Jessie v. Commissioner Social Security
Filing
16
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter with prejudice. Signed on 10/7/11 by Judge Anna J. Brown. (dmd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
TERRENCE L. JESSIE,
3:10-CV-1076-BR
Plaintiff,
OPINION AND ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
DAVID B. LOWRY
9900 S.W. Greenburg Road
Columbia Business Center, Suite 130
Portland, OR 97223
(503) 245-6309
NANCY J. MESEROW
Columbia Business Center
9900 S.W. Greenburg Road, Suite 130
Portland, OR 97223
(503) 245-6309
Attorneys for Plaintiff
1
OPINION AND ORDER
DWIGHT C. HOLTON
United States Attorney
ADRIAN L. BROWN
Assistant united States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
DAVID MORADO
Regional Chief Counsel
KATHRYN ANN MILLER
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900 MiS 901
Seattle, WA 98104-7075
(206) 615-2240
Attorneys for Defendant
BROWN, Judge.
Plaintiff Terrence L. Jessie seeks judicial review of a
final decision of the Commissioner of the Social Security
Administration (SSA) in which the ALJ denied Plaintiff's
application for Supplemental Security Income (SSI) under Title
XVI of the Social Security Act.
This Court has jurisdiction to
review the Commissioner's decision pursuant to 42 U.S.C.
§405(g).
following a review of the record, the Court AFFIRMS the
decision of the Commissioner and DISMISSES this matter.
ADMINISTRATIVE HISTORY
Plaintiff filed his protective application for SSI on
2
OPINION AND ORDER
January 26, 2004.
Tr. 58. '
and on reconsideration.
His application was denied initially
Tr. 45-47, 51-54.
An Administrative Law
Judge (ALJ) held a hearing on September 13, 2006.
Tr. 19. 2
the hearing, Plaintiff was represented by an attorney.
At
Plaintiff
and a Vocational Expert .(VE) testified at the hearing.
The ALJ issued an opinion on October 18, 2006, and found
Plaintiff was not disabled and, therefore, was not entitled to
benefits.
Tr. 19-27.
That decision became the final decision of
the Commissioner when the Appeals Council denied Plaintiff's
request for review on May 4, 2007.
Tr. 5-7.
On June 19, 2007, Plaintiff filed a complaint in this Court
(No. 07-CV-900-CL) challenging the Commissioner's decision.
On April 22, 2008, Plaintiff filed a subsequent claim for
SSI benefits.
Tr. 372.
On September 18, 2008, Magistrate Judge Mark D. Clarke
issued Findings and Recommendation in which he recommended the
Court reverse the Commissioner's decision to deny Plaintiff's
application for SSI benefits and remand for further proceedings
iCitations to the official transcript of record filed by the
Commissioner on January 26, 2011, are referred to as "Tr."
2 The administrative record filed in this case does not
contain a transcript of the original hearing held on
September 13, 2006.
Plaintiff included an uncertified copy of
the transcript of that proceeding with his Reply (#15).
The
Court, however, has verified the accuracy of the hearing
transcript by reviewing the administrative record that the
Commissioner submitted in the underlying action before remand in
the District Court of Oregon, 07-CV-900-CL.
3
OPINION AND ORDER
to consider new evidence.
Tr. 336-69.
The Findings and
Recommendation were adopted by Judge Owen M. Panner on November
28, 2008.
Tr. 334-35.
On December 16, 2008, the Appeals Council
vacated the final decision of the Commissioner, associated
Plaintiff's two claims for SSI benefits, and directed the ALJ to
issue a new decision on the associated claims.
Tr. 372.
In
addition, the Appeals Council directed the ALJ to provide
Plaintiff with the opportunity to have a hearing and to take any
action necessary to complete the administrative record.
Tr. 372.
On January 9, 2009, Plaintiff appealed to the Ninth Circuit
Court of Appeals the Court's November 28, 2008, decision to
remand the matter for further administrative proceedings.
On
December 30, 2009, the Ninth Circuit affirmed in part and
reversed in part (#16) the Court's Opinion and Order issued
November 28, 2008.
In accordance with the Ninth Circuit's
decision, Judge Panner remanded the matter to the Commissioner on
March 25, 2010, for further administrative proceedings to
consider the evidence provided by Dr. Olbrich
and reconsider the lay testimony.
In
addition, the ALJ may reconsider plaintiffs
residual functional capacity and his symptom
testimony in light of the consideration of
Dr. Olbrich's report as well as the lay
witness testimony.
An ALJ held a second hearing on April 14, 2010.
Tr. 453.
At the hearing, Plaintiff was represented by an attorney.
Tr. 453.
4
Plaintiff, lay-witness Rhonda Esser, and a VE testified
OPINION AND ORDER
at the hearing.
Tr. 453-96.
The ALJ issued an opinion on June 18, 2010, and found
Plaintiff is not disabled and, therefore, is not entitled to
benefits.
Tr. 319-29.
That decision became the final decision
of the Commissioner when the Appeals Council failed to review the
ALJ's decision.
Tr. 316-18.
On August 24, 2010, Plaintiff filed his Complaint in this
Court seeking review of the Commissioner's decision.
BACKGROUND
Plaintiff was fifty-one years old at the time of the second
hearing before the ALJ.
Tr. 459.
Plaintiff completed his
education through the eleventh grade.
Tr. 459.
He has performed
past work as a cook, warehouse worker, and maintenance worker at
a convalescent home.
Tr. 490.
onset date of November 11, 1999.
Plaintiff alleges a disability
Tr. 59.
Plaintiff has been diagnosed with type II diabetes, diabetic
peripheral neuropathy, degenerative disc disease of the cervical
and lumbar spine, chronic low-back pain due to bulging discs at
the L4-S1 level, hypertension, post-polio syndrome,
gastroesophageal reflux disease, and osteoarthritis.
Tr. 396,
402, 406-07, 428, 441, 444, 451.
Plaintiff alleges he is disabled due to pain in his hands,
arms, neck, lower back, and legs; limitations on his ability to
5
OPINION AND ORDER
sit, stand, and walk; limitations on his ability to maintain
concentration, persistence, and pace; and limitations on his
ability to lift and to carry.
Tr. 66-67, 87-88, 460-66.
Except when noted, Plaintiff does not challenge the ALJ's
summary of the medical evidence.
After reviewing the medical
records, the Court adopts the ALJ's summary of the medical
evidence.
See Tr. 323-27.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2005).
Ukolov v. Barnhart, 420 F.3d 1002, 1004
To meet this burden, a claimant must
demonstrate his inability "to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which .
. has lasted or can be expected to
last for a continuous period of not less than 12 months."
42 U.S.C.
§
423(d)(1)(A).
developing the record.
The Commissioner bears the burden of
Reed v. Massanari,
270 F.3d 838, 841
(9th Cir. 2001).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
42 U.S.C.
§
405(g).
See also Batson v. Comm'r of Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
6
OPINION AND ORDER
"Substantial
evidence means more than a mere scintilla, but less than a
preponderance, i.e., such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
Robbins v.
Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (internal
quotations omitted).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2001).
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
The court must weigh all of the evidence whethis it
supports or detracts from the Commissioner's decision.
466 F.3d at 882.
Robbins,
The Commissioner's decision must be upheld even
if the evidence is susceptible to more than one rational
interpretation.
2005).
Webb v. Barnhart, 433 F.3d 683, 689 (9th Cir.
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006) .
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant- is disabled within the
meaning of the Act.
2007).
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
See also 20 C.F.R. § 404.920.
dispositive.
7
OPINION AND ORDER
Each step is potentially
In Step One, the claimant is not disabled if the
Commissioner determines the claimant is engaged in substantial
gainful activity.
Stout v. Comm'r Soc. Sec. Admin., 454 F.3d
1050, 1052 (9th Cir. 2006).
See also 20 C.F.R. § 404.920(a) (4).
In Step Two, the claimant is not disabled if the
Commissioner determines the claimant does not have any medically
severe impairment or combination of impairments.
at 1052.
Stout, 454 F.3d
See also 20 C.F.R. § 404.920(a) (4) (il).
In Step Three, the claimant is disabled if the Commissioner determines the claimant's impairments meet or equal
one of a number of listed impairments that the Commissioner
acknowledges are so severe as to preclude substantial gainful
activity.
§
Stout,
454 F.3d at 1052.
404.920(a) (4) (iii).
See also 20 C.F.R.
The criteria for the listed impairments,
known as Listings, are enumerated in 20 C.F.R. part 404,
subpart P, appendix 1 (Listed Impairments) .
If the Commissioner proceeds beyond Step Three, he must
assess the claimant's Residual Functional Capacity (RFC).
The
claimant's RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§
404.920(e).
See also Soc. Sec. Ruling (SSR) 96-Sp.
20 C.F.R.
A
"'regular and continuing basis' means S hours a day, for 5 days a
week, or an equivalent schedule."
S
OPINION AND ORDER
SSR 96-Sp, at *1.
In other
words, the Social Security Act does not require complete
incapacity to be disabled.
n.7 (9th Cir. 1996).
Smolen v. Chater, 80 F.3d 1273, 1284
The assessment of a claimant's RFC is at
the heart of Steps Four and Five of the sequential analysis
engaged in by the ALJ when determining whether a claimant can
still work despite severe medical impairments.
An improper
evaluation of the claimant's ability to perform specific workrelated functions "could make the difference between a finding of
'disabled' and 'not disabled. '"
SSR 96-8p, at *4.
In Step Four, the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.
20 C.F.R.
§
Stout, 454 F.3d at 1052.
See also
404.920(a) (4) (iv).
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in
the national economy.
C.F.R.
§
Stout, 454 F.3d at 1052.
404.920(a) (4) (v).
See also 20
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can do.
F.3d 1094, 1098 (9th Cir. 1999).
Tackett v. Apfel, 180
The Commissioner may satisfy
this burden through the testimony of a VE or by reference to the
Medical-Vocational Guidelines set forth in the regulations at
20 C-.F.R. part 404, subpart P, appendix 2.
If the Commissioner
meets this burden, the claimant is not disabled.
9
OPINION AND ORDER
20 C.F.R.
§
404.920(g) (1).
ALJ'S FINDINGS
At Step One, the ALJ found Plaintiff has not engaged in
substantial gainful activity since January 26, 2004, the date of
Plaintiff's initial application.
Tr. 321.
At Step Two, the ALJ found Plaintiff has the severe
impairments of "degenerative disc disease in the lumbar and
cervical spine, diabetes mellitus with numbness in the feet
bilaterally, ACL repair to the left knee, and pin in the left
ankle due to polio comp1ications./I
Tr. 321.
At Step Three, the ALJ concluded Plaintiff's physical and
mental impairments do not singly or in combination meet or equal
a Listed Impairment.
1.
See 20 C.F.R. part 404, subpart P, appendix
The ALJ found Plaintiff had the RFC to
perform light work as defined in 20 C.F.R.
416.967(b).
He can read, write, use numbers,
and perform simple calculations.
He should
never climb ladders, ropes, or scaffolds, but
can occasionally climb ramps or stairs.
He
can occasionally balance, stoop, kneel,
crouch, and crawl.
He can occasionally use
foot pedals.
He needs to alternate sitting
and standing at will approximately every
forty-five minutes.
He should avoid
concentrated exposure to hazards, extreme
cold, and vibration.
He can understand,
remember, and carryout short, simple
instructions and perform routine tasks.
Tr. 323.
At Step Four, the ALJ concluded Plaintiff is unable to
10
OPINION AND ORDER
perform any of his past relevant work.
Tr. 23.
At Step Five, the ALJ concluded Plaintiff has a sufficient
RFC to perform jobs that exist in significant numbers in the
national economy.
Tr. 328-29.
Specifically, the ALJ found
Plaintiff has the ability to perform jobs that require light work
such as parking-lot cashier and paper sorter/recycler.
Tr. 328.
DISCUSSION
Plaintiff contends the ALJ erred by (1) improperly
discrediting the opinion of Gary Olbrich, M.D., Plaintiff's
treating physician;
(2) improperly discrediting Plaintiff's
subjective symptom testimony;
(3) improperly discrediting the
testimony of lay-witness Rhonda Esser;
(4) failing to include
Plaintiff's leg-length discrepancy as a severe impairment at Step
Two;
(5) failing to find Plaintiff's impairments meet or exceed a
Listed Impairment;
(6) failing to fully develop the record as to
Plaintiff's depression and anxiety;
(7) failing to include
Plaintiff's limitations on concentration, persistence, and pace
in Plaintiff's RFC; and (8) failing to meet his burden at Step
Five to show Plaintiff is capable of performing other jobs that
exist in significant numbers in the national economy.
As an initial matter, the Commissioner maintains the law of
the case prohibits relitigation of a number of these issues
because the original decision by the ALJ issued on October 18,
11
OPINION AND ORDER
2006, was upheld in part by Judge Panner in the underlying
action, and the Ninth Circuit did not overturn the ALJ's decision
in its entirety.
Thus, the Commissioner argues several of
Plaintiff's asserted grounds for error are not properly before
this Court.
Plaintiff, however, points out that the ALJ did not limit
the April 14, 2010, hearing or his June 18, 2010, decision to
specific issues but instead addressed the same issues as the ALJ
reached in his October 18, 2006, decision even though Plaintiff
contends he should have limited review of the evidence and his
decision to only those issues set out in the Ninth Circuit
remand.
As reflected in Judge Panner's Order remanding the matter to
the Commissioner for further proceedings, the Ninth Circuit
affirmed the District Court's decision to reverse the denial of
benefits by the Commissioner and to remand for further
proceedings to consider the new medical evidence from
Dr. Olbrich, Plaintiff's treating physician.
The Ninth Circuit,
however, reversed the District Court's determination that the ALJ
adequately addressed the lay-witness testimony and directed the
ALJ to reconsider that evidence on remand.
Circuit concluded:
Finally, the Ninth
"The ALJ properly assessed Jessie's residual
functional capacity and did not err in rejecting Jessie's symptom
testimony based on the record before him.
12
OPINION AND ORDER
However, he may
reconsider these assessments in light of his consideration of
Dr. Olbrich's report as well as the lay witness testimony."
Although the Court agrees with Plaintiff that the ALJ
revisited Plaintiff's claim in its entirety, the ALJ did not err
in doing so.
The Ninth Circuit expressly permitted the ALJ to
reconsider the issues of Plaintiff's RFC and credibility to the
extent that the records from Dr. Olbrich and the lay-witness
testimony bear on those issues.
The records submitted by
Dr. Olbrich constitute nearly three years of additional treatment
history of Plaintiff's impairments and bear substantively on
Plaintiff's claim of disability.
Thus, the ALJ appropriately
reconsidered Plaintiff's claim for benefits in its entirety in
light of the new evidence from Dr. Olbrich.
Accordingly, the
Court will consider each of Plaintiff's asserted bases for error
and declines to find any of those issues are necessarily
controlled by the law of the case from the underlying action in
the District Court of Oregon, case number 07-CV-900-CL.
I.
The Opinion of Dr. Olbrich.
Plaintiff contends the ALJ erred by failing to give
controlling weight to the opinion of Dr. Olbrich, Plaintiff's
treating physician.
Specifically, Plaintiff points to a form
that Dr. Olbrich filled out on February 1, 2007, in which he set
out Plaintiff's functional capacity and his opinion that
Plaintiff has been unable to work since November 2003.
13
OPINION AND ORDER
Tr. 309-
15.
Plaintiff contends the ALJ did not provide sufficient
reasons for rejecting Dr. Olbrich's opinion as to Plaintiff's
functional capacity and his conclusion that Plaintiff is
disabled, which Plaintiff asserts should be credited.
A.
Dr. Olbrich.
The record reflects Dr. Olbrich was Plaintiff's treating
physician from October 2006 through February 2010 during which
time Dr. Olbrich treated Plaintiff on dozens of occasions.
Tr. 392-432.
Dr. Olbrich diagnosed Plaintiff with degenerative
disc disease of the lumbar and cervical spine, hypertension, type
II diabetes, osteoarthritis, chronic pain, and gastroesophageal
reflux disease.
Tr. 392-95, 402-03, 406.
On February 1, 2007, after having treated Plaintiff on five
occasions, Dr. Olbrich filled out a form in which he stated
Plaintiff had been disabled and unable to work since November
2003.
Tr. 309-15.
Dr. Olbrich opined Plaintiff had degenerative
disc disease of the lumbar spine that causes pain in his lower
back radiating into his lower extremities.
Tr. 309.
Dr. Olbrich
also identified ftclinical signs of arthritis" in Plaintiff's
hands.
Tr. 312.
Dr. Olbrich opined Plaintiff's condition would
deteriorate over time.
Tr. 309.
Dr. Olbrich assessed Plaintiff's functional capacity as
follows:
able to stand and walk less than two hours in an eight-
hour day; able to stand for no more than 20 minutes without
14
OPINION AND ORDER
changing positions; able to sit for approximately 30 minutes in
an eight-hour day and for no more that 15 minutes without
changing positions; must change positions from sitting, standing,
or walking at will; must lie down three to four times per day;
can rarely twist or climb stairs; can never stoop, crouch, or
climb ladders; and able to lift less than ten pounds occasionally
and ten pounds occasionally.
Tr. 312-13.
Dr. Olbrich concluded Plaintiff's pain frequently interferes
with attention and concentration and causes substantial
difficulty with fatigue and a lack of stamina that would require
him to work at a reduced pace.
Tr. 309-10.
Dr. Olbrich opined Plaintiff is not a malingerer and his
symptoms are reasonably consistent with his impairments.
Tr. 310.
Dr. Olbrich, however, stated Plaintiff's conditions
needed further evaluation.
B.
Tr. 311.
The ALJ.
The ALJ gave Dr. Olbrich's assessment of Plaintiff's
functional capacity "little weight- based on the following:
(1) Plaintiff provided many of the answers to the questionnaire
for Dr. Olbrich, and those answers reflect Plaintiff's subjective
beliefs rather than any objective testing of Plaintiff's
capacity;
(2) Dr. Olbrich's assessment is inconsistent with his
chart notes;
(3) Dr. Olbrich's assessment is inconsistent with
other medical evidence in the record; and (4) Plaintiff's
15
OPINION AND ORDER
allegations of disabling low-back pain are belied by Plaintiff's
repeated requests for Viagra.
C.
Tr. 327.
Analysis.
As noted, Plaintiff contends the ALJ erred when he failed to
give controlling weight to Dr. Olbrich's opinion and to provide
"specific and legitimate" or "clear and convincing" reasons for
rejecting Dr. Olbrich's opinion.
An ALJ may reject a treating physician's opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes "findings setting forth specific,
legitimate reasons for doing so that are based on substantial
evidence in the record."
Lingenfelter v. Astrue, 504 F.3d 1028,
1042 (9th Cir. 2007) (quoting Orn v. Astrue, 495 F.3d 625,
(9th Cir. 2007)).
632
When the medical opinion of a treating
physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.
Lester, 81 F.3d at
830-32.
A non examining physician is one who neither examines nor
treats the claimant.
Lester, 81 F.3d at 830.
"The opinion of a
nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician."
Id.
at 831.
A
non examining physician's opinion can constitute substantial
evidence if it is supported by other evidence in the record.
16
OPINION AND ORDER
Id.
at 600.
In addition to the bases provided for discrediting
Dr. Olbrich's assessment, the ALJ cited the opinion of
nonexamining Disability Determination Services (DDS)3 physician
J. Scott Pritchard, D.O., as inconsistent with Dr. Olbrich's
opinions.
Tr. 244-51.
As noted, the ALJ concluded Plaintiff provided Dr. Olbrich
with the answers to the February I, 2007, questionnaire assessing
Plaintiff's functional limitations.
Tr. 327.
testified at the hearing that he did so.
In fact,
Tr. 461-62.
Plaint{ff
Thus,
Dr. Olbrich's opinion was not based on his own assessment of nor
objective testing of Plaintiff's functional capacity.
In
addition, the ALJ, as discussed below, properly discredited
Plaintiff's sUbjective symptom testimony, which is an appropriate
ground for discrediting a physician's opinion that is based on a
patient's subjective complaints.
See Morgan v. Comm'r of the
Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999).
The ALJ also noted Dr. Olbrich's chart notes are
inconsistent with his February 1, 2007, assessment of Plaintiff's
functional capacity.
Tr. 327.
Indeed, Dr. Olbrich's treatment
notes over the course of his treating relationship with Plaintiff
3 Disability Determination Services (DDS) is a federally
funded state agency that makes eligibility determinations on
behalf and under the supervision of the Social Security
Administration pursuant to 42 U.S.C. § 421(a).
17
OPINION AND ORDER
reveal that even though Dr. Olbrich found Plaintiff to be
credible in the early months of their relationship, Dr. Olbrich
grew increasingly skeptical about Plaintiff's veracity and the
severity of his symptoms as reflected in the following entries
from Dr. Olbrich's treatment notes after his February 1, 2007,
assessment of Plaintiff's functional capacity:
a discrepancy
between Plaintiff's complaints of severe pain and the "benign
looking MRI" of January 4, 2007
(Tr. 420); Plaintiff's lower back
looks improved when comparing the MRI of January 14, 2005, to the
January 4, 2007, MRI (Tr. 420); Plaintiff's pain is stable with
pain medication (Tr. 406, 411, 416); questions the veracity of
Plaintiff's complaints of pain in his hand, notes a lack of
objective findings, and notes Plaintiff's "somewhat histrionictype presentation" (Tr. 410); recounts a dispute with Plaintiff
over Plaintiff's request for Valium and notes Plaintiff's
"general drug-seeking profile" (Tr. 408); despite significant
pain behavior, Plaintiff chose to use the stairs rather than
waiting for the elevator (Tr. 407); notes Plaintiff "goes through
a lot of pain behavior" and declined Plaintiff's request for
additional pain medication because Plaintiff had recently
obtained Oxycontin from the emergency room (Tr. 404); Vicodin
"appears to be doing well for [Plaintiff, and he] is not
experiencing any significant side effects from it" (Tr. 403);
Plaintiff "is clearly acting like he is in significant pain.
18
OPINION AND ORDER
I
always have a difficult time believing he is in as much pain as
he likes to pretend H (Tr. 403); Plaintiff "has always been a
complainer.
Nothing ever seems to be right for him H (Tr. 402);
Plaintiff "is here today with his usual continuing complaints of
back pain.
There has been really no increase.
has significant pain behaviors.
.
He usually
It is difficult to tell just how
much of this is real H (Tr. 393).
The Court notes the record reflects a similar pattern
developed during the treatment relationship between Plaintiff and
Nurse Practitioner (N.P.) Debbie Reynolds.
A few months after
she began treating Plaintiff in December 2003, N.P. Reynolds
filled out disability forms for Plaintiff in March 2004.
446-51.
Tr.
As the relationship progressed, however, N.P. Reynolds
began to doubt the veracity of Plaintiff's pain complaints.
For
example, N.P. Reynolds's treatment notes reflect the following
concerns:
despite significant plain complaints, Plaintiff "moves
about freely . .
I have to question how much of this pain is
real H (Tr. 442); Plaintiff again moves "quite fluentlyH despite
complaints of severe pain (Tr. 441); notes she "had Dr. Balme
review [Plaintiff's] MRI.
He has got apparently nothing of
significance, although he does have a neurosurgery referral.
suspect that he is malingering.
His exam is negative.
He had
been in a vocational rehabilitation program and may be
malingering due to this H (Tr. 441); and Plaintiff "is able to
19
OPINION AND ORDER
I
walk without difficultyH
(Tr. 436).
The records from other providers also substantiate the
concerns noted by Dr. Olbrich and N.P. Reynolds.
For example,
Plaintiff was treated on September 27, 2004, by Wendy Callander,
M. D.
Tr. 429.
Dr. Callander notes Plaintiff requested Vi·codin
rather than the prescription N.P. Reynolds had provided.
Tr. 429.
Dr. Callandar states Plaintiff was "very angry shaking
a bottle of pills at me and stating 'the pills she gave me are
not working.'H
Tr. 429.
Dr. Callander noted Plaintiff's stated
medical history was inconsistent with N.P. Reynolds's treatment
notes, and Plaintiff was "very evasive H about his back pain.
Tr. 429.
Dr. Callander also noted she spoke with another
physician, Dr. Brett, who did not agree Plaintiff needed chronic
pain medications for his back "because of the minimal nature of
his exam and his MRI.H
Tr. 429.
Dr. Callander doubted Plaintiff
would fill the non-opiate based medications she prescribed.
Tr. 429.
Considering the record as a whole, including the additional
medical records from Dr. Olbrich, the Court finds the ALJ's bases
for assigning little weight to Dr. Olbrich's assessment of
Plaintiff's functional capacity are supported by substantial
evidence in the record.
The Court, therefore, concludes the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for discrediting the opinion of Dr.
20
OPINION AND ORDER
Olbrich as to Plaintiff's functional capacity.
II.
Plaintiff's Credibility.
Plaintiff contends the ALJ erred when he rejected
Plaintiff's testimony with respect to the intensity, persistence,
and limiting effects of his symptoms because the ALJ did not
provide legally sufficient reasons for doing so.
In Cotton v. Bowen, the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and he must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).
Cotton,
799 F.2d 1403, 1407 (9th
The claimant, however, need not produce objective
medical evidence of the actual symptoms or their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above
test and there is not any affirmative evidence of malingering,
the ALJ can reject the claimant's pain testimony only if she
provides clear and convincing reasons for doing so.
Parra v.
Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (citing Lester, 81 F.3d
at 834)).
General assertions that the claimant's testimony is
not credible are insufficient.
Id.
The ALJ must specifically
identify "what testimony is not credible and what evidence
undermines the claimant's complaints."
(quoting Lester, 81 F.3d at 834).
21
OPINION AND ORDER
Parra,
481 F.3d at 750
The ALJ found Plaintiff's subjective symptom testimony
lacked credibility on the following grounds:
treating physicians suspect he is malingering,
(1) Plaintiff's
(2) Plaintiff's
poor work history undermines his assertion that he is disabled,
(3)
Plaintiff's statements are inconsistent regarding his use of
marijuana,
(4) Plaintiff's failure to comply with treatment
undermines his complaints of disabling pain, and (5) Plaintiff's
activities of daily living belie his claims of disability.
Because there is affirmative evidence of malingering in the
record, the ALJ is relieved of the requirement to provide clear
and convincing reasons for discrediting Plaintiff's subjective
symptom testimony.
See Carmickle v. Comm'r, Soc. Sec. Admin.,
533 F.3d 1155, 1160 (9th Cir. 2008) ("The only time [the clear and
convincing) standard does not apply is when there is affirmative
evidence that the claimant is malingering.").
The Court notes the ALJ in the prior decision found
Plaintiff was not credible with respect to his subjective symptom
testimony in light of Plaintiff's work history, inconsistent
statements, and the evidence of malingering.
Tr. 23-25.
That
portion of the ALJ's decision was upheld by Judge Panner in the
underlying action, case number 07-CV-900-CL, and was affirmed by
the Ninth Circuit on appeal.
Tr. 333-35, 346-59.
As noted,
however, the Ninth Circuit permitted the ALJ on remand to
reevaluate Plaintiff's credibility in light of additional records
22
OPINION AND ORDER
from Dr. Olbrich and the lay-witness testimony by Rhonda Esser.
As noted, N.P. Reynolds and treating physicians Drs.
Callander and Olbrich each raised concerns that Plaintiff
exaggerates his symptoms.
Each expressed the belief that
Plaintiff was magnifying his pain behavior either to obtain
additional pain medication or to obtain some manner of public
disability benefits.
The Court has reviewed the entire record to
assess the ALJ's determination that Plaintiff's subjective
symptom testimony is not credible and already addressed the
record with respect to Plaintiff's symptom magnification.
On
this record the Court concludes the additional medical records
submitted by Dr. Olbrich constitute substantial evidence that
supports the ALJ's credibility determination.
In addition, the new evidence in the record on remand does
not undermine other legitimate bases offered by the ALJ for
discrediting Plaintiff's subjective symptom testimony that were
upheld in the prior action, such as Plaintiff's extreme lack of
work history (earnings in five of the fourteen years prior to
Plaintiff's alleged onset date).
See Thomas v. Barnhart, 278
F.3d 947, 959 (9th Cir. 2002) (poor job history reflecting years
of unemployment before alleged onset of disability is a clear and
convincing reason to discredit the plaintiff).
Accordingly, the Court concludes on this record that the ALJ
did not err in his evaluation of Plaintiff's credibility because
23
OPINION AND ORDER
the ALJ gave legally sufficient reasons supported by substantial
evidence in the record for discrediting Plaintiff's subjective
symptom testimony.
III.
Lay-Witness Testimony by Rhonda Esser.
Plaintiff also contends the ALJ erred by failing to provide
legally sufficient reasons for rejecting the testimony of laywitness
Rho~da
Esser, Plaintiff's wife.
Lay testimony regarding a claimant's symptoms is competent
evidence that the ALJ must consider unless he "expressly
determines to disregard such testimony and gives reasons germane
to each witness for doing so."
(9th Cir. 2001).
Lewis v. Apfel, 236 F.3d 503,
511
See also Merrill ex rel. Merrill v. Apfel, 224
F.3d 1083, 1085 (9th Cir. 2000) ("[AJn ALJ, in determining a
claimant's disability, must give full consideration to the
testimony of friends and family members.").
Esser testified at the hearing before the ALJ on April 14,
2010.
Tr. 479-86.
She attested Plaintiff suffers from disabling
pain; lays in bed most of the day; and has difficulty walking,
gripping objects, and using stairs.
Tr. 479-84.
For example,
Esser testified Plainitff takes ten minutes to walk up 12 to 13
stairs and requires significant rest after walking short
distances.
Tr. 484.
The ALJ expressly considered the testimony by lay-witness
Esser and gave her testimony little weight.
24
OPINION AND ORDER
Tr. 326.
The ALJ
gave the following bases for his rejection of Esser's testimony:
(1) the limitations Esser described were inconsistent with
Plaintiff's activities,
(2) Esser's testimony was based on
Plaintiff's subjective complaints, and (3) Esser's testimony' is
inconsistent with Dr. Olbrich's records.
Tr. 326.
The Court has concluded the ALJ properly discounted
Plaintiff's credibility, particularly with respect to Plaintiff's
statements concerning the severity, persistence, and limiting
effects of his pain.
Thus, to the extent Esser's testimony is
based on Plaintiff's subjective complaints of pain and his
exaggerated pain behavior, Esser's observations are not helpful
to the ALJ in determining Plaintiff's ability to perform workrelated functions.
The ALJ also found Esser's testimony to be inconsistent with
Dr. Olbrich's treatment notes.
In particular, Plaintiff's
treating physician, Dr. Olbrich, repeatedly calls into question
the credibility of Plaintiff's "pain behavior- as exaggerated.
Dr. Olbrich noted on one occasion that despite Plaintiff's use of
a cane and apparent difficulty ambulating, Plaintiff elected to
use the stairs at his office rather than the elevator.
Tr. 407.
Dr. Olbrich also stated on several occasions that Plaintiff
reported his pain was adequately controlled with medication.
In
addition, as noted, the treatment notes of N.P. Reynolds reflects
Plaintiff moved freely during her examinations of Plaintiff
25
OPINION AND ORDER
despite significant pain behavior.
Finally, Esser's description of Plaintiff as virtually
unable to get out of bed or to climb even a flight of stairs is
inconsistent with the record as a whole; for example, Esser
testified Plaintiff travels to and from her apartment almost
daily, which requires the routine use of the stairs.
Tr. 481-83.
Plaintiff also drives a car and routinely travels to see
physicians.
These activities are inconsistent with Esser's
description of Plaintiff's extreme disability.
The Court, therefore, concludes on this record the ALJ
provided reasons germane to Esser and supported by substantial
evidence in the record for the weight he assigned to her
testimony.
IV.
Plaintiff's Leg-Length Discrepancy.
Plaintiff contends the ALJ erred by rejecting medical
evidence that establishes Plaintiff has a significant leg-length
discrepancy and by failing to include it as a severe impairment.
Plaintiff contends his leg-length discrepancy causes his back
problems and the ALJ failed to include the resulting limitations
in Plaintiff's RFC.
Plaintiff testified before the ALJ on September 13, 2006,
that "my one leg is longer than the other.
in my back too."
Tr. 330 (citation to the original
administrative record in 07-CV-900-CL).
26
And that throws pain
OPINION AND ORDER
Plaintiff, however, did
not make any reference to his leg-length discrepancy in his
testimony before the ALJ on April 14, 2010.
Moreover, the record
contains limited treatment notes that reflect Plaintiff's left
leg is shorter than his right leg or that the leg-length
discrepancy is disabling.
See Tr. 257, 265,
407-08, 410.
A review of each of the related treatment notes in the
records reveals Plaintiff's leg-length discrepancy is a
contributing factor to Plaintiff's back pain.
Tr. 407.
In late
2007 and early 2008, Dr. Olbrich's treatment notes reflect that
when Dr. Hart, a neurosurgeon, examined Plaintiff and concluded
he was not a candidate for surgery, he recommended a leg brace to
resolve Plaintiff's leg-length discrepancy.
Tr. 407-08, 410.
None of Dr. Olbrich's treatment notes, however, state any
specific limitations resulting from Plaintiff's leg-length
discrepancy beyond those associated with pain in Plaintiff's
lower back.
In fact, the record reflects Plaintiff was fitted
with a brace late in 2007 to compensate for the discrepancy.
Tr. 408, 410.
After some adjustments were made to the brace in
March 2008, the record does not contain any additional references
to Plaintiff's leg-length discrepancy despite the fact that the
record includes almost two years of treatment notes from
Dr. Olbrich after that date.
Dr. Olbrich did not at any point in
his treatment of Plaintiff list his leg-length discrepancy as an
impairment or refer to it in his February I, 2007, assessment of
27
OPINION AND ORDER
Plaintiff's functional capacity.
Ultimately the ALJ concluded the impairment of Plaintiff's
lumbar spine that resulted from Plaintiff's leg-length
discrepancy is severe and found in his assessment of Plaintiff's
RFC that Plaintiff is limited in standing, sitting, climbing,
stooping, balancing, kneeling, etc., as a result.
Tr. 313-23.
Plaintiff does not point to any evidence in the record that
differentiates any limitations that result from Plaintiff's leglength discrepancy from those that result from Plaintiff's
impairments of his lumbar spine.
On this record the Court concludes there is not any basis to
find that the ALJ erred at Step Two or Three by failing to
include Plaintiff's leg-length discrepancy as a severe impairment
or by failing to consider any resulting limitations.
V.
Listed Impairments 1.04B and 11.04B.
Plaintiff contends the ALJ erred by failing to find that
Plaintiff's impairments meet or exceed the Listed Impairments
1.04B and 11.04B.
See 20 C.F.R. part 404, subpart P, appendix 1.
Listing 1.04B is for "Spinal Arachnoiditis," and Plaintiff
concedes "[t)here is no evidence in the record that the plaintiff
has spinal arachnoiditis."
Listing 1.04B for spinal
arachnoiditis must be "confirmed by an operative note or
pathology report of tissue biopsy, or by appropriate medically
acceptable imaging, manifested by severe burning or painful
28
OPINION AND ORDER
dysesthesia."
The record does not reflect Plaintiff has had any
confirmation of spinal arachnoiditis nor symptoms of severe
burning or painful dysesthesia.
Similarly, although Plaintiff
contends he meets the Listing 11.04B for n[c)entral nervous
system vascular accident," he concedes there is not any evidence
that Plaintiff suffered a vascular accident.
Moreover, Listing
11.04B requires n[s)ignificant and persistent disorganization of
motor function in two extremities, resulting in sustained
disturbance of gross and dexterous movements, or gait and
station."
Thus, the Court concludes there is not any basis on
this record to find the ALJ erred when he did not find that
Plaintiff's impairments meet or exceed Listed Impairments 1.04B
or 11.04B.
Plaintiff, nevertheless, apparently contends his impairments
meet Listing 1.04 and 11.04 in some composite fashion based on
the combination of his spinal impairment with
nerve root compression, neuro-anatomic
distribution of pain, dysesthesia, limitation
of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex
loss clearly results in significant and
persistent disorganization of motor function
in his lower extremities and in the need to
change position or posture more than once
every two hours. The result is that he
experiences sustained disturbance in his gait
and station.
Although Plaintiff contends he suffers from each of the
above-listed symptoms, Plaintiff does not point to any medical
29
OPINION AND ORDER
evidence in the record to substantiate such an array of symptoms.
The record reflects Plaintiff has had at least three MRI's of his
lower back.
Tr. 169, 289, 422-23.
Even though the MRIs showed
some evidence of effacement of the nerve root at L5-S1, none of
the examinations showed nerve root or spinal cord impingement.
Dr. Olbrich, in fact, determined a comparison of Plaintiff's 2005
and 2007 MRls actually showed improvement in the disc bulges in
Plaintiff's lower back.
Tr. 420.
In addition, Plaintiff's
treating physicians have described his MRIs as "benign looking,H
resulting in insignificant or minimal findings.
441.
Tr. 420, 429,
As noted, Plaintiff was also evaluated by a neurologist who
determined Plaintiff was not a candidate for surgery.
Tr. 410.
Thus, although Plaintiff contends his degenerative disc
disease causes significant limitations on his ability to use his
legs and the record confirms Plaintiff has low-back pain with
some radiculopathy, Plaintiff's allegations of extreme disability
were properly discredited by the ALJ on the basis of the opinions
of Plaintiff's treating physicians and treating nurse
practitioner.
The Court, therefore, concludes Plaintiff has not
demonstrated he meets the standards for severity of symptoms
required under the Listings.
VI.
Plaintiff's Depression and Anxiety.
Plaintiff contends the ALJ erred by finding Plaintiff's
depression and anxiety to be nonsevere without developing the
30
OPINION AND ORDER
medical record further as to those impairments.
When determining whether Plaintiff has severe limitations
resulting from depression and anxiety, the ALJ analyzed the
record in accordance with 20 C.F.R.
§
416.920(a) and Listing
12.00C in light of the Psychiatric Review Technique by Frank
Lahman, Ph.D.
Tr. 228-39, ,322-23.
Dr. Lahman concluded
Plaintiff has a nonsevere anxiety-related disorder that does not
limit Plaintiff's activities of daily living; social functioning;
or ability to maintain concentration, persistence, and pace.
Tr. 228-39.
Dr. Lanham also pointed out Plaintiff's nonsevere
disorder has not resulted in any episodes of decompensation.
Tr. 228-39.
The record reflects only two mentions of depression by
Plaintiff's physicians:
On July 19, 2005, Plaintiff's then-
treating physician, John Pieniazek, M.D., noted Plaintiff
"seem[edj slightly depressed secondary to his pain in both of his
hands and as well as his back."
Tr. 279.
It does not appear
that Dr. Pieniazek made any further reference to depression.
Moreover, he did not diagnose Plaintiff with depression, did not
treat Plaintiff in any way for depression, and did not recommend
any further evaluation of Plaintiff's mental health.
In his
February 1, 2007, assessment of Plaintiff's functional capacity,
Dr. Olbrich noted Plaintiff suffers depression secondary to back
problems.
31
Tr. 310.
As noted, Dr. Olbrich made clear in his
OPINION AND ORDER
treatment notes following his February 1, 2007, evaluation that
he doubted Plaintiff's presentation of symptoms.
As with
Dr. Pieniazak, it also does not appear Dr. Olbrich made any
further reference to depression, diagnosed Plaintiff with
depression, treated Plaintiff for depression, or recommended any
further assessment of Plaintiff's mental health.
In fact,
Dr. Olbrich repeatedly described Plaintiff as pleasant,
cooperative, and with clear cognition following his February 1,
2007, diagnosis.
On June 16, 2004, N.P. Reynolds mentioned Plaintiff
experienced anxiety and recommended treatment with acupuncture.
Tr. 438.
No further follow-up was provided, and, as noted, N.P.
Reynolds became increasingly suspicious of Plaintiff's
presentation after June 2004.
The record only reflects passing references to what appear
to be merely fleeting symptoms of depression and anxiety.
Moreover, Dr. Lahman reviewed the record and found Plaintiff does
not suffer any work-relevant mental limitations from his anxiety.
See 20 C.F.R. §416.920(d(1) ("If we rate the degree of your
limitation in the first three functional areas as "none U or
"mild U and "none U in the fourth area, we will generally conclude
that your impairment(s) is not severe, unless the evidence
otherwise indicates that there is more than a minimal limitation
in your ability to do basic work activities. U).
32
OPINION AND ORDER
Thus,_ the Court
does not find any basis on this record to conclude the ALJ erred
with respect to his finding of nonseverity as to Plaintiff's
alleged mental impairments.
Nevertheless, Plaintiff also contends the ALJ had a duty to
further develop the record regarding Plaintiff's mental
impairments.
The ALJ, however, relied on the review of the
evidence by Dr. Lahman, and there is not any basis in this record
to conclude the evidence is ambiguous or required further
development.
The record contains more than six years of
consistent medical treatment of Plaintiff's impairments and three
passing references to symptoms of depression and anxiety without
further mention, treatment, or follow-up by Plaintiff's healthcare providers.
Accordingly, the Court concludes the ALJ was not
required to develop the record any further as to Plaintiff's
alleged mental impairments.
VII. Plaintiff's RFC.
Plaintiff also contends the ALJ erred when he assessed
Plaintiff's RFC by failing to include all of Plaintiff's workrelated mental limitations.
Plaintiff concedes the Ninth Circuit
upheld the previous ALJ's determination of Plaintiff's RFC.
Nonetheless, Plaintiff argues the ALJ on remand erred in his
assessment of Plaintiff's RFC by (1) failing to consider
Dr. Olbrich's February I, 2007, assessment that Plaintiff suffers
side effects from his medication;
33
OPINION AND ORDER
(2) failing to include
limitations on Plaintiff's ability to maintain concentration,
persistence, and pace, and (3) by stating that Plaintiff's
ability to stand and walk is "unrestricted."
A.
See Tr. 323.
Medication Side Effects.
On the basis of Dr. Olbrich's February 1, 2007, assessment
of Plaintiff's functional capacity in which Dr. Olbrich found
Plaintiff suffers from drowsiness as a consequence of his pain
medications, Plaintiff contends the ALJ erred when he failed to
include that limitation in Plaintiff's RFC.
The Court has already determined the ALJ did not err when he
discredited Dr. Olbrich's February 1, 2007, assessment of
Plaintiff's functional capacity.
Specifically, Dr. Olbrich's
treatment records contradict his earlier findings concerning the
side effects of Plaintiff's pain medications:
For example,
"[Plaintiff) has continued to do alright on Vicodin" (Tr. 420);
Plaintiff "has no new pains and symptoms.
The medications appear
to be holding him well so he really does not need any change in
these" (Tr. 406); and Plaintiff "also needs routine refills for
his low back syndrome, Vicodin ES #120.
well for him.
It appears to be doing
He is not experiencing any significant side
effects froIl) it" (Tr. 403).
After his February 1, 2007,
assessment, Dr. Olbrich did not note any complaints by Plaintiff
about disabling side effects from his medication.
Accordingly, the Court concludes the ALJ's decision not to
34
OPINION AND ORDER
include limitations based on the side effects of Plaintiff's
medication is supported by substantial evidence in the record.
B.
Concentration, Persistence, and Pace.
Plaintiff also contends the ALJ erred by failing to include
in Plaintiff's RFC the limitations on Plaintiff's concentration,
persistence, and pace due to exacerbations of Plaintiff's back
pain.
The previous ALJ limited Plaintiff to simple, repetitive
work "[d]ue to distractions of pain and the possible side effects
of medication,H and that determination was upheld by the Ninth
Circuit on appeal.
See tr. 23.
As noted, here the ALJ assessed
a similar limitation to simple repetitive work and found
Plaintiff is able to "understand, remember, and carry out short,
simple instructions and perform routine tasks. H
Tr. 323.
Plaintiff, however, contends, on the basis of Dr. Olbrich's
February 1, 2007, assessment, that he has work-related mental
limitations that must be included in his RFC.
The Court has already determined the ALJ did not err when he
decided not to give Dr. Olbrich's assessment controlling weight,
and the Court found the ALJ properly relied on Dr. Lahman's
opinion that Plaintiff does not have difficulties maintaining
concentration, persistence, or pace.
See Tr. 238.
Moreover,
none of Dr. Olbrich's records reflect complaints about
concentration, persistence, or pace.
fact,
35
Dr. Olbrich's records, in
reflect Plaintiff attended classes to learn about his
OPINION AND ORDER
,
,
diabetes and was doing well in those classes.
Tr. 418-19.
Moreover, when the ALJ asked Plaintiff at the hearing "So do you
think you can focus on a job?", Plaintiff testified "It depends,
yeah, I could.
If I had to, yes."
Tr. 469.
Plaintiff also
testified shifting positions would not distract his focus.
Tr. 470.
For example, Plaintiff said he could perform the duties
of a culinary job if he could stand long enough.
Tr. 471.
Plaintiff also testified he, in fact, had a part-time job that he
was able to concentrate on in which he makes telephone calls to
authorize checks.
Tr. 470-71.
Accordingly, the Court concludes the ALJ's decision not to
include additional limitations on Plaintiff's concentration,
persistence, or pace is supported by substantial evidence in the
record.
C.
"Unrestricted" Ability to Stand and Walk.
Plaintiff also contends the ALJ erred in his assessment of
Plaintiff's RFC when he stated Plaintiff's ability to stand and
to walk is "unrestricted."
See Tr. 323.
Plaintiff contends the
ALJ's assessment of Plaintiff's RFC is contradictory because the
ALJ used the word unrestricted to describe Plaintiff's ability to
stand and to walk, but then limited Plaintiff's ability to sit or
to stand to approximately 45 minutes at one time.
The previous ALJ assessed Plaintiff's ability to stand and
to walk as "unrestricted," and the previous ALJ's assessment of
36
OPINION AND ORDER
,
,
Plaintiff's RFC was expressly upheld by the Ninth Circuit.
Tr. 23.
Thus, to the extent that Plaintiff contends there is
some facial inconsistency in the language the ALJ used to assess
Plaintiff's RFC, the Court is not persuaded.
The Court notes even though the ALJ on remand found
Plaintiff's ability to stand and to walk is unrestricted, he
concluded Plaintiff has postural limitations that limited his
ability to climb, to stoop, to balance, to kneel, to crouch, to
crawl, and also noted Plaintiff must be able to shift between
sitting and standing at will approximately every 45 minutes.
Tr. 323.
Thus, the ALJ found Plaintiff has an unrestricted
ability to stand and to walk, but he can only exercise that
ability for a certain length of time.
Finally, to the extent that Plaintiff contends he has
additional restrictions on his ability to stand and to walk on
the basis of new evidence in the record from Dr. Olbrich, the
Court has already upheld the ALJ's determination that
Dr. Olbrich's February 1, 2007, assessment is undermined by his
subsequent treatment notes.
Although Plaintiff cites numerous
treatment records noting Plaintiff presented with a limp at his
physical-therapy examinations and appointments with N.P.
Reynolds, none of those records suggest Plaintiff is more
functionally limited than the ALJ concluded in his RFC.
Accordingly, the Court concludes the ALJ's assessment of
37
OPINION AND ORDER
· ,
Plaintiff's RFC is supported by substantial evidence in the
record.
VIII.
The ALJ's Burden at Step Five.
Finally, Plaintiff contends the ALJ's hypothetical to the
VE was in error because it did not contain all of Plaintiff's
work-related limitations.
Having concluded the ALJ did not err
in his assessment of Plaintiff's RFC, the Court finds Plaintiff
does not identify any legitimate basis for finding the ALJ's
hypothetical to the VE was erroneous.
In summary, the Court has reviewed the record in its
entirety with respect to each of Plaintiff's contentions that the
ALJ erred and concludes the ALJ has provided legally sufficient
reasons for his decision that are supported by substantial
evidence in the record.
Accordingly, the Court affirms the
decision of the Commissioner.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter with prejudice.
IT IS SO
ORDE~.
DATED this
~
day of October, 2011.
ANN~
united States District Judge
38
OPINION AND ORDER
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