Spears v. Commissioner Social Security Administration
Filing
18
OPINION & ORDER: The ALI's decision that Spears does not suffer from a disability within the meaning of the Social Security Act is based on correct legal standards and supported by substantial evidence. The Commissioner's final decision is Affirmed. Signed on 10/26/11 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GARY W. SPEARS, JR.,
Plaintiff,
CV-I0-3122-PK
OPINION AND ORDER
v.
MICHAEL J. ASTRUE, Commissioner of Social
Security,
Defendant.
PAPAK, Magistrate Judge:
Plaintiff Gary Spears brings this action for judicial review of a final decision of the
Commissioner of Social Security denying his applications for disability insurance benefits (DIB)
under Title II of the Social Security Act. The court has jurisdiction under 42 U.S.C. § 405(g). The
Commissioner's decision is affirmed.
I - OPINION AND ORDER
BACKGROUND
Spears was forty one years old at the time of the administrative hearing. Admin. R. 104. 1 He
eal'lled a high school degree and had some vocational training. Id. at 114. Spears has worked as a
mechanic, salesperson, services manager, and truck broker. Id. at 109, 116,648. Spears alleges
disability due to degenerative disk disease ofthe spine, post thoracic fracture, neuropathy, esophagitis,
depression, and anxiety. He filed for disability on March 17,2004, alleging disability from November
2,2003. His application was denied initially and on reconsideration. A hearing was held before an
Administrative Law Judge (ALJ) on April 16, 2008. The ALJ found Spears satisfied the insured
status requirements for a claim under Title II through December 31, 2007. Spears, therefore, must
establish that he was disabled on
01'
before that date to prevail on his DIB claim. 42 U.S.C. §
423(a)(l)(A); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). The ALJ issued an opinion on May
20, 2008, finding Spears not disabled, which is the final decision of the Commissioner.
DISABILITY ANALYSIS
The initial burden of proof rests upon the claimant to establish disability. Roberts v. Shalala,
66 F.3d 179, 182 (9 th Cir. 1995). To meet this burden, a claimant must demonstrate an "inability to
engage in any substantial gainful activity by reason of any medically determinable physical 01' mental
impairment which can be expected ... to last for a continuous period of not less than 12
months .... " 42 U.S.c. §423(d)(I)(A).
The Commissioner has established a sequential process of up to five steps for determining
whether a person over the age of18 is disabled within the meaning of the Act. 20 C.F.R. § 404.1520;
Citations to "Admin. R." refer to the page(s) indicated in the official transcript of the
administrative record filed with the Commissioner's Answer.
1
2 - OPINION AND ORDER
Bowen v. Yuckerl, 482 U.S. 137, 140 (1987). The ALI applied the five step disability determination
analysis and found at step one that Spears had not engaged in any substantial gainful activity (SGA)
from his alleged onset date of November 2, 2003, through his date last insured of December 31, 2007.
Admin. R. 36. At step two, he determined that Spears has the medically severe impairments of
"compression fractures and wedging at T7-9 with thoracic kyphosis and radiculopathy; degenerative
disc disease of the lumbar spine with retrolisthesis at L5-SI; history ofleft ulnar neuropathy; history
of left shoulder rotator cuff tear; and histOlY of Barrett's esophagitis, status post surgery; and
neurogenic bladder." [d.
The ALI found at step three that Spears did not have an impairment or combination of
impairments that meet or medically equal one ofthe listed impairments in 20 C.F.R. pt. 404, subpt.
P, app.l. [d. at 37. The ALI found Spears had the following residual functional capacity (RFC):
to lift and carry 20 pounds occasionally and 10 pounds frequently; stand and
walk at least six hours in an eight hour workday; sit at least six hours in an
eight hour workday; with opportunity to change positions. The claimant was
limited to occasional climbing ofladders, ropes and scaffolds; stooping; and
overhead reaching above the shoulders. The claimant was to avoid dangerous
hazards such as moving machinery.
[d. at 37.
The ALI elicited the testimony of a vocational expert (VE) and found at step four that Spears
was capable of performing his past relevant work as a salesperson and as a services manager. [d. at
40. The ALI proceeded to step five and based on the testimony of the VE found therc were a
significant number of jobs in the national economy that Spears could perform and was therefore not
disabled within the meaning of the Social Security Act. [d. at 42.
3 - OPINION AND ORDER
STANDARD OF REVIEW
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. Ba/son
v. Commissioner ofSoc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence
means ... such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cit'. 1995).
The AU is responsible for "determining credibility, resolving conflicts in the medical
testimony, and resolving ambiguities." Edlllnd v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001)(citations omitted). Under this standard of review, the court must uphold the
Commissioner's findings offact, provided they are supported by substantial evidence in the record
as a whole, including inferences logically flowing from such evidence. TOll1l11aselfi v. As/rile, 533
F.3d 1035, 1038 (9th Cir. 2008). If the evidence can reasonably support either affirming or
reversing the Commissioner's conclusion, the court may not substitute its judgment for that of the
Commissioner. Batson v. Commissioner ofSoc. Sec. Admin., 359 FJd at 1193.
DISCUSSION
Spears alleges the AU erred in evaluating his credibility.2 He contends this error caused
the AU to err in evaluating the evidence regarding his impairments and the vocational evidence.
2 Spears lists "assignments of error" by the AU in his opening brief. These include
alleging the AU made independent medical findings, and substituted his own opinion for that of
the medical sources. Spears' list also includes a failure by the AU to properly consider, at step
three, whether his impairments equaled a listing in 20 C.F.R. pI. 404, subpt. P, app. 1. However,
Spears did not brief any of these allegations nor did he address these issues in his reply brief.
4 - OPINION AND ORDER
I.
Credibility
Spears does not present any medical opinion regarding his functional limitations. The
COUlt
has reviewed the extensive medical record. The medical opinions in the record regarding
his long term ability to work include one from Dr. Gilcin-ist, a treatment provider, who noted in
August 2002 that Spears needed to lose weight and find a job with less lifting. Admin. R. 500.
The others are from the Drs. Jensen and Kehrli, state agency consultants, who noted in 2005 and
2006 that Spears could do light work with some restrictions on stooping and climbing. Id. at
417-425. Spears asserts his pain and other symptoms prevent him from working.
The ALJ must assess the credibility of the claimant regarding the severity of symptoms
only if the claimant produces objective medical evidence of an underlying impairment that could
reasonably be expected to produce the symptoms. Smolen v. Chater, 80 F.3d 1273, 1281-1282
(9th Cir. 1996). Spears has medically determinable impairments which could produce some
symptoms. When there is an underlying impairment and no evidence of malingering, an ALJ
must provide clear and convincing reasons for discrediting a claimant's testimony regarding the
severity of his symptoms. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The ALJ must
make findings that are "sufficiently specific to permit the reviewing court to conclude that the
ALJ did not arbitrarily discredit the claimant's testimony." Orfeza v. Shalala, 50 F.3d 748, 750
(9th Cir. 1995).
When making a credibility evaluation, the ALJ may consider objective medical evidence,
work record, treatment histmy, and any unexplained failure to seek treatment or follow a
prescribed course of treatment. Smolen v. Chater, 80 F.3d at 1284. The ALJ conect1y noted
Spears' chronic thoracic pain was attributed to a compression fracture in the thoracic spine that
5 - OPINION AND ORDER
occurred in 1983 or 1984. Admin. R. 38. The ALJ fmiher noted Spears continued to sustain
employment for twenty years following this injury. Id He also noted Spears testified that left
arm and hand numbness symptoms did not prevent him from performing his job in retail sales. Id
at 38,630. The ALJ noted Spears testified that surgery for his gastroesophageal reflux disease
(GERD) in June 2003 had exacerbated his thoracic spine pain into "attacks" of palpating pain. Id
at 38, 625. However, as noted by the ALJ, Spears surgery was in 2002 and he was able to work
for a year after his pain symptoms were allegedly exacerbated by the GERD surgery. Id at 38.
The ALJ also noted that Spears did not follow up on receiving physical therapy (PT) as
recommended. Ie!. at 40. Spears asserts there is no prescription for PT in the record or note that
it would restore an ability to work. However, the medical record indicates that Dr. Grant, a
specialist, recommended PT in May 2002 and October 2002. Id at 238, 249. In December 2002,
Spears was discharged from the detoxification program at Genesis Recovery with the
recommendation for PT and pain management. Id at 194. His primary care physician, Dr.
Cullen, noted in December 2002 that Spears was to go to aquatic therapy. Id. at 444-446. The
record indicates he underwent a PT evaluation in Januaty 2003 for aquatic therapy and was to be
seen twice a week for six weeks. Id at 364-365. After one follow up appointment Spears
cancelled or was a no show. Id at 368-371. Noncompliance with treatment recommendations is
a relevant factor in assessing credibility. Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991)(en
banc). See also, 20 C.F.R. § 404.1530.
The ALJ may also consider the claimant's daily activities and the observations of
physicians and third parties in a position to have personal knowledge about the claimant's
functional limitations. Smolen v. Chafer, 80 F. 3d. at 1284. The ALJ noted that Spears reported
6 - OPINION AND ORDER
to the state agency in 2005 that he was unable to perform any tasks requiring repetitious
movement; bending; stooping; bending over to pick up objects; sitting for an extended period of
time; lifting more than five pounds; or walking more than twenty-five feet. Admin. R. 39, 127132. The ALJ noted Spears' mother stated Spears was unable to do anything but listen to music
due to his severe pain. ld. at 39.
However, the ALJ noted that between Januaty 2004 and August 2006, Spears was reported
working with plumbing fixtures; sustaining injuries after working with soldering (repairing a light
fixture); taking a misstep from a ladder; being electrocuted while working on an automobile;
cleaning out a garage; traveling back and forth to Germany for alternative treatments; and hooking
up a washer and dlyer. ld. at 39,304-305,330-331,337-339,355-357, 394-397,433-435. Spears
stated in 2005 that he followed an exercise program developed by his seventeen year old son
which included walking an hour per day, abdominal crunches, core strength training, and working
with an exercise ball. ld at 399. If a claimant's level and type of activity is inconsistent with his
claimed limitations, those activities have a bearing on his credibility. Fair v. Bowen, 885 F.2d
597, 603 (9 th Cir. 1989).
The ALJ noted the abdominal crunches would directly involve repeated manipUlation of
his thoracic spine and traveling to Germany would require extensive sitting. Admin. R. 39. The
ability to sustain extended traveling can be inconsistent with claims of disability, particularly
when prolonged sitting is alleged to be painful. T0Il1111aselti v. As/rue, 553 F.3d at 1040. The ALJ
found these "discrepancies and apparent exaggerations" raised serious questions regarding Spears'
credibility. Evidence of exaggeration is a legitimate credibility factor. Tonapetyan v. Halter, 242
F.3d 1144, 1148 (9th Cir. 2001).
7 - OPINION AND ORDER
The AU may also employ ordinary techniques of credibility evaluation, such as the
claimant's reputation for lying, prior inconsistent statements concerning his symptoms, and other
statements by the claimant that appear to be less than candid. Smolen v. Chatel', 80 F. 3d at 1284.
The AU noted inconsistencies in Spears' testimony and in his repOlis to treatment providers.
Spears asserts that some of his misstatements were due to faulty memOlY, especially regarding the
date of his GERD surgery, although that is the event he contends made him disabled by pain. The
AU further noted that Spears denied to his treatment providers any history or use of alcohol or
illegal drugs. Admin. R. 38. The record shows Spears consistently told his medical providers
that he had never abused alcohol or illegal drugs, although he told some providers that he had
used some marijuana in the 1980's. Jd at 247, 278, 337, 406, 444. The AU noted that the record
from the Genesis Recovery Center indicates a positive drug screen test for marijuana and that his
detoxification included alcohol abuse. Jd. at 38, 179,223. The record from Genesis also noted
previous court ordered treatment for drug use. Jd at 182. Spears asserts the alcohol abuse note
was a typographical errol' and indeed that may be so. Spears asserts that the positive test for
marijuana was an anomaly. However, there is only one drug screen test in the record and it is
positive for marijuana.
The AU noted the previous inconsistencies regarding Spears' reports of drug use made
some of his subsequent behavior appeal' to be "drug seeking" behavior. The ALJ noted that after
Spears' detoxification program he did not limit his drug use to his prescribed medications or
injections provided by his treating physicians. Instead, Spears made frequent visits to emergency
rooms where he received injections of opiates or narcotics. Jd. at 40,304,307,309, 311, 313314,316,321,326-327,331,335,338,341,344,346, 349-350, 356, 359. In fact, Spears'
8 - OPINION AND ORDER
treatment providers and emergency room staff spoke to him about this pattern. Id. at 308-309,
334-336,404. In November 2004, Dr. Urbanski, an emergency room physician, believed Spears
was suffering from polydrug withdrawal and contacted his treatment providers. Id at 320-321.
Drug seeking behavior may be considered when determining credibility. Lewis v. Astrue, 498
F.3d 909, 910 (9 th Cir. 2007).
The ALJ found that Spears's medical records did not SUppOlt the degree of alleged
limitation he claimed. He also noted Spears' inconsistent statements, exaggerations, and failure to
follow treatment recommendations. The ALJ considered Spears' level of activity and travel
inconsistent with his claims. He also considered Spears work history and treatment. The ALJ
considered appropriate factors and drew reasonable inferences fi'om substantial evidence in the
record in assessing Spears' credibility. The ALJ's interpretation is not irrational and is therefore
upheld. Batson v. Commissioner a/Soc. Sec. Admin., 359 F.3d at 1193; Andrews v. Sl1a/([/([, 53
F.3d at 1039-1040.
The ALJ properly assessed Spears' RFC. He found Spears had severe impairments and
limited him to light work with restrictions. The ALJ evaluated the medical evidence and reached
conclusions based on substantial evidence in the record. He assessed Spears' credibility and drew
reasonable inferences regarding the severity of his impairments. The ALJ's determination of
Spears' RFC is supported by substantial evidence in the record.
II.
Vocational Evidence
Spears contends the ALJ erred at steps four and five of the decision-making process by
relying
OQ
faulty vocational evidence. The ALJ found Spears could perform his past relevant
work as a salesperson and services manager and, although not required to do so, made a step five
9 - OPINION AND ORDER
finding that there were other jobs in the national economy that Spears could perform. At step five,
the Commissioner must show that significant numbers of jobs exist which the claimant can
perform. Andrews v. Shalala, 53 F.3d at 1043. An ALI can satisfY this burden by eliciting the
testimony of a vocational expert (VE) with a hypothetical question that sets forth all the
limitations ofthe claimant suppol1ed by the record. [d.; Osenbrockv. Apfel, 240 F.3d 1157, 1162
- 1163 (9th Cir. 2001).
Spears contends the ALl's conclusion is erroneous because he elicited testimony from the
VE with hypothetical questions that did not contain all of his pain limitations. As described
above, the ALI did not find these limitations credible. An ALI is not required to incorporate
limitations into an RFC or hypothetical based on evidence that he properly discounted. Batson v.
Commissioner ofSoc. Sec. Admin., 359 F.3d at 1197; Osenbrock v. Apfel, 240 F.3d at 1164-1165.
The VE testified that Spears could perform his past relevant work as a sales person and
services manager and that a significant number of additional jobs exist in the national economy
that Spears can perform. Admin. R. 648-649. The ALI's conclusion that Spears is able to
perform some work and is not disabled is supported by substantial evidence and free of legal
error.
10 - OPINION AND ORDER
CONCLUSION
Based on the foregoing, the ALI's decision that Spears does not suffer from a disability
within the meaning of the Social Security Act is based on correct legal standards and suppOlied by
substantial evidence. The Commissioner's final decision is affirmed.
IT IS SO ORDERED.
DATED this 26th day of October, 2011.
Paul J. Papak
United States Magistrate Judge
11 - OPINION AND ORDER
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