Trelle v. Commissioner of Social Security
Filing
20
OPINION and ORDER - For the reasons stated, the Commissioner's decision is AFFIRMED. IT IS SO ORDERED. Dated this 20th day of September, 2011, by U.S. Magistrate Judge John V. Acosta. (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
Civ. No. 10-lS-AC
JOHN TRELLE,
OPINION AND
ORDER
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
ACOSTA, Magistrate Judge:
Claimant John Trelle ("Claimant") seeks judicial review of a final decision of the
Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance
Benefits ("DIB") under Title II of the Social Security Act ("SSA") and for Supplemental Security
Income ("SSI") disability benefits under Title XVI of the SSA. See 42 U.S.C. §§ 401-433 and
OPINION AND ORDER
1
{KPR}
er's decision pursua
§§ 1381- 83f (201 0). This court has jurisdi ction to review the Comm ission
nt to
affirms the decisio n of the
42 U.S.C. § 405(g). Follow ing a careful review of the record, the COUlt
ALl
Procedural History
a disability onset date
Claim ant filed for DIB and SSI benefits on August 9, 2005, alleging
on. On May 15,20 07, a
of Februm y 4, 2004. The claim was denied initially and on reconsiderati
issued a decisio n on Octob er
hearing was held before an Administrative Law Judge ("ALJ"), who
of this decision on Novem ber
26,20 07, finding Claim ant not disabled. Claim ant requested review
decision the
23,200 7. The Appeals Council denied this request, makin g the ALJ' s
Comm ission er's
court on January 6, 2010.
final decision. Claim ant filed for review of the final decisio n in this
Factual Background
On March 9,2004 , after Claim ant sustained an injury at work, Dr. Gmy
Hansen, M.D. ("Dr.
of his veltebrae, the disc
Hanse n") diagnosed Claim ant with nerve root compression in one
on May 18, 2004, Claim ant
designated LS-S! . (Tr. 175.) Approximately two month s later,
underw ent surgeJY to remove the disc that was causing the compression
. (Tr. 178.) The surgery was
was successful and Claim ant
perfor med by Dr. Jeffrey A. Louie ("Dr. Louie"). The procedure
was discharged the following
reported, post-operation, that he no longer had leg pain. Id. Claim ant
discharging nurse concluded
day, at which time he reported a pain level of three out of ten, and the
9.)
that he could perfOlID activities of daily living withou t assistance. (Tr.20
Anderson"). (Tr.
On Novem ber 4, 2004, Claim ant saw Dr. K. Clair Anderson, M.D. ("Dr.
y,
224.) Claim ant repOlted significantly decreased leg pain since the surger
but that contin ued back
.) Claim ant stated that lifting,
and buttoc k pain prevented him from returning to work. (Tr.22 4-225
OPINI ON AND ORDE R
2
{KPR}
bending, and reaching triggered his back pain and that he could lift nothing heavier than a gallon of
milk. (Tr. 225.) He also reported that he had a feeling of numbness in his feet. (Tr. 224.) Dr.
Anderson concluded that Claimant could not return to his previous position as a Certified Nursing
Assistant ("CNA"), and could not perform outside of the "light to light-medium physical demand
range." (Tr.227.) Dr. Anderson stated, in conclusion:
Absent any fiuiher treatment, in my opinion, the patient is medically stationary. The
patient has marked limitation of motion and marked hamstring tightness. An
aggressive exercise program, such as a work hardening program, could significantly
improve the patient's flexibility and, in all likelihood, give him better control of his
pain.
Id The same day Susan Bottomley ("Bottomley"), an occupational therapist, performed a "Work
Capacity Evaluation" and concluded that Claimant was capable of light to light-medium work and
had potential to improve fiuther. (Tr. 230.) Although he could not currently perform the duties of
a CNA, Bottomley felt that Claimant may be able to do so in the future.
On January 3, 2005, Dr. Louie agreed with previous determinations that Claimant could not
return to his work as a CNA, but "recommend[ed] vocational retraining perhaps as a lab tech." (Tr.
247.) The following month, Claimant was examined by Dr. Mark D. Peterson ("Dr. Peterson") at
his request, and that of his insurance company. (Tr. 238.) Dr. Peterson recommended that Claimant
get a post-operative MRI to determine ifthere were additional lesions on the lumbar spine. If the
MRI revealed that there were not, it was Dr. Peterson's opinion that Claimant "[was] probably
medically stationary and should undergo a Physical Capacities Evaluation for claim closure and be
returned to work under the recommended activity levels." (Tr. 238A.) He also recommended
"ongoing therapeutic exercises." Id. On March 28, 2005, Dr. Louie saw Claimant to review his
condition for "significant changes." (Tr. 246.) He observed that Claimant's leg pain was resolved
OPINION AND ORDER
3
{KPR}
by surgely, but that he still had back pain. Dr. Louie noted that Claimant was "no[t] interested in
a fusion" at the time. Id.
On November 1, 2005, Claimant saw Dr. Mark Greenberg, M.D. ("Dr. Greenberg") about
his back pain and underwent an MRI. Dr. Greenberg read the MRI which revealed "[n]o reherniation
or nerve root compression[,]" and recommended diagnostic injections. (Tr. 350.) On November 21,
2005, Dr. Maty Ann Westfall, M.D. ("Dr. Westfall"), evaluated Claimant's RFC. Dr. Westfall found
that Claimant could lift fifty pounds occasionally and twenty-five pounds frequently; Claimant could
both stand/walk and sit for six hours total out of an eight hour work day; Claimant was not limited
in his ability to push and pull; and Claimant had no postural, manipulative, visual, communicative,
or environmental limitations. (Tr. 387-391.) Dr. Westfall concluded that, with respect to Claimant's
back pain, the disc herniation had not recurred since his surgery. She wrote that Claimant had
previously been known to exaggerate his symptoms and refuse alcohol treatment. (Tr. 392.) Dr.
Westfall noted that Claimant's reports as to his activities of daily living were inconsistent and not
credible. (Tr. 392.) She cited Dr. Greenberg's conclusions and concurred, stating that Claimant
"ha[d] begun self-limiting himself to the point of deconditioning." (Tr. 393.) On November 23,
2005, Claimant's psychiatric health was again reviewed by Dr. Anderson who concluded that
Claimant's anxiety, depression, and substance abuse disorders were non-severe and that Claimant
was not functionally limited by these conditions. (Tr. 372-385.
Beginning in 2002, Claimant began to experience difficulty with his memory, blacking out,
and shaking.
(Tr. 280, 286.) Claimant was diagnosed with cavernoma, or "cavernous
malformation[']"which is "an abnormal cluster of capillaries and venules that periodically bleed and
give rise to a . . . lesion in the brain or spinal cord."
OPINION AND ORDER
4
Johns Hopkins Medicine,
{KPR}
http ://w ww ,hop kin sme dici ne,o rg/n cur
surgely/conditions_mainloldlcavel1l0us_malformation.html, last visited
o\o gy
neu ro-
May 17,2011. Cavel1l0mas
bleed." fd. On May 15,
typically manifest themselves with "seizures, headaches or with a large
ing his cavel1l0ma, and
2005, Claimant was seen by Dr. Jonathan Carlson ("Dr. Carlson") regard
reported no change in his
underwent an MRI that confirmed the diagnosis. (Tr. 241.) Claimant
tomatic." fd Claimant was
symptoms and Dr. Carlson wrote that he was "for the most part asymp
vely scheduled for one to
not interested in having surgelY and a follow-up appointment was tentati
two years in the future.
Registered Nurse
On an "Impairment Questionnaire" regarding his seizures, Advanced
Practitioner Jonathan Wolman ("Nurse Wolman") wrote that Claimant
was not having seizures, but
"possibly/probably causing
that his prognosis was nonetheless "[p]oor[,]" as his cavel1l0ma was
(Tr. 341.) In conclusion,
multiple neurological deficits along with alcohol use and depression."
this patient's language,
Nurse Wolman wrote, "Malformation in the brain will continue to affect
disabled. Alcohol use and
visual, memory and possibly motor activities. He is permanently
depression may also be contributing to this." (Tr. 346.)
2005, at which time
Dr. Jon Elmsh ar ("Dr. Ermshar") examined Claimant on August 24,
and that if he spent twenty
Claimant repOlied that he could not stand for more than five minutes,
335.) Dr. Ermshar referred
minutes shopping, he would need to lie down for an hour to recover. (Tr.
him to Dr. Greenberg for a pain evaluation and recommended that Claim
ant walk daily and engage
in weight lifting. (Tr. 336.)
Questionnaire,"
In November 2005, Dr. Ennsh ar filled out a "Multiple Impairments
sis offair or stable with a
diagnosing Claimant with degenerative disc disease and giving a progno
OPINION AND ORDER
5
{KPR}
ant's lab repOlts and observed
likely need for ongoin g care 01' surgery. Dr. Ermsh ar reviewed Claim
was constant and limited him
disc protrusion. (Tr. 355.) Dr. Ermsh ar stated that Claim ant's pain
move around every twenty to
daily such that he could not sit 01' stand all day, but had get up and
Claim ant's pain level was
thirty minutes for five minute s at a time. (Tr. 356.) He estimated that
three
01'
ant could sit for four
four out of ten; his fatigue level was seven out of ten; and that Claim
He noted that Claim ant was
to five hours and stand for two hours in an eight hour day. (Tr. 357.)
moderately limited with respect to carrying only ten to twenty pounds
and reaching up with his arms.
that he could handle
(Tr. 358.) Dr. Ermsh ar stated that Claim ant was not malingering and
full-time
increase in a competitive
work and tolerate a high degree of stress, but that his sympt oms would
breaks daily and would be
work enviro nment such that he would need unscheduled thirty-minute
absent at least three days a month. Id.
(Tr. 100.) He stated
Claim ant filled out a "Disab ility RepOlt Adult" on Augus t 16, 2005.
in question, and that pain
he had worke d in the past, but not since he sustained the back injury
101.)
preven ted him from returning to work, as did his doctor 's orders. (Tr.
ed that he was not on
On an Septem ber 29, 2005, "Seizure Questionnaire," Claim ant repOlt
medic ation for seizures; did not remem ber his last seizure; and had not
had a seizure in the last three
in three years. (Tr. 131.)
months. Claim ant's wife reported that Claimant had only one seizure
constant, aching pain in his
Claim ant also filled out a "Pain Questionnaire" where in he repOlted
stated that he took ibupro fen
lower back that becam e worse with movement. (Tr. 126.) Claim ant
three or four times a week; needed to rest every three hours; could walk
200 yards at a time; and was
able to perform personal grooming tasks, though he generally could not
perfor m household chores.
(Tr. 127-128.)
OPINION AND ORDE R
6
{KPR}
s: he bathed and
Claimant reported that he could engage in activities of daily living as follow
took short walks for five
performed other personal care sitting down; did dishes sitting in a chair;
to ten minutes two times a day; exercised in a pool for forty-five minute
s, two or three times a week;
cats, dusted, and watered
performed basic food preparation and ran an occasional errand; fed the
yards; no longer painted
plants; could not lift more than a gallon of milk or walk fmthe r than 150
and had difficulty sleeping.
or gardened; occasionally used a cane and an electrotherapy machine;
engage in a numbe
(Tr. 133-140.) Claimant's wife reported that Claimant could no longer
activities including, dancing, doing household chores, walking around,
r of basic
major shopping, yard work,
could walk for only twenty
exercise, or painting. She also noted that he had difficulty sleeping,
(Tr. 141-148.)
minutes at a time, and used a cane when his back was particularly bad.
Legal Standard
legal standard
This comt must affirm the Commissioner's decision if it is based on proper
whole. 42 U.S.C. § 405(g);
and the findings are suppOlted by substantial evidence in the record as a
antial evidence is such
see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "Subst
relevant evidence as a reasonable mind might accept as adequate to suppo
rt a conclusion." Tylitzki
"both the evidence that
v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). The court must weigh
ez v. Heckler, 807 F .2d 771,
supports and detracts from the [Commissioner's1conclusion." Martin
it is a rational interpretation
772 (9th Cir. 1986). The Commissioner's decision must be upheld if
of the evidence, even ifthere are other possible rational interpretations.
Magallanes v. Bowen, 881
ing comt may not substitute
F.2d 747, 750 (9th Cir. 1989);Andrews, 53 F.3d at 1039-40. The review
., 466 F.3d 880, 882 (9th
its judgm ent for that of the Commissioner. Robbins v. Social Sec. Admin
Cir.20 06).
OPINION AND ORDE R
7
{KPR}
The ALJ is responsible for determinin
g credibility, resolving conflicts in me
dical testimony,
nt's residual
d at 1039. In determining a cla ima
lving ambiguities. Andrews, 53 FJ
and reso
ord, including,
sider all relevant evidence in the rec
capacity ("RFC"), an ALJ must con
functional
pain, that are
"the effects of symptoms, including
medical records, lay evidence, and
inter alia,
883, citing
impairment." Robbins, 466 F.3d at
ibuted to a medically determinable
reasonably attr
v. Chatel',
.1545(a)(3), 416.945(a)(3); Smolen
6 WL 374184, at *5; 20 C.F.R. §§ 404
SSR 96-8p, 199
80 FJ d 1273, 1281 (9th Cir. 1996).
Summary a/th e AL J's Findings
luated
evaluation" process when she eva
aged in the five-step "sequential
The ALJ eng
.
see also Bowen v. Yuckert, 482 U.S
required. See 20 C.F.R. § 416.920;
Claimant's disability, as
137 ,14 0 (1987).
1
Steps One and Two
substantial gainful
t Claimant had not engaged in any
At Step One, the ALJ concluded tha
J determined that
ty. (Tr .39 .) At Step Two, the AL
since the onset of his alleged disabili
activity
my and mil d
low back pain status post laminecto
the following severe impairments:
Claimant had
that Claimant
(Tr .39 .) The ALJ also determined
disc disease of the cervical spine.
degenerative
anxiety.
ck outs, cavernoma, depression, and
non-severe impairments: seizures, bla
had the following
d below.
ings as to each impairment are detaile
(Tr. 39-41.) The AL J's specific find
A.
Back Pain
Degenerative Disc Disease and Low
ially
February 2004. (Tr. 42.) He init
tained an on-the-job back injUly in
Claimant sus
I
relieved by physical therapy. An MR
n in his right leg and this pain was not
complained of nerve pai
ent spinal surgery, a
root compression. Claimant undelw
ealed a protruding disc and nerve
rev
OPINION AND ORDER
8
{KPR}
(Tr. 42.) As a result of the
laminectomy, in May 2004. The surgelY was performed by Dr. Louie.
injury, Claimant was unable to return to his job as a CNA, but was lookin
g for less demanding work
in the same field. (Tr. 42.)
In September 2004, Dr. Louie reported that Claimant suffered from lower
back pain, but that
still could not lift more than
he enjoyed full motor strength in all extremities. However, Claimant
fifteen pounds and could not return to his CNA position.
When Claimant was
(Tr. 42.)
independently evaluated in conjunction with his workers' compensatio
n claim, in November 2004,
ise resolved. He also
he reported intermittent nelve pain in his leg, but that the pain had otherw
d that Claimant could
reported improvement with physical therapy. (Tr. 42.) Dr. Anderson reporte
that he otherwise had "full
not return to work as a CNA due to temporary lifting restrictions, but
motor strength" and his pain was managed with 400 to 600 milligrams
of ibuprofen. (Tr. 42.) Also
in November 2004, Claimant was evaluated by Bottomley, an occupational
therapist, who prescribed
s. (Tr.43 .) She noted that
light or medium work with "micro breaks" evelY thirty to sixty minute
Claimant could not perform work as a CNA without modifications.
ant was medically
In Janu81Y 2005, Claimant again saw Dr. Louie who reported that Claim
any remaining pain was
station81Y, that Claimant's surgely-related symptoms had resolved, and
Dr. Peterson that the back
unrelated to the surgery. (Tr. 43.) In Feb1U81y 2005, Claimant told
surgelY had resolved his nerve pain, but that he continued to suffer from
lower back pain. Claimant
that Claimant did not suffer
also reported that his left leg gave out at times. Dr. Peterson reported
"moto r deficits in any of his extremities" and that his symptoms were manag
ed with over-the-counter
new or recurring hernia
medications. (Tr.43 .) An MRI taken the following month revealed no
tion
in Claimant's spine. (Tr. 43.)
OPINION AND ORDER
9
{KPR}
He filled out two
eatedly beginning in April 2004.
Dr. Ermshar evaluated Cla ima nt rep
worksheets contain
ber 2005 and September 2006. The
Impairments Worksheets in No vem
Multiple
occasionally and ten
Claimant could lift twenty pounds
information. They bot h state that
similar
s three or more
l impairments would cause him to mis
uently, and tha t Cla ima nt's physica
pounds freq
s of time,
lity to sit or stand for extended period
month. With regard to Cla ima nt's abi
wo rk days per
ht hour
hours and walk for two hours in an eig
t stated tha t he could sit four to five
the 2005 workshee
[eight]
, stand, or wal k [for two1hours in an
rksheet said that Claimant could "sit
day. The 2006 wo
hour workday." (Tr. 44.)
5.
by Dr. Greenberg in November 200
r's request, Claimant was evaluated
At Dr. Erm sha
a
on his left side, but that it was only
experienced occasional nerve pai n
Claimant reported that he
d the degree of pai n as
l ache in his lower back, and rate
or problem; he also reported a dul
min
that Claimant had a
(Tr. 43.) Dr. Greenberg observed
ween three and six on a scale of ten.
bet
right side bend. He
ngth, except for minor pain wit h a
l range of motion, flexion, and stre
norma
dural shots to
ima nt's bac k and recommended epi
evidence of additional injury to Cla
not ed no
July 2006,
follow up with Dr. Greenberg. By
lower bac k pain. Claimant did not
address his
Claimant was still not on prescriptio
n medication for his pain.
"m ild
the ALJ noted that Claimant had
ard to Cla ima nt's cervical spine,
With reg
mal. (Tr.
overall cervical alig nm ent was nor
disease at C5-6 and C6-7" but that
degenerative disc
al spine,
some pain associated wit h his cervic
imant had previously complained of
45.) Although Cla
ed
e and full range of motion was not
ptomatology with his cervical spin
he "re por ted no sym
therein[,]" during his evaluation by
OPINION AND OR DE R
Dr. Greenberg. (Tr. 45.)
10
{KPR}
B.
Seizures/Black Ouls
-like activity in
According to his wife's testimony, Claimant "had experienced one seizure
the prior tlll'ee years[,]" which is priOlo to the claimed disability onset date.
filled out a "Seizures Impairment Questionnaire" which stated that he
(Tr. 39.) Nurse Wolman
had seen Claimant annually
)
since 2002 and that "no specific seizures had been diagnosed." (Tr. 39-40.
Claimant has also reported experiencing "black outs" and "loss of time"
in several instances,
In the course of one such
all of which occurred prior to Claim ant's alleged disability onset date.
charged
episode, Claimant reported that "the police showed up at his home and
him with [driving
"), a state agency, "found
under the influence.]" (Tr.40 .) Disability Determination Services ("DDS
insight that preven
that [Claimant] had a long history of alcohol dependence with restricted
ted him
uence of his addiction."
from recognizing the reported black outs and memOlY problems as a conseq
for depression or alcohol
(Tr. 40.) Nurse Wolman noted that Claimant did not wish to be treated
dependence, and Claimant "reported that he continued to drink despite"
medical advice. (Tr. 40-41.)
occulTing subseq
Furthennore, Claimant has not reported seizure or black-out episodes
uent to the
alleged disability onset date.
ime seizure-like
The AU wrote that, in light of the record as a whole, Claimant's "one-t
ive alcohol abuse, which
activity and difficulties with memOlY 01' black outs were induced by extens
stopped once his intake of alcohol was reduced." (Tr. 40.)
C.
Cavernoma
ing vision loss
Claimant was diagnosed with a cavernoma in 2003, after an episode involv
resolved quickly and the
and weakness on the left side. (Tr. 40.) At the time, the condition
to [Claimant's] functional
cavernoma was diagnosed as benign, "with no direct limitations
OPINION AND ORDER
11
{KPR}
n, a neurologist, to follow
capacities." (Tr.40 .) In March 2005, Claimant was seen by Dr. Carlso
Claimant had experienced
up on his cavernoma diagnosis. (Tr. 40.) Since the prior appointment,
disruptions in his visual field and had changed his prescription for his glasse
s at least three times in
c and an MRI revealed no
the intervening period. (Tr. 40.) Claimant was otherwise asymptomati
change to the cavernoma and tha~ no surgical intervention was called for.
(Tr.40 .) Nurse Wolman
opined that Claimant's cavernoma coupled with his alcohol abuse and depres
sion led to his reported
Claimant's cavernoma was
neurological problems. (Tr. 40.) The ALJ concluded that, overall,
sis. (Tr. 41.)
benign, asymptomatic, and essentially unchanged since its initial diagno
D.
Depression and Anxiety
Claimant reported to DDS that he experienced depressiortand anxiety but
did not suffer from
Veterans Administration
functional limitations as a result. (Tr. 41.) His medical records from the
has been controlled by
("V A") indicate a long histOlY of depression and anxiety, but one that
medication.
ment of
(Tr. 41.) In 2002, the VA records show that Claimant Global Assess
omatology. (Tr.41 .) The
Functioning score was assessed at 85, which suggests little to no sympt
past. Id.
records indicate that Claimant has refused mental health treatment in the
II.
Sten Three
At Step Three, the ALJ determined that Claimant's impairments did not
meet or medically
ers
equal a listing as set fOlih in the regulations, specifically Listing 1.04, Disord
of the Spine. (Tr.
ere, singularly and in
41.) The ALJ wrote: "the claimant's impairments, severe and nonsev
combination, are not accompanied by the findings specified for any impair
ment or combination of
ning physician mentioned
impairments included in any section of the Listings. No treating or exami
(Tr. 41.) The ALJ
findings equivalent in severity to the criteria of any listed impairment."
OPINION AND ORDER
12
{KPR}
al intervention had been
elaborated on this findin g later in the decision, stating both that surgic
the listing.
successful and that the impairment was too sholi-lived to qualify for
III.
Claim ant's RFC
The AU concluded that Claim ant "has the RFC to lift 20 pounds occasi
onally and 10 pound s
s. The claima nt needs a .
frequently. The claimant needs a minor break after sitting 30 to 60 minute
onal bendin g and twistin g."
minor break after standing 30 minutes. The claima nt is limited to occasi
imately one minute with the
(Tr. 42.) The ALJ defined a "mino r break" as one lasting approx
purpose of stretching and breaking up the "static postur es" of standing
and sitting for longer period s
of time. (Tr. 41-42 n.1.)
IV.
Step Four
relevant work. (Tr.
At Step Four, the AU concluded that Claim ant could not perfor m past
46.)
V.
Step Five
ming other work that
At Step Five, the ALJ concluded that Claim ant was capable of perfor
testified, in response to the
exists in substantial numbe rs in the national economy. (Tr. 47.) The VE
ALl's hypothetical, that Claimant was capable of acting as a mail clerk,
an outside deliverer, and an
ally.
office helper. Each of these jobs are available both regionally and nation
Discussion
be reversed: (1) the
Claim ant asserts five grounds upon which the ALl's decision should
arded the testimony of Dr.
AU's credibility determination was flawed; (2) the AU improperly disreg
ant's mental impair ments
Ermsh ar and Nurse Wolman; (3) Claimant meets Listing 1.04; (4) Claim
are severe; and (5) the Vocational Exper t's testimony was not based on
OPINION AND ORDE R
13
all of Claim ant's limitations.
{KPR}
rt affirms the AL l's decision.
For the reasons that follow, the cou
1
Claimant Credibility
tha t may
there is an underlying impairment
cui t precedent holds that, where
Nin th Cir
ptoms:
reasonably produce the alleged sym
ering, the
win g tha t the claimant is maling
[wJithout affiImative evidence sho
r and
cla ima nt's testimony mu st be clea
mis sio ner 's reasons for rejecting the
Com
intensity of
cla ima nt's testimony relating to the
convincing. If an ALJ finds that a
ility
ble, the AL J must make a credib
pain and other limitations is unrelia
[her]
the testimony is unpersuasive.
determination citing the reasons why
595 ,59 9 (9th
Morgan v. Commissioner, 169 F.3 d
d).
Cir. 1999) (internal citations omitte
Cla ima nt
exi sted that wo uld
whether underlying impairments
that the ALJ failed to determine
argues
cting Cla ima nt's
and that the AL I's reasons for reje
y pro duc e the claimed symptoms
reasonabl
onds tha t the
convincing. The Commissioner resp
as not credible were neither clear nor
testimony
t the AL J's
t in the credibility analysis and tha
an underlying impairment is implici
existence of
reasons were clear and convincing.
did not
g Cla ima nt's credibility: Claimant
gave several reasons for questionin
The AL J
Cla ima nt
ms of disabling pain; wh en he did,
me dic atio n regime, despite his clai
pursue a consistent
nt
failed to follow through on the treatme
e-counter pai n medication; Claimant
primarily use d over-th
to
Dr. Enn sha r that Dr. Louie told him
dical professionals; Claimant told
recommendations of me
Cla ima nt's reports as to
mended retraining, not retirement;
re, though Dr. Louie actually recom
reti
ima nt's reports to Dr.
h the objective medical evidence; Cla
cervical spine were inconsistent wit
his
matology wit h his
orts in tha t he "reported no sympto
erg were inconsistent wit h other rep
Greenb
d activities of daily
noted therein[J"; Cla ima nt's reporte
spine and full range of motion was
cervical
imant used
ce and wit h one another; and Cla
e inconsistent wit h medical eviden
living wer
OPINION AN D OR DE R
14
{KPR}
"embellished language" to describe his condition in starker terms that were
warranted. (Tr.45 -46.)
the court will not
The ALJ has thus given sufficient support for his credibility finding and
disturb it.
II.
Medical Opinions
those from treating
"There are three types of medical opinions in social security cases:
Valentine v. Commissioner
physicians, examining physicians, and non-examining physicians."
Lester v. Chatel', 81 F.3d
Social Security Administration, 574 F.3d 685,6 92 (9th Cir. 2009) (citing
is entitled to controlling
821, 830 (9th Cir. 1995» . In general, the opinion of a treating physician
ALJ may not reject treating
weight if well-supported and consistent with underlying evidence: "[A]n
ate reasons for doing
physicians' opinions unless he 'make s findings setting f01ih specific, legitim
', 80 F.3d 1273, 1285
so that are based on substantial evidence in the record.'" Smolen v. Chatel
. Where the opinion is
(1996) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cit'. 1989»
uncontroverted, the ALJ must give clear and convincing reasons to reject
the opinion of the treating
physician. Id
than those of nonThe conclusions of examining physicians are given greater weight
Cit'. 1990). Where the
examining physicians. Pitzer v. Sullivan, 908 F .2d 502, 506 n.4 (9th
r must provide 'clear and
examining physician's opinion is not contradicted, "the Commissione
ning physician." Lester,
convincing' reasons for rejecting the uncontradicted opinion of an exami
contradicted, it may only be
81 F.3d at 830 (quoting Pitzer, 908 F.2d at 506). Where the opinion is
rejected for specific and legitimate reasons. Id, at 830-831.
A.
Dr. El'lI1shar 's Findings
Claimant argues that the ALJ improperly discounted the testimony of Dr.
OPINION AND ORDE R
15
Ermshar, a treating
{KPR}
physician.
Claimant's Self-Reports
1.,
r improperly relied
First, the ALJ found that Dr. Enn sha
was not wholly credible.
were problematic because Claimant
on Claimant's self-reports, which
According to the AU , Dr. Enn sha r
by fiftylson that his bac k pain had reduced
back Claimant's ow n report to Dr. Car
merely pa\l'Oted
ance
are important diagnostic tools and reli
ery. Claimant argues that self-reports
percent since surg
on such reports is not error.
e evidentiary val
The court agrees that self-repOlts hav
ly
the extent that the claimant is proper
ue and may be relied upon, except
to
i v. Astrue, 533 F.3d
deemed not credible. See Tommasett
n if it is bas ed 'to a
reject a treating physician's opinio
5, 1041 (9th Cir. 2008) ("A n AU may
103
redible." (quoting
t have been properly discounted as inc
extent' ona claimant's self-reports tha
large
al citation omitted)).
F.3d 595, 602 (9th Cir. 1999) (intern
n v. CO/llm 'I' Soc. Sec. Admin., 169
Morga
Dr. Erm sha r's
, as such, was justified in discounting
AU found Claimant not credible and
Here, the
its.
findings that relied upon these repO
2.
Failure to seek treatment
ure to see
The AU may also conclude that fail
k treatment commensurate with the
stated level
, 604
ity. See Fail' v. Bowen, 885 F.2d 597
pain undermines a claimant's credibil
of impairment or
ility
tment may inform an AU 's credib
ncluding that a failure to seek trea
(9th Cir. 1989) (co
el of treatment sought is not always
gh, as Claimant points out, the lev
determination). Althou
erity of the claimant's
nent, it may "ca st doubt on the sinc
lUnensurate with the degree of impain
cOl
on Dr. Greenberg's
noted Claimant's failure to follow up
testimony." fd. at 603. Here, the AU
pai n
ilitating pain. To
scription medication for allegedly deb
lendation and that he was not on pre
reconm
OPINION AND OR DE R
16
{KPR}
AL l's credibility determ
the extent these factors informed the
ination, it was not error.
Conflict wit h Dr. Louie
1,
t Claimant
The ALJ makes mu ch oft he fact tha
in Dr. Erm sha r's
he retire. He relies on a statement
told Dr. Erm sha rtha t Dr. Louie recom
mended
Loui[eJ has
report from August 24, 2005: "Dr.
ie's
that this wa s in conflict wit h Dr. Lou
re." (Tr. 440.) The ALJ concluded
advised him to reti
he
return to wo rk as a CNA. He thinks
wh ich reads: "A t this time he cannot
actual treatment note
ine
nt physical capacities exa m to determ
, I therefore rec om me nd independe
can only lift 15 pounds
attempt to get vocational
J further reasoned that Cla ima nt's
wo rk capacity." (Tr .24 8.) The AL
his
misrepresented it to Dr.
Dr. Lou ie's conclusion and actively
ning is evidence tha t he understood
trai
a que stio n for this
interpretation of this evidence is not
l'. Whether this is the only or best
Ennsha
committed to the
on substantial evidence and, thus,
was a reasonable conclusion based
court. It
jud gm ent of the ALJ.
wh
Claimant also argues that Dr. Louie,
o concluded that Claimant could not
ima nt's general
work, was not asked to evaluate Cla
perform his pas t
wo rk capacity and that Cla ima nt's des
him in his disabili
for other wo rk sho uld not prejudice
ire to trai n
k. The
ty claim if he is indeed unable to wor
rather
not wit h Dr. Lou ie's conclusion but
r tha t the AL J's concern, here, was
com t notes how eve
was not
Dr. Ennshal'. Thi s interpretation
resentation of that conclusion to
wit h Cla ima nt's rep
t
rd. The ALJ did not suggest tha
y to substantial evidence in the reco
unreasonable or contrar
Cla ima nt's argument
istent wit h his claimed disability, and
ima nt's desire to retrain was incons
Cla
on this point is misplaced.
4.
Conflict wit h Dr. Greenberg
Dr. Greenberg, a
r's findings conflicted wit h those of
The AL J also found tha t Dr. Erm sha
OPINION AND OR DE R
17
{KP R}
specialist to whom Dr. Ermshar referred Claimant. Dr. Greenberg's report revealed that Claimant
had a full range of motion, experienced only minor pain upon "sidebending," and relied exclusively
on non-prescription medication for pain relief. The record further reveals that Claimant failed to
follow through with Dr. Greenberg's recommended epidural injections. The AU concluded that this
repmi conflicted with Dr. Ermshar's assessment and gave greater weight to Dr. Greenberg as he is
both a specialist and performed a more comprehensive evaluation to arrive at his conclusions. In
particular, Dr. Greenberg's opinion undermined Dr. Erl11shar's opinion that Claimant would miss
three or more days of work per month as a result of his limitations.
Claimant contends that this was error. The Commissioner countered that Dr. Greenberg is
a specialist in the subject area and Dr. Greenberg's objective medical findings were in conflict with
Dr. Erl11shar's conclusory findings and, thus, the AU reasonably elevated Dr. Greenberg's
conclusions above those of Dr. Ermshar. Claimant argues further that Dr. Greenberg did not give
an opinion on his work capacity and that the AU should not have inferred anything about Claimant's
capacity from Dr. Greenberg's omission and, in doing so, improperly substituted lay opinion for that
of an expert.
Because Dr. Ermshar's findings were in dispute, the AU needed only give specific and
legitimate reasons to reject Dr. Erl11shar's findings in favor of Dr. Greenberg'S findings. The AU
considered Dr. Greenberg'S report more reliable based on Dr. Greenberg'S expeliise and the manner
in which he reached his conclusions. In addition, Dr. Erl11shar's findings were already otherwise
undermined by his reliance on Claimant's self reports, which reports the AU deemed not fully
credible. Thus, the AU gave specific and legitimate reasons for assigning greater weight to Dr.
Greenberg'S findings. Furthermore, there is no indication that the AU inferred anything from Dr.
OPINION AND ORDER
18
{KPR}
Greenberg's lack of findings regarding Claimant's vocational capabilities and Claimant provides no
specific instances of such an inference. Accordingly, the court will not disturb the ALJ's conclusions
with respect to the relative weight of Dr. Ennshar and Dr. Greenberg's opinions.
5.
Conflict with Treatment Notes
The ALJ gave Dr. Ermshar's questiOimaires less weight because they conflicted with his own
treatment notes wherein he recommended that Claimant walk and lift weights daily, but later opined
that he would miss three days of work per month. Claimant argues that these findings are not
inconsistent and that limited exercise may be consistent with the existence of a disability.
Although the ability to engage in limited exercise does not necessarily undermine an
otherwise valid disability claim, it may weigh against just such a finding. Here, the ALJ determined
that the exercise Dr. Ermshar recommended was at odds with his ultimate conclusions as to the
degree of Claimant's impairment. The ALJ was permitted to reach this conclusion and, in light of
numerous additional reasons given by the ALJ with respect to Dr. Ermshar, the conclusion does not
constitute en·or.
The ALJ's determination as to Dr. Ermshar's consistency and the weight to be given his
ultimate conclusions was suppOlied by substantial record evidence and will not be disturbed by the
couti.
B.
Nurse Wolman's Findings
The ALJ gave no weight to Nurse Wolman's statement regarding Claimant's permanent
disability "because the overall record fails to corroborate his conclusory statement." (Tr. 40.) The
ALJ explained that "[t]he specialists that evaluated the claimant's cavernoma reported it was benign
with no direct limitations to his functional capacities[,]" and that, according to the record, Claimant
OPINION AND ORDER
19
{KPR}
has suffered only one seizure and that the other such occurrences, i.e., the blackouts and memory
problems, were exacerbated by alcohol abuse. Id. The ALJ also noted that Nurse Wolman's
conclusion as to Claimant's disability is "an opinion on an issue reserved to the Commissioner under
Social Security Ruling 96-5p, and requires vocational expertise outside the purview ofthe claimant's
nurse practitioner." Id.
Claimant argues that the ALJ e11'ed in giving no weight to the findings of Nurse Wolman.
According to Claimant, Nurse Wolman is an acceptable medical source who made findings about
Claimant's work limitations based on Claimant's treatment records from the VA; these findings were
based on objective evidence and were not contradicted. Claimant further argues Dr. Carlson's
contradictory findings should not receive deference because they were based on a single examination
and, further, it is not clear from the record if Dr. Carlson reviewed Claimant's other records prior
to forming his own conclusion. Finally, Claimant argues that Nurse Wolman's conclusions should
be given greater weight because he was part of a "treatment team" that included medical
professionals. The Commissioner responds that the ALJ did not err in giving little to no weight to
Nurse Wolman's conclusions because they were not corroborated by the record as a whole and were
specifically contradicted by Dr. Carlson, a neurologist; as an "other source" Nurse Wolman is
entitled to the same treatment as a lay witness; and Claimant's "treatment team" argument does not
stand up to scrutiny.
The ALJ did not give weight to Nurse Wolman's ultimate conclusion that Claimant was
permanently disabled by his neurological condition, possibly in conjunction with his alcohol use and
depression. It is well established that, "[iJf the ALJ wishes to discount the testimony of the lay
witnesses, he must give reasons that are germane to each witness." Dodrill]'. Shalala, 12 F.3d 915,
OPINION AND ORDER
20
{KPR}
919 (9th Cir. 1993). It is appropriate to rejectthe testimony of a lay witness where it is inconsistent
with medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).
The court agrees that the record amply supports the AU's finding that Claimant was not
disabled by his neurological condition and, thus, it was not error to disregard Nurse Wolman's
conclusions to the contraty. As to whether Nurse Wolman should have been given the weight of a
lay witness or a treating source, the distinction is immaterial in this case. Even if Nurse Wolman's
conclusions were given the weight of those of a treating physician, the AU rejected those
conclusions for clear and convincing reasons, the standard for rejecting such findings. The couti will
not disrupt this determination by the AU.
Ill.
Listing 1.04
Claimant argues that he meets the definition of Listing 1.04 and that the AU erred in his
conclusory finding that Claimant did not meet the listing. The Commissioner argues that Claimant,
having the burden to prove disability, has not met that burden with respect to Listing 1.04.
Furthermore, the Commissioner contends, Claimant has ignored the AU's detailed treatment of this
listing in the administrative ruling.
The AU first referenced Listing 1.04 in performing the five-step process and stated: "No
treating or examining physician mentioned findings equivalent in severity to the criteria of any listed
impairment. Particular consideration is given to Listing 1.04 (disorders of the spine) in Appendix
1, Subpati P, Regulations Number 4." (Tr. 41.) The AU later explained his reasoning with respect
to Listing 1.04. He wrote: "There is no evidence of record that indicates that the claimant had nerve
root compression that was not resolved with the laminectomy completed in May 2004; there is no
indication that it lasted the 12 months required under the Social Security Regulations." (Tr. 46.) In
OPINION AND ORDER
21
{KPR}
other words, the surgical intervention was successful and the impairment was too shott-lived to
qualifY for benefits under the law.
The COutt agrees that the ALJ gave sufficient analysis as to why the listing was not met.
Futther, the court agrees that the finding was consistent with substantial evidence in the record. The
record reveals the following: Claimant underwent spinal surgery which resolved his leg pain, though
he continued to suffer buttock and back pain; Dr. Anderson found Claimant to be medically
stationary; Bottomley, an occupational therapist, concluded that Claimant could perform light to
medium work; Dr. Greenberg performed a post-operative MRI which showed no reherniation or
nerve compression; and Dr. Westfall agreed that reherniation had not occurred. Based on the record
as a whole and the ALJ's legitimate credibility determinations, the ALl's finding regarding Listing
1.04 was not in error.
IV.
Mental Impairments
As outlined above, the ALJ found that despite a long histoty of anxiety and depression,
Claimant had successfully controlled his mental impairments with medication and had been assigned
a GAF score indicating a high-degree of functionality. Claimant argues that his mental impairments
were in fact severe and that, in conjunction with Claimant's other impairments, they caused him to
be disabled under the law. Claimant cites evidence that he sought treatment for depression and was
treated for it; that Nurse Wolman characterized it as a complicating factor in Claimant's impairment
profile; and his own testimony that depression presented more than a de minimis limitation. The
Commissioner responds that Claimant failed to establish that the impairment was severe from an
evidentiary perspective and that the ALJ reasonably interpreted the evidence to find Claimant's
mental impairments non-severe.
OPINION AND ORDER
22
{KPR}
A severe impairment, for purposes of the disability determination, is an "impairment or
combination of impairments which significantly limits [the claimant's] physical or mental ability to
do basic work activities[.]" 20 C.F.R. § 416.920(c) (2011). The court agrees that based on the
record evidence the ALJ did not err in concluding that Claimant's mental impairments were nonsevere. The record evidence shows that, although Claimant has a history of depression and anxiety,
his conditions have been adequately managed through medication and do not present a significant
limitation of his ability to work.
V.
Vocational Expert Testimony
Claimant argues that the ALI's hypothetical as presented to the VE was incomplete as it did
not include all of Claimant's limitations, namely that Claimant will miss tln·ee or more days of work
per month. The Commissioner responds that the hypothetical was proper because it included all of
the limitations that the ALJ found credible and supported by the evidentimy record, noting that the
ALJ appropriately rejected the testimony of Dr. Ermshar and Nurse Wolman and, as such, the
conclusion that Claimant would miss three or more days of work per month.
The couti agrees that, based on the ALJ' s legitimate decision not to credit that finding, it was
not enor for the ALJ to omit it from the hypothetical.
Conclusion
For the reasons above stated, the Commissioner's decision is AFFIRMED.
IT IS SO ORDERED.
DATED this 20th day of September, 2011.
Unite~,~>ates
OPINION AND ORDER
23
Magistrate Judge
{KPR}
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