Jordan v. Commissioner, Social Security Administration
Filing
14
OPINION AND ORDER. Signed on 03/19/2012 by Judge James A. Redden. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STEVEN LEE JORDAN,
CV. 2:11- 06104 RE
Plaintiff,
OPINION AND ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
REDDEN, Judge:
Plaintiff Steven Jordan ("Jordan"), brings this action to obtain judicial review of a final
decision ofthe Commissioner of the Social Security Administration ("Commissioner") denying
his claim for Disability Insurance Benefits. For the reasons set fOllh below, the decision of the
Commissioner is reversed and this matter is remanded for further proceedings.
1 - OPINION AND ORDER
BACKGROUND
Bom in 1958, Jordan has a high school education. In October 2007, Jordan applied for
disability benefits alleging disability since December 31, 2006, due to back pain, left shoulder
pain, bilateral carpal tunnel syndrome, depression, a leaming disorder, and Attention
Deficit/Hyperactivity Disorder. His application was denied initially and upon reconsideration.
On September 14, 2009, a hearing was held before an Administrative Law Judge ("ALJ"). In a
decision dated November 13,2009, the ALJ found Jordan not disabled. Jordan's request for
review was denied, making the ALJ's decision the final decision of the Commissioner. Jordan
now seeks judicial review of the Commissioner's decision.
ALJ's DECISION
The AU found Jordan had the medically determinable severe impairments of back pain,
left hip pain, left shoulder pain, bilateral carpal tunnel syndrome, depression and alL'{iety.
The AU determined that Jordan retained the residual functional capacity to perform a
limited range of light work, and that he had moderate difficulties with regard to concentration,
persistence and pace. He is limited to simple, repetitive tasks.
The AU determined that Jordan was unable to retum to his past relevant work. The AJL
found that Jordan retained the ability to work as a bakery line worker, a cleaner, or a folding
machine operator. Tr. 17.
The medical records accurately set out Jordan's medical history as it relates to his claim
for benefits. The court has carefully reviewed the extensive medical record, and the parties are
familiar with it. Accordingly, the details of those medical records will be set out below only as
they are relevant to the issues before the court.
2 - OPINION AND ORDER
DISCUSSION
Jordan contends that the ALJ erred by: (l) finding him not fully credible; (2) improperly
weighing physician testimony; (3) improperly rejecting lay testimony; and (4) failing to show
that he retains the ability to perfOlm other work.
I. Credibility
The ALJ must consider all symptoms and pain which "can be reasonably accepted as
consistent with the objective medical evidence and other evidence." 20 C.F.R. §§ 404.l529(a);
416.929(a). Once a claimant shows an underlying impahment which may "reasonably be
expected to produce pain or other symptoms alleged," absent a finding of malingering, the ALJ
must provide "clear and convincing" reasons for finding a claimant not credible. Lingerifelter v.
Astrue, 504 F.3d 1028, 1036 (9 th Cir. 2007)(citing Smolen v. Chatel', 80 F.3d 1273, 1281 (9 th Cir.
1996)). The ALl's credibility findings must be "sufficiently specific to permit the reviewing
court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony."
Orleza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995)(citing Bunnell v. Sullivan, 947. Fold 341, 34546 (9th Cir. 1991)(en bane)).
The ALJ may consider objective medical evidence and the claimant's treatment history,
as well as the claimant's daily activities, work record, and observations of physicians and third
parties with personal knowledge of the claimant's functional limitations. Smolen, 80 F.3d at
1284. The ALJ may additionally employ ordinary techniques of credibility evaluation, such as
weighing inconsistent statements regarding symptoms by the claimant. Id The ALJ may not,
however, make a negative credibility tinding "solely because" the claimant's symptom testimony
3 - OPINION AND ORDER
"is not substantiated affilmatively by objective medical evidence." Robbins v. Soc. Sec. Admin.,
466 F.3d 880, 883 (9 th Cir. 2005).
The ALJ noted that Jordan alleges disability based primarily on back, left hip, shoulder,
and hand pain. The ALJ concluded that Jordan was not fully credible as to the intensity,
persistence and limiting effects of his symptoms:
Specifically, the claimant reported that he lost his job of 25 years
(which was performed at the velY heavy exeliionallevel according
to the claimant [citation omitted]) because his job was outsourced
overseas, and not due to his physical and/or mental impairments
[citation omitted). Claimant testified that he has been on unemployment compensation and has been looking for work such as a security
guard and gas station attendant, which strongly suggests he feels he
is able to retum to light work. Additionally, it is significant that the
claimant tended to be vague regarding his medical histOlY, citing
pain and symptoms in general and using terms such as "years,"
during the consultative examination [citation omitted).
Tr. 15. Plaintiff testified that he worked in pain until his job was outsourced, and that he was
having difficulty performing the job, and depended on friends to keep him on easier jobs. Tr.47.
Plaintiff testified that the company modified his job to allow him to sit. Tr. 52-53.
The ALJ cited a March 2008 physical examination by KUli Brewster, M.D., in which Dr.
Brewster found a "minimal reduction in cervical and lumbar range of motion. " Tr.289. Dr.
Brewster noted that "given lack of objective evidence within medical exam or within record, do
not have a basis to limit claimant to degree estimated." ki
Jordan argues that the ALJ e11'ed in
relying on Dr. Brewster's opinion because Brewster did not have access to Jordan's medical
record, except for the physical capacity assessment by Park, a physical therapist and not an
acceptable source. Jordan contends that Dr. Brewster did not know that he had been diagnosed
with a verballeaming disability and attention deficit hyperactivity disorder. Jordan points to the
4 - OPINION AND ORDER .
psychologists who described him as tangential.
However, the claimant does not establish that
either the diagnosed mental limitations or the ADHD would cause him to be "unfamiliar with
details of his own activities" and unceliain as to whether he could tie his own shoes, as noted by
Dr. Brewster. Tr. 289.
The ALJ noted that March 2008 x-rays were essentially normal, with marginal
osteophytosis. Tr. 15,293. The ALJ cited the June 2007 evaluation conducted by Christopher
Park, O.T.R., F.A.B.D.A, in which the claimant denied back pain and was taking no pain
medication. Tr. 15,225. A September 2008 chmi note indicates that Jordan injured his back in a
fall, but examination showed tenderness and decreased range of motion with no neurological
deficits, and the diagnosis was thoracic and lumbar strain for which medication and physical
therapy were prescribed. Tr. 15, 370.
The ALJ identified clear and convincing reasons to suppOli his detennination that the
claimant's subjective complaints are less than fully credible.
II. Physician Testimony
Disability opinions are reserved for the Commissioner. 20 C.F.R. §§
404.1527(e)(1); 416.927(e)(1). 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. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In such circumstances
the ALJ should also give greater weight to the opinion of an examining physician over that of a
reviewing physician. Id. But, if two medical source opinions conflict, an ALJ need only give
"specific and legitimate reasons" for discrediting one opinion in favor of another. Id. at 830.
5 - OPINION AND ORDER
The ALJ 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).
A. Brian Jones, M.D.
Dr. Jones began treating Jordan in February 2008. Dr. Jones noted that back pain and
radicular pain were improved. Tr. 337. Jordan complained of left chest and pectoralis pain
arising out of an on the job injury that occuned two years prior. The left shoulder had a "near
full range of motion," but there was "some atrophy" of the distal aspect of the left pectoralis
muscle. ld. Dr. Jones noted "some weakness" with the ability to contract that muscle, and
prescribed physical therapy. Tr. 19.
In April 2008, Jordan sought treatment for a left shoulder injury that had occuned in
2003. Jordan did not want surgery. Dr. Jones found a "slightly decreased range of motion" with
abduction, tenderness ofthe left pectoralis muscle, and prescribed physical therapy. Tr. 335. Dr.
Jones noted that Jordan "could return to work at this time but he would be limited in telms of
how much he can lift. I would not suggest he lift more than 20 pounds, but I would not put him
on any other restrictions at this time." ld.
In May 2008, Dr. Jones noted that Jordan "wanted to document that his hands have been
numb for many years." Tr. 334. Dr. Jones found that Jordan had good grasp strength and a full
range of motion in his hands, and referred Jordan for nerve conduction studies. Those studies
revealed mild to moderately severe carpal tunnel syndrome on the left and mild on the right.
Jordan declined referral to a surgeon. Tr. 331.
On July 30, 2008, Jordan reported that he had developed left hip pain over the past few
days. Tr. 373. Dr. Jones diagnosed a strain injury, and prescribed ice and ibuprofen.
6 - OPINION AND ORDER
On September 19, 2008, Jordan reported to Dr. Jones that he had hurt his back when he
stepped off a one foot deck. Tr. 370. Dr. Jones diagnosed a thoracic and lumbar strain, and
prescribed Flexeril and stretching exercises.
In October, 2008, Jordan reported left low back pain, with pain radiating into the left
buttock and down the left leg, for the past five days. Tr. 369. Dr. Jones prescribed Vicodin and
Naprosyn, and advised him to retum if he was not doing better. Two weeks later, Jordan
reported continuing pain radiating down the left leg. Tr. 368. Dr. Jones prescribed physical
therapy and Naprosyn.
On July 7,2009, Dr. Jones reported:
He describes pain of his bilateral foreatms. He did see Dr. Fedorov
who recommended doing carpal tunnel surgery, but patient does not
want to do that. He has been having some on-going left hip pain....
The patient states that he is basically beat up from all the labor he has
done over the years and believes that he should be considered now
medically disabled. I told him at this point, he certainly could do a
light duty job but really would not be able to do much in the way of
lifting, or could not be on his feet for long periods of time.
Tr. 352. Hip x-rays revealed minimal degeneration. Tr. 348.
Dr. Jones saw Jordan for left heel pain on July 30, 2009. Tr.347. He opined that Jordan
was unable to do the kind of repetitive work he had done in the past, and that "his only
possibility for employment will be at very light duty work with no frequent lifting, no frequent
bending" and no lifting more than ten p01mds. Id.
The ALJ noted Dr. Jones's opinion that Jordan was limited to light duty with decreased
lifting and no prolonged standing/walking, but said that "examination notes do not show any
motor, sensory or reflex loss, or other findings that would support such an opinion." Tr. 16.
7 - OPINION AND ORDER
Plaintiff points to Dr. Jones's Februraty 2008 observation of atrophy of the pectorilis
muscle and decreased range of motion in the shoulder. Tr. 335, 337.
Dr. Jones's opinion is contradicted by the opinion of Dr. Brewster, who conducted a
comprehensive orthopedic examination in March 2008 and concluded that Jordan had full motor
strength in all upper and lower muscles. SensOlY examination of upper and lower extremities
was completely normal. Tr.288-89. Jordan reported to Dr. Brewster that he walked his dog for
an hour and a half at a time. Tr. 284. Dr. Jones noted that Jordan had good grasp strength and a
full range of motion in his hands. Tr. 334. Dr. Jones's opinion is inconsistent with that of
consulting physician Martin Kehrli, M.D. The ALJ cited the May 2008 repOli of Dr. Kehrli,
who reviewed the record and found that claimant had the residual capacity for light work, with
only occasional climbing ofladders, ropes, or scaffolds, and only occasional stooping and
crouching. Tr. 15,309.
The ALJ provided legally sufficient reasons to reject Dr. Jones's opinion as to lifting
restrictions and limitations on standing/walking.
B. Steve Pethick, Ph.D.
Dr. Pethick evaluated Jordan in April 2007. He diagnosed a learning disability related to
auditOlY processing, and an inability to efficiently and reliably retain verbally presented
information in his memory. Dr. Pethick found Jordan met the criteria for attention deficit
hyperactivity disorder and depressive disorder, and assessed a Global Assessment of
Function of 55. Tr.217-23.
C. Ryan Scott, Ph.D.
8 - OPINION AND ORDER
Dr. Scott examined Jordan in March 2008, and reviewed Dr. Pethick's report. Tr. 29497. Dr. Scott agreed with Dr. Pethick's conclusions. Tr. 297.
D. Dorothy Jean Anderson, Ph.D.
Dr. Anderson reviewed the record, including the reports from Drs. Pethick and Scott. Tr.
310-26. She provided a mental functional capacity assessment, which the ALJ accepted. Tr. 1314.
Plaintiff contends that the ALJ erred by failing to limit him to tasks that do not require
reliance on short-tellli auditory memory. Dr. Anderson found that Jordan was moderately limited
in the ability to understand and remember detailed instructions. She also opined that Jordan was
not significantly limited in understanding and remembering simple instructions. Tr. 324. 326.
This conclusion was cOl1'0borated by other evidence, including that of the Goodwill Industries
assessor who noted that Jordan leamed seven new simple, repetitive tasks. Tr. 262. The ALJ
properly accounted for Jordan's mental limitations by limiting him to simple, repetitive tasks.
III. Other Witness Testimony
The ALJ has a duty to consider lay witness testimony. 20 C.F.R. §§ 416.913(d),
416.945(a)(3); Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2008). The ALJ may not reject
such testimony without comment and must give reasons germane to the witness.
Linda Diaz completed an Adult Function Report in November 2007. Tr. 153-160. She
reported that Jordan was severely limited by constant pain, that he could walk one block before
resting, and that he could concentrate fifteen minutes at a time. The ALJ erred by failing to
address the lay testimony. StOlit v. Commissioner, 454 F.3rd 1050, 1056 (9 th Cir. 2005).
9 - OPINION AND ORDER
CONCLUSION
For these reasons, the AU's decision that Jordan is not disabled is not supported by
substantial evidence. The decision of the Commissioner is reversed and this case is remanded
pursuant to sentence four of 42 U.S.c. § 405(g) for fiJrther proceedings consistent with this
opinion and order.
IT IS SO ORDERED.
Dated this /fraay of March, 2012.
JJtI ES A. REDDEN
(
United States District Judge
,,~
10 - OPINION AND ORDER
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