
Circuit has "repeatedly admonished that we cannot manufacture arguments for an appellant.''
Independent Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003), citing
Greenwood v. Fed Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994). Rather, we "review only
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issues which are argued specifically and distinctly in a party's opening brief." Id. Accordingly, I
will credit LaPlante's arguments only to the extent they are adequately clear, complete, and
particularized.
A.
LaPlante's Treating Physicians' Diagnoses, Findings, Opinions, and Ultimate
Conclusions
LaPlante argues that the ALJ e11"ed by rejecting the diagnoses, findings, opinions, and
ultimate conclusions of her treating physicians without citing clear and convincing evidence or
specific and legitimate reasons. Pl.'s Br. at 5. Claimants may introduce the findings, opinions,
and conclusions of their treating physicians to establish disability, but the ultimate disability
determination is reserved for the Commissioner. Holohan v. }lfassanari, 146 F.3d 1195, 1202
(9th Cir. 2001); 20 C.F.R. §§ 404.1527(e)(l), 416.927(e)(l). The ALJ is not bound by the
opinions of treating physicians, even ifuncontroverted, and may reject them on the basis of
legitimate and specific reasons suppo1ted by clear and convincing evidence. lvfolina v. Astrue,
674 F.3d 1104, 1111 (9th Cir. 2012). "The ALJ can meet this burden by setting out a detailed
and thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (internal
quotation marks omitted). Fu1thermore, "[w]here evidence is susceptible to more than one
rational interpretation, it is the [Commissioner's] conclusion that must be upheld." Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
LaPlante concedes in her opening brief that "no treating medical provider opined
specifically concerning the severity and functional effects of Plaintiffs multiple medical
conditions." Pl. 's Br. at 12-13. Additionally, when given the opportunity by the ALJ to obtain a
letter from a treating physician supporting her claim of disability, LaPlante not only failed to do
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so but actively decided not to because "anyone contacted could be detrimental to [her] case." Tr.
369. Therefore, it is unclear what finding of disability LaPlante feels the ALJ improperly
disregarded. On the contrary, on this record, no treating physician to date has concluded that
LaPlante's current impairments are disabling within the meaning of the Act.
Furthermore, the ALJ considered repo11s from state agency non-examining medical
advisors who had knowledge of LaP!ante's impairments. "Opinions of a non-examining,
testifying medical advisor may serve as substantial evidence when they are supported by other
evidence in the record and are consistent with it." i\Iorgan v. Comm'r ofSoc. Sec. Admin., 169
F.3d 595, 600 (9th Cir. 1999); see also Shafer v. Barnhart, 120 F. App. 688, 694 (9th Cir. 2005)
(ALJ can reject treating physicians' findings in favor of non-examining medical advisor's when it
is consistent with other evidence in the record). These advisors concluded that "the claimant
should have the capacity to lift, carry, push, and pull up to 10 pounds at all times, stand and/or
walk six hours, and sit six hours." Tr. 29.
The record reflects that the ALJ stated legitimate and specific reasons for his conclusions
regarding LaPlante's impairments and residual functional capacity. Specifically, the ALJ
considered records from LaPlante's 2012 visits to Dr. Julyan and Dr. Greene. The ALJ found
that Dr. Julyan increased the dosage of her thyroid medication in response to symptoms, but
otherwise described her hypothyroidism as "well controlled." Tr. 29. The ALJ also cited Dr.
Greene's opinion that her physical exam was "basically within normal limits but for some slight
swelling." Id. Based on these records, as well as an assessment of the record as a whole, the
ALJ properly concluded that LaPlante had not met her burden of proving that her residual
functional capacity precluded her from performing substantial gainful activity.
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B.
The ALJ's "Independent Findings and Speculative Inferences"
LaPlante next claims that the ALJ e1Ted by substituting his own opinions, independent
findings, and speculative inferences for that of her treating and examining medical sources. This
asse1iion suffers from the same defects as the prior argument. It is unclear based on her opening
briefs bare recitation of the record where e1rnneous findings or inferences were made in the
ALJ's decision and the issue is not miiculated with greater specificity in her reply brief. For the
reasons stated above, I find that the ALJ's decision was based on a comprehensive atld rational
review of the record. Giving due deference to the ALJ's assessment of the evidence in the
record, I fmiher find that the ALJ's assessment of the medical evidence and conclusion of no
disability is sufficiently supported by the record.
II.
The ALJ's Failure to Consider the Combined Effects of LaPlante's Impairments
Next, LaPlante argues that the ALJ erroneously failed to consider the aggregate effect of
her multiple impairments. Again, LaPlante's contention takes the form of a recitation of her
medical history that defendant urges the court to disregard. The ALJ is required to consider the
combined effect of claimant's impairments without regard to whether any single impairment
would alone be sufficiently severe. 20 C.F.R. § 404.1523; see also Lester v. Chafer, 81 F.3d
821, 829-830 (9th Cir. 1995). Here, the ALJ clearly did consider the combined effects of her
impairments when he addressed each one in turn and concluded that "[e]ven in combination, the
overall record does not demonstrate the severity described in any listing." Tr. 26. LaPlante does
not bring any specific challenge to the ALJ's method of evaluating her combined impairments,
nor does she raise any argument as to why their combined effects would be greater than the sum
of their parts. Therefore, I find that the ALJ appropriately considered the combined effect of
LaPlante's impai1ments and this comi should give due deference to his conclusion. Burch, 400
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F.3d at 683 ("An ALJ is not required to discuss the combined effects ofa claimant's impailments
or compare them to any listing in an equivalency dete1mination, unless the claimant presents
evidence in an effort to establish equivalence") citing Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir.
2001).
III.
The ALJ's Rejection ofLaP!ante's Self-Reported Pain and Subjective Symptom
Testimony
LaPlante next argues that the ALJ e11'ed by rejecting her subjective symptom testimony.
In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of
symptoms, the ALJ engages in a two-step analysis. 20 C.F.R. § 404, 1529. First, the ALJ
determines whether there is objective medical evidence of an underlying impairment that could
reasonably be expected to produce some degree of symptoms. Smolen v. Chafer, 80 F.3d 1282,
1283 (9th Cir. 1996). If such evidence exists, and barring affirmative evidence of malingering,
the ALJ must give clear and convincing reasons for discrediting the claimant's testimony
regarding the severity of the symptoms. Id. at 1284; see also Lingenfelter, 504 F.3d at 1036.
The ALJ satisfies this standard by stating specifically which symptom testimony is not credible
and what facts in the record lead to that conclusion. Id.
The ALJ may consider numerous factors in weighing a claimant's credibility, including:
(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior
inconsistent statements conceming the symptoms, and other testimony by the claimant that
appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or
to follow a prescribed course of treatment; and (3) the claimant's daily activities. Potter v.
Comm'r ofSoc. Sec., 571 F. App. 569, 571 (9th Cir. 2014), citing Smolen, 80 F.3d at 1284.
Where the ALJ's credibility findings are suppmied by substantial evidence in the record, the
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reviewing court "may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959
(9th Cir. 2002). Substantial evidence requires "more than a mere 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) (per curiam)
(internal quotation marks omitted). A general assertion that plaintiff is not credible, however, is
insufficient; the ALJ must "state which ... testimony is not credible and what evidence suggests
the complaints are not credible." Dodrill v. Shala/a, 12 F.3d 915, 918 (9th Cir. 1993); see also
},Jorgan v. Comm'r ofSoc. Sec., 169 F.3d 595, 599 (9th Cir. 1999).
Here, the ALJ found LaPlante's statements regarding the "intensity, persistence, and
limiting effects" of her symptoms "less than fully credible." Tr. 30. The ALJ provided several
specific reasons to support this conclusion.
First, the ALJ found that the drop in LaPlante's income to just ten dollars below
substantial gainful activity levels-immediately following a notice from the Administration that
she did not qualify for benefits due to her income level-unde1mined her credibility. Tr. 30.
The ALJ is permitted to consider whether a claimant stopped working for some reason other than
her alleged disability. Sadeeq v. Colvin, No. 13-35931, 2015 WL 1619456, at *1 (9th Cir. Apr.
13, 2015), see also Bruton v. ivlasscmari, 268 F.3d 824, 828 (9th Cir. 2001). Here, LaPlante
asse11s in her reply briefthat she experienced "more pain and fatigue than previously" in the
months leading up to her change in hours. Pl.'s Reply Br. at 12. The medical records that
LaPlante cites, however, only document that she was continuing to experience symptoms in the
months leading up to her amended onset date, not that her symptoms were new or worsening.
Tr. 55-56; 390-95; 408-09; 443-44. The only evidence that LaPlante points to that makes
mention of progressively worsening symptoms is a report from F.N.P. Warner. Tr. 440. That
Page 16 - OPINION AND ORDER
record only notes that LaPlante reported "feel[ing] worse than she has ever felt," but nonetheless
found objective evidence of "normal labs" and made no finding of worsening symptoms. Tr.
440. This document makes no medical conclusion that her condition was deteriorating. In
consideration of LaPlante's sudden decrease in income, without medical evidence suggesting a
contemporaneous worsening of her condition, the ALJ found that the change was "too suspicious
... to chalk up to coincidence." Tr. 30. This conclusion is sufficiently specific because it is a
clearly articulated interpretation of substantial evidence in the record. See, e.g., Burch, 400 F.3d
at 679; Andre>vs v. Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995).
Second, the ALJ found that LaPlante's "refusal to follow prescribed treatment"
unde1mined her credibility. Tr. 30. Specifically, the ALJ found that LaPlante did not follow
recommended treatment that had previously been effective-namely Plaquenil-and had missed
or cancelled numerous medical appointments. Id. LaPlante argues that she was not prescribed
Plaquenil, that her reluctance to take the drug was based on valid concerns regarding side effects,
and that she did present for treatment. She also argues that the ALJ erred by infening a negative
credibility finding without considering potential justifications. She cites SSR 96-7p, which states
as follows:
The explanations provided by the individual may provide insight into the
individual's credibility. For example:
** * **
• The individual may not take prescription medication because the side
effects are less tolerable than the symptoms.
• The individual may be unable to afford treatment and may not have
access to free or low-cost medical services.
Social Security Ruling 96-7p. While the record here is unclear as to this specific point, I find
that the ALJ did en in this narrow regard as a matter of law-even if his findings are not
Page 17 - OPINION AND ORDER
factually inaccurate-because his decision does not even make mention of LaPlante's concerns
about side effects and fails to address financial reasons why she may have missed at least some
of her appointments.
Nonetheless, I find this to be hatmless enor. The Ninth Circuit has said that an error is
harmless so long as there remains substantial evidence suppotiing the ALJ's decision and the
enor "does not negate the validity of the ALJ's ultimate conclusion." Batson v. Comm'r ofSoc.
Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004); see also Carmickle v. Comm'r, Soc. Sec.
Admin, 533 F.3d 1153, 1162 (9th Cir. 2008). The Ninth Circuit has repeatedly found that this
applies in the context of credibility determinations when there are other valid reasons suppotied
by the record. See }Jolina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012); Bray v. Comm'r of
Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Carmickle., 533 F.3d at 1162-63; Batson
v. Comm'r ofSoc. Sec. Admin., 359 F.3d at 1195-97 (9th Cir. 2004). LaPlante's attendance at
medical appointments and willingness to take Plaquenil, if prescribed, has no bearing on the
other reasons the ALJ found her less than fully credible or not disabled under the Act.
Therefore, because I find that the ALJ was conect in making his other credibility findings, this is
an instance of harmless enor.
Third, the ALJ found that LaPlante's implication that she could only perform her work
from the City of Medford because of accommodations from an "understanding" employer further
called into question her credibility. Tr. 31. LaPlante's reply brief asserts that this is a "red
herring" because she never actually received accommodations. Pl.'s Reply Br. at 17. This
misconstrues the ALJ's finding, however, which is based upon LaPlante's statements at the
administrative hearing. The ALJ is refening to an exchange between LaPlante and her counsel
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in which she claims: "the fatigue has gotten much worse"; "the muscle pain has gotten
increasingly worse"; "[e]very step you're in agony"; and "[i]t hu1is to walk across the floor." Tr.
60-61. Then, when asked, she testified that she was only able to work pati time and that her
employer understood her condition "[t]o some degree." Id. The ALJ found these statements to
be inconsistent with documentation from her employer that she performed her job consistent
with the performance of a non-disabled person. The ALJ stated "claimant's employer seemed to
be unaware of any reason that the claimant would have needed to reduce her hours." Tr. 31.
Because he based this finding on clear inconsistencies between LaPlante's testimony and her
actual ability to perfonn daily activities as documented by her employer, the ALJ did not err in
making this credibility determination.
IV.
The ALJ's Failure to Obtain an Opinion from a Vocational Expert Based On
Testimonial Evidence of LaPlante's Non-Exertional Functional Limitations
At step four of the disability analysis framework, the ALJ will find the claimant not
disabled unless she meets her burden of proving she is unable to pe1fo1m her past relevant work.
20 C.F.R. §§ 404.1520(e), 416.920(e); see also Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir.
1990). Past relevant work is work that claimant has done before, that constituted substantial
gainful activity, and that lasted long enough for the claimant to be adequately trained. 20 C.F.R.
§§ 404.l 560(b )(1 ), 4 l 6.960(b)(1 ).
At this step in the process, the decision to hear testimony of a vocational expert is left to
the ALJ's discretion. Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996); see also Crane v.
Sha/ala, 76 F.3d 251, 255 (9th Cir. 1996). Testimony from a vocational expert is only required
in the absence of other reliable evidence. See Gomez, 74 F.3d at 971. Here, the ALJ considered
LaPlante's past work with her residual functional capacity and made a step four determination
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that "the claimant's description of this job as she pe!-forms it is not inconsistent with the residual
functional capacity arrived at herein." Tr. 31-32. This decision was based upon extensive
testimony from LaPlante herself and a review of her employment history and income. Tr. 47-49,
275-76, 292, 295-96, 306. Therefore, the ALJ was not required to hear testimony from the
vocational expert because, based upon his informed judgment, it was unnecessary to consider
whether she could find different employment befitting her residual functional capacity. The ALJ
did not err in this regard.
V.
The ALJ's Substantial Evidence to Support His Finding That LaPlante Was
Capable of Substantial Gainful Activity as of January 1, 2011
LaPlante claims that the ALJ failed to provide substantial evidence that she was capable
of substantial gainful activity as of her alleged onset date. This mischaracterizes the ALJ's task
at step four of the disability analysis. At step four, "the claimant has the burden to prove that
[she] cannot perform [her] past relevant work either as actually perfo1med or as generally
performed in the national economy" based on her residual functional capacity. Carmickle v.
Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) citing Lewis v. Barnhart, 281
F.3d 1081, 1083 (9th Cir. 2002) (internal quotation marks omitted). As stated above, past
relevant work is work that the claimant has done before, that constituted substantial gainful
activity, and that lasted long enough for the claimant to be adequately trained. 20 C.F.R. §§
404.1560(b)(1 ), 4 l 6.960(b)(1 ). The ALJ's step four conclusions must be upheld if supported by
more than a mere scintilla of evidence. Lingenfelter, 504 F.3d at 1028.
The ALJ found from LaPlante's employment records that she had perfotmed substantial
gainful activity as a clerk and receptionist from 2007 to 2010. Tr. 31, 292. This work is
classified in the Dictionary of Occupational Titles as "receptionist," which requires "up to six
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months to learn the essential tasks." Tr. 32. As such, this qualified as past relevant work for
purposes of step four. The ALJ found based on LaPlante's testimony that she "spent the entire
shift seated, she did not engage in lifting/carrying, and she did not engage in postural activities"
and that she "failed to identify any repetitive lifting, postural activities, or manipulative
activities" required in the course of such work. Tr. 31. The ALJ compared the demands of this
position to LaPlante's residual functional capacity-which allows her to "lift, cany, push, and
pull 10 pounds at all times ... stand and/or walk for six hours in an eight-hour work day ...
stoop, kneel, crouch, and crawl on an occasional basis ... use her upper extremity frequently"and concluded that LaPlante was able to perf01m her past relevant work as a receptionist. Tr.
27, 107-17, 131-41.
The ALJ's conclusion is consistent with the Work Activity Questionnaire completed by
her employer on January 11, 2011-ten days after her alleged onset date-that indicated
LaPlante perf01med her work for the City of Medford "in a manner consistent with a nondisabled person's performance." Tr. 30, 276. The questionnaire further showed that "claimant
had not had excessive absences, she had not received special accommodations, and she was able
to complete work in a timely fashion." Id. This testimony from LaPlante's employer constitutes
substantial evidence. Nguyen v. Chafer, 100 F.3d 1462, 1467 (9th Cir.1996) ("Lay testimony as
to ... how an impairment affects ability to work is competent evidence ... and
therefore cannot be disregarded without comment") (emphasis in original). Fmihe1more, the
ALJ's conclusion is consistent with the 2011 findings of the non-examining medical advisors that
LaPlante was "capable of returning to such work as it is generally perfotmed." Tr. 32. Reports
from non-examining medical advisors are substantial evidence when consistent with other
evidence in the record. ivforgan, 169 F.3d at 600; Shafer, 120 F. App. at 694. Accordingly, the
Page 21 - OPINION AND ORDER
ALJ concluded that LaPlante was capable of perfo1ming her past relevant work as of January 1,
2011. Because this conclusion was based on substantial evidence in the record, the ALJ did not
err in this regard.
CONCLUSION
For the reasons set forth above, the Commissioner's final decision denying LaPlante's
application for DIB and SSI is affirmed.
Dated this 6th day of August, 2015.
\~) f~) J?
c:t\fJCL
: CLl(/
Honorable Paul Papak
Unite.a States Magistrate Judge
Page 22 - OPINION AND ORDER
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