Brown v. Commissioner Social Security Administration
Filing
18
OPINION AND ORDER. For the reasons stated above, the Commissioner's final decision denying benefits to plaintiff is AFFIRMED. This action is DISMISSED. IT IS SO ORDERED. Signed on 10/26/2011 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
Case No. 3:10-cv-1457-MA
BILLY E. BROWN,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
DAVID B. LOWRY
9900 SW Greenburg Road
Columbia Business Center, Suite 130
Portland, OR 97223
Attorney for Plaintiff
ADRIAN L. BROWN
Assistant United States Attorney
District of Oregon
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
KATHY REIF
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, MiS 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
MARSH, Judge
Plaintiff
Billy E.
Brown brings
this
action
for
judicial
review of a final decision of the Commissioner of Social Security
denying his
application for
Supplemental Security Income
benefits under Title XVI of the Social Security Act,
1381-1383f.
(SSI)
42 U.S.C
§§
This Court has jurisdiction pursuant to 42 U.S.C.
405(g) and 42 U.S.C.
1383(c) (3).
§
§
For the reasons that follow, I
affirm the final decision of the Commissioner.
PROCEDURAL BACKGROUND
Plaintiff
filed
an
application
for
supplemental
security
income on January 1, 2005, alleging disability beginning June 1,
2000.
After conducting two hearings, an administrative law judge
(ALJ) denied benefits in a decision dated January 30, 2007.
Appeals Council denied review.
The
On appeal to the United States
District Court, the parties stipulated to a remand, and the Appeals
Council issued an order of remand on October 23, 2008.
the
remand
order,
the
ALJ was
to
update
the
Pursuant to
medical
record,
reevaluate lay testimony, further evaluate plaintiff's testimony,
reconsider plaintiff's residual functional
capacity,
additional vocational evidence as necessary.
and obtain
Plaintiff filed a
subsequent application for supplemental security income on May 21,
2008,
which was
combined with plaintiff's prior application on
remand.
2 - OPINION AND ORDER
On June 18, 2010, an ALJ conducted another hearing at which
plaintiff
testified,
as
did
his
mother
Donna
Cleveland,
and
Vocational Expert Paul Morrison.
Plaintiff submitted additional
evidence.
the ALJ issued an unfavorable
On September 22,
decision,
and
is
the
2010,
final
decision
purposes of the court's review.
of
20 C.F.R.
the
§
Commissioner
for
416.1484(a).
FACTUAL BACKGROUND
Plaintiff was born in 1960 and was 49 years old on the date of
the hearing on June 18,
2010.
school,
in
obtained
a
GED
training while in prison.
Plaintiff completed 11 years of
2005,
and
undertook
some
computer
Plaintiff has a sporadic work history,
and was last employed briefly as a telemarketer in 2000.
Plaintiff
lives with his grandmother and son, and reports being assisted by
his mother.
Plaintiff
has
had
numerous
periods
of
incarceration.
Plaintiff testified at the June 18, 2010 hearing that he has spent
approximately
seven
years
in
prison
for
felony
including forgery, identity theft, and drug possession.
convictions
Plaintiff
also testified he has three convictions for DUI, occurring in 1994,
2006, and 2009, which have included jail time.
Plaintiff was diagnosed as HIV positive and with hepatitis C
while in prison in 2002.
Plaintiff has a long history of alcohol
and drug abuse, including cocaine, heroin, and methamphetamine use.
Plaintiff states that he stopped using illegal drugs in 2000, and
3 - OPINION AND ORDER
has only used alcohol two or three times since 2005.
Plaintiff
alleges disability based on a Human Immunodeficiency Virus
(HIV)
infection, hepatitis C, degenerative disk disease with scoliosis,
substance abuse, fatigue, left shoulder tendonitis, and heel pain.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
sequential
process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
is potentially dispositive.
at steps one through four.
§
Bowen v.
416.920.
Each step
The claimant bears the burden of proof
Bray v.
Commissioner of Soc.
Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009); Tackett v. Apfel, 180
F.3d
1094,
1098
(9th
Cir.
1999).
The
burden
shifts
to
the
Commissioner at step five to show that a significant number of jobs
exist
in
the
national
economy that
the
claimant
can
perform.
Yuckert, 482 U.S. at 141-42.
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since January 5, 2005, the application
date.
See 20 C.F.R.
At step two,
medically
§§
416.920(b), 416.971 et seq.
the ALJ found that plaintiff had the following
determinable
severe
impairments:
an
HIV
infection;
hepatits C; lumbar degenerative disc disease; and drug and alcohol
abuse.
See 20 C.F.R.
§
416.920(c).
At step three, the ALJ found that plaintiff does not have an
impairment or combination of impairments that meets or medically
4 - OPINION AND ORDER
equals a listed impairment.
See 20 C.F.R. §§ 416.920(d), 416.925,
416.926.
The ALJ assessed plaintiff with a residual functional capacity
(RFC) to lift and carry twenty pounds occasionally and ten pounds
frequently; that during an eight hour day, plaintiff can stand and
walk for six hours and sit for six hours; and that he is limited to
only occasional climbing, balancing, stooping, kneeling, crouching
See 20 C.F.R. §§ 416.927, 416.929.
and crawling.
At
step
four,
the
ALJ
found
perform any past relevant work.
At
step
five,
the
ALJ
that
plaintiff
See 20 C.F.R.
found
that
§
is
unable
to
416.965.
considering
his
age,
education, work experience, and residual functional capacity, there
are jobs that exist in significant numbers in the national economy
that plaintiff can perform.
Accordingly,
the
See 20 C.F.R. §§ 416.969, 416.969(a).
ALJ concluded that
plaintiff
is
not
disabled
within the meaning of the Act.
ISSUES ON REVIEW
Plaintiff
contends
that
the
ALJ made
improperly discrediting his testimony;
the opinion of Mary 0' Hearn,
M. D.,
several
errors:
(1)
(2) improperly discrediting
his treating physician;
(3)
improperly discrediting the lay witness testimony; and (4) failing
to demonstrate that plaintiff retains the ability to perform other
work in the national economy at step five.
STANDARD OF REVIEW
5 - OPINION AND ORDER
The district court must affirm the Commissioner's decision if
the Commissioner applied proper legal standards and the findings
are supported by substantial evidence in the record.
§
42 U.S.C.
405(g); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
"Substantial evidence means more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion."
Valentine v. Comm'r Soc. Security Admin., 574 F.3d 685,
Cir.
2009).
The court must weigh all the evidence,
supports or detracts from the Commissioner's decision.
Heckler,
807 F.2d 771,
772
decision must be upheld,
(9th Cir.
1986).
690
Id. ;
(9th
whether it
Martinez v.
The Commissioner's
even if the evidence is susceptible to
more than one rational interpretation.
Batson v. Comm'r of Soc.
Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews, 53
F.3d at
1039-40.
If the
evidence
supports the Commissioner's
conclusion, the Commissioner must be affirmed; "the court may not
substitute its. judgment for that of the Commissioner."
Edlund v.
Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Batson, 359 F.3d at
1193.
DISCUSSION
I.
Plaintiff's Credibility.
To
determine
whether
a
claimant's
testimony
regarding
subjective pain or symptoms is credible, an ALJ must perform two
stages of analysis.
6 - OPINION AND ORDER
20 C.F.R.
§§
404.1529,
416.929.
The first
stage
is
a
threshold test
in which the
claimant must
produce
objective medical evidence of an underlying impairment that could
reasonably be expected to produce the symptoms alleged.
Tommasetti
v. Astrue, 533 F.3d 1035, 10'39 (9th Cir. 2008); Smolen v. Chater,
80 F.3d 1273,1282
(9th Cir. 1996).
At the second stage of the
credibility analysis, absent affirmative evidence of malingering,
the ALJ must provide clear and convincing reasons for discrediting
the claimant's testimony regarding the severity of the symptoms.
Carmickle v. Comm'r Soc. Security Admin., 533 F.3d 1155, 1166 (9th
Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.
2007) .
The ALJ must make findings that are sufficiently specific to
permit
the
reviewing
court
to
conclude
that
the
F.3d at 1039;
2002);
Factors
Orteza
v.
the
ALJ
determinations
claimant's
Barnhart,
Thomas v.
Shalala,
may
include
50
F.3d
consider
the
278 F.3d 947,
748,
when
objective
treatment history,
the
any
pain
medication,
and
533
958
750
(9th
making
such
medical
claimant's
inconsistencies in testimony, effectiveness
of
not
Tommasetti,
arbitrarily discredit the claimant's testimony.
ALJ did
relevant
010
(9th Cir.
Cir.
1995).
credibility
evidence,
the
daily acti vi ties,
adverse side effects
character
evidence.
Tommasetti, 533 F.3d at 1039.
At the December 11, 2006 hearing, plaintiff testified that due
to problems with his back, he is unable to lift things, and needs
7 - OPINION AND ORDER
to change positions every 15 minutes.
Plaintiff stated that his
prison duty was limited because of his back problems and that he
just watches television.
spurs in his heels,
Plaintiff testified that due to bone
he can walk three blocks before needing a
break, and can stand for 20 minutes before needing a break.
Plaintiff also stated that he had a serious head injury with
a
brief loss of consciousness
in 1998,
which cause headaches,
restless leg syndrome, panic attacks, seizures, and numbness in his
face.
week,
Plaintiff testified that he gets headaches three times a
requiring him to lay down for half the day,
suffers panic attacks once per month.
and that he
Plaintiff stated that he
suffers leg cramps which interfere with his sleep for ten to 20
minutes each time.
Plaintiff stated that arthritis in his hands
causes him to drop items every few days,
and that he has crying
spells once per month which can last for several hours.
Plaintiff
hepatitis
vomiting.
C
in
further
2000,
testified
which
that
causes
he
was
chronic
diagnosed
nausea
and
with
daily
Plaintiff also stated that he has AIDS and that his
medications cause him daily seizures, insomnia, nightmares, weight
loss, and frequent diarrhea.
Plaintiff stated that he can spend up
to an hour ih the bathroom each day, sometimes with only 30 seconds
notice.
Plaintiff testified that he suffers fatigue, causing him
to nap for a couple of hours each day.
Plaintiff estimated that on
a good day, he could work for 45 minutes before needing a break,
8 - OPINION AND ORDER
and on a bad day only for 15 minutes.
According to plaintiff, he
should not work on heavy equipment because his medications cause
dizziness.
Plaintiff also stated that his knee pain prevents him
from crawling or kneeling.
At the June 18, 2010 hearing, plaintiff testified that he is
unable to work due to his scoliosis and degenerative disc disease,
chronic nausea,
testified
that
daily vomiting,
since
June
and daily diarrhea.
2000,
he
could
lift
Plaintiff
20
pounds
occasionally, that he could stand for 30 to 40 minutes, and could
sit for four hours, and is able to walk for 30 minutes.
testified
that
he
has
had
several
attacks, vomiting blood, and seizures.
hospitalizations
Plaintiff
for
panic
Plaintiff stated that he is
on multiple medications for his HIV and hepatitis C which cause him
nausea, vomiting, drowsiness,
diarrhea.
dizziness,
seizures,
insomnia,
and
Plaintiff reported that his nausea and vomiting worsened
with Interferon treatment for his hepatitis C.
Plaintiff testified
that his medications are the best ones with the least side effects.
When asked about his alcohol consumption, plaintiff testified
that he used to drink a
drinker,
six-pack per week,
but is now a
non-
and that his last drink was in March 2009 when he was
arrested for DUI.
Prior to that, plaintiff was last intoxicated in
2005, when he was arrested for DUI.
Plaintiff testified that he
stopped using illegal drugs in 2000, but since 2004, uses medical
marijuana daily for nausea.
9 - OPINION AND ORDER
Plaintiff also provided that since June of 2000 he has been
able
to
dress
and bathe himself,
do
the dishes,
laundry,
and
occasional cooking, and helps his son with his homework and attends
Plaintiff testified that he injured
parent-teacher conferences.
his back while shoveling in 2009, resulting in physical therapy.
Plaintiff denies mowing the lawn any longer.
In the September 22,
plaintiff
has
medically
be
expected
2010 decision,
reasonably
determinable
to
produce
the ALJ concluded that
impairments
some
that
symptoms,
could
but
that
plaintiff's statements concerning the intensity, persistence, and
limiting effects of those symptoms are not entirely credible.
Contrary to plaintiff's assertion, the ALJ provided numerous
reasons,
citing
specific
record
plaintiff's subjective complaints.
evidence,
which
undermine
To begin, the ALJ found several
inconsistencies between plaintiff's description of debilitating
symptoms
at
the
hearing
and
his
medical
When
record. '
the
claimant's own medical record undercuts his assertions, the ALJ may
rely on that contradiction to discredit the claimant.
Astrue,
481 F.3d 742,750-51
(9th Cir.
2007),
cert.
Parra v.
denied,
552
U.S. 1141 (2008); Morgan v. Comm'r Soc. Security Admin., 169 F.3d
595, 600 (9th Cir. 1999).
11 disagree with the ALJ's characterization of plaintiff's
care as conservative, yet as detailed above, the ALJ identifies
numerous inconsistencies supported by substantial evidence.
10 - OPINION AND ORDER
For example,
the ALJ noted that plaintiff's allegations of
debilitating nausea and diarrhea due to his HIV and hepatitis Care
inconsistent with his medical
records.
As
the· ALJ discussed,
plaintiff's records from January of 2005 state that his HIV is
under excellent control.
(Tr.1062.)
Likewise, in June of 2010,
Dr. 0' Hearn states that "he remains stable on current anti viral
therapy with fully suppressed virus and intact cellular immunity."
(Tr. 1316.)
Additionally, the ALJ noted that despite plaintiff's current
contention of unpredictable diarrhea interfering with his ability
to work for at least an hour each day, plaintiff has had multiple
visits
with
diarrhea.
plaintiff
his
physicians
where
he
has
denied
complaints
of
(Tr. 1018, 1051, 1005, 1001, 880, 884, Tr. 1314.)
correctly notes,
a
period without
entirely inconsistent with disability.
F.Supp.2d 1156, 1166 (D.Or. 2010).
complaints
is
As
not
See Carlson v. Astrue, 682
However, in this case, at the
2010 hearing, plaintiff complained of daily diarrhea.
Given the
number of visits where plaintiff denied experiencing diarrhea,
I
conclude that the ALJ's determination to discredit plaintiff on
this basis is supported by substantial evidence.
Moreover, as the
ALJ correctly indicated, there is a complete absence of information
in Dr. O'Hearn's treatment notes concerning plaintiff's allegations
of monthly panic attacks and daily seizures.
11 - OPINION AND ORDER
The
ALJ's
conclusion
that
wi th
the
exception
of
a
hospitalization for dizziness and vomiting in 2006, petitioner's
hepatitis C has been under excellent control also is supported by
substantial evidence.
To be sure, the medical record reveals that
plaintiff's most severe symptoms of vomiting and weight loss have
been transitory and appear to coincide with Interferon treatment
for his hepatitis C, treatment that his doctors stopped due to its
side effects.
With respect to nausea, the court agrees with plaintiff that
his nausea appears to be a chronic condition.
Plaintiff is on
anti-nausea medication and takes medical marijuana.
However, the
record also supports the ALJ's conclusion that his nausea is not as
debili tating as plaintiff suggests.
2009,
plaintiff reported chronic nausea,
plaintiff denied any nausea.
2010,
For example,
(Tr.
869,
on August 4,
but on June 28,
884.)
And,
2009,
on June 16,
just two days prior to the hearing, plaintiff informed Dr.
O'Hearn that his nausea was much improved, contrary to plaintiff's
hearing testimony two days
later where he complained that
nausea causes him to lie down for two hours each day.
his
Where the
record supports the conclusion drawn by the ALJ, this court may not
second-guess it.
Parra, 481 F.3d at 746.
The ALJ also discredited plaintiff
for
noncompliance with his medication regimen.
records
cited
by
the
12 - OPINION AND ORDER
ALJ,
I
conclude
five
instances
of
Having reviewed the
that
in
two
of
those
instances, plaintiff discontinued his medications due to adverse
side effects, and thus, the ALJ's conclusion is not supported by
substantial evidence.
(Tr. 1033, 1039.)
In two other instances,
plaintiff was unable to take his medications or follow treatment
due to his incarceration.
I
also find those two instances of
noncompliance are not supported by substantial evidence.
(Tr.
1018, 878, l390-92.)
With respect to the fifth instance of noncompliance, however,
the ALJ's conclusion is supported by substantial evidence.
the ALJ cites medical records from November 1990.
(Tr.
There,
616-22.)
Those records reveal that plaintiff underwent surgery to remove
anal warts while incarcerated.
plaintiff's
self-reported
The records directly contradict
medical
history
he
provided
to
Dr.
Taplitz in February of 2005, when plaintiff denied ever having anal
warts.
se,
(Tr. 1057.)
Although not an instance of noncompliance per
I conclude that the ALJ could discount plaintiff's testimony
based on this obvious contradiction.
Even if the ALJ should not have discredited plaintiff for a
few instances of noncompliance with his medication regimen,
such
error
is
harmless.
Wi th
respect
to
the
any
inconsistencies
between plaintiff's medical record and his self-reported symptoms,
the ALJ's remaining findings are supported by substantial evidence.
And,
as detailed below,
13 - OPINION AND ORDER
the ALJ has
identified numerous other
bases, backed by substantial evidence, for discrediting plaintiff.
See Carmickle, 533 F.3d at 1162; Batson, 359 F.3d at 1197.
I
conclude that the ALJ properly relied upon plaintiff's
sporadic work history in assessing plaintiff's credibility.
As the
ALJ discussed in the decision, plaintiff has had long periods of
incarceration,
and has
worked
sporadically,
alleged disability onset date in 2000.
explained,
plaintiff's
work
history
even prior to
(Tr.
788.)
reveals
As the ALJ
many
plaintiff did not have any earnings whatsoever
years
(i.e.,
1992, 1994-1998), wholly supporting the ALJ's findings.
As
the
ALJ
found,
plaintiff's
inconsistent with plaintiff's
actual
employment
primary contention
unable to work due to his alleged impairments.
his
-
where
1989-90,
(Tr. 60.)
history
is
that
is
he
See Thomas,
278
F.3d at 959 (claimant's spotty work history was a valid credibility
consideration); Goudge v. Astrue, 2010 WL 4007538, *3 (D.Or. Oct.
12, 2010) (discrediting claimant for sporadic work history) .
Continuing,
criminal history.
discredit
a
dishonesty.
based
on
the
ALJ
discredited
plaintiff
based
on
his
Contrary to plaintiff's assertion, an ALJ may
claimant based on convictions
involving crimes
of
Goudge, 2010 WL 4007538 at * 3 (discrediting claimant
convictions
for
drug
possession,
attempted
drug
manufacture, and identity theft); Albidrez v. Astrue, 504 F.Supp.2d
814, 822 (C.D. Cal. 2007) (ALJ properly discredited claimant based
on
prior
felony
convictions
14 - OPINION AND ORDER
for
robbery
and
showing
false
identification); Brown v. Astrue, 2008 WL 4279401,
Sept.
2008) (discrediting
16,
claimant
based
*7
on
(E.D.
prior
Cal.
theft
conviction) .
In this case, the ALJ inquired of plaintiff's past convictions
during the June 18, 2010 hearing.
Plaintiff testified that he had
multiple convictions for forgery and identity theft.
evidence,
the
ALJ
discredited
plaintiff
Based on this
finding
that
such
convictions "necessarily involve dishonesty and deception."
The
ALJ's findings are supported by substantial evidence, and the ALJ
appropriately discredited plaintiff on this basis.
Additionally,
the ALJ found that plaintiff's activities of
daily living are inconsistent with the level of disability he is
alleging.
The ALJ noted that in 2005, plaintiff reported that he
was able to care for himself without assistance, prepared meals for
himself,
performed
normal
household
chores,
used
public
transportation, shopped in stores, managed his finances, was able
to read, watched television, attended support groups independently,
and socialized with friends and family.
The ALJ determined that
this long list of abilities was inconsistent with his current claim
of being incapacitated.
The ALJ specifically discredited plaintiff citing plaintiff's
own testimony that he served as his father's primary caregiver for
a period of time after his father suffered a stroke.
At the June
18, 2010 hearing, plaintiff testified that several months earlier
15 - OPINION AND ORDER
he traveled to Arizona, moved his father to Oregon,
settled his
father into an apartment, and stayed with him for five days a week
for a period of three months.
(Tr. 1403.)
Plaintiff reported that
he cooked for his father, and took his father to appointments.
The
ALJ's findings are supported by substantial evidence.
I conclude that the ALJ could discredit plaintiff because his
activities of daily living are inconsistent with his allegations
disabling symptoms.
Cir.
See Berry v. Astrue, 622 F.3d 1228, 1235 (9th
2010) (inconsistencies
between
self-reported
symptoms
and
activities supported adverse credibility finding).
To summarize, even if the ALJ erred in discrediting plaintiff
for a few instances of noncompliance, any such error is harmless.
The
remaining
substantial
reasons
evidence
supplied
in
the
by
record.
the
ALJ
are
Because
supported
those
by
remaining
reasons, when taken together, still amount to clear and convincing
evidence,
the
sustained.
ALJ's
adverse
credibility
determination
must
be
See Carmickle, 533 F.3d at 1162; Batson, 359 F.3d at
1197.
II.
Physician's Opinion.
To
reject
the
examining physician,
uncontroverted
opinion
of
a
treating
or
the ALJ must present clear and convincing
reasons for doing so.
Bayliss v.
Barnhart,
427 F. 3d 1211,
1216
(9th Cir. 2005); Rodriguez v. Bowen, 876 F.2d 759,761-62 (9th Cir.
1989).
If a treating or· examining doctor I s opinion is contradicted
16 - OPINION AND ORDER
by another doctor's opinion,
legitimate reasons.
this
it may be rejected by specific and
Bayliss,
427 F.3d at 1216.
burden by providing a
An ALJ can meet
detailed summary of the
conflicting medical evidence,
facts
and
stating his own interpretation of
that evidence, and making findings.
Tommasetti, 533 F.3d at 1041;
Carmickle, 533 F.3d at 1164; Magallanes v. Bowen, 881 F.2d 747, 751
(9th Cir. 1989).
When evaluating conflicting opinions, an ALJ is
not required to accept an opinion that is not supported by clinical
findings,
or is brief or conclusory.
Magallanes,
881
F.2d
physician's
opinion that
subjective complaints.
Plaintiff
argues
at
751.
is
An
Bray,
ALJ
based on a
554
also
F. 3d at 1228;
may
claimant.' s
discount
a
.discredited
Tommasetti, 533 F.3d at 1040.
that
the
ALJ
erred
by
failing
to
give
controlling weight to the opinion of Dr. O'Hearn simply because the
opinion was contained in a questionnaire prepared by plaintiff's
attorney.
In the questionnaire, Dr. O'Hearn opined that plaintiff
has been unable to work since 2003.
0' Hearn did more
than
According to plaintiff, Dr.
check-the-box by providing
objective signs in the questionnaire.
findings
and
Plaintiff asserts that the
ALJ failed to provide specific and legitimate reasons for partially
rejecting Dr. O'Hearn's opinion.
The ALJ discounted Dr.
I disagree.
O'Hearn's opinion contained in the
questionnaire, offering, in part, the following rationale:
17 - OPINION AND ORDER
In this case, Dr. O'Hearn merely completed a "fill-inthe-blanks" form and did not provide reasons based on
objective evidence to substantiate her opinion or even
explain how the claimant's impairments limited his
ability to lift and carry, to sit, stand and walk, to
perform postural or manipulative tasks or to fulfill the
basic mental demands of competitive,
remunerative,
unskilled work.
The difficulty with this type of
attorney-created, goal directed, check-the-box, fill-inthe-blank form is that while signed by a treating medical
source, it contains no real description of medical
findings and is merely brief and conclusory in form. It
is
well
established
that
in
such
a
case
the
Administrative Law Judge may properly reject such a
conclusory opinion.
(citation omitted) .
Contrary to plaintiff's suggestion,
the ALJ did not reject Dr.
O'Hearn's
it
opinion
solely
because
was
contained
questionnaire created by plaintiff's attorney.
in
the
In this case, the
ALJ also detailed numerous inconsistencies between Dr. O'Hearn's
opinion
contained
in
the
questionnaire
and
the
doctor's· own
contemporary treatment notes.
For example, the ALJ discussed that Dr. O'Hearn's contemporary
notes reflect that plaintiff's HIV and hepatitis C consistently
have been well-controlled and stable,
with low to non-existent
viral
0' Hearn's progress notes
loads.
The ALJ noted that Dr.
reflected few,
if any, objective findings concerning plaintiff's
back impairment, and that his back pain was well-controlled with
medication.
Indeed, the progress notes cited by the ALJ include a
comment by Dr. 0' Hearn that plaintiff's back pain appears to be out
of proportion with his skeletal abnormalities,
and that he has
responded well to physical therapy in the past.
(Tr. 1317-1319.)
18 - OPINION AND ORDER
The ALJ also explained that Dr. O'Hearn's treatment notes describe
plaintiff's depressive symptoms as stable with medication, yet the
questionnaire indicates that his depression and anxiety negatively
impacted plaintiff's physical condition.
Plaintiff
controlling
asserts
weight
to
that
Dr.
the
ALJ
O'Hearn's
was
required
opinion
to
because
give
it
is
consistent with information contained in the notations of other
physicians.
While
I
agree
that
plaintiff
consistently
has
complained of chronic nausea and occasional vomiting (Tr. 658-59,
869, 881, 891,
1015, 1021), Dr. O'Hearn is the only physician to
opine that plaintiff is unable to work due to his symptoms,
that
opinion
above.
is
contained
only in
the
and
questionnaire discussed
Furthermore, an ALJ may give a treating physician's opinion
less weight if it based on a patient's sUbjective complaints where
the ALJ finds a claimant less than credible.
1228.
Bray,
554 F.3d at
Where the record supports the findings made by the ALJ, it
is not for this court to second-guess the ALJ's decision.
Batson,
359 F.3d at 1193.
The court
is mindful of the deference
accorded treating physicians.
(9th Cir. 2007).
that
his
typically
See Orn v. Astrue, 495 F.3d 625, 632
However, where a treating physician's opinion of
complete disability is undercut by the physician's own contemporary
medical records,
I conclude that the ALJ is not required to give
that opinion controlling weight.
19 - OPINION AND ORDER
Based on these multiple inconsistencies, in combination with
the context in which the questionnaire was produced,
I conclude
that the ALJ cited specific and legitimate reasons for discounting
Dr.
O'Hearn's opinion contained in the questionnaire.
Astrue,
2010
WL
4536788,
treating physican's
*7
(D.Or.
Nov.
opinion contained in
I,
a
Wise v.
2010) (discounting
letter prepared by
plaintiff's attorney); Orellana v. Astrue, 2008 WL 398834, *12-13
(E.D. Cal.
Feb. 12, 2008), adopted by, 2008 WL 659761 (E.D. Cal.
Mar.
2008) (rejecting
II,
contained
in
a
an
"opinion"
fill-in-the-blank
form
attorney); accord Tonapetyan v. Halter,
of
treating
prepared
by
physician
claimant's
242 F.3d 1144, 1150 (9th
Cir. 2001) (ALJ may discount opinion of treating physician if it is
unsupported
by
objective
evidence
or
record
as
a
whole).
Accordingly, I find that the ALJ adequately explained rejection of
Dr.
O'Hearn's
opinion
in
the
contemporary treatment notes.
questionnaire
in
favor
of
the
See Crane v. Shalala, 76 F.3d 251,
276 (9th Cir. 1996) (individualized medical reports are preferred to
check-off reports); accord Batson, 359 F.3d at 1195.
Additionally,
I note that plaintiff does not challenge the
ALJ's treatment of the opinion of Donald D.
Ramsthe1, M.D., who
conducted a consultative examination of plaintiff on May 7, 2005.
As the ALJ found, Dr. Ramsthel opined that plaintiff could lift and
carry 100 pounds occasionally and 40 pounds frequently.
The ALJ
noted that Dr. Ramsthel could sit without limit, and stand or walk
20 - OPINION AND ORDER
for up to two hours at a time in a six hour day.
Dr.
Ramsthel
noted that
environmental limitations.
plaintiff
had no
other
(Tr.
655-59.)
functional
or
Plairitiff similarly does not challenge
the ALJ's analysis of an Oregon Department of Corrections opinion
which placed plaintiff on a four-month limitation to light work
with no repetitive abduction of the left shoulder, and that this
limitation was not continued.
Plaintiff also suggests that the ALJ should not have relied
upon the opinions Mary Westfall, M.D., and Richard Alley, M.D., two
non-examining
physicians.
Dr.
medical records on August 15,
Westfall
2005,
reviewed
plaintiff's
and in a physical residual
·functional capacity (RFC) assessment opined that plaintiff could
lift 20 pounds occasionally, 10 pounds frequently, and could stand,
walk or sit for six hours in and eight hour day, and thus could
perform a full range of light work.
(Tr.
673-680.)
Dr. Alley
reviewed plaintiff's medical records on July 22, 2008, and in an
RFC assessment opined that plaintiff could occasionally lift 20
pounds, frequently lift 10 pounds, could sit for six hours in an
eight hour day, but could stand or walk for a total of two hours in
an eight hour day.
Dr. Alley described that plaintiff is limited
to occasional climbing, balancing, stooping,
and crawling,
work.
kneeling,
crouching
thus opining that plaintiff can perform sedentary
(Tr. 1109-1116.)
21 - OPINION AND ORDER
Plaintiff
argues
that
the
ALJ
should
not
rely
upon
the
opinions of Drs. Westfall and Alley because they are not supported
by independent clinical findings.
and Alley stated that they
I disagree.
revi~wed
Both Drs. Westfall
the medical record,
which
contains the information from the Department of Corrections,
as
well as the opinion of Dr. Ramsthel.
Based on my careful review of
those
minimum,
opinions,
it
appears,
at
a
that
Dr.
Westfall
considered the full physical examination completed by Dr. Ramsthel,
as Dr. Westfall specifically mentioned the moderate to heavy RFC.
(Tr.
655-659,
examining
680.)
physicians
findings,
Thus,
are
because
the
supported
by
opinions
of
independent
the ALJ did not err in considering them.
the
non-
clinical
See Orn,
495
F.3d at 632 (describing independent clinical findings as diagnoses
'offered
by
another
physician
and
supported
by
substantial
evidence) .
In short, Dr. O'Hearn's opinion that plaintiff was unable to
work was not .uncontroverted, and the ALJ adequately detailed the
facts
and
Tommasetti,
conflicting
533
medical
F. 3d at
1041.
evidence
I
find
and
no
offered
error
findings.
in the ALJ's
treatment of the treating physician's opinion contained. in the
questionnaire provided by plaintiff's attorney.
III. Lay Testimony.
Lay witness testimony as to a claimant's symptoms or how an
impairment affects his ability to work is competent evidence, which
22 - OPINION AND ORDER
the ALJ must take into account.
Stout v. Commissioner, Soc. Sec.
Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); Nguyen v. Chater, 100
F.3d 1462, 1467 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915,
919 (9th Cir. 1993).
The ALJ is required to account for competent
lay witness testimony,
reasons for doing so.
and if he rejects it, to provide germane
Valentine, 574 F.3d at 694; Dodrill, 12 F.3d
at 919.
In this case, plaintiff's primary contention is that the ALJ
inappropriately
discounted
the
testimony
of
Donna
Cleveland,
plaintiff's mother, based on their relationship and that she was
motivated to assist plaintiff.
I disagree.
Plaintiff correctly notes that an ALJ may not discount lay
testimony solely based on a close familial relationship between a
claimant and the lay witness.
1116
(9th Cir.
2009).
See Bruce v. Astrue, 557 F.3d 1113,
However,
in this case,
the ALJ offered
multiple germane reasons for discounting the lay testimony.
For
example, the ALJ specifically discounted Ms. Cleveland's testimony
that
plaintiff
suffered
debilitating depression,
episodes
of
daily
crying,
seizures,
and dizzy spells as being inconsistent
with plaintiff's medical record.
As discussed above with respect
to
medical
plaintiff's
testimony,
his
record
is
devoid
of
complaints of daily seizures, and his depression was largely wellcontrolled.
and
In light of my conclusion that the ALJ provided clear
convincing
reasons
23 - OPINION AND ORDER
for
rejecting
plaintiff's
subjective
complaints, and that Ms. Cleveland's testimony is similar to those
complaints,
it
discounting
follows
her
that
testimony.
the
ALJ gave
Valentine,
germane
574
F.3d
reasons
at
694;
for
see
Bayliss, 427 F.3d at 1218 (the ALJ may accept lay witness testimony
that is consistent with the record relating to daily activities,
and may reject portions of testimony that are inconsistent with the
medical record and based on unreliable subjective complaints);
Lewis v. Apfel, 236 F.3d 503, 511-12 (9th Cir. 2001) (same).
Additionally, the ALJ found that Ms. Cleveland's failure to
note that plaintiff occasionally drives a car inconsistent with
plaintiff's testimony that since his alleged onset date in 2000, he
has driven approximately 10,000 miles, and inconsistent with his
prior DUI conviction, about which his mother presumably was aware.
(Tr. 725, 1404.)
Thus, the ALJ has supplied another germane reason
for partially rejecting Ms. Cleveland's testimony.
533
F.3d
at
1164
(ALJ
may
discredit
lay
See Carmickle,
testimony
based
on
inconsistency with claimant's own testimony).
In
the
decision,
the
ALJ
also
identified
which
testimony from Ms. Cleveland the ALJ found credible.
specific
For example,
the ALJ partially credited Ms. Cleveland's 2005 third party report
because it described plaintiff engaging in extensive activities of
daily living:
household
caring for himself,
chores,
walking,
using
preparing meals,
public
transit,
finances, and attending support groups independently.
24 - OPINION AND ORDER
performing
managing
his
The ALJ also
credited Ms.
Cleveland's description of plaintiff tiring easily
when mowing the
activities
lawn or working on his
were
beyond
light
inconsistent with a light RFC.
cars,
exertion,
and
but
found these
thus
were
not
Accordingly, I conclude that the
ALJ has provided multiple germane reasons, in addition to stating
that Ms. Cleveland appeared motivated to assist her son, and that
the ALJ did not err in discounting the lay testimony.
Greger v.
Barnhart, 464 F.3d 96S, 972 (9th Cir. 2006).
The
ALJ
also
discussed
the
testimony
of
Tina
plaintiff's former girlfriend and mother of plaintiff's son.
Ring,
Ms.
Ring testified that she observed plaintiff a few times a week from
late December of 2005,
following plaintiff's release from prison
until June of 2006, when plaintiff was re-incarcerated.
Ms. Ring
testified at 2006 hearing that plaintiff had difficulty with his
hands trembling, and that he was depressed, had crying spells, and
appeared in pain SO percent of the time.
Ring
testified
that
between
December
plaintiff drinking on two occasions.
(Tr.72S-30, 741.)
she
Ms.
and
June,
recalled
Ms.
Ring testified that
plaintiff would tire easily when mowing the lawn, but that he did
take their son fishing twice.
The
ALJ
discounted
Ms.
Ring's
testimony
because,
like
plaintiff's complaints, her description of plaintiff's symptoms is
inconsistent
testimony.
with
plaintiff's
medical
record
and
plaintiff's
As mentioned above, where the ALJ has provided clear
25 - OPINION AND ORDER
and
convincing
evidence
to
discount
a
claimant's
subjective
complaints, and a lay witness describes similar complaints, the ALJ
has provided a germane reason to discount Ms. Ring's testimony.
Valentine, 574 F.3d at 694; see Bayliss, 427 F.3d at 1218.
The ALJ
also did not err in discounting Ms. Ring's testimony on the basis
that
the
limitations
she
alleged
were
inconsistent
with
the
activities she described plaintiff as doing (fishing, playing games
with her son, household chores, and mowing the lawn).
533 F.3d at 1164.
This reason is germane to Ms. Ring.
the ALJ found that Ms.
Carmickle,
I note that
Ring's testimony about plaintiff tiring
while mowing the lawn was not inconsistent with light duty work.
In sum, I conclude that the ALJ has provided germane reasons
for
discounting
the
lay
testimony,
substantial evidence in the record.
IV.
which
are
supported
by
Valentine, 574 F.3d at 694.
Plaintiff Can Perform Other Work in the National Economy.
Plaintiff
complains
that
the
Vocational
Expert's
(VE's)
testimony fails to meet the Commissioner's step five burden.
With
respect to step five, plaintiff argues only that the ALJ erred by
failing to discuss evidence from the United States Department of
Labor, the United States Department of Commerce and the State of
Oregon concerning the "lack of documentation for numbers of jobs by
DOT
[Dictionary
national
and
of
Occupational
regional
34.) (citing Tr. 262-68.)
26 - OPINION AND ORDER
levels."
Titles)
section
(Plaintiff's
at
Brief
both
the
#15,
p.
Plaintiff submitted a 2003 letter from
the U.S. Census Bureau stating that it does not rely upon the DOT
codes,
but
instead
relies
Classification (SOC).
upon
the
Standard
Occupational
Plaintiff also submitted additional letters
ranging from 1997 to 2002 from other state and national agencies
stating how those agencies calculate their employment numbers. (Tr.
262-68.)
Plaintiff submits that the ALJ was required to discuss
this significant probative evidence.
I disagree.
Plaintiff's argument has been rejected previously.
As aptly
explained in Werthy v. Astrue, the DOT is recognized in the Social
Security Regulations as a source of reliable job information.
WL 4625663, *32 (D.Or. Sept. 2, 2011) (citing 20 C.F.R.
adopted by, 2011 WL 4625668 (D.Or. Oct. 3, 2011).
is
permitted
to
take
administrative
information contained in the DOT.
Bayliss,
reliable
notice
20 C.F.R.
§
2011
404.1566),
Indeed, an ALJ
of
reliable
job
404.1566; accord
§
427 F.3d at 1218 (ALJ may take administrative notice of
job
information,
including
that
from
a
VE,
without
additional foundation).
Furthermore, the Commissioner may satisfy
its
a
burden
expertise
testimony.-
by
calling
provides
the
VE
to
testify.
necessary
"A
foundation
VEl s
for
recognized
his
or
her
Bayliss, 427 F.3d at 1218.
An ALJ must inquire whether the VE's testimony conflicts with
information in the DOT.
See SSR 00-4p; Massachi v. Astrue,
F.3d 1149, 1153 (9th Cir. 2007).
486
I find that the ALJ complied with
that requirement in this case when the ALJ inquired whether VE Paul
27 - OPINION AND ORDER
Morrison's testimony was consistent with the DOT.
the reasons set forth in Werthy,
(Tr. 1418.)
For
I conclude that the ALJ was not
required to comment upon the letters submitted by plaintiff.
2011
WL 4625663 at *32.
As discussed above, I have concluded that the ALJ did not err
in the fashioning of plaintiff's RFC.
Because the hypothetical
posed to the VE included all of those limitations which the ALJ
deemed to be credible .and consistent with the medical evidence, the
ALJ
could
reasonably
rely
upon
the
VE' s
testimony.
Stubbs-
Danielson, 539 F.3d 1169, 1175-76 (9th Cir. 2008).
CONCLUSION
For
the
reasons
stated
above,
the
Commissioner's
decision denying benefits to plaintiff is AFFIRMED.
final
This action
is DISMISSED.
IT IS SO ORDERED.
DATED this
~~
day of OCTOBER, 2011.
~~h~
Malcolm F. Marsh
United States District Judge
28 - OPINION AND ORDER
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