Ramirez v. Commissioner Social Security Administration
Filing
20
OPINION AND ORDER. The ALJ's finding that plaintiff was not disabled under the Act is supported by substantial evidence in the record. Accordingly, the Commissioner's decision is AFFIRMED. See formal OPINION AND ORDER. Signed on 4/12/2016 by Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DENISE D. RAMIREZ,
Civ. No. 1: l 5-cv-00070-AA
Plaintiff,
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
Tim Wilborn
Wilborn Law Office, P.C.
P.O. Box 370578
Las Vegas, NV 89137
Attorney for plaintiff
Billy J. Williams
Acting United States Attorney
District of Oregon
Janice E. Hebert
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
1 - OPINION AND ORDER
Heather L. Griffith
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, MIS 221A
Seattle, WA 98104-707 5
Attorneys for defendant
AIKEN, Judge:
Denise D. Ramirez (plaintiff) brings this action pursuant to the Social Security Act (the
Act), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of
Social Security (Commissioner). The Commissioner denied plaintiffs application for Social
Security Income (SSI) benefits and Disability Insurance Benefits (DIB) under the Act. The
Commissioner's decision is affirmed and the case is dismissed.
PROCEDURAL BACKGROUND
On January 22, 2010, plaintiff protectively filed a Title II application for DIB, and on
February 12, 2010, plaintiff filed a Title XVI application for SSL Tr. 19. Both applications
alleged disability beginning on September 7, 2007. Tr. 19. Her applications were initially
denied on June 30, 2010, and upon reconsideration on October 4, 2010.
Tr. 19. Plaintiff
requested a hearing on November 15, 2010, and three separate video hearings before an
Administrative Law Judge (ALJ) were held on February 23, 2012, June 28, 2012, and January
17, 2013. Tr. 19, 44-137. At the hearings, plaintiff, plaintiffs caregiver, vocational experts, and
a medical expert testified. Tr. 44-13 7.
On March 21, 2013, the ALJ issued a decision finding plaintiff not disabled under the
Act. Tr. 19-34. On November 24, 2014, the Appeals Council denied review, rendering the
ALJ' s decision final. Tr. 1-3. Plaintiff now seeks judicial review.
Plaintiff was forty-three years old at the time of the February 23, 2012 hearing before the
2 - OPINION AND ORDER
ALJ. Tr. 115. She has a high school GED and vocational training as a phlebotomy technician.
Tr. 32, 115. She previously worked as construction worker, a certified nursing assistant, and a
claims clerk. Tr. 32, 565-66, 575, 671-74. Plaintiff alleges disability as of December 18, 2009,
due to degenerative disc disease and spondylosis of the cervical spine, degenerative changes of
the lumbosacral spine, cognitive disorder, mood disorder, asthma, conversion disorder, and
borderline intellectual functioning. Tr. 20, 22, 218-32, Pl.' s Br. 2.
Prior to the current application, plaintiff filed applications for DIB and SSI, which were
denied in a decision on December 18, 2009 before a different ALJ. Tr. 20. Plaintiff requested
review of this decision by the Appeals Council, which denied review. Tr. 20. Plaintiff did not
initiate a claim for civil action in Federal district court. Tr. 20. In the current decision, this ALJ
noted that he did not "reopen the unfavorable decision," and that any reference to the prior
application was for "clarification and credibility purposes only." Tr. 20. The ALJ found that
although plaintiff alleges disability beginning on September 7, 2007, he considered the
"unfavorable decision of the prior Administrative Law Judge to be res judicata for the period
from the currently alleged onset date through the date of the prior decision, December 18, 2009."
Tr. 20.
Based on this determination, the ALJ considered plaintiffs disability beginning
December 19, 2009, the day after the date of the prior final and binding unfavorable decision.
Tr. 20.
STANDARD OF REVIEW
This court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support a
3 - OPINION AND ORDER
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co.
v. NL.R.B., 305 U.S. 197, 229 (1938)). The court must weigh "both the evidence that supports
and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772
(9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's
interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The Commissioner's findings are upheld if supported by inferences reasonably drawn
from the record; if evidence exists to support more than one rational interpretation, the court
must defer to the Commissioner's decision. Batson v. Comm 'r Soc. Sec. Admin., 359 F.3d
1190, 1193 (9th Cir. 2004).
COMMISSIONER'S DECISION
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, 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 ALJ evaluated plaintiffs allegation of disability pursuant to the relevant five-step
sequential process.
Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520,
416.920. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since December 19, 2009. Tr. 22, 513-22, 20 C.F.R. §§ 404.1520(b), 416.920(b).
At step two, the ALJ found that plaintiff had severe impairments of degenerative disc
disease and spondylosis of the cervical spine, degenerative changes of the lumbosacral spine, a
cognitive disorder, a mood disorder, asthma, a conversion disorder, and borderline intellectual
functioning. Tr. 22, 20 C.F.R. §§ 404.1520(c), 416.920(c). The ALJ noted that he adopted the
4 - OPINION AND ORDER
findings from the prior unfavorable decision regarding plaintiffs severe medically determinable
impairments, and included additional impairments from "more recent evidence." Tr. 22. The
ALJ found that plaintiff failed to show a traumatic brain injury, post-concussion syndrome,
seizure disorder, or posttraumatic stress disorder (PTSD) as severe impairments. Tr. 23-24. The
ALJ also found no lumbosacral radiculopathy, plexopathy, or neuropathy. Tr. 24.
At step three, the ALJ found that plaintiffs medically severe impairments did not meet or
equal one of a number of listed impairments that the Commissioner acknowledges are so severe
as to preclude gainful activity.
Tr. 24-26, 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, 416.926. Because plaintiff was not presumptively disabled at step three,
the ALJ continued to evaluate how plaintiffs impairments affected her ability to work by
assessing her residual functional capacity (RFC). Tr. 26-32.
At step four, the ALJ found that plaintiff had the RFC to "perform light work as defined
in 20 C.F.R. 404.1567(b) and 416.967(b)" with the following exceptions:
She is able to lift and/or carry 20 pounds occasionally and 10 pounds
frequently, stand and/or walk for six hours, sit for six hours, and perform no
more than occasional stooping. She is able to do simple, repetitive tasks, can
have no contact with the public, and can have no more than occasional contact
with co-workers and supervisors. Tr. 26.
Based on plaintiffs assessed RFC and the testimony of the VE, the ALJ found that
plaintiff could not perform any of her past relevant work as a construction worker, a certified
nursing assistant, or a claims clerk. Tr. 32, 20 C.F.R. §§ 404.1565, 416.965.
If the plaintiff is unable to perform any past relevant work, the inquiry proceeds to step
five, where the Commissioner bears the burden to establish that the plaintiff is capable of
performing other work that exists in significant numbers in the national economy. Yuckert, 482
U.S. at 141-42, 20 C.F.R. §§ 404.1520(£), 416.920(f). Relying on the testimony of the VE, the
5 - OPINION AND ORDER
ALJ found that plaintiff was able to perform other work as a laundry worker, cleaner,
housekeeper, and small products assembler. Tr. 32-33. Therefore, the ALJ found that plaintiff
was not disabled within the meaning of the Act. Tr. 33.
DISCUSSION
Plaintiff asserts that she should be found disabled as of December 18, 2009, the
Commissioner's decision reversed, and the case remanded for immediate payment of benefits.
PL's Br. 2, 29.
Alternatively, the plaintiff seeks remand for further proceedings, with
instructions. Pl. 's Br. 29. Plaintiff argues the ALJ erred by: (1) failing to find that plaintiffs
mental impairments meet or equal listing 12.02; (2) failing to give clear and convincing reasons
to reject plaintiffs testimony; (3) improperly rejecting the opinions of plaintiffs treating and
examining physicians; (4) improperly assessing plaintiffs limitations regarding concentration,
persistence, and pace; (5) improperly disregarding lay witness testimony; and (6) failing to
accurately account for plaintiffs limitations in the step five analysis. Pl.'s Br. 15-29.
A. Plaintiffs Mental Impairments Meet or Equal Listing 12.02
Plaintiff argues that the ALJ failed to provide substantial evidence to show that her
mental impairments do not meet or equal listing 12.02. Pl. 's Br. 15. Specifically, plaintiff
focuses on the paragraph B criteria, and argues that: 1) the ALJ' s findings are contradicted by the
opinions and objective medical evidence of Dr. Betty Borden and Dr. Grant Rawlins; and 2)
even if the ALJ properly found plaintiff did not meet listing 12.02, he failed to properly
determine that plaintiffs impairments do not equal listing 12.02. Pl.'s Br. 15-18.
The listings, 20 C.F.R. Pt. 404, Subpt. P, App. I., describe specific impairments of each
major body system, which are "considered severe enough to prevent a person from doing any
gainful activity." 20 C.F.R. §§ 404.1525(a), 416.925(a). If a claimant's impairment matches a
6 - OPINION AND ORDER
listed impairment, "she is judged to be disabled without the need to conduct any further
analysis." Celaya v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003). "In order to meet a listed
impairment in Appendix 1 for a mental disorder, a claimant must satisfy criteria in paragraph A,
which medically substantiate the presence of a mental disorder, and the criteria in paragraphs B
or C, which describe the functional limitations associated with the disorder which are
incompatible with the ability to work. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00A," Holohan v.
Massanari, 246 F.3d 1195, 1203-04 (9th Cir. 2001). In order to satisfy listing 12.02 paragraph B
criteria, plaintiff must have an organic mental disorder which results in at least two of the
following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
20 C.F.R. Pt. 404, Subpt. P, App. 1.
Here, the ALJ found that the plaintiff had not satisfied the paragraph B criteria. Tr. 25.
The ALJ noted that plaintiff had moderate to marked restrictions in activities of daily living, mild
difficulties in social functioning, moderate to marked limitations in concentration, persistence, or
pace, and no episodes of decompensation based on Dr. Borden's, Dr. Rawlin's, and the state
agency psychological consultants' reports and testimony. Tr. 25. The ALJ opined, "Because the
[plaintift]'s mental impairments do not cause at least two 'marked' limitations or one 'marked'
limitation and 'repeated' episodes of decompensation, each of extended duration," plaintiff has
not met the requirements for listing 12.02 Tr. 25.
In making this finding, I find the ALJ provided substantial evidence. First, the ALJ
considered the assessment of Dr. Borden, through both a written medical interrogatory and live
testimony at the January 17, 2013 hearing. Tr. 25, 49-61, 1081-90. The ALJ noted that Dr.
7 - OPINION AND ORDER
Borden found plaintiff had some moderate to marked restrictions and difficulties, but that Dr.
Borden's opinion did not support the finding that plaintiff "has any impairment or combination
of impairments of listing-level severity." Tr. 25. Plaintiff argues that the ALJ's finding she has
moderate to marked limitations in activities of daily living and in concentration, persistence, or
pace, means that "she is markedly limited part of the time." Pl.'s Br. 16. By being markedly
limited "part of the time," plaintiff argues she will not be able to work on a "sustained" basis,
and therefore should be found disabled. PL' s Br. 16.
I find plaintiffs argument is misplaced, particularly given Dr. Borden's medical
interrogatory and the January 17, 2013 testimony cited by the ALJ in his findings. Tr. 25, 48-61
1082. Dr. Borden wrote in her medical interrogatory, "I considered 12.02, 12.04, + 12.07 but I
don't believe that the severity of symptoms would satisfy the B criteria." Tr. 1083. Further, at
the January 17, 2013 hearing, in response to counsel's question about "moderate to marked
problems with concentration, persistence, and pace" Dr. Borden opined that, "I believe that the
claimant does have impairment in that area, but she would have difficulty carrying out detailed
and complex tasks. But the - according to the test results, it seems to me that she retains the
capacity to perform simple repetitive work."
Tr. 57.
The ALJ reasonably relied on this
testimony in making his paragraph B findings, and therefore I find no error.
The ALJ also considered the findings of Dr. Rawlins and the state agency psychological
consultants when determining whether plaintiff met listing 12.02. Tr. 25, 246, 259, 275-76, 292,
833, 860, 988. The ALJ noted that:
according to Dr. Rawlins' own notes, the claimant engages in significant activities
at home. For example, on March 8, 2010, Dr. Rawlins endorsed a three bedroom
apartment for the claimant: 'She has a brain injury condition which requires a
quiet environment to be able to concentrate while performing many activities.
She needs to have a three bedroom apartment so she can use the third bedroom as
a quiet space for such activities'.
8 - OPINION AND ORDER
Tr. 25, 883. With respect to the state agency psychological consultants' reports from June 2010
and September 2010, the ALJ noted that they found plaintiff had no more than moderate
limitations with respect to the paragraph B criteria. Tr. 25, 246, 259, 275-76, 292. Based on the
above evidence, I find that the ALJ provided substantial evidence for his rationale that plaintiff's
mental impairments do not meet or equal listing 12.02.
Next, plaintiff argues that even if the ALJ properly determined that she did not meet
listing 12.02, the ALJ failed to address whether her impairments equal listing 12.02. Pl.'s Br. 17.
Specifically, plaintiff argues the ALJ's findings are boilerplate and insufficient under Marcia v.
Sullivan, 900 F.2d 172 (9th Cir. 1990). Pl.'s Br. 17. In Marcia v. Sullivan, the Ninth Circuit
held that "in determining whether a claimant equals a listing under step three of the Secretary's
disability evaluation process, the ALJ must explain adequately his evaluation of alternative tests
and the combined effects of the impairments." Marcia, 900 F.2d at 176. However, in its later
decision in Lewis v. Apfel, the Ninth Circuit held that the ALJ did not err in not discussing the
combined effects of plaintiff's impairments, if the plaintiff failed to offer a "theory, plausible or
otherwise," as to how his impairments "combined to equal a listed impairment," or "pointed to
evidence that shows that his combined impairments equal a listed impairment." Lewis v. Apfel,
236 F.3d 503, 514 (9th Cir. 2001). Here, plaintiff fails to address why her multiple impairments
equal an impairment in listing 12.02. Under Lewis, I find that the ALJ did not err in determining
that plaintiff did not meet or equal listing 12.02. The record fully supports this finding.
Finally, in determining whether plaintiff satisfied listing 12.02, the ALJ also considered
the paragraph C criteria, and also found plaintiff had not satisfied listing 12.02 under this
evaluation. Tr. 25-26. Based on the above evidence, I find no error.
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B. Credibility Determination
Next, plaintiff argues that the ALJ failed to provide clear and convincing reasons for
discrediting her testimony. Pl.'s Br. 25-27. Specifically, plaintiff argues that the ALJ made
"inconsistent findings about [p]laintiffs ability to perform activities of daily living," noting that
even if the ALJ found that plaintiff could perform activities of daily living well, "the activities of
daily living cited by the ALJ are not inconsistent with [p]laintiff s testimony that she is unable to
get along with people, remember instructions, or sustain focus for long enough to make it
through a typical work day." Pl.'s Br. 26
When making a credibility determination, the ALJ must conduct a two-step analysis.
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). First, the plaintiff "must produce
objective medical evidence of an underlying impairment or impairments that could reasonably be
expected to produce some degree of symptom." Id. (citing Smolen, 80 F.3d at 1281-82)(intemal
quotations omitted). "If the claimant meets this threshold and there is no affirmative evidence of
malingering, 'the ALJ can reject the claimant's testimony about the severity of her symptoms
only by offering specific, clear and convincing reasons for doing so."' Id. (citing Smolen, 80 F .3d
at 1281, 1283-84). Examples of clear and convincing reasons include conflicting medical
evidence, effective medical treatment, medical noncompliance, inconsistencies in the claimant's
testimony or conduct, daily activities inconsistent with the alleged symptoms, a sparse work
history, testimony that is vague or less than candid, and testimony from physicians and third
parties about the nature, severity and effect of the alleged symptoms complained. Tommasetti,
533 F.3d at 1040; Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light v. Soc. Sec.
Admin., 119 F.3d 789, 792 (9th Cir. 1997). "If the ALJ's credibility finding is supported by
substantial evidence in the record, [the reviewing court] may not engage in second-guessing."
Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
10 - OPINION AND ORDER
The ALJ found that "the claimant's medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms," but that "claimant's statements
concerning the intensity, persistence, and limiting effect of these symptoms were not entirely
credible." Tr. 27. The ALJ cited numerous reasons for discrediting plaintiffs testimony.
First, the ALJ noted that the prior ALJ found that plaintiff "worked multiple jobs, cared
for her young son, attended classes and received a certificate to become a phlebotomist, looked
for work as a phlebotomist, and received unemployment benefits" after her alleged onset date.
Tr. 27, 226. The ALJ further agreed with the prior ALJ's findings regarding inconsistencies
between plaintiff and her boyfriend's testimony with respect to her activities and involvement
with horses, and that the objective medical evidence and minimal medical treatment did not
support the severity of plaintiffs claims. Tr. 27, 226-27, 229-30. The ALJ's decision to review
the prior ALJ' s findings is reasonable, because he did not reopen plaintiffs prior application for
review. See Oberg v. Astrue, 472 Fed App'x 488, 490 (9th Cir. 2012) (holding ALJ's
consideration of record of prior decision was of no import because it was done only to determine
whether there was a substantial change in plaintiffs condition since that time); Browning v.
Barnhart, 61 Fed App'x 503, 504 (9th Cir. 2003) (holding that Attorney Advisor's review of
evidence from prior hearing was not in error when done for the purpose of showing "evidence
was consistent with Plaintiffs longstanding complaints" and not a consideration of claimant's
disability on the merits). The ALJ noted that "any reference to evidence associated with the
prior application is for clarification or credibility purposes only." Tr. 20. Therefore, I find no
error in the ALJ's reference to the prior ALJ's findings when making his credibility
determination.
Second, the ALJ found that the objective medical evidence did not support the "degree of
11 - OPINION AND ORDER
impairment severity" described by the plaintiff. Tr. 27. The ALJ found that imaging studies of
plaintiffs brain did not "substantiate the alleged degree of impairment severity," and Magnetic
Resonance Imaging (MRI) studies of plaintiffs cervical spine and lumbar spine showed "mild
findings," which "contradict the claimant's allegations of extreme pain." Tr. 27, 925-26, 105663. The ALJ also opined that both Dr. Benjamin Branch and Dr. Leonard Wilk performed
physical examinations of plaintiff on February 1, 2011, and June 13, 2011, respectively, which
were "relatively umemarkable." Tr. 27, 887-88, 956-57. Finally, the ALJ noted plaintiffs
asthma appeared "to be under adequate control with medications." Tr. 27. "Although lack of
medical evidence cannot form the sole basis for discrediting pain testimony, it is a factor that the
ALJ can consider in his credibility analysis." Burch, 400 F.3d at 681. Here, the ALJ considered
the lack of medical evidence as only one reason for discrediting plaintiffs testimony, and his
findings are supported by the record.
Third, the ALJ found that plaintiffs treatment history was not proportionate to the
alleged degree of impairment severity.
Tr. 28.
In particular, the ALJ noted that plaintiff
"received relatively routine treatment for her various physical complaints, such as neck and back
pain as well as headaches, and has received little treatment from a mental health specialist." Tr.
28. Specifically, the ALJ found that plaintiff "refuses to take any medications on a regular basis
for pain" particularly because Vicodin "made her loopy," however, he "saw nothing in the
progress notes from treating sources to suggest that they could not adequately deal with any
complaints regarding medication side effects, such as adjusting the dosage, changing the time to
take the medication or changing the medication." Tr. 28, 597. The ALJ also found that plaintiff
did not need an assistive device to ambulate, or any device, such as a TENS unit, for pain. Tr.
28. Plaintiffs noncompliance with her medication despite her alleged pain and the routine
12 - OPINION AND ORDER
treatment received are clear and convincing reasons for discrediting plaintiffs testimony. See
Tommasetti, 533 F.3d at 1040. These findings were supported by the record, and therefore
reasonable.
With respect to plaintiffs mental health, the ALJ noted that "the objective medical
evidence simply does not support a substantial head injury but instead supports a reaction to
stressors," citing Dr. Villanueva's March 2008 findings. Tr. 28, 900-01. The ALJ noted that Dr.
Villaneuva's recommendation for "reinitiation of antidepressant therapies" and stress
management counseling, along with plaintiffs January 17, 2013 comments of "rather extreme
mental symptoms," was not consistent with a traumatic brain injury. Tr. 28, 70-71. Overall, the
ALJ determined that plaintiffs treatment history had "not emphasized such mental health
treatment." Tr. 28, 901. However, plaintiff argues that she has "not been able to get more
extensive mental health treatment because she does not have medical insurance." Pl.'s Br. 26,
citing Tr. 168, 763. A claimant cannot be denied benefits for failing to obtain treatment that
would ameliorate her condition if she cannot afford that treatment. Gamble v. Chafer, 68 F.3d
319, 321 (9th Cir. 1995) (disability benefits may not be denied because of the claimant's failure
to obtain treatment he cannot obtain for lack of funds).
Granted, the ALJ failed to acknowledge plaintiffs lack of insurance with respect to her
failure to obtain mental health treatment, and I find this reason for discrediting the plaintiffs
testimony is not supported by substantial evidence. However, under Carmickle v. Comm 'r of
Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008), the court need not uphold every
reason the ALJ discredited the plaintiff, as long as substantial evidence exists to support the
ALJ's decision. Here, the ALJ provided numerous other reasons for finding plaintiff not entirely
credible, reasons that are supported by the record. An ALJ' s error is harmless where it is
13 - OPINION AND ORDER
"inconsequential to the ultimate nondisability determination."
Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).
Stout v. Comm 'r, Soc. Sec.
Here, the ALJ's error is harmless because
allowing the ALJ to address his failure to address plaintiffs lack of health insurance would not
affect the ALJ' s overall credibility finding or the ultimate disability determination. Therefore, I
find no error.
Fourth, the ALJ found plaintiff not entirely credible due to plaintiffs daily activities. Tr.
29. The ALJ specifically stated that "the longitudinal evidence does not support the alleged
degree of limited activities, and I therefore do not find the claimant's allegations regarding her
limitations to be entirely credible." Tr. 29. The ALJ noted that in plaintiffs March 3, 2010
Function Report she wrote that she lives with and cares for her ten-year-old son and cares for her
dog and horse. Tr. 29, 463, 587-88, 594. The ALJ found that plaintiff reported that she performs
her personal care, prepares meals regularly, performs some housework, travels by car herself,
drives her son to and from various locations, shops, gets along with family, friends, and
neighbors, and that she "is doing a fair amount of barn work on her parent's property and riding
horses a lot." Tr. 29, 588-92, 594-95, 1001. The ALJ also noted the following: on April 19,
2011 she reported to Dr. Hagie that she had a headache from "moving stuff, two rooms of
furniture, by herself'; on October 24, 2011 she reported she had fallen off a horse; on November
1, 2011 she reported jaw pain after playing soccer; on January 18, 2012 she reported "activities
of daily living consisting of some housekeeping, horse care, and barn work, riding horses,
walking with her son, and attending his soccer games"; and on February 28, 2012 she "told Dr.
Hagie that she fell while playing with her grandchildren." Tr. 29, 1015, 1021, 1029-30, 1204.
The ALJ further noted that "she was able to follow questioning at the hearing" and testified that
"she spends time on her parents' property, including helping to take care of her horse," "rides
14 - OPINION AND ORDER
horses in good weather," and is "able to drive and does activities with her mother." Tr. 29.
Plaintiff argues that "the activities of daily living cited by the ALJ are not inconsistent
with [p]laintiff s testimony that she is unable to get along with people, remember instructions, or
sustain focus for long enough to make it through a typical work day." Pl.'s Br. 26. However, an
ALJ may discredit the plaintiff where the degree of disability alleged by the plaintiff is arguably
inconsistent with her admitted daily activities. The Commissioner's findings must be upheld if
supported by inferences reasonably drawn from the record; if evidence exists to support more
than one rational interpretation, the court must defer to the Commissioner's decision. Batson v.
Comm 'r, 359 F.3d 1190, 1193 (9th Cir. 2004). Here, although variable interpretations of the
record could be made, I find that the ALJ' s inferences are reasonably drawn from the record.
Therefore, I find no error.
Finally, the ALJ determined that plaintiffs complaints changed or increased during times
when secondary gain was involved, specifically agreeing with the opinions of state agency
analysts.
Tr. 27, 245, 258.
In particular, the ALJ noted that plaintiff gave "dramatically
inconsistent statements" regarding a motor vehicle accident which had "become the basis for her
disability claims," especially relating to her "difficulty focusing, concentrating, and articulating
her thoughts." Tr. 27. The ALJ also cited plaintiffs numerous requests for assistance obtaining
benefits, including her requests to doctors to label her dog as a "companion pet" and a "service
dog" to allow her to keep her dog in HUD housing; having Dr. Grant Rawlins recommend a
three bedroom apartment for plaintiff because "[s]he has a brain injury condition which requires
a quiet environment to be able to concentrate while performing many activities"; and receiving
assistance from Dr. Leonard Wilk to discharge child support payments, discharge student loan
debt, obtain caregivers, and have her boyfriend listed as a caretaker in order to prevent him from
15 - OPINION AND ORDER
being asked to leave her HUD housing. Tr. 27-28, 835, 883, 890, 911, 917, 927, 950, 959, 960,
1150-51, 1180-81, 1201-02, 1208.
Plaintiff argues that "the ALJ did not actually cite any evidence showing [p]laintiff s
reports of symptoms were increased during those doctor visits as compared to others." PL' s Rep.
Br. 12. I disagree. As discussed above, the ALJ found that plaintiff "received relatively routine
treatment for her various physical complaints," and the ALJ cited numerous medical records
where plaintiffs chief reason for doctor's visits was to fill out forms. Tr. 911, 917, 927, 950,
960, 1150-51, 1180-81, 1201-02. Further, the ALJ's overall credibility decision may be upheld
even if not all of the ALJ's reasons for rejecting the claimant's testimony are upheld. See Batson,
359 F.3d at 1197. Here, the ALJ cited numerous clear and convincing reasons for discrediting
plaintiffs testimony, and therefore I find no error with the ALJ's overall credibility
determination.
C. Evaluation of Treating and Examining Source Medical Opinions
Next, plaintiff argues that the ALJ improperly rejected the opinions of psychiatrist Dr.
Benjamin Branch, physician Dr. David Hagie, and physician Dr. Leonard Wilk. Pl.'s Br. 18.
An ALJ may reject the uncontradicted medical opinion of a treating or examining
physician only for "clear and convincing" reasons supported by substantial evidence in the
record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chafer, 81 F.3d
821, 830-31). An ALJ may reject the contradicted opinion of a treating or examining doctor by
providing "specific and legitimate reasons that are supported by substantial evidence." Id.
First, the ALJ disregarded Dr. Branch's February 1, 2011 statement, "It may be that the
patient is unable to accommodate a job in any type of setting secondary to cognitive
impairments," as speculation. Tr. 30, 935.
16 - OPINION AND ORDER
Specifically, the ALJ found that "the objective
medical evidence and the claimant's reported activities contradict such speculation, and Dr.
Branch speculated on an issue reserved to the Commissioner of the Social Security
Administration." Tr. 30, SSR 95-5p. The ALJ is correct that opinions on whether or not a
claimant is "disabled" or "unable to work" are reserved to the Commissioner. 20 C.F.R. §§
404.1527(e)(l); 416.927(e)(l). "A statement by a medical source that you are 'disabled' or
'unable to work' does not mean that we will determine that you are disabled." 20 C.F.R. §
404.1527(d)(l). However, physicians may provide opinions on the ultimate issue of disability,
i.e., about whether a claimant is capable of any work, given the claimant's limitations. Holohan,
246 F.3d at 1202.
Here, I find that the ALJ reasonably discredited Dr. Branch's statement regarding
plaintiffs ability to accommodate a job by citing the objective medical evidence and plaintiffs
reported activities as discussed above. Tr. 30. Further, the ALJ discredited only Dr. Branch's
single statement as "speculation," and not his entire opinion, given the ALJ's citation to Dr.
Branch's findings throughout his decision. Tr. 23, 24. The ALJ presented clear and convincing
reasons for discrediting Dr. Branch's single statement concerning the plaintiffs ability to work,
and did not improperly reject Dr. Branch's opinion.
Second, the ALJ gave less weight to Dr. David Hagie's January 22, 2012 and January 23,
2012 opinions that the claimant was "unable to work on even a part-time basis, and that she is
unable to perform full-time work on a regular and continuing basis." Tr. 30, 1045-55. The ALJ
opined that the doctor relied, "in large part, on the claimant's report of her capabilities and
subjective complaints." Tr. 30. The ALJ further noted that the objective medical evidence did
not support the doctor's findings, and Dr. Hagie had a "financial interest in the claimant
obtaining disability." Tr. 30. In finding this, the ALJ noted Dr. Hagie's November 4, 2009
17 - OPINION AND ORDER
report which read, "Return is pm and I hope that will be when she gets her social security
disability, perhaps that will allow her to have some continued care from me." Tr. 30-31, 876
(emphasis in ALJ decision). Finally, the ALJ noted that Dr. Hagie reported on May 29, 2009
that the "claimant was currently able to return to work or school and perform a range of work at.
the medium level of exertion." Tr. 31, 613, 824. Although the ALJ noted that this opinion was
made before the relevant period, he determined that the objective medical evidence "did not
support such a dramatic decline in functioning." Tr. 31.
I find no error in the ALJ's evaluation of Dr. Hagie's opinion. A "physician's opinion of
disability 'premised to a large extent upon the claimant's own accounts of his symptoms and
limitations' may be disregarded where those complaints have been 'properly discounted."'
Morgan v. Comm 'r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (quoting Fair v.
Bowen, 885 F.2d 597, 605 (9th Cir. 1989); see also Bray v. Comm 'r of Soc. Sec. Admin., 554
F.3d 1219, 1228 (9th Cir. 2009). Here, the ALJ found that Dr. Hagie's reports were based quite
heavily on plaintiffs subjective report of her symptoms and limitations, which the ALJ properly
found not entirely credible. Moreover, the record supports the ALJ's rational interpretation that
Dr. Hagie was acting as an advocate. Tr. 876. Therefore, I find the ALJ provided specific and
legitimate reasons for rejecting Dr. Hagie's opinions.
Finally, with respect to Dr. Leonard Wilk, the ALJ gave less weight to Dr. Wilk's
opinion that the plaintiff is "unemployable" and "unable to work on a regular and continuing
basis." Tr. 31, 349, 881, 894, 1065-73, 1178. The ALJ noted that the doctor relied on conditions
that were not medically determinable, specifically, posttraumatic stress disorder, traumatic brain
injury, and a post-concussion syndrome, and relied on plaintiffs subjective complaints, which he
found not credible. Tr. 23-24, 31. The ALJ specifically noted plaintiffs December 21, 2011
18 - OPINION AND ORDER
neurological examination were "grossly normal" and that plaintiffs cognitive impairment was
"mild." Tr. 31, 1075, 1198. Finally, the ALJ found that the doctor has gone to "such extreme
measures to accommodate the [plaintiff] that his objectivity is questionable."
Tr. 31.
Specifically, the ALJ found that plaintiff sought Dr. Wilk's assistance in obtaining numerous
benefits, such as letters to discharge child support, "paperwork to get caregivers at her new
home," the dissolution of student loan debt, obtaining a prescription that her dog was a "service
dog," and writing letters that "her boyfriend was a necessary caretaker," with Dr. Wilk noting
that "this is not a medical issue at all but a social/legal issue." Tr. 31, 890, 917, 927, 950, 959,
1180-81, 1201-02.
I find no error in the ALJ's evaluation of Dr. Wilk's opinion. The ALJ properly found
that Dr. Wilk's reports were based on plaintiffs subjective reports, which the ALJ found not
credible. He further noted that the doctor's objectivity was questionable given the continued
assistance given to plaintiff. Under either the clear and convincing, or the specific and legitimate
reason standards, the ALJ provided sufficient evidence in the record to support his findings for
disregarding each of the doctor's opinions. Therefore, I find no error.
D. Plaintiffs Limitations Regarding Concentration, Persistence, and Pace
Next, plaintiff argues that the ALJ's RFC assessment failed to address her moderate to
marked difficulties in concentration, persistence, and pace. Plaintiff specifically argues that the
ALJ' s RFC finding that plaintiff can perform simple and repetitive tasks "does not properly
capture the moderate to marked limitations in performing activities of daily living or the
moderate to marked limitations in maintaining concentration, persistence or pace." Pl. 's Br. 22.
The RFC is defined under the Social Security regulations as "the maximum degree to
which the individual retains the capacity for sustained performance of the physical-mental
19 - OPINION AND ORDER
requirements of jobs." 20 C.F.R. 404, Subpt. P, App. 2 § 404.1512(a). In evaluating whether a
claimant satisfies the disability criteria, the Commissioner must evaluate the claimant's "ability
to work on a sustained basis." 20 C.F.R. §404.1512(a), Reddick, 157 F.3d at 724. The RFC has
three components: physical abilities, mental abilities, and other impairments, including pain and
fatigue. 20 C.F.R. §§ 404.1545(a), 416.945(a). Mental abilities include understanding, carrying
out and remembering instructions, and responding appropriately to supervision, coworkers and
work pressures. Id. §§ 404.1545(c), 416.945(c). An ALJ's assessment of a claimant adequately
captures restrictions related to concentration, persistence or pace where the assessment is
consistent with restrictions identified in the medical testimony, such as the ability to carry out
simple tasks, or simple, routine, repetitive tasks. Stubbs-Danielson v. Astrue, 539 F.3d 1169,
1174 (9th Cir. 2008).
Here, when determining plaintiffs RFC with respect to plaintiffs ability to perform
mental requirements of work, the ALJ gave the most weight to the impartial medical expert in
psychology, Dr. Betty Boden, who determined that "the plaintiff remains able to perform work
consisting of simple, repetitive tasks ... with no public contact and occasional contact with coworkers and supervisors." Tr. 30, 50-61, 1085. The ALJ found that Dr. Borden's testimony was
consistent with the objective medical evidence and the "June 2010 and September 2010 opinions
of the State Agency psychological consultants." Tr. 30, 249-50, 262-63, 279-80, 295-97. The
ALJ gave less weight to Dr. Branch, Dr. Hagie, and Dr. Wilk's testimony, which is discussed
above. Tr. 30.
Plaintiff argues, under Brink v. Comm 'r, 343 Fed. App'x. 211 (9th Cir. 2009) that
hypothetical questions to the VE referencing only "'simple, repetitive work,' without including
limitations on concentration, persistence or pace" do not adequately encompass plaintiffs
20 - OPINION AND ORDER
difficulties with concentration, persistence, or pace. PL' s Br. 23. In Brink, the court held that the
ALJ erred by propounding a hypothetical question to the VE referencing only "simple, repetitive
work," without including limitations on concentration, persistence or pace. Brink, 343 Fed.
App'x at 212. However, under Brink, the ALJ's hypothetical was inadequate because the medical
testimony established that the plaintiff had limitations in concentration, persistence, and pace
which were not accounted for in the hypothetical. Id. Here, the ALJ reasonably incorporated the
relevant limitations in concentration, persistence, and pace based on the medical testimony of Dr.
Borden and the opinions state agency psychological consultants, all of whom specifically found
that plaintiff could perform "simple, repetitive" work. Tr. 30, 57, 249-50, 262-63, 279-80, 29597. Thus, I find this case similar to Stubbs-Danielson, where the Ninth Circuit held "an ALJ's
assessment of a claimant adequately captures restrictions related to concentration, persistence, or
pace where the assessment is consistent with restrictions identified in the medical testimony."
Stubbs-Danielson, 539 F.3d at 1174.
Accordingly, the ALJ's RFC assessment reasonably incorporated the plaintiffs moderate
to marked difficulties in concentration, persistence, and pace, and I find is no error.
E. Evaluation of Lay Witness Testimony
Next, plaintiff argues that the ALJ failed to properly discredit the testimony of plaintiffs
lay witnesses. PL' s Br. 27-29. Specifically, plaintiff argues that the ALJ erred by not explaining
how the limitations observed and described by the lay witnesses "are not reflective of the most
[p]laintiff still is able to do." Pl.'s Br. 28.
Lay testimony as to a claimant's symptoms or how an impairment affects the claimant's
ability to work is competent evidence that the ALJ must take into account. Tobeler v. Colvin,
749 F.3d 830, 832-34 (9th Cir. 2014); Nguyen v. Chafer, 100 F.3d 1462, 1467 (9th Cir.
21-0PINION AND ORDER
1996); Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).
If the ALJ disregards such
testimony, the ALJ "must give reasons that are germane to each witness." Id. See also Greger v.
Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). However, an ALJ is not required "to discuss every
witness's testimony on an individualized, witness-by-witness basis. Rather, if the ALJ gives
germane reasons for rejecting testimony by one witness, the ALJ need only point to those
reasons when rejecting similar testimony by a different witness." Molina v. Astrue, 674 F.3d
1104, 1114 (9th Cir. 2012).
Here, the ALJ noted that he considered statements from Laura Hachez-Zamora, Vicki L.
Smith, Karen Adams, Penny Trout, Ron S. Schroeder, and Linda Marsh. Tr. 29, 86-94, 333,
346-48, 540, 599-606, 635-40, 670, 1093. He found that "to some extent, all of the third parties
refer to the claimant's subjective complaints, but the claimant is not entirely credible." Tr. 29.
The ALJ further found that the third-party reports were "not necessarily reflective of the
claimant's maximal residual functional capacity," because the lay witness statements were
"contradicted by the objective medical evidence, the claimant's treatment history, and the
claimant's reported activities, such as successfully completing training to be a phlebotomy
technician." Tr. 29-30. With respect to the testimony of Vicki L. Smith, the ALJ disregarded it
because she was not present for plaintiffs reported activities of riding horses and moving
furniture. Tr. 30. Finally, the ALJ disregarded the September 24, 2009 report of Penny Trout,
and third party reports submitted in 2008 and 2009, because they were submitted as part of
plaintiffs prior application and considered not relevant to this hearing. Tr. 30, 531-39.
I find no error in the ALJ's evaluation of the lay witness testimony. An ALJ need only
give germane reasons for discrediting the testimony of lay witnesses. Lewis v Apfel, 236 F.3d at
511. Here, the ALJ noted that the lay witness testimony was based on plaintiffs subjective
22 - OPINION AND ORDER
complaints, which the ALJ found not credible. See Valentine v. Comm 'r Soc. Sec. Admin., 574
F.3d 685, 694 (9th Cir. 2009). Another "reason for which an ALJ may discount lay testimony is
that it conflicts with medical evidence." Lewis, 236 F.3d at 511 (citing Vincent v. Heckler, 739
F.2d 1393, 1395 (9th Cir.1984)). Here, the ALJ noted that the lay witness testimony that did not
repeat the plaintiffs subjective complaints was contradicted by the objective medical testimony.
Tr. 30. The ALJ provided germane reasons to discredit the lay witnesses, and therefore I find no
error in the ALJ' s analysis.
F. Step Five Analysis -Plaintiffs Ability to Perform Work in the National Economy
Finally, the plaintiff argues that the ALJ failed to determine that she could perform other
jobs in the national economy in his step five analysis. Pl.'s Br. 29. Specifically, plaintiff argues
that the hypothetical questions posed to the VE failed to include all "limitations and restrictions"
discussed by herself and her eleven lay witnesses, meaning the VE's testimony had "no
evidentiary value" on which the ALJ could rely. Pl.'s Br. 29.
At step five, the burden of proof shifts to the Commissioner to demonstrate that the
claimant can engage in some type of substantial gainful activity that exists in "significant
numbers" in the national economy. Yuckert, 482 U.S. at 141-42. The step five analysis requires
assessment of the medical evidence, the claimant's daily activities, prior work record, functional
restrictions and limitations, medication and other treatment for relief of symptoms, and evidence
from physicians and third parties. 20 C.F.R. §§ 404.1529, 416.929. Typically, the ALJ
propounds a hypothetical question to the VE that is based on medical assumptions supported by
the record and reflects all of the claimant's limitations. Osenbrock v. Apfel, 240 F.3d 1157, 1163
(9th Cir. 2001). If the claimant fails to present evidence that she suffers from certain limitations,
the ALJ need not include those alleged impairments in the hypothetical question to the VE. Id.
23 - OPINION AND ORDER
Here, the ALJ asked the VE at the January 17, 2013 hearing "whether jobs exist in the
national economy for an individual with the claimant's age, education, work experience, and
residual functional capacity." Tr. 33. Although an ALJ must pose a hypothetical question that
reflects all of the claimant's limitations, "an ALJ need not incorporate evidence from opinions
that were permissibly discounted or limitations based on subjective reports deemed not credible."
Batson, 359 F.3d at 1197; Bayliss, 427 F.3d at 1216. Here, as discussed above, the ALJ did not
err by discounting plaintiff's testimony, certain medical testimony, the testimony of plaintiff's
lay witnesses, or by incorporating plaintiff's limitations in the RFC analysis. Therefore, I find
that the ALJ made a proper step five determination that plaintiff could perform other work in the
national economy.
CONCLUSION
The ALJ' s finding that plaintiff was not disabled under the Act is supported by
substantial evidence in the record. Accordingly, the Commissioner's decision is AFFIRMED.
IT IS SO ORDERED.
Dated this~ day of April, 2016.
Ann Aiken
United States District Judge
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