Carper v. Commissioner Social Security Administration
Filing
16
OPINION AND ORDER. The Commissioner's decision is AFFIRMED and this case is DISMISSED. See formal OPINION AND ORDER. Signed on 12/2/2015 by Chief Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Kelley Carper,
Plaintiff,
v.
Carolyn W. Colvin,
Commissioner of Social
Security,
Defendant.
Rory Linerud
Linerud Law Firm
P.O. Box 1105
Salem, OR 97308
Attorney for plaintiff
Billy J. Williams
Ronald K. Silver
United States Attorney's Office
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97201
Franco L. Becia
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104-7075
Attorneys for defendant
Page 1 - OPINION AND ORDER
Case No. 2:14-cv-01185-AA
OPINION AND ORDER
AIKEN, Chief Judge:
Plaintiff Kelley Carper brings this action pursuant to the
Social Security Act
judicial
review
Cormnissioner
of
("the Act"),
a
denied
final
42 U.S.C.
decision
plaintiff's
of
§
the
405(g),
to obtain
Cormnissioner.
applications
for
Title
The
II
disability iqansurance benefits and Title XVI supplemental security
income disability benefits under the Act. For the reasons explained
below, the ALJ's decision is affirmed and this case is dismissed.
BACKGROUND
Born September 11,
1961, plaintiff was 39 years old on the
alleged disability onset date of September 1, 2001. Tr.
Plaintiff completed tenth grade.
Id.
at
24,
31.
28.
Plaintiff "can do
simple math but has no computer skills." Id.
Her previous jobs
include pet care, in-home caregiver, lawn maintenance, and cleaner.
Id.
Plaintiff alleges she suffers from:
bronchitis,
lifelong asthma, chronic
chronic obstructive pulmonary disease,
migraines,
insomnia
resulting from pain
back spasms,
in her back and hips,
childhood and domestic abuse, kidney failure, numbness in her arm
and middle fingers,
plaintiff
alleges
and hand cramps.
difficulty
extended periods of time,
gallon
of milk,
Id.
at 28-29.
breathing,
walking,
Page 2 - OPINION AND ORDER
sitting
for
lifting anything weighing more than a
tolerating gas
objects. Id.
In addition,
and
fumes,
and
handling
small
On
July
14,
2010,
plaintiff
filed
an
application
for
disability insurance benefits and supplemental security income,
alleging disability beginning September 1, 2001.
Id. at 22. Both
claims were denied initially and on reconsideration, after which
plaintiff filed a written request for a hearing.
Id.
Plaintiff
appeared with counsel and testified at a hearing on October 26,
2012.
Id.
The ALJ found plaintiff not disabled,
and capable of
performing both past work and other work. Id. at 23. The Appeals
Council denied plaintiff's request for review, rendering the ALJ's
findings
the
final
agency
decision.
Id.
at
1.
Plaintiff
subsequently filed this appeal on May 26, 2015. Pl.'s Br. 1.
STANDARD
The 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.
scintilla.
1989). Substantial evidence is "more than a mere
It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401
(1971)
(citation and quotations marks
omitted). The court must weigh "both the evidence that supports and
detracts from the [ALJ's] conclusions." Martinez v. Heckler,
F.2d 771,
772
(9th Cir.
1986).
807
Variable interpretations of the
evidence are insignificant if the ALJ's interpretation is rational.
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
Page 3 - OPINION AND ORDER
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, the 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.
The
Commissioner
§
has
423(d) (1) (A).
established
a
five-step
sequential
process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
ALJ
determines
gainful
whether
activity."
a
claimant
Yuckert,
482
is
U.S.
Bowen v.
404.1502. First, the
§
engaged
at
in
140;
"substantial
20
C.F.R.
§
404.1520(b). If so, the claimant is not disabled.
At step two,
"medically
the ALJ evaluates whether the claimant has a
severe
Yuckert,
482
claimant
does
U.S.
not
impairment
or
combination
at
20
C.F.R.
140-41;
have
a
severe
§
of
impairments."
404.1520(c).
impairment
or
If
combination
the
of
impairments, she is not disabled.
At
step three,
the
ALJ determines
whether
the
claimant's
impairments, either singly or in combination, meet or equal "one of
a number of listed impairments that the [ALJ) acknowledges are so
severe as to preclude substantial gainful activity." Yuckert, 482
U.S.
at 140-41; 20 C.F.R.
§
404.1520(d)
(list of impairments in
Appendix 1). If so, the claimant is presumptively disabled; if not,
Page 4 - OPINION AND ORDER
the ALJ proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the ALJ resolves whether the claimant can still
perform "past
relevant
work."
20 C.F.R.
404.1520(f).
§
If the
claimant can work, she is not disabled; if she cannot perform past
relevant work, the burden shifts to the Commissioner. Yuckert, 482
U.S. at 141. At step five, the ALJ must establish the claimant can
perform other work existing in significant numbers in the national
and local economy. Id. at 141-42; 20 C.F.R.
§
404.1520(g). If the
Commissioner meets this burden, the claimant is not disabled. 20
C.F.R.
§
404.1566.
ADMINISTRATIVE LAW JUDGE'S FINDINGS
At step one, the ALJ concluded the claimant, despite working
"relatively steadily" until 2003, had not engaged in substantially
gainful activity since September 1, 2001. Tr. 24, 29. At step two,
the
ALJ
diabetes,
found
asthma,
with lumbosacral
three,
the
claimant
hypertension,
radiculi tis,
has
several
severe
impairments:
lumbar degenerative disk disease
and obesity.
Id.
at
25.
At
the ALJ found claimant's combination of symptoms,
step
while
severe, did not meet or equal the severity of impairments listed in
Appendix 1. Id. at 27. At step four,
the ALJ concluded plaintiff
was not disabled because she had the residual functional capacity
("RFC") to perform past work. Id. at 27-31. Finally, the ALJ made
the alternative finding the claimant had the RFC to perform other
work existing in significant numbers in the national economy. Id.
Page 5 - OPINION AND ORDER
at 32.
DISCUSSION
Plaintiff
asserts
the
ALJ
made
three
errors
in
finding
plaintiff not disabled. First, plaintiff alleges the ALJ erred by
failing to address physicians'
opinions considering plaintiff's
diabetes, and failing to explain how her diabetes is accommodated
in the RFC findings. Pl.'s Br. 9-13. Second, plaintiff alleges the
Appeals Council improperly declined to review the ALJ's findings
after ignoring new lay witness testimony.
plaintiff
alleges
the
ALJ
erred
Id.
during
at 13-14.
step
Third,
five's
RFC
determination by failing to consider all applicable age categories.
Id. at 6-9.
I.
First Claim: The ALJ Failed to Address Physicians' Opinions
of Plaintiff's Diabetes, and Failed to Explain How Her
Diabetes is Accommodated in the RFC Findings
Plaintiff alleges the ALJ failed to adequately consider her
severe impairment of diabetes in determining her RFC because the
ALJ relied on
state
agency physician's
opinions
which
do
not
address diabetes. Id. at 10. In addition, plaintiff alleges the ALJ
failed to explain how her diabetes is accommodated by the RFC
finding. Id. at 11.
An ALJ is required to determine a claimant's RFC based on all
relevant
evidence
416. 945 (a).
Here,
in
the
record.
20
C.F.R.
§§
404.1545(a),
the opinions of Mary Ann Westfall,
M. D.,
and
Sharon Eder, M.D., both discuss plaintiff's diabetes. Tr. 84, 96,
Page 6 - OPINION AND ORDER
107, 114, 117. In addition, plaintiff testified she has difficulty
using her upper extremities. Id. at 29, 65-67. She now argues that
difficulty is caused by her diabetes.
below,
Pl.'s Br. 11. As explained
the ALJ adequately considered this relevant evidence in
determining plaintiff's RFC. Tr. 27, 29.
The opinions of Mary Ann Westfall,
M. D.,
and Sharon Eder,
M.D., both acknowledge plaintiff's diabetes but do not specifically
link any limitations to diabetes. Id. at 84, 96, 107, 114, 117. The
only
evidence
of
difficulties
plaintiff's testimony.
Id.
with
at 29,
her
65-67.
upper
extremities
Therefore,
is
plaintiff's
allegation the ALJ failed to adequately consider her limitations is
a challenge to the ALJ's determination plaintiff's testimony lacked
credibility.
To find a claimant's testimony lacks credibility, an ALJ "must
provide specific,
cogent reasons for the disbelief." Lester v.
Chater, 81 F.3d 821, 834 (9th Cir. 1995) (quotation marks omitted).
In
the
absence
of
evidence
suggesting
malingering,
the
ALJ' s
reasons for rejecting a claimant's testimony "must be clear and
convincing."
Swenson v.
Sullivan,
876 F.2d 683,
687
(9th Cir.
1989). When an ALJ "finds that a claimant's testimony relating to
the intensity of his pain and other limitations is unreliable, the
ALJ must make a credibility determination citing the reasons why
the
testimony is
Admin.,
169
F.3d
unpersuasive." Morgan v.
595,
599
Page 7 - OPINION AND ORDER
(9th Cir.
1999)
Comm' r
of Soc.
Sec.
(citing Bunnell
v.
Sullivan, 947 F.2d 341
(9th Cir. 1991)). In making a credibility
determination, the ALJ "must specifically identify what testimony
is
credible
complaints.
and
In
what
this
testimony
regard,
undermines
questions
of
the
claimant's
credibility
and
resolutions of conflicts in the testimony are functions solely of
the [ALJ] . " Id.
(citations omitted) .
Although the ALJ found "the claimant's medically determinable
impairments
could reasonably be
expected to
cause
the alleged
symptoms" the ALJ concluded "the claimant's statements concerning
the intensity, persistence and limiting effects of these symptoms
are not entirely credible." Tr. 29. The ALJ supported the adverse
credibility
finding
with
specific,
cogent
reasons.
The
ALJ
explained plaintiff continued to work "relatively steadily for two
more years" after the alleged disability began in September 2001.
Id. In addition, the ALJ noted the plaintiff was not diagnosed with
diabetes
comply
until
with
medication.
2007
taking
Id.
and,
despite losing
blood
pressure
fifty pounds,
medication
and
did not
diabetes
These factors are permissible bases for finding
plaintiff's testimony lacked credibility. See Smolen v. Chater, 80
F. 3d 1273, 1284 (9th Cir. 1996)
of
a
claimant's
symptoms
a
(when determining the credibility
court may
consider
the
claimant's
"unexplained or inadequately explained failure to seek treatment or
follow a prescribed course of treatment" and "work record") .
Page 8 - OPINION AND ORDER
The ALJ also found plaintiff's
testimony about difficulty
using her arms and hands lacked credibility because the symptoms
were
"new impairments"
raised at the
alleging the symptoms began in 2003,
hearing.
Tr.
29.
Despite
plaintiff "did not mention
these symptoms in any of the [medical) evaluations since that time"
with the exception of one mention to Dr. Henderson in October 2010,
who "failed to indicate any significant findings in association
with
this
complaint."
Id.
at
29-30.
Absence
of
medical
corroboration is an insufficient basis to discredit a claimant's
testimony about the severity of symptoms caused by an underlying
impairment.
However,
Lester v. Chater,
absence
of
81 F.3d 821,
objective
834
medical
(9th Cir.
records
1995).
supporting
plaintiff's testimony, in combination with contradictory testimony
from plaintiff about her ability to work, is a permissible basis
for the ALJ to determine plaintiff's statements lack credibility.
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196-97 (9th
Cir. 2004).
Although physicians'
diagnosis,
from
opinions confirm plaintiff's diabetes
the only evidence of upper extremity limitation came
plaintiff's
permissible reasons.
testimony,
which
the
ALJ
discounted
for
Because the ALJ was justified in finding
plaintiff's upper extremities symptoms not credible,
finding regarding plaintiff's RFC is affirmed.
Page 9 - OPINION AND ORDER
the ALJ' s
II.
Second Claim: The Appeals Council Improperly Declined to
Review the ALJ's Findings Based on Lay Witness Testimony
Plaintiff alleges the Appeals Council improperly elected not
to review the ALJ's findings based on lay witness statements from
Allison Cox and Teresa Daum-Futter provided to the Council after
the ALJ's decision. Pl.'s Br. 13; Tr. 6, 268 270-74. Although the
Appeals
Council
specifically
stated
it
"considered
the
additional evidence," including letters from Ms. Cox and Ms. DaumFutter, it found no reason to review the ALJ's decision. Tr. 1, 5.
Plaintiff contends this error "was harmful because the statements
made
by Ms.
Cox
and Ms.
[Daum-) Futter
regarding
[p) laintiff' s
walking difficulties establishes disability." Pl.'s Br. 14.
District courts have jurisdiction to review only final agency
actions. Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161
(9th Cir. 2011). The Appeals Council's decision to decline review
of the ALJ's decision is a non-final agency action and, therefore,
this court lacks jurisdiction to review it. Id.
To the extent plaintiff alleges
the ALJ' s
decision is
no
longer supported by substantial evidence in light of the new lay
witness testimony, plaintiff's argument fails. The testimony of Ms.
Cox and Ms.
Daum-Futter offers no new insight
claims and,
rather,
into plaintiff's
reiterates symptoms previously mentioned by
plaintiff and in third party statements by plaintiff's
sister,
Donna Cisneroz, and significant other, James Johnson. For example,
Ms. Cox and Ms. Daum-Futter both report plaintiff's difficulty with
Page 10 - OPINION AND ORDER
mobility,
symptoms mentioned by plaintiff in her testimony and
represented in her medical records. Tr. 52-53, 56, 72-73, 84, 96,
107, 114, 117,
268,
272. As explained in section I,
the ALJ had
permissible reasons for disbelieving plaintiff about the severity
of her symptoms. Moreover, the statements of Ms. Cox and Ms. DaumFutter are
similar to
the
statements
of Ms.
Cisneroz
and Mr.
Johnson, which the ALJ permissibly discredited as inconsistent with
other evidence in the record. Tr. 30. When an ALJ does not consider
lay witness testimony describing symptoms already within the record
and properly rejected by the ALJ, there is no harmful error. Molina
v. Astrue, 674 F.3d 1104, 1117 (9th Cir. 2012). The ALJ's findings
are supported by substantial evidence and are affirmed.
III. Third Claim: The ALJ Failed to Examine Plaintiff's Claims
Under Each Relevant Age Category, Resulting in Erroneous
Determination of Plaintiff's RFC
At
step
five,
the
ALJ considered only
jobs
available
to
"younger individual[s)" age 18-49. Tr. 31. Plaintiff contends the
ALJ should have
closely
also considered
approaching
advanced
age
jobs
available
50-54."
Pl.'s
for
Br.
"person [s)
6-9.
As
defendant concedes, the failure to consider the "person approaching
advanced age 50-54" category was error. See 20 C.F.R. 404.1563(b)
(ALJ must consider all age categories applying to the claimant
during the period of time for which the court determines claimant's
disability). The error, however, is harmless because at step four
the ALJ determined plaintiff could perform past work. See Crane v.
Page 11 - OPINION AND ORDER
Shalala, 76 F.3d 251, 255 (9th Cir. 1996)
(failure to properly call
a vocational expert during step five was harmless because the ALJ
determined in step four claimant could perform past work) .
vocational
expert
testified
plaintiff
could
work
as
The
a
housekeeper/cleaner. Tr. 31. Plaintiff does not challenge the ALJ's
finding she could perform this past work. Accordingly, any error by
the ALJ at step five was harmless.
CONCLUSION
The
Commissioner's decision
is AFFIRMED
DISMISSED.
IT
rs so
ORDERED.
Dated this
")no
_O'-~-
~~
day of Nmr@ml3el! 2015.
Ann Aiken
United States District Judge
Page 12 - OPINION AND ORDER
and
this
case
is
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