Nelson v. Commissioner Social Security Administration
Filing
25
OPINION AND ORDER: The Commissioner's decision is AFFIRMED, and this case is DISMISSED. Signed on 3/31/2019 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION
JUDITHN., 1
Case No. 2:17-cv-01848-AA
OPINION AND ORDER
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
AIKEN, District Judge:
Judith N. ("Plaintiff') 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 Disability Insurance Benefits ("DIE") on September 24,
2012. For the reasons that follow, the Court AFFIRMS the Commissioner's decision.
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.
1
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BACKGROUND
Plaintiff applied for DIE on May 21, 2010. Following denials at the initial and
reconsideration levels, an administrative law judge ("ALJ") held a hearing and issued
an unfavorable decision on September 24, 2012. After the Appeals Council denied
Plaintiffs request for review, this Court set aside the ALJ's decision and remanded
the case for further proceedings. Another hearing was held and a different ALJ
issued an unfavorable decision on August 23, 2016. After the Appeals Council denied
Plaintiffs request for review of the August 2016 decision, Plaintiff timely filed a
complaint in this Court seeking review of that decision.
STANDARD OF REVIEW
42 U.S.C. § 405(g) provides for judicial review of the Social Security
Administration's disability determinations: "The court shall have power to enter ...
a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing." In reviewing
the ALJ's findings, district courts act in an appellate capacity not as the trier of fact.
Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). The district court must affirm the
ALJ's decision unless it contains legal error or lacks substantial evidentiary support.
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing Stout v. Comm'r of Soc.
Sec., 454 F.3d 1050, 1052 (9th Cir. 2006)). Harmless legal errors are not grounds for
reversal. 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
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conclusion."
Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 522 (9th Cir.
2014) (citation and internal quotation marks omitted). The complete record must be
evaluated and the evidence that supports and detracts from the ALJ's conclusion
must be weighed. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the
evidence is subject to more than one interpretation 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 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.
§ 423(d)(l)(A).
To determine whether a claimant is disabled, an ALJ is required to employ a
five-step sequential analysis, determining: "(1) whether the claimant is 'doing
substantial gainful activity'; (2) whether the claimant has a 'severe medically
determinable physical or mental impairment' or combination of impairments that has
lasted for more than 12 months; (3) whether the impairment 'meets or equals' one of
the listings in the regulations; (4) whether, given the claimant's 'residual functional
capacity,' the claimant can still do his or her 'past relevant work' and (5) whether the
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claimant 'can make an adjustment to other work."' Molina v. Astrue, 674 F.3d 1104,
1110 (9th Cir. 2012) (quoting 20 C.F.R. §§ 404.1520(a), 416.920(a)).
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since her alleged onset date through her date last insured. At step two, the
ALJ found that Plaintiff had the following severe limitations: "interstitial cystitis;
degenerative disc disease; and seizure disorder (20 CFR 404.1520(c))." Tr. 1175. At
step three, the ALJ found that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled the requirements of a listed
impairment.
The ALJ then assessed Plaintiffs residual functional capacity ("RFC"). 20
C.F.R. § 404.1520(e); § 416.920(e). The ALJ found that Plaintiff
has the [RFC] to perform a range of light work as defined in 20 CFR
404.1567(b) except she had to avoid climbing ladders, ropes, or scaffolds.
She could frequently stoop. She had to avoid all exposure to workplace
hazards, such as unprotected heights and moving machinery. She
required four unscheduled 5- minute breaks in addition to her normally
scheduled breaks. She is limited to work environments that provide
close proximity to a restroom.
Tr. 1177. At step four, the ALJ found that Plaintiff was capable of performing past
relevant work as a secretary. Accordingly, the ALJ found that Plaintiff was not
disabled under the Act.
DISCUSSION
There are two issues before me: (i) whether the ALJ erred in finding that
Plaintiff could do past relevant work and in his assessment of her RFC, and (ii)
whether the ALJ erred in his assessment of Plaintiffs symptom allegations.
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I.
Plaintiff's Past Relevant Work
Plaintiff argues that the ALJ erred in determining that she could do her past
relevant work with accommodations and in his assessment of her RFC.
For the
reasons below, I disagree.
An individual's residual functional capacity is the maximum a claimant can
engage in given her impairments and limitations. 20 C.F.R. § 404.1545; SSR 96-8p,
available at 1996 WL 374184.
The ALJ is "responsible for translating and
incorporating clinical findings into a succinct" residual functional capacity. Rounds
v. Comm'r Soc. Sec., 807 F.3d 996, 1006 (9th Cir. 2015). Neither a doctor's opinion
nor Plaintiffs testimony is conclusive on this issue; the ALJ is responsible for
determining a claimant's residual functional capacity. 20 C.F.R. § 404.1546. And an
ALJ is entitled to rely on a vocational expert's recognized expertise, which provides
the necessary foundation for their testimony. Bayliss v. Barnhart, 427 F.3d 1211,
1218 (9th Cir. 2005). The "claimant has the burden to prove that he cannot perform
his prior relevant work either as actually performed or as generally performed in the
national economy." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th
Cir. 2008).
Here, the ALJ found that Plaintiff was capable of performing past relevant
work as an administrative assistant at either a sedentary or light level-albeit with
at least seven five-minute breaks. Plaintiff characterizes her need for more breaks
as an accommodation and argues that she would not be able to do her previous work
because normal employment would only allow for three breaks. Plaintiff further
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argues that she may need to take her breaks in one large chunk, which she implies
would be unacceptable to an employer. But the vocational expert testified that an
individual could take four five-minute breaks in addition to normally scheduled
breaks and noted this translated to being off-task less than 15% of the day, which
was within the bounds of acceptability for an employer. While Plaintiff characterizes
this as an accommodation that cannot be considered in assessing a claimant's ability
to engage in past relevant work, the vocational expert's testimony makes clear that
employers are unlikely to see it this way. The ALJ reasonably relied on the vocational
expert's testimony and thus did not commit error. See Bayliss, 427 F.3d at 1218.
Finally, Plaintiff states that the ALJ cannot simply summarize the evidence
and then find it consistent with his RFC. But as Rounds v. Comm 'r Soc. Sec. explains,
it is precisely the job of the ALJ to formulate an RFC consistent with the medical
record. 807 F.3d at 1006. Thus, the ALJ did not err in his assessment of the RFC.
II.
Plaintiff's Symptom Allegations
Plaintiff further argues that the ALJ did not properly assess her symptom
allegations. I disagree.
An ALJ can only reject the claimant's testimony if he provides clear and
convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007).
The ALJ must identify "what testimony is not credible and what evidence undermines
the claimant's complaints." Id. "[I]f a claimant complains about disabling pain but
fails to seek treatment, or fails to follow prescribed treatment, for the pain, an ALJ
may use such failure as a basis for finding the complaint unjustified or exaggerated."
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Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012). The amount of treatment is
"an important indicator of the intensity and persistence" of a claimant's symptoms.
20 C.F.R. § 404.1529(c)(3).
Here, the ALJ gave clear and convincing reasons for discounting Plaintiffs
symptom allegations. Plaintiff argues that the ALJ erred by requiring corroboration
of her back-pain complaints. But Plaintiff is mistaken. The ALJ found that her
symptoms had improved after physical therapy and that she had reported good
symptomatic relief. In fact, shortly before her date last insured, Plaintiff had met all
of her physical therapy goals and was planning to attend a workout regimen at a local
Curves facility and reported being pleased with her progress. These are valid reasons
to discount Plaintiffs symptom allegations.
Plaintiff also argues that the ALJ engaged in sub silentio rejection of Plaintiff's
testimony. But the record is replete with reasons by the ALJ. For example, the ALJ
noted that when Plaintiff visited a doctor approximately four months after the alleged
disability onset date, the doctor only endorsed some of her symptoms and generally
found that she was doing well with regard to her main complaint of interstitial
cystitis. The ALJ also found that the lack of contemporaneous medical evidence
undermined her claims of disability.
There is no evidence that Plaintiff sought
medical care, such as emergency medical services, on or around the alleged onset date
of disability in August 2001. And the records that did pertain to the relevant period
lacked reference to a debilitating health condition. Thus, the ALJ provided specific
reasons for discounting Plaintiffs allegations.
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Plaintiff further argues that the ALJ erred in using her activities of daily living
to discount her testimony. As I understand her argument, Plaintiff takes issue with
the ALJ's failure to inquire about whether Plaintiff's activities of daily living took up
a substantial portion of her day and whether her skills were transferable to her
workplace. But the ALJ is not required to make such an inquiry. A claimant's
activities of daily living can be used to discredit a claimant in two ways: Either the
activities can contradict the claimant's other testimony, or the activities can meet the
threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.
2007).
The ALJ simply noted that Plaintiff engaged in many activities that
contradicted her symptom allegations. For example, despite complaining of back pain
she had no trouble completing meals, performing light household chores, g01ng
outside almost every day, shopping, attending church weekly, and driving a car
independently. She also testified that her chronic health problems did not preclude
extended trips in a car or airplane. Thus, there is no evidence that the ALJ erred in
his assessment.
The main problem with Plaintiff's argument is that she largely takes issue
with the ALJ's interpretation of the record rather than explaining why the ALJ's
interpretation lacks substantial support. But even where evidence of "daily activities
may also admit of an interpretation more favorable" to a claimant, the Court "must
uphold the ALJ's decision where the evidence is susceptible to more than one rational
interpretation." Burch, 400 F.3d at 680-81. The "key question is not whether there
is substantial evidence that could support a finding of disability, but whether there
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is substantial evidence to support the Commissioner's actual finding that claimant is
not disabled." Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). Because I
find that the ALJ's decision is supported by substantial evidence, the ALJ did not err.
CONCLUSION
Accordingly, the Commissioner's decision is AFFIRMED, and this case 1s
DISMISSED.
IT IS SO ORDERED.
l 1<;r
Dated this _Y~ day of March, 2019.
L~0
Ann Aiken
United States District Judge
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