Jackson v. Commissioner Social Security Administration
Filing
20
OPINION AND ORDER. Signed on 5/19/2011 by Judge Garr M. King. (pc)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
KENNETH R. JACKSON,
Civil Case No. 09-6340-KI
Plaintiff,
OPINION AND ORDER
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Kathryn Tassinari
Drew L. Johnson, P.C.
1700 Valley River Drive, First Floor
Eugene, Oregon 97401
Attorney for Plaintiff
Dwight C. Holton
United States Attorney
District of Oregon
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Adrian L. Brown
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
Jordan D. Goddard
Social Sercurity Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant
KING, Judge:
Plaintiff Kenneth Jackson brings this action pursuant to section 205(g) of the Social
Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the
Commissioner denying plaintiff’s application for disability insurance benefits (“DIB”) and
supplemental security income benefits (“SSI”). I affirm the decision of the Commissioner.
BACKGROUND
Jackson filed applications for DIB and SSI on February 25, 2005. The applications were
denied initially and upon reconsideration. After a timely request for a hearing, Jackson,
represented by counsel, appeared and testified before an Administrative Law Judge (“ALJ”) on
September 20, 2007.
On September 28, 2007, the ALJ issued a decision finding that Jackson was not disabled
within the meaning of the Act and therefore not entitled to benefits. This decision became the
final decision of the Commissioner when the Appeals Council declined to review the decision of
the ALJ on October 9, 2009.
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DISABILITY ANALYSIS
The Social Security Act (the “Act”) provides for payment of disability insurance benefits
to people who have contributed to the Social Security program and who suffer from a physical or
mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security
income benefits may be available to individuals who are age 65 or over, blind, or disabled, but
who do not have insured status under the Act. 42 U.S.C. § 1382(a).
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
cause death or to last for a continuous period of at least twelve months. 42 U.S.C.
§§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will be determined to be disabled only if his
physical or mental impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) and
1382c(a)(3)(B).
The Commissioner has established a five-step sequential evaluation process for
determining if a person is eligible for either DIB or SSI due to disability. The evaluation is
carried out by the ALJ. The claimant has the burden of proof on the first four steps. Parra v.
Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 128 S. Ct. 1068 (2008); 20 C.F.R. §§
404.1520 and 416.920. First, the ALJ determines whether the claimant is engaged in “substantial
gainful activity.” If the claimant is engaged in such activity, disability benefits are denied.
Otherwise, the ALJ proceeds to step two and determines whether the claimant has a medically
severe impairment or combination of impairments. A severe impairment is one “which
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significantly limits [the claimant’s] physical or mental ability to do basic work activities.” 20
C.F.R. §§ 404.1520(c) and 416.920(c). If the claimant does not have a severe impairment or
combination of impairments, disability benefits are denied.
If the impairment is severe, the ALJ proceeds to the third step to determine whether the
impairment is equivalent to one of a number of listed impairments that the Commissioner
acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d)
and 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is
conclusively presumed to be disabled. If the impairment is not one that is presumed to be
disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the
claimant from performing work which the claimant performed in the past. If the claimant is able
to perform work she performed in the past, a finding of “not disabled” is made and disability
benefits are denied. 20 C.F.R. §§ 404.1520(e) and 416.920(e).
If the claimant is unable to perform work performed in the past, the ALJ proceeds to the
fifth and final step to determine if the claimant can perform other work in the national economy
in light of his age, education, and work experience. The burden shifts to the Commissioner to
show what gainful work activities are within the claimant’s capabilities. Parra, 481 F.3d at 746.
The claimant is entitled to disability benefits only if he is not able to perform other work. 20
C.F.R. §§ 404.1520(f) and 416.920(f).
STANDARD OF REVIEW
The court must affirm a denial of benefits if the denial is supported by substantial
evidence and is based on correct legal standards. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1
(9th Cir. 2005). Substantial evidence is more than a “mere scintilla” of the evidence but less than
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a preponderance. Id. “[T]he Commissioner’s findings are upheld if supported by inferences
reasonably drawn from the record, and if evidence exists to support more than one rational
interpretation, we must defer to the Commissioner’s decision.” Batson v. Comm’r of Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (internal citations omitted).
THE ALJ’S DECISION
The ALJ found Jackson suffered from degenerative disc disease of the lumbar spine. He
did not believe, however, that Jackson’s depression, psoriasis, vision impairment, hepatitis C, or
tendonitis were severe impairments because Jackson did not show how any symptoms caused by
those impairments affected his ability to work. The ALJ found Jackson’s depression to be
situational, without imposing any limitations lasting longer than 12 months. The ALJ also found
Jackson’s degenerative disc disease was not severe enough to meet or medically equal the
requirements of any of the impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1.
The ALJ concluded Jackson had the ability to perform light work with the option to sit or
stand, and only occasional stooping, crawling, overhead reaching, or climbing ropes or scaffolds.
As a result, Jackson could not perform his past work, but the ALJ believed Jackson could
perform work as an optical goods worker, electronics assembler, printed products assembler,
small products assembler, and small parts salvager.
FACTS
Jackson alleges disability beginning July 11, 2003, arising from an incident at work. He
lost his balance, caught his foot and twisted his right ankle and knee as he was pulling wood out
of a machine at a veneer plant. He left for vacation on a camping trip with his family as he had
planned and found that the pain began improving. However, two days after returning to work he
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began to experience pain around the lumbar spine, radiating into the right sacroiliac area and
down the posterior thigh. When plaintiff saw Gerald Barker, M.D., on July 24, 2003, Jackson
reported pain and instability in his knee, and some pain in the calf and ankle. Dr. Barker tested
plaintiff and found straight leg raising was negative, but Jackson was in pain while moving his
right leg back and hyper-extending his hip caused pain down the leg. Dr. Barker diagnosed
lumbar strain, with a somewhat atypical presentation, and relieved Jackson of work for three
days.
When Jackson returned to Dr. Barker four days later he was slightly improved, but still
felt like his back was slipping out and the pain was worse with twisting. Dr. Barker gave him
another week off work and referred him to physical therapy.
Physical therapy in August 2003 caused discomfort down his left leg. Dr. Barker found
tenderness in Jackson’s lumbar area, but straight leg raising was negative except for pain
radiating into the left gluteal region. He had a fairly normal gait. Jackson reported feeling
depressed a week later, and Dr. Barker prescribed Zoloft. Dr. Barker excused him from work for
two weeks.
In late August, Jackson told Dr. Barker about a little weakness in his right knee and a
feeling of giving way. Dr. Barker found radiative pain into the right gluteal region, but negative
straight leg raising and a normal gait. Jackson remained off work another two weeks.
A lumbar x-ray showed minimal degenerative changes, including osteophytosis involving
the superior and anterior end plate of L4 and T12-L1, as well as early spondylitic changes
involving the vertebral body end plates.
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Jackson continued to see Dr. Barker throughout 2003 and Jackson remained off work.
An MRI showed a mild ventral disc bulge in the midline at L5-S1, a minimal disc bulge at L4-5,
and an early minimal disc bulge at L3-4. There was no significant protrusion or spinal stenosis.
Dr. Barker referred Jackson to a spine specialist.
Richard Arbeene, M.D., an orthopedic surgeon, evaluated Jackson at the request of the
workers’ compensation carrier in July 2003. Dr. Arbeene found Jackson exhibited considerable
pain behavior–complaining about lower back pain just after being weighed on the scale, for
example–and that he had a markedly antalgic gait.1 He was unable to stand up straight and
tended to list forward onto his left leg. When Dr. Arbeene compressed and retracted Jackson’s
head and neck, Jackson experienced lower back pain. Dr. Arbeene mentioned an emergency
room evaluation in May 2003, during which Jackson complained about lower back pain, but
Jackson did not remember that visit. He said that he saw Dr. Barker in 2002 for a lower back
problem, but recalled his visit was primarily to address a hernia. Dr. Arbeene raised concerns
that the current symptoms were merely an exacerbation of those earlier issues, commenting that
Jackson was “quite vague about other aspects of that potential pre-existing history.” Tr. 258. Dr.
Arbeene did not feel he could make a diagnosis without those past records or current films given
Jackson “markedly functional presentation today” and did not recommend any work restrictions.
1
“Antalgic gait” means “[a] limp in which a phase of the gait is shortened on the injured
side to alleviate the pain experienced when bearing weight on that side.” The American Heritage
Stedman’s Medical Dictionary, http://dictionary.reference.com/browse/antalgic gait (last visited
May 16, 2011).
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In fact, Jackson had experienced previous back pain. In April 2002, Jackson began
experiencing back pain radiating down his right leg after lifting and carrying large wood sheets at
his job. At that time, Dr. Barker had diagnosed mechanical low back pain and sciatica.
Dr. Barker responded to Dr. Arbeene’s report, noting that:
The patient had minor insignificant back problems, it seems, prior to this injury
and he seems to have significant pain and discomfort limiting his ability to walk,
stand, and bend and lift and do work. At this point, his pain and his gait
abnormality are severe to the point where he is completely unable to work[.]
Tr. 290.
In November 2003, Michael E. Karasek, M.D., a neurologist and pain management
physician, evaluated Jackson. Jackson was positive for straight leg raising at five degrees on the
right and ten degrees on the left, with low back pain. Dr. Karasek did not believe Jackson was
weak in the right leg, although Jackson displayed give-way weakness. He diagnosed possible
internal disc disruption (“IDD”) with secondary radiculalgia. Dr. Karasek performed an L5
transforaminal epidural steroid. Jackson reported that the injection resolved about 50% of the
pain.
Dr. Karasek performed a second injection in December 2003, which relieved about 44%
of Jackson’s pain. A week later, Jackson reported that the radicular pain in the right leg was
almost completely gone, but pain in the left leg had increased. A few days later, Jackson told Dr.
Karasek that he still experienced low back pain with radiation down the right leg in the L5
distribution. Jackson had positive straight leg raising bilaterally and give-way weakness in the
right leg. Dr. Karasek recommended a surgical consultation and a referral for chronic pain
management as he believed Jackson had IDD at L5-S1 with secondary L5 or S1 radiculalgia.
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A neurosurgeon named Robert Hacker, M.D., evaluated Jackson in February 2004, noting
Jackson walked slowly and had limited range of motion. He found hypesthesia (abnormally
decreased sensitivity) in the L5 distribution on the left. Jackson complained of low back pain,
radiating into his right side, but also on the left into the thigh and calf, as well as decreased
bladder/bowel control and sexual function. A subsequent MRI showed an annular fissure at the
L4-5 level, unchanged from a previous study.
Dr. Barker wrote the insurance carrier in May 2004 that Jackson “will not improve and
that he is permanently and completely disabled from work.” Tr. 150.
Dr. Barker treated Jackson with Percocet, Neurontin, and Flexeril throughout 2004,
noting stiffness, abnormal gait, weakness in the legs, and positive straight leg raising bilaterally.
Dr. Barker requested a referral to a pain specialist and job retraining because he thought it
“unlikely that [Jackson] will be able to [do] the kind of work that he was doing[.]” Tr. 135. The
workers’ compensation carrier denied the request. Dr. Barker continued to recommend that
Jackson stay off work.
Kurt Brewster, M.D., an Internal Medicine Consultant, evaluated Jackson in April 2005
and found “there is evidence the claimant has chronic pain consistent with radiculopathy despite
negative work up.” Tr. 157. Dr. Brewster explained that the psoriasis could exacerbate joint
pain. Jackson reported to Dr. Brewster he could stand eight hours per day and walk for 45
minutes a day, but Dr. Brewster thought Jackson was “overestimating his actual capacity.” Tr.
158. He limited Jackson to standing and walking six hours in an eight-hour day, limited walking
to no more than 30 minutes a day, and limited sitting to six hours with position changes. He
limited lifting/carrying to a maximum of ten pounds, and limited Jackson to occasionally bending
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at the waist, crawling, stooping and working at heights. He thought Jackson’s cane was
medically necessary.
In June 2005, Jackson’s counsel showed Dr. Barker a videotape, taken by Jackson’s
workers’ compensation carrier. In the video, Jackson moved easily, seemed to have less pain,
and walked briskly with a cane and a limp. Dr. Barker asked Jackson about the video at the July
15 visit. Jackson explained that some days are better than others, and that he does walk. Dr.
Barker had him walk up and down the hall and noted he “walked with really quite an abnormal
gait.” Tr. 214. Dr. Barker did not believe Jackson would be able to work on a sustained basis,
eight hours a day.
In July 2005, Dr. Barker diagnosed Jackson with lumbar radiculopathy based on physical
examinations and spine specialist consultations. In December 2005, Dr. Barker wrote the Social
Security Administration that Jackson was “completely disabled from work” due to back pain. Tr.
189. In August 2006, Dr. Barker diagnosed Jackson with severe degenerative disc disease,
chronic pain syndrome, and marked severe depression. In August 2007, Dr. Barker repeated his
opinion, for purposes of Jackson’s disability application, that Jackson could not work an eighthour day, and that he would miss more than two days of work per month, due to lumbrosacral
disc disease.
Jackson first reported feeling depressed to Dr. Barker in August 2003, at which time he
started a prescription of Zoloft. He again reported depression to Dr. Barker in August 2004.
South Lane Mental Health evaluated Jackson for depression and anxiety in May 2005. He
described losing his house, living in a motel with his two teenage children and wife, and missing
being productive. He reported walking for recreation and doing the housework because his wife
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worked. He obsessed about his problems, including his pain, injury, and finances, and is “clearly
depressed.” Tr. 247. He had not been depressed prior to his injury. He was diagnosed with
major depression severe without psychosis due to a general medical condition, severe back pain.
In September 2005, Dr. Barker commented that Jackson was “definitely depressed.” Tr. 211.
At the time of the hearing, Jackson was 48 years old.
DISCUSSION
Jackson challenges the ALJ’s decision on four fronts: he argues the ALJ erred in
evaluating his credibility; erred in evaluating Dr. Barker’s opinions; erred in considering Dr.
Brewster’s opinion; and failed to adequately consider Jackson’s depression.
I.
Jackson’s Credibility
Jackson testified he could not perform work other than his past work because he felt he
could not sit very long, stand very long, he had cramping in his leg, tendonitis kept him from
doing repetitive tasks, and he needed to lie down when he felt like it.
When deciding whether to accept the subjective symptom testimony of a claimant, the
ALJ must perform a two-stage analysis. In the first stage, the claimant must produce objective
medical evidence of one or more impairments which could reasonably be expected to produce
some degree of symptom. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The
claimant is not required to show that the impairment could reasonably be expected to cause the
severity of the symptom, but only to show that it could reasonably have caused some degree of
the symptom. In the second stage of the analysis, the ALJ must assess the credibility of the
claimant’s testimony regarding the severity of the symptoms. Id. The ALJ “must specifically
identify the testimony she or he finds not to be credible and must explain what evidence
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undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). General
findings are insufficient to support an adverse credibility determination and the ALJ must rely on
substantial evidence. Id. “[U]nless an ALJ makes a finding of malingering based on affirmative
evidence thereof, he or she may only find an applicant not credible by making specific findings
as to credibility and stating clear and convincing reasons for each.” Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 883 (9th Cir. 2006).
The ALJ concluded Jackson was not entirely credible in his reports about the intensity,
persistence and effects of his symptoms. The ALJ pointed to Jackson’s vagueness about a
previous back injury in the July 2003 workers’ compensation proceedings, the videotape
illustrating Jackson’s physical abilities, Jackson’s activities of daily living, lack of objective
support for Jackson’s allegations of pain, his conservative treatment, and his pain behavior.
These are all clear and convincing reasons to find Jackson’s testimony somewhat unreliable.
Jackson argues that the ALJ was wrong to conclude he “conceal[ed] a prior back
complaint” in making his workers’ compensation claim. Tr. 18. Jackson infers from this
statement the ALJ was referring to Dr. Arbeene’s comment that Jackson had “denied a number of
prior evaluations with respect to his lower back and right lower extremity predating July 11,
2003.” Tr. 258. Specifically, Dr. Arbeene asked Jackson about whether he had experienced
lower back pain prior to the July 2003 incident. Jackson “had no recollection of an emergency
room evaluation regarding these symptoms in May 2003,” just two months before the July work
incident. Tr. 253. According to Dr. Arbeene, after the work injury, reference was made in the
July 2003 emergency room report of a “history of lower back pain and right sided sciatica and
left arm concerns and evaluation of these same complaints from an emergency room evaluation
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in May 2003.” Tr. 254. According to Dr. Arbeene, the document described the July incident as
causing “increased right lower back pain (meaning that he had already experienced low back pain
prior to the incident).” Id. Jackson did inform Dr. Arbeene that he had sought treatment from
Dr. Barker in 2002 regarding lower back and right leg pain, “but his recollection was that he had
primarily seen Dr. Barker in 2002 regarding a possible hernia problem.” Id.
Jackson points out neither of the two emergency room reports–the May or July 2003–are
in the record. Jackson “submits he did not misrepresent his prior back treatment.” Pl.’s Opening
Mem. 13. Dr. Barker treated Jackson in April 15, 2002 for “sciatica with pain radiating down his
right leg.” Tr. 309. At that point, Dr. Barker commented that he reviewed Jackson’s emergency
room records and noted that Jackson worked in a veneer plant using his back frequently. On
evaluation, Jackson had “some pain in the right sciatic notch but this is not severe.” Id. Jackson
complained about back pain again in a visit to Dr. Barker on April 29, 2002, and again on May
13, 2002, and Dr. Barker described Jackson’s back pain as “chronic.” Tr. 306.
The ALJ’s conclusion that Jackson’s work claim was denied because he was less than
candid about a previous back complaint is supported by substantial evidence in the record and is
an appropriate factor to consider in a credibility evaluation. See Holohan, 246 F.3d at 1201 (if
evidence supports either outcome, court may not substitute its judgment). Dr. Arbeene
commented that he found Jackson’s responses to his questions about previous injuries to be
“vague.” Tr. 254. Jackson told Dr. Arbeene he typically experienced “pain in his lower back and
in his right leg at the end of his working days” before the July 2003 incident. Tr. 254. In 2002,
however, Dr. Barker noted Jackson’s two-month history of back pain, a previous visit to the
emergency room for treatment, and characterized the pain as “chronic.” Substantial evidence
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supports the ALJ’s interpretation of the evidence that Jackson was not entirely forthcoming about
his previous back condition.
Additionally, the ALJ noted Jackson’s workers’ compensation claim was denied in part
because right after Jackson injured himself, and before obtaining treatment for his back pain, he
went on a week-long camping trip.
With respect to the videotape, the ALJ commented that Jackson was caught “performing
physical activities well in excess of his reports to his primary care physician[.]” Tr. 18. Dr.
Barker described the video as follows:
My impression of the video was that the patient seems to move quite a bit more
freely at home than in the office. He seems to be having less pain. He walks
rather briskly. He does have a limp and does use his cane, but his symptoms seem
quite a bit worse when he is here in the office.
Tr. 216. It is true Dr. Barker was persuaded by a subsequent visit with Jackson during which
Jackson explained he had some good days and some bad. Jackson walked up and down the hall
with an abnormal gait, but was very cooperative and willing to walk as far as Dr. Barker wanted
him to. Nevertheless, the ALJ could properly consider this evidence in a different light from the
way Dr. Barker perceived it. Just eight days before Dr. Barker watched the video, Jackson had
been complaining to Dr. Barker about his “considerable pain” and his need to “increase his pain
medication[.]” Tr. 217. The ALJ considered the video as evidence that Jackson was
“performing physical activities well in excess of his reports” to Dr. Barker and this conclusion is
supported by the record. Tr. 18; see Holohan, 246 F.3d at 1201 (court may not substitute its
judgment if evidence supports ALJ’s conclusion).
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The ALJ commented that physicians had noticed Jackson’s exaggerated pain behavior. A
tendency to exaggerate symptoms is another valid reason to support a negative credibility
finding. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). The ALJ found Jackson’s
credibility suspect when he presented to Dr. Barker in August 2003 with a normal gait, but to
independent medical examiner Dr. Arbeene the very next month with a markedly antalgic gait.
Dr. Arbeene believed Jackson was exaggerating his symptoms; he commented Jackson exhibited
“considerable pain behavior” and was “complaining of lower back pain after simply being
weighed on our scale here today.” Tr. 256.
In addition, Dr. Arbeene found that he “could not identify any muscle weakness in
[Jackson’s] lower extremities, but he had markedly functional response to muscle testing with
give way weakness in his lower extremities.” Tr. 258. Dr. Karasek similarly found give way
weakness in Jackson’s right leg, but then said, “I do not believe he is truly weak.” Tr. 277. The
MRI showed “no dramatic involvement.” Id. Dr. Karasek recommended an epidural steroid.
Jackson takes issue with the ALJ’s suggestion that “give way” weakness is an indicator of an
invalid test result. Tr. 19. Jackson argues that it could simply mean inconsistent weakness, and
results could differ based on the examiner’s interpretation. Dr. Barker seemed to think that
Jackson had “shown some changes in muscle strength in different groups at different times; and,
I think that this is due to some apprehension that he has in regards to certain maneuvers causing
him more pain.” Tr. 143. Despite Dr. Barker’s perception of Jackson’s weakness, the ALJ’s
reading of at least Dr. Arbeene’s report as reflecting Jackson’s exaggerating tendencies is
supported by substantial evidence in the record.
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Jackson suggests the ALJ’s conclusion is contrary to the view of Dr. Brewster, who found
“there is evidence the claimant has chronic pain consistent with radiculopathy despite negative
work up.” Tr. 157. Dr. Brewster commented that Jackson had a limp and his cane was wellused. The problem with Jackson’s argument, however, is that Dr. Brewster concluded Jackson
could work. He concluded Jackson could stand about six hours in an eight-hour day, could walk
no more than 30 minutes a day, and could sit six hours with position changes as needed.
Accordingly, the ALJ’s conclusion that Jackson’s “statements concerning the intensity,
persistence, and limiting effects of these symptoms are not entirely credible” is not undermined
by Dr. Brewster’s observations.
The ALJ pointed out Jackson obtained only minimal treatment, such as pain medication,
and had not been recommended for surgery. Jackson’s description of the work incident as a
“severe” injury was not consistent with this medical evidence. Rollins v. Massanari, 261 F.3d
853, 857 (9th Cir. 2001) (although the ALJ cannot reject subjective pain testimony solely because
it was not fully corroborated by objective medical evidence, medical evidence is still a relevant
factor in determining the severity of the pain and its disabling effects).
Jackson’s reports of daily activities included caring for his children and grandchildren.
He showed up at one appointment with the kids explaining that he had to walk to the
appointment because his ride did not show up. Rollins, 261 F.3d at 857 (caring for children may
be inconsistent with reports of pain). His sister wrote that Jackson had no trouble caring for
himself, preparing meals, going grocery shopping, and doing the dishes and laundry.
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Finally, Jackson had not attempted to find work or vocational rehabilitation. Jackson
points out that Dr. Barker instructed him not to return to work, but Dr. Barker also specifically
suggested “work retraining” for him, which Jackson never pursued. Tr. 287.
In sum, the ALJ gave clear and convincing reasons, supported by substantial evidence in
the record, to find Jackson’s testimony about his limitations not entitled to great weight.
II.
The ALJ’s Evaluation of the Medical Evidence
Jackson challenges the way in which the ALJ dealt with the opinions of Dr. Barker and
Dr. Brewster.
The weight given to the opinion of a physician depends on whether the physician is a
treating physician, an examining physician, or a nonexamining physician. More weight is given
to the opinion of a treating physician because the person has a greater opportunity to know and
observe the patient as an individual. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). If a
treating or examining physician’s opinion is not contradicted by another physician, the ALJ may
only reject it for clear and convincing reasons. Id. (treating physician); Widmark v. Barnhart,
454 F.3d 1063, 1067 (9th Cir. 2006) (examining physician). Even if it is contradicted by another
physician, the ALJ may not reject the opinion without providing specific and legitimate reasons
supported by substantial evidence in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at
1066. The opinion of a nonexamining physician, by itself, is insufficient to constitute substantial
evidence to reject the opinion of a treating or examining physician. Widmark, 454 F.3d at 1066
n.2.
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A.
Dr. Barker
The ALJ recognized that Dr. Barker believed Jackson was “totally disabled” and “unable
to sustain work activity,” tr. 18, but found that these statements were not supported by objective
evidence or diagnostic studies. The ALJ also commented on the failure of Dr. Barker to identify
Jackson’s functional limitations, and his failure to reevaluate his opinions given the videotape
showing Jackson “briskly” walking. Id. Dr. Barker’s notes also repeatedly referred to “negative”
straight leg raising and “some” tenderness, although his treatment notes do not reflect any
measurements. Id. The ALJ also believed Dr. Barker’s report of “bilateral lower leg weakness”
was inconsistent with a later opinion of satisfactory motor strength. Id.
Jackson asserts that Dr. Barker’s opinion was based on his physical examinations,
imaging results, and the opinions of Dr. Hacker and Dr. Karasek. As for Dr. Barker’s purported
failure to provide functional limitations, Jackson argues Dr. Barker’s opinion was uncontroverted
and it may only be rejected with clear and convincing reasons.
As an initial matter, Dr. Barker’s opinion was not uncontroverted as examining physician
Dr. Arbeene concluded that due to Jackson’s “markedly functional presentation today” he was
unwilling to “offer any specific musculoskeletal diagnoses referral to his lower back or to his
right lower extremity.” Tr. 257. He separately opined, “I cannot identify an objective basis from
which to conclude that [Jackson] is not capable of regular work.” Tr. 259. Accordingly, the ALJ
needed only to give specific and legitimate reasons supported by substantial evidence in the
record to find Dr. Barker’s opinion unconvincing.
The ALJ rejected Dr. Barker’s opinion for the reasons set forth above, and these are
specific and legitimate reasons supported by substantial evidence in the record. See McLeod v.
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Astrue, 634 F.3d 516, 520 (9th Cir. 2011) (treating physician not qualified to offer opinion on
disability); Batson, 359 F.3d at 1195 (an ALJ is not required to accept the opinion of a
physician, even a treating physician, if the opinion is “brief, conclusory, and inadequately
supported by clinical findings”); Bayliss, 427 F.3d at 1216 (medical opinion contradicted by
notes).
B.
Dr. Brewster
The ALJ gave “less weight” to Dr. Brewster’s opinion “to the extent it is inconsistent
with [the RFC developed by the ALJ] and to the extent it is based on the claimant’s animated
presentation, which is not fully supported by the objective findings.” Tr. 20. Specifically, the
ALJ found plaintiff could lift more than ten pounds and could walk more than 30 minutes a day.
Jackson complains the ALJ did not discuss Dr. Brewster’s opinion that “there is evidence
the claimant has chronic pain consistent with radiculopathy despite negative work-up.” Tr. 157.
Jackson had a marked limp, his cane was well-used, and Jackson’s thighs were atrophied from
disuse. Dr. Brewster specifically found Jackson to be credible. Tr. 158. I underscore, however,
that Dr. Brewster opined Jackson could work despite these observations about Jackson’s pain.
A physician’s opinion may be rejected if it is “based to a large extent on a claimant’s selfreports that have been properly discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 1035,
1041 (9th Cir. 2008). As set forth above, the ALJ properly considered Jackson’s credibility, and
assessed Dr. Brewster’s opinion accordingly.
Furthermore, I do not see that the ALJ’s opinion is affected by his statement that he
treated Dr. Brewster’s opinion with “less weight.” The VE identified several jobs that complied
with Dr. Brewster’s opinion as to Jackson’s functional limitations, including optical goods
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worker, assembler of printed products, and electronic assembly. All three jobs offered a sit/stand
option, with the limitations on walking and weight-lifting identified by Dr. Brewster. The ALJ
accepted the VE’s testimony with respect to these jobs, which would be a representative
sampling of the work a person with Jackson’s RFC could perform in the national economy.
Accordingly, if the ALJ failed to properly evaluate Dr. Brewster’s opinion, which I do not
believe, such a failure was harmless.
III.
Depression
Jackson argues that the ALJ erred in his conclusion that Jackson had “situational”
depression without recognizing the severity of the disease. Tr. 16. The ALJ concluded that
Jackson did not demonstrate symptoms or limitations lasting or expected to last a consecutive 12
month period.
A medically determinable impairment must be established through signs, symptoms, and
medically acceptable clinical or laboratory findings but under no circumstances can be
established through symptoms, namely the individual’s own perception of the impact of the
impairment, alone. Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). An impairment is
“medically severe” if it “significantly limits [a claimant’s] physical or mental ability to do basic
work activities.” 20 C.F.R. § 404.1520(c); 416.920(c).
Jackson points out that he has been complaining of depression since at least August 2004,
and he reported varying degrees of depression through September 2005; he argues this is a full
year of symptoms and that the depression is “likely affecting his ability to work.” Pl.’s Reply 8.
Jackson sought counseling over the course of several sessions from May 2005 to August
2005 and received no further counseling after that time. Paul Rethinger, Ph.D., evaluated
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Jackson’s records and concluded any depression was not severe; he found no evidence of
decompensations, no evidence that any depression limited Jackson’s activities of daily living, or
affected his ability to function socially. He found it had only mild effects on Jackson’s ability to
maintain concentration, persistence or pace. Tr. 160-172. Bill Hennings, Ph.D., affirmed Dr.
Rethinger’s opinion. Dr. Barker never referenced any depression in discussing Jackson’s back
condition in relation to Jackson’s workers’ compensation claim or his social security
applications.
There is substantial evidence for the ALJ to conclude that Jackson’s depression did not
significantly limit his ability to work.
IV.
Supplementation of the Record
Finally, Jackson argues the ALJ erred in failing to develop the record regarding Jackson’s
depression and that the ALJ should have ordered a psychological examination.
The ALJ must supplement the record if: (1) there is ambiguous evidence; (2) the ALJ
finds that the record is inadequate; or (3) the ALJ relies on an expert’s conclusion that the
evidence is ambiguous. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The
supplementation can include subpoenaing the claimant’s physicians, submitting questions to the
claimant’s physicians, continuing the hearing, or keeping the record open after the hearing to
allow the record to be supplemented. Tonapetyan, 242 F.3d at 1150.
None of these criteria are met here. There was no question Jackson suffered from
depression, a medically determinable impairment. Any questions about the limiting effects on
Jackson’s ability to work were answered by the available records. The ALJ had Jackson’s
counseling records, and they had been considered by Dr. Hennings, but they were insufficient to
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persuade either the doctor or the ALJ that Jackson’s depression imposed any functional
limitations on him. The ALJ did not err.
V.
Vocational Hypothetical
Jackson asserts the ALJ’s conclusion that Jackson can perform other work in the national
economy is not supported by substantial evidence. According to Jackson, Dr. Barker’s opinion
should be credited, and so should Jackson’s own testimony that he needs to lie down for an hour
or two twice a day to relieve his pain.
The vocational expert’s opinion about a claimant’s residual functional capacity has no
value if the assumptions in the hypothetical are not supported by medical evidence in the record.
Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). However,
[t]he ALJ is not bound to accept as true the restrictions presented in a hypothetical
question propounded by a claimant’s counsel. Rather, the ALJ is free to accept or
reject these restrictions . . . as long as they are supported by substantial evidence.
This is true even where there is conflicting medical evidence. The limitation of
evidence in a hypothetical question is objectionable only if the assumed facts
could not be supported by the record.
Id. at 756-57 (citations and quotations omitted).
The ALJ’s limitations are supported by substantial evidence in the record and, therefore,
his conclusion that Jackson can perform other work in the national economy is not in error.
///
///
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CONCLUSION
The findings of the Commissioner are based upon substantial evidence in the record and
the correct legal standards. For these reasons, the court affirms the decision of the
Commissioner.
IT IS SO ORDERED.
Dated this
19th
day of May, 2011.
/s/ Garr M. King
Garr M. King
United States District Judge
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