Lambert v. Commissioner Social Security Administration

Filing 19

OPINION AND ORDER: The Commissioner' s decision is AFFIRMED. Accordingly, this case is dismissed. Signed on 3/30/2019 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION

.
G mny L ., I

Case No. 2:17-cv-01235-AA
OPINION AND ORDER
Plaintiff,

V.

COMMISSIONER OF SOCIAL SECURITY, 2
Defendant.

AIKEN, District Judge:
Plaintiff Ginny L. brings this action pursuant to the Social Security Act ("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 Supplemental Security

1

In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party or parties in this case. Where applicable, this opinion uses
the same designation for a non-governmental party's immediate family member.
2

Nancy A. Berryhill's term as the Acting Commissioner of the Social Security
Administration (SSA) ended on November 17, 2017, and a new Commissioner has not been
appointed. The official title of the head of the SSA is the "Commissioner of Social Security."
42 U.S.C. § 902(a)(l). A "public officer who sues or is sued in an official capacity may be
designated by official title rather than by name." Fed. R. Civ. P. 17(d). This Court, therefore,
refers to defendant only as Commissioner of Social Security.
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Income ("SSI") and Disability Insurance Benefits ("DIB"). For the reasons set forth below, the
Commissioner's decision is AFFIRMED.

BACKGROUND
On July 24, 2013, plaintiff filed for DIB with a date last insured of December 31, 2017.
On December 23, 2013, plaintiff filed an application for SSL In her applications, plaintiff alleged
disability beginning on July 3, 2012 due to a combination of physical and mental impairments,
including depression, anxiety, PTSD, chronic pain, fibromyalgia, and spinal stenosis.
Her claims were denied initially on March 5, 2014 and upon reconsideration on August I,
2014. On August, 12 2014, plaintiff filed a written request for hearing before an Administrative
Law Judge ("ALJ"). An administrative hearing was held on May 31, 2016, where plaintiff was
represented by counsel. Plaintiff and a vocational expert ("VE") offered testimony. The ALJ
found plaintiff not disabled in a written decision issued on January 30, 2017. After the Appeals
Council denied review, plaintiff filed the present complaint in this Court.
STANDARD OF REVIEW
The district court must affirm the ALJ's decision unless it contains legal e1Tor or is not
supported by substantial evidence." Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing

Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Harmless legal errors
are not grounds for reversal. Stout v. Comm 'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir.
2006) (citing Burch v. Barnhart, 400 F.3d 676,679 (9th Cir. 2005)). "Substantial evidence is 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." Gutierrez v. Comm'r a/Soc. Sec., 740
F.3d 519, 522 (9th Cir. 2014) (citation and internal quotation marks omitted). The court must
evaluate the complete record and weigh "both the evidence that suppmts and the evidence that

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detracts from the ALJ's conclusion." Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If
the evidence is subject to more than one inte1pretation but the Commissioner's decision is rational,
the Commissioner must be affirmed, because "the court may not substitute its judgment for that of
the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

COMMISSIONER'S DECISION
The initial burden of proof rests upon the plaintiff to establish disability.

Howard v.

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden. The plaintiff must demonstrate
an "inability to engage in any substantial gainful activity by reason of any medically dete1minable
physical or mental impaiiment 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 person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4); id.
§ 416.920(a)(4). At step one, the ALJ found that plaintiff had not engaged in "substantial gainful
activity" since the alleged onset date of July 3, 2012. Tr. 19. 20 C.F.R. §§ 404.1520(a)(4)(i), (b);

id. §§ 416.920(a)(4)(i), (b). At step two, the ALJ found that plaintiff had severe impairments of
"fibromyalgia, degenerative disc disease, depressive disorder, and anxiety disorder." Tr. 19. 20
C.F.R. §§ 404.1520(a)(4)(ii), (c); id. §§ 416.920(a)(4)(ii). At step three, the ALJ determined
plaintiffs impairments, whether considered singly or in combination, did not meet or equal "one
of the listed iinpairments" that the Commissioner acknowledges are so severe as to preclude
substantial gainful activity. Tr. 20. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d); id. §§ 416.920(a)(4)(iii),
(d).
The ALJ then assessed plaintiffs residual functional capacity ("RFC").
404.1520(e); id. § 416.920(e). The ALJ found that plaintiff

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20 C.F.R. §

has the [RFC] to perform light work as defined in 20 CPR 404.l 567(b) and
4 l 6.967(b) except she can occasionally balance, stoop, kneel, crouch, crawl, and
climb ramps, stairs, ladders, ropes, and scaffolds. She can perform simple routine
tasks, in a routine work environment with only superficial interaction with
coworkers and the public.
Tr. 23. At step four, the ALJ found that plaintiff was "capable ofperfo1ming past relevant work
as a cashier II" and thus was not disabled under the Act. Tr. 32 As an alternative finding, the ALJ
proceeded to step five and determined plaintiff could perform other jobs existing in significant
numbers in the national economy such as cleaner (DOT# 323.687-014), assembler (DOT#
706.687-010), packing-line worker (DOT #753.687-038). Tr. 34. 20 C.F.R. §§ 404.1520(a)(4)(v),
(g)(l ). Accordingly, the ALJ found that plaintiff was not disabled and denied her application for
benefits. Id.

DISCUSSION
Plaintiff raises five assignments of error on appeal. She contends that the Commissioner
erred in: (I) failing to properly credit certain medical opinion evidence; (2) improperly rejecting
some of plaintiffs impairments as non-severe at step two, (3) improperly evaluating lay witness
statements, (3) improperly evaluating plaintiffs subjective symptom testimony, and (5) failing to
conduct adequate analysis and Steps Four and Five. The Court addresses each issue in tum.

I.

Medical Opinion Testimony

Plaintiff first argues that the ALJ improperly rejected the opinions of (1) Rodrigo Lim,
MD, plaintiffs treating physician, (2) examining physician Kenneth Dudley, Ph.D, (3) State
Disability Determination Services ("DDS") consultants Richard Alley, M.D. and Edwin R.
Holmes, Psy. D., and (4) Sandra Murphy, LCSW.
There are three types of medical opinions in Social Security disability cases: those of
treating, examining, and reviewing physicians. Holohan v. Massanari, 246 F.3d 1195, 1201-02

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(9th Cir. 200 I). "Generally, a treating physician's opinion carries more weight than an examining
physician's, and an examining physician's opinion carries more weight than a reviewing
physician's." Id. at 1202, accord 20 C.F.R. § 404.1527(d). Accordingly, if a treating physician's
medical opinion is not inconsistent with other substantial evidence in the record, and is supported
by medically acceptable clinical findings, the treating physician's opinion is given controlling
weight. Id.; 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
"Where the treating doctor's opinion is not contradicted by another doctor, it may be
rejected only for clear and convincing reasons." Lester, 81 F.3d at 830. "The ALJ must explicitly
reject medical opinions, or set forth specific, legitimate reasons for crediting one medical opinion
over another." Id. at 1012 (citing Nguyen v. Chafer, 100 F.3d 1462, 1464 (9th Cir. 1996)). An ALJ
errs by rejecting or assigning minimal weight to a medical opinion "while doing nothing more than
ignoring it, asserting without explanation that another medical opinion is more persuasive, or
criticizing it with boilerplate language that fails to offer a substantive basis" for the ALJ's
conclusion. Id. at 1013. "An ALJ can satisfy the 'substantial evidence' requirement by 'setting out
a detailed and thorough summary of the facts and conflicting clinical evidence, stating his
interpretation thereof, and making findings." Garrison, 759 F.3d at 1012 (quoting Reddick, 157
F.3d at 725).
In other words, "[t)he ALJ must do more than offer his conclusions. [She) must set forth
[her] own interpretations and explain why they, rather than the doctors', are correct." Reddick, 157
F.3d at 725 ( citing Embrey v. Bo;Fen, 849 F.2d 418, 421-22 (9th Cir. 1988)). "Where the evidence
is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be
upheld." See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). "[T]he
consistency of the medical opinion with the record as a whole" is a relevant consideration in

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weighing competing evidence. Orn, 495 F.3d at 631. Finally, "medical evaluations made after the
expiration of a claimant's insured status are relevant to an evaluation of the pre-expiration
condition." Lester v. Chafer, 81 F.3d 821, 832 (9th Cir. 1996) (internal quotation marks and
citations omitted). A physician's opinion should be considered when it relates to the period before
the claimant's DLI and before the ALJ's decision is rendered. See Taylor v. Comm 'r of Soc. Sec.
Admin., 659 F.3d 1228, 1233 (9th Cir. 2011) (citing 20 C.F.R. § 404.970(b )).
A.

Opinion ofDr. Rodrigo Lim.

Plaintiff first objects to the ALJ's decision to give "little weight" to the 2014 from Dr.
Lim. The ALJ rejected Dr. Lim's limiting statements that "the patient should be permanently
disabled. She cannot pull, push, carry objects more than 5-10 pounds and cannot walk more than
I 00 to 200 feet without causing significant symptoms for her low back." Tr. 30. The Court finds
that ALJ provided specific and legitimate reason for discounting these limitations. The ALJ noted
that limitations were function by function and not adequately explained. Moreover, the Dr. Lim
did not conduct any special testing to substantiate the limitations.

She also noted that the

limitations where primarily based on the plaintiff's subjective reports, which the ALJ found to be
not credible. Indeed, some of the limitations are contradicted by other medical and lay reports in
the record. Finally, the ALJ rightly noted that the ultimate question of whether a person is disabled
is reserved for the Commissioner alone. Thus, because the evidence is susceptible to more than
one interpretation and the ALJ provided specific and legitimate reasons, her decision to give the
opinion of Dr. Lim little weight must be upheld.

B.

Opinion ofKenneth Dudley, Ph.D.

Plaintiff next argues that the ALJ erred in only giving "some/partial weight" to Dr.
Dudley's opinion who performed a psychodiagnostics of examination her on February 7, 2014.

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The Court finds no en-or in the ALJ's analysis of Dr. Dudley's opinion. Dr. Dudley did opine that
plaintiffs ability on tasks of sustained attention would show a moderate deficit at "at worst" and
that plaintiff would have "moderate to serve impairment at worst" when it came to social
interaction." Tr. 30, 390. The Court is not persuaded that, as plaintiff suggests, this is the standard
for determining plaintiff's RFC. Rather, the ALJ did include some limitations recommended by
Dr. Dudley. She concurred with Dr. Dudley that plaintiff could "understand, recall, and act on
simple commands without impairment." Tr. 30. She noted that plaintiff does have some moderate
limitations in interacting with others and in concentration, persistence and pace and included in
the RFC that plaintiff was limited to "only superficial interaction with coworkers and the public."
As for the other limitations, the ALJ provided specific and legitimate reasons for discounting them.
The ALJ noted inconsistency with the medical record and that Dr. Dudley relied heavily on
plaintiff's subjective reports which were found to not be credible. Thus, the Court finds that the
ALJ did not en- in her analysis of Dr. Dudley's opinion evidence and her use ofit in formulating
plaintiffs RFC.
C.

Opinion ofDDS Physcians

The ALJ gave "great weight" to the Opinions Dr. Alley and Dr. Holmes. Tr. 29. Plaintiff
complains that despite this finding, the ALJ failed to include a limitation for only occasional and
brief contact with the public noted by these physicians. As the Commissioner notes, Dr. Holmes
opined that while plaintiff should be limited to "occasional and brief contact w[ith] the public or
coworkers" but "can interact appropriately w[ith] others during routine and superficial
encounters." Tr. 113. As has been observed previously, the ALJ did limit plaintiff to "only
superficial interaction with coworkers and the public." Tr. 23. The Court finds that this was a

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rational translation of the medical evidence into the RFC. Thus, the ALJ did not err in her analysis
of this opinion.
D.

Opinion ofSandra Murphy, LCSW

Ms. Murphy is not an acceptable medical source under 20 C.F.R. § 416.913. Thus, her
opinions were not entitled to special weight. The ALJ may discount testimony from "other
sources" if the ALJ "'gives reasons germane to each witness for doing so."' See Turner v. Comm'r
of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir.2010) (quoting Lewis v. Apfel, 236 F.3d 503,511 (9th

Cir.2001) ).
Plaintiff argues that the ALJ improperly rejected Ms. Murphy's Opinion on the basis that
she was not an acceptable medical source and that she overstated plaintiff's social interaction
limitations. However, review of the record shows that the ALJ did not reject the opinion on the
basis that Ms. Murphy was not an acceptable medical source. Rather, the ALJ pointed out the
limitations were inconsistent with Ms. Murphy's treatment notes, the record as a whole, and
plaintiffs own reported activities. All of these are germane reasons to discount other source
opinions. Thus, the ALJ did not err in her analysis of Ms. Murphy's opinion evidence.
II.

Step Two Impairments

The ALJ found that plaintiff suffers from the sever impairments of fibromyalgia,
degenerative disc disease, depressive disorder and anxiety disorder. Tr. 19. Plaintiff argues that
the ALJ committed harmful legal error in falling to include as severe impairments: post traumatic
stress disorder, borderline bipolar disorder, peripheral neuropathy and hypothyroidism, bilateral
carpal tunnel syndrome radiculopathy, and obstructive lung disease.
At step two, a claimant must make a threshold showing that he or she has medically
determinable impairments that significantly limit his or her ability to perform basic work activities.

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See Bowen, 482 U.S. at 145; 20 C.F.R. § 404.1520(c). "[T]he step two inquiry is a de minimis
screening device to dispose of groundless claims." Smolen v. Chafer, 80 F.3d 1273, 1290 (9th Cir.
1996).
To establish the existence of a medically determinable impairment, the claimant must
provide medical evidence consisting of "signs-the results of 'medically acceptable clinical
diagnostic techniques,' such as tests-as well as symptoms," a claimant's own perception or
description of his or her physical or mental impairment. Ukolov v. Barnhart, 420 F.3d I 002, 1005
(9th Cir.2005). A claimant's own statement of symptoms alone is not enough to establish a
medically determinable impairment. See 20 C.F.R. § 404.1508.
An impairment or combination of impairments is "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." Webb v. Barnhart, 433 F.3d 683,686 (9th Cir. 2005) (emphasis in original). The ALJ
is required to consider the combined effect of all of the claimant's impairments on his or her ability
to function. Ho,vard ex rel. Woljfv. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). Thus, if the
ALJ dete1mines that a claimant has a severe impairment at step two, the sequential analysis
proceeds and the ALJ must continue to consider all of the claimant's limitations, severe or not.
SSR 96-9p, 1996 WL 374184 (July 2, 1996).
Because the ALJ decided Step two in plaintiffs favor, any alleged e1Tor in failing to classify
impai1ments as severe is harmless. Buckv. Berryhill, 869 F. 3d. 1040, 1049 (9th Cir. 2017). The
ALJ continued in the sequential process considering all of plaintiffs impairments in longitudinal
record whether they were classified as severe or not. Thus, the ALJ did not commit reversable
error at Step Two.

/ II

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III.

Lay Witness Statements
Plaintiff next challenges the ALJ' s decision to give "little weight" to the third party

function report submitted by plaintiffs son, Tony L. The ALJ found that statement "seemed
merely to reiterate some of the claims subjective allegations, which were not entirely credible" and
the limitations alleged by her son "we not entirely consistent with clinical observations of medical
professionals." Tr. 32
Lay witness testimony regarding the severity of a claimant's symptoms or how impairment
affects a claimant's ability to work is competent evidence that an ALJ must consider. Nguyen v.

Chater, 100 F.3d 1462, 1467 (9 th Cir. 1996). In order to reject such testimony an ALJ must provide
"reasons that are germane to each witness." Rounds v. Comm 'r, 807 F.3d 996, 1007 (9 th Cir. 2015).
Further, the reasons provided must also be "specific." Taylor v. Comm'r ofSoc. Sec. Admin., 659
F.3d 1228, 1234 (9th Cir. 2011).
Here, the ALJ carefully considered the report and gave a germane reasons, specific to the
statement, for giving it little weight. Namely, the ALJ cited that this report was inconsistent with
the medical evidence in this case, which is a germane reason for discrediting lay testimony. Bayliss

v. Barnhart, 427 F. 3d 1211, 1218 (9th Cir. 2005) Thus, the Court finds no harmful error.
IV.

Subjective Symptom Testimony
Plaintiff next argues that the ALJ erred finding plaintiffs subjective testimony "not entirely

consistent with the medical evidence and her symptoms not severe enough to preclude all
employment." Tr. 29
When a claimant's medically documented impairments reasonably could be expected to
produce some degree of the symptoms complained of, and the record contains no affirmative
evidence of malingering, the ALJ must provide "specific, clear and convincing reasons" for

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rejecting the claimant's testimony regarding the severity of her symptoms. Lingenfelter v. Astrue,
504 F.3d 1028, 1036 (9th Cir. 2007).

A general assertion the claimant is not credible 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). The ALJ
must make findings that are sufficiently specific to permit the reviewing comi to conclude that the
ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163
(9th Cir. 2014 ). If the "ALJ' s credibility finding is suppmied by substantial evidence in the record,
[the court] may not engaged in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th
Cir. 2002).
Here the ALJ performed an extensive analysis of plaintiffs subjective symptom testimony
finding inconsistencies in the medical records and the plaintiffs own reports. An ALJ may also
consider a claimant's "reputation for tmthfulness, inconsistencies either in his testimony or
between his testimony and his conduct, his daily activities, his work record, and testimony from
physicians and third parties concerning the nature, severity, and effect of the symptoms of which
he complains." Light v. SSA, 119 F.3d 789, 792 (9th Cir. 1997).
First, the ALJ examined inconsistencies in the medical treatment record. Although
"subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated
by objective medical evidence, the medical evidence is still a relevant factor in determining the
severity of the claimant's pain and its disabling effects." Rollins v. Massanari, 261 F.3d 853, 857
(9th Cir. 2001); 20 C.F.R. § 404.1529(c)(2). The ALJ identified both positive and negative
findings as well as indications of improvement with treatment from Dr. Rice. Tr. 24-25 The ALJ
also pointed to indications in record that her symptoms were well managed with medications, and
that plaintiffs requests for higher doses of pain medication were "contraindicated." Tr. 25 The

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ALJ also noted evidence in the record that plaintiffs mental impairment symptoms seemed to be
exacerbated by situational stressors and showed improvement with "medications and cognitive
behavioral therapy techniques." Id.
The ALJ also relied on the fact that the plaintiffs activities of daily living "were not limited
to the extent one would expect giver her complains of disabling symptoms and limitations." Tr.
26. For example, plaintiff alleged that she was constantly in pain, could only sit for one or two
minutes, stand for ten or 15 seconds and walk two four minutes, Tr. 27. However, the ALJ also
reviewed evidence that plaintiff cares for herself, cooks, cleans, drives in town, drives long
distances, shops, cares for her dog and walks it twice a day, watches television, spends time with
family, goes to church on most Sundays. Tr. 26. The ALJ also noted the statement from the
consultative physician who opined that "observed function is much better than her stated function."
Tr. 27,379.
The ALJ also relied on the fact that plaintiff received unemployment benefits during the
relevant period, and plaintiff indicated in her application for unemployment benefits that she was
available and able to work. Tr. 28. These benefits lasted from her te1mination from her previous
job through August 2013. The Ninth Circuit has held that "[c]ontinued receipt of unemployment
benefits does cast doubt on a claim of disability, as it shows that an applicant holds himself out as
capable of working." Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) Further, plaintiff
testified that when she moved from Nevada to La Grande, Oregon, she applied for work in the
area, though she was not hired. The Court notes that the ALJ provided other adequate reasoning
to find plaintiffs statement not entirely credible.
The ALJ also made mention of the fact that plaintiff admitted to daily marijuana use for
chronic pain. Tr. 28. However, it does not appear that ALJ relied on this fact as the sole reason

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to find the plaintiffs statements not credible. Rather, as is detailed above and in the record, the
ALJ relied on the inconsistencies in plaintiffs own subjective reports, the medical evidence,
plaintiffs activities of daily living, and the fact that she sought out work and receive unemployment
benefits during the relevant period as reasons to discount her subjective complaints. When the
evidence in a case is subject to more than one rational inte1pretation, the Court must uphold the
ALJ' s findings "if they are supported by inferences reasonable drawn from the record." Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir.2012) (citations omitted).

Based on this record, the Court finds that the ALJ did not e1T in discrediting Plaintiffs
statements related to the intensity, persistence, and limiting effects of his symptoms. The ALJ did
not arbitrarily discredit plaintiff and provided clear and convincing reasons for disregarding
Plaintiffs testimony.
V.

Step 4 and 5 Analysis

Finally, plaintiff alleges the ALJ erred in determine that she could perform past relevant
work as Cashier II, and that the ALJ relied on an improper hypothetical to VE in her Step Five
analysis. The Court has already found that the ALJ did not e1T in her analysis of the plaintiffs
subjective symptom reports, medical opinion evidence, and the lay witness testimony. Further the
ALJ made specific factual findings that plaintiff could perform past relevant work as Cashier II
based on the medical record, plaintiff high school education and history of semi-skilled work.
Thus, the Court does not find plaintiffs reliance Zavalin v. Colvin 778 F. 3d 842 (9th Cir. 2015)
to be persuasive in this case. However, the record also supports the ALJ' s alternative findings at
Step Five, meaning that any e1Tor at Step Four is harmless.

II I
II I

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CONCLUSION

For the reasons set forth herein, the Connnissioner' s decision is AFFIRMED. Accordingly,
this case is dismissed.
IT IS SO ORDERED.

D"""1 (h;, 30th day of M,,ch'L

tlL ,__)

Ann Aiken
United States District Judge

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