Volke v. Commissioner Social Security Administration
Filing
31
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 04/30/2012 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ROBERT J. VOLKE,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
JAMES S. COON
820 S.W. Second Ave.
Portland, OR 97204
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
DAVID J. BURDETT
Special Assistant United States Attorney
Office of the General Counsel
701 Fifth Ave., Suite 2900, MIS 221A
Seattle, WA 98105-7075
Attorneys for Defendant
1 - OPINION AND ORDER
Case No. 3:10-cv-01492-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff Robert Volke seeks
decision
of
the
Commissioner
judicial review of the final
of
Social
Security
denying
his
applications for disability insurance benefits (DIB) under Title II
of the Social Security Act, 42 U.S.C.
§§
401-403, and Supplemental
Security Income (SSI) disability benefits under Title XVI of the
Social Security Act,
42
U.S.C.
§§
jurisdiction pursuant to 42 U.S.C.
§
1381-1383f.
405(g).
This Court has
For the reasons that
follow, this court affirms the decision of the Commissioner.
FACTUAL AND PROCEDURAL BACKGROUND
On August 30, 2004, plaintiff filed an application for DIB and
SSI benefits.
Plaintiff alleges disability beginning October 20,
2003,
schizophrenia
due
to
and
initially denied on January 12,
April 22, 2005.
depression.
2005,
The
claims
were
and on reconsideration on
Plaintiff filed a request for a hearing before an
administrative law judge (ALJ).
An ALJ held a hearing on June 14,
2007, at which plaintiff appeared with his attorney and testified.
A vocational expert (VE), Nancy Bloom, also appeared and testified.
On July 24,
2007,
the ALJ issued an unfavorable decision.
The
Appeals Council denied plaintiff's request for review on December
12, 2007.
Plaintiff appealed to this court on January 11, 2008.
In an
Opinion and Order dated March 17, 2009, Judge Anna Brown remanded
the case with instructions to the ALJ to consider lay witness
2 - OPINION AND ORDER
testimony.
A second hearing was held on July 28, 2010, at which
plaintiff appeared with counsel and testified, as did VE Bloom.
The
ALJ
issued
an
unfavorable
decision
on
August
16,
2010.
Plaintiff directly appealed to this court.
Plaintiff was 44 years old on the alleged onset date and 51
years old at the time of the second hearing.
Plaintiff completed
high school, one year of college, and was honorably discharged from
the Air Force after completing six years of service.
Plaintiff has
past relevant work as a bakery delivery driver for eight years, a
remote history as a construction worker,
jobs" on a part-time basis.
and has performed "odd
Plaintiff is now an artist and has
sold approximately 300 paintings.
Plaintiff's schizophrenia surfaced in September of 2002, when
he assaulted a neighbor.
Plaintiff pleaded "guilty except for
insanity" to the following charges:
Burglary in the First Degree,
Assault in the Fourth Degree, and Criminal Mischief in the Second
Degree.
As
part
of his
plea,
plaintiff
was
released
to
the
supervision of the Oregon Psychiatric Security Review Board (PSRB)
for a period not to exceed 22 years.
Since that time, plaintiff
has satisfied all the conditions of his release.
THE ALJ'S DISABILITY ANALYSIS
The
Commi.ssioner
has
established
a
five-step
process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
3 - OPINION AND ORDER
§
416.920.
sequential
Bowen v.
Each step
is potentially dispositive.
The claimant bears the burden of proof
at steps one through four.
See Valentine v .Comm' r
Soc .
Sec.
Admin., 574 F.3d 685,689 (9th Cir. 2009); Tackett v. Apfel,
F.3d 1094, 1098 (9th Cir. 1999).
180
At step five, the burden shifts
to the Commissioner to show that the claimant can do other work
which exists in the national economy.
Andrews v. Shalala, 53 F.3d
1035, 1043 (9th Cir. 1995).
The
ALJ concluded
that
plaintiff met
the
insured
status
requirements of the Social Security Act through March 31, 2009.
claimant
seeking
DIB
benefits
disability on or prior to the
under
Title
II
must
last date insured.
A
establish
42 U.S.C.
§
416(1) (3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since his alleged onset of disability.
See 20 C.F.R.
§§
404.1520(b), 404.1571 et seq., 416.920(b), 416.971
et seq.
At step two, the ALJ found that plaintiff had the following
severe impairment: schizoaffective disorder versus schiozophrenia,
paranoid
type,
remission.
and
polysubstance
See 20 C.F.R.
§§
abuse
in
full,
sustained
404.1520(c), 416.920(c).
At step three, the ALJ found that plaintiff's impairment, or
combination of impairments did not meet or medically equal a listed
impairment.
See 20 C.F.R.
416.920 (d), 416.925, 416.926.
4 - OPINION AND ORDER
§§
404.1520(d),
404.1525,
404.1526,
The ALJ determined that plaintiff has the residual functional
capacity (RFC) to perform a full range of work at all exertional
levels but with the following nonexertional limitations:
restricted to simple,
routine,
repetitive work,
he is
requiring only
occasional, brief, structured interactions with the general public.
See 20 C.F.R.
§§
404.1527, 404.1529, 416.927, 416.929.
At step four,
the ALJ found plaintiff unable to perform any
past relevant work.
See 20 C.F.R.
404.1565, 416.965.
§§
At step five, the ALJ concluded that considering plaintiff's
age, education, work experience, and residual functional capacity,
jobs exist in significant numbers
plaintiff can perform.
416.960(c), 416.966.
in the national economy that
See 20 C.F.R.
§§
404.1560(c),
404.1566,
Accordingly, the ALJ concluded that plaintiff
is not disabled under the meaning of the Act.
ISSUES ON REVIEW
On appeal to this court, plaintiff contends the ALJ erred by
failing to properly consider the
sisters,
lay witness
testimony of his
Patricia Stribling and Susan McElmurry, as well as Mike
Meyer, his case manager at Casacadia Behavioral Health.
STANDARD OF REVIEW
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.
§
405(g); Andrews, 53 F.3d at 1039.
5 - OPINION AND ORDER
42 U.S.C.
"Substantial evidence means
more than a mere scintilla but less than a preponderance; it is
such
relevant
evidence
as
a
reasonable
adequate to support a conclusion."
690.
mind
might
Valentine,
Id.;
accept
as
574 F. 3d at
The court must weigh all the evidence, whether it supports or
detracts from the Commissioner's decision.
807 F.2d 771,
must be upheld,
772
(9th Cir.
1986).
Martinez v. Heckler,
The Commissioner's decision
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
Lay witness testimony as to a claimant's symptoms or how an
impairment affects his ability to work is competent evidence, which
the ALJ must take into account.
Molina v. Astrue,
F.3d
2012 WL 1071637, *7 (9th Cir. Apr. 2, 2012); 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.
at
919.
However,
and if he rejects it,
to provide germane
Valentine, 574 F.3d at 694; Dodrill, 12 F.3d
the
ALJ
is
not
required
to
discuss
"every
witness's testimony on a individualized, witness-by-witness basis.
6 - OPINION AND ORDER
Rather, if the ALJ gives germane reasons for rejecting testimony by
one
witness,
the
ALJ
need
only
point
to
those
rejecting similar testimony by a different witness."
reasons
when
Molina, 2012
WL 1071637 at *7.
The lay testimony of Ms'. Stribling consisted of two letters,
dated August 28, 2007 and July 13, 2010, as well as a third party
function report dated October 29,
2004.
The ALJ discussed Ms.
Stribling's October 29, 2004 Third Party Function report.
The ALJ
relayed Ms. Stribling's description of plaintiff's activities of
daily living, noting that plaintiff was then living in a motel with
a kitchenette, was able to shop, drive a car, use public transit,
and make simple meals.
The ALJ noted that Ms. Stribling described
plaintiff as needing reminders to bathe and do laundry.
The ALJ
stated that Ms. Stribling reported that plaintiff does not handle
stress or changes in routine well, and becomes reclusive, but that
plaintiff could get along with authority figures.
As the ALJ correctly summarized, Ms. Stribling reported in her
August 28,
2007 letter that plaintiff began acting strangely in
March of 2002, and that Ms. Stribling attempted to get plaintiff
medical assistance.
The ALJ discussed Ms. Stribling's description
of plaintiff's arrest, and subsequent treatment and supervision.
The
ALJ
noted
that
Ms.
Stribling
stated
that
plaintiff's
medications had increased, but that plaintiff's symptoms have not
been completely eliminated.
7 - OPINION AND ORDER
The ALJ stated that Ms.
Stribling
opined that plaintiff could not "hold down a regular job because of
his paranoid symptoms."
(Tr.
407.)
Ms.
Stribling opined that
plaintiff hears voices, experiences paranoia, and extreme anxiety
on a daily basis making it impossible for plaintiff to work.
(Tr.
368. )
The ALJ also discussed Ms. Stribling's July 13, 2010 letter,
in which she described that plaintiff had been compliant with the
conditions of release,
restrictive.
and that plaintiff's parole was now less
The ALJ stated that Ms. Stribling reported continued
concern about plaintiff's anxiety, depression and paranoia.
ALJ noted Ms.
The
Stribling's opinion that plaintiff would never be
able to function in a work environment.
The
ALJ
similarly
provided
McElmurry's lay testimony,
28,
2007
letter,
thorough
summary
of
Ms.
which consisted of two letters dated
August 28, 2007 and June 10, 2010.
August
a
Ms.
As the ALJ described,
McElmurry
relayed
that
in the
she
first
noticed plaintiff's'bizarre behavior in March of 2002, and that Ms.
McElmurry first suspected plaintiff might be taking drugs, but he
was not.
The ALJ also noted that Ms. McElmurry stated plaintiff
did not interact as much with family,
and isolated himself.
The
ALJ then discussed Ms. McElmurry's June 10, 2010 letter, in which
Ms. McElmurry described that plaintiff had improved with medication
and
counseling.
The
8 - OPINION AND ORDER
ALJ
noted
that
Ms.
McElmurry
still
has
concerns with plaintiff's personal hygiene and that plaintiff still
experiences occasional paranoid thoughts.
The lay testimony from Mr. Meyer consisted of a letter dated
August 30, 2007.
The ALJ summarized that letter, stating that Mr.
Meyer described plaintiff as appearing competent and appropriate in
social settings, but that plaintiff was limited in his ability to
interact
with
confusion.
others
due
to
his
paralyzing
ruminations
and
The ALJ discussed that Mr. Meyer noted plaintiff was
working hard on recovery,
assistance
from
social
was living independently,
service
organizations
for
but needed
housing
and
medications.
After thoroughly summarizing the letters and report, the ALJ
concluded that the lay witness testimony was inconsistent with the
contemporaneous observations of plaintiff's treating and examining
medical sources, was inconsistent with plaintiff's activities of
daily living, and that plaintiff's sisters may have been motivated
to help plaintiff.
I begin by observing that plaintiff has not challenged the
ALJ's
assessment
credibility.
of
the
medical
evidence
or
plaintiff's
And, I reject plaintiff's argument that the ALJ has
erred in failing to provide an individualized, witness-by-witness
discussion
of
the
lay
testimony.
rejected by the Ninth Circuit.
9 - OPINION AND ORDER
This
argument
recently
was
Molina, 2012 WL 1071637, at *7.
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.
1113,
1116
(9th Cir.
Compare Bruce v. Astrue, 557 F.3d
2009) (ALJ may not reject lay testimony on
basis of close relationship without explanation); with Valentine,
574 F.3d at 694 (ALJ may discount spouse's testimony where there is
evidence that
spouse exaggerated claimant's
symptoms to access
benefits) .
Even assuming arguendo that the ALJ discounted plaintiff's
sisters'
testimony solely on the basis of their relationship to
plaintiff,
any such error would be harmless because the ALJ has
provided other multiple,
testimony.
1162
germane
reasons
for discounting their
Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155,
(9th Cir.
2008) (where error is inconsequential to ultimate
disability determination, it is harmless).
First, the ALJ found that the lay testimony was inconsistent
with contemporaneous reports of plaintiff's treating and examining
physicians.
Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (ALJ
may discount lay testimony that conflicts medical evidence); Glover
v.
Astrue,
2011) (same) .
F.Supp.2d
To be sure,
2011 WL 6071360
(D.
Dec.
6,
the ALJ specifically cited a notation
from plaintiff's treating psychologist Mike Terry,
reported on September 8,
Or.
2003,
Psy.
D.,
who
that plaintiff had just returned
from a trip with his family to visit relatives in Washington and
10 - OPINION AND ORDER
Idaho, and that plaintiff reported having the most difficulty with
"boredom," and reported no difficulty managing his symptoms.
(Tr.
143. )
Plaintiff contends that the ALJ should not have considered
this
statement
plaintiff's
as
inconsistent
alleged
onset
of
because
it
disability
occurred
date.
I
prior
to
disagree.
Plaintiff's alleged onset date is October 20, 2003, slightly more
than one month after Dr. Terry's notation.
began
treating
plaintiff
following
Furthermore, Dr. Terry
his
placement
on
PSRB
supervision, and his treatment notes span from October of 2002 to
November of 2003.
Although the ALJ did not specifically discuss
the other treatment notes from Dr. Terry in that section of the
decision, the ALJ did cite them as inconsistent, and Dr. Terry's
notes in October and November of 2003 indicate that plaintiff was
continuing to manage his mental illness symptoms well and that
"boredom remained a problem."
(Tr. 140-41.)
I conclude that Dr.
Terry's observations that plaintiff was effectively managing his
mental illness symptoms conflicts with the lay testimony of Mr.
Meyer, Ms. Stribling, and Ms. McElmurry.
Al though
the
ALJ did
not
specifically analyze
additional
inconsistent medical evidence, the ALJ did cite to other evidence
which
the
ALJ
previously
discussed.
The
ALJ
detailed
that
beginning in March of 2008, plaintiff began receiving supplemental
treatment through the Veteran's Administration.
11 - OPINION AND ORDER
The ALJ noted that
plaintiff's treating physician, Susan S. Levitte, examined him on
March 6, 2008, and confirmed his schizophrenia and alcohol abuse in
remission diagnoses.
The ALJ noted that Dr.
Levitte again saw
plaintiff in March of 2009, and that plaintiff reported only mild
audi tory hallucinations at
that
time.
The ALJ discussed that
plaintiff visited Dr. Levitte again in March of 2010, and at that
time, Dr. Levitte noted plaintiff's grooming was good, his thoughts
rational, and that plaintiff denied any recent hallucinations, but
still had a little occasional paranoia around strangers.
The ALJ
observed that Dr. Levitte stated plaintiff was clinically stable,
and that plaintiff was busy with art shows and painting.
To be
sure, plaintiff does not challenge the ALJ's analysis and treatment
of Dr. Levitte's records in this proceeding.
that
the
ALJ
conflicts
with
has
cited
the
lay
and
discussed
testimony
Therefore, I conclude
medical
concerning
debilitating nature of plaintiff's symptoms.
evidence
the
that
allegedly
Bayliss V. Barnhart,
427 F.3d 1211, 1218 (9th Cir. 2005).
Second, in discounting the lay testimony, the ALJ specifically
noted
that
described
several
his
of
affect
plaintiff's
as
"bright-
case
managers
and
"cheerful,-
plaintiff's interactions with others were good.
at
Cascadia
and
(Tr. 281.)
that
I note
that this evidence directly conflicts with the ALJ's summary of Mr.
Meyer's testimony that plaintiff suffered paralyzing ruminations
and was limited in his ability to interact with others.
12 - OPINION AND ORDER
Third,
demonstrated
the
ALJ
few
specifically
instances
of
discussed
plaintiff's
that
poor
the
record
hygiene,
which
directly contradicted Ms. Stribling's statement that she needed to
remind
plaintiff
to
bathe
plaintiff's hygiene.
and
Ms.
McElmurry's
concerns
about
This reason is germane to Ms. Stribling and
Ms. McElmurry, is supported by substantial evidence in the record,
and therefore the ALJ could discount their testimony on that basis.
Bayliss, 427 F.3d at 1218; Lewis, 236 F.3d at 511.
Fourth,
the
ALJ
including plaintiff's
found
that
activities
plaintiff's
in
inconsistent with the lay testimony.
the
daily
"arts
activities,
community"
were
Plaintiff argues that his
ability to interact in a structured art therapy class at Cascadia
does
not mean that
he can handle
full-time
employment,
citing
Kittleson v. Astrue, 533 F.Supp.2d 1100 (D. Or. 2007).
In Kittleson, the plaintiff had been living at the Veterans
Administration domicilary (VA Dom) , a structured living setting,
for nearly six and half years.
533 F.Supp.2d at 1114.
There, the
ALJ rejected the plaintiff's application for benefits,
in part
based on the plaintiff's ability to perform work at the VA Dom, and
participate
in
VA-sponsored
outings.
On
appeal,
the
court
concluded that the ALJ erred by failing to consider the impact of
the highly structured setting when considering the plaintiff's
ability to function.
Id. at 1115.
The Kittleson court concluded
that in light of evidence demonstrating that the plaintiff's only
13 - OPINION AND ORDER
period
outside
the
VA
Dom
led
plaintiff seeking readmission,
to
a
suicide
attempt
and
the
the ALJ erred in discounting the
plaintiff's testimony concerning the severity of his depression.
Id.
Unlike Kittleson, the record here does not show that plaintiff
resides
in
a
highly
structured
setting.
On
the
contrary,
plaintiff lives in his own subsidized-rent apartment,
pays his
bills on time, and takes public transportation to his appointments
for group therapy or on-on-one counseling sessions.
Indeed,
the
record in this case is devoid of any hospitalizations or inpatient
treatment of any kind.
Plaintiff testified that, pursuant to his
PSRB release, he needs to spend 20 hours a week doing "structured"
activities,
such as volunteering,
working,
or attending school.
(Tr. 577.)
Plaintiff also testified that for the past two years,
PSRB has considered the time he spends painting towards his 20
hours.
(Tr.
577-78.)
Additionally,
plaintiff
has
failed
to
demonstrate how his PSRB supervision and time spent at Cascadia is
akin to the type of "hospital, board and care facility" discussed
in Kittleson.
In this
Therefore, I find Kittleson inapposite.
case,
the ALJ undertook a
plaintiff's art activities.
thorough discussion of
In discussing plaintiff's credibility,
a finding not challenged by plaintiff, the ALJ noted that plaintiff
began painting at an art therapy class offered at Cascadia.
The
ALJ also stated that plaintiff testified that he began showing and
14 - OPINION AND ORDER
selling his artwork at a Starbucks near his apartment in 2005.
The
ALJ discussed plaintiff's testimony that he has sold approximately
300 paintings, and has earned $10,000 in sales since 2005.
The ALJ
further discussed plaintiff's testimony that he has developed a
relationship
with
a
very
reputable
local
artist,
securing
agreement to display his art at the artist's gallery,
an
and that
plaintiff appears at the gallery every first Thursday to talk to
people and meet potential buyers.
The ALJ also discussed evidence
from a VA caseworker that plaintiff reported visiting with others
at a
coffee
shop,
that plaintiff volunteered at Cascadia,
and
attended art shows throughout Portland, associating and interacting
with other artists.
Thus,
I
find
communi ty" is a
testimony.
that
plaintiff's participation
in the
"arts
germane reason for discounting all of the lay
Plaintiff's ability to develop relationships, interact
with other artists, and meet with potential art buyers contradicts
the lay testimony of Ms. Stribling and Ms. McElmurry that plaintiff
isolates himself, hibernates, and cannot interact outside of his
family.
directly
limited
Moreover, plaintiff's participation in the arts community
contradicts
in
paralyzing
his
Mr.
ability
ruminations
Meyer's
to
and
interact
confusion
previously described by the ALJ.
Molina, 2012 WL 1071637, at *7, 13.
15 - OPINION AND ORDER
testimony
with
that
others
from
his
Valentine,
574
plaintiff
and
is
suffers
illness,
F.3d at
as
694;
In sum, I conclude that the ALJ has provided germane reasons
for
discounting
the
lay
testimony,
substantial evidence in the record.
which
are
supported
by
Valentine, 574 F.3d at 694.
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 ~(1 day of APRIL, 2012.
Malcolm F. Marsh
United States District Judge
16 - OPINION AND ORDER
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