Johnson v. Commissioner Social Security Administration
Filing
17
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 04/18/2011 by Judge Anna J. Brown. See 15 page Opinion and Order. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
NICHOLAS JOHNSON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
BRENDA S. MOSELEY
320 Central Avenue
Suite 422
Coos Bay, OR 97420
(541) 266-0436
Attorney for Plaintiff
1 - OPINION AND ORDER
10-CV-6072-BR
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) 727-1053
DAVID MORADO
Regional Chief Counsel
GERALD J. HILL
L. JAMALA EDWARDS
Special Assistant United States Attorneys
Social Security Administration
701 5th Avenue, Suite 2900, M/S 901
Seattle, WA 98104
(206) 615-2531
Attorneys for Defendant
BROWN, Judge.
Plaintiff Nicholas Johnson seeks judicial review of a final
decision of the Commissioner of the Social Security Administration (SSA) in which he denied Plaintiff's applications for
Supplemental Security Income (SSI) and Disability Insurance
Benefits (DIB) under Titles XVI and II of the Social Security
Act.
This Court has jurisdiction to review the Commissioner's
final 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 applications for SSI and DIB on
2 - OPINION AND ORDER
December 21, 2004, and alleged a disability onset date of
January 1, 1999.
Tr. 16, 105.1
The applications were denied
initially and on reconsideration.
An Administrative Law Judge
(ALJ) held a hearing on January 31, 2007.
Tr. 769-99.
was represented by an attorney at the hearing.
VE testified.
Plaintiff
Plaintiff and a
At the hearing the AlJ ordered a neurologic
evaluation of Plaintiff and suspended the hearing pending the
results of the evaluation.
Tr. 782.
The ALJ continued the
hearing on August 8, 2007.
Tr. 800-21.
The ALJ issued a decision on August 28, 2007, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Tr. 19-33.
Pursuant to 20 C.F.R. § 404.984(d),
that decision became the final decision of the Commissioner on
January 22, 2010, when the Appeals Council denied Plaintiff's
request for review.
BACKGROUND
Plaintiff was born on June 10, 1957, and was 49 years old at
the time of the first hearing and 50 years old at the continued
hearing.
Tr. 105.
Plaintiff obtained a GED.
Tr. 807.
He has
past relevant work experience as a background actor, clerk, car
washer, and dishwasher.
1
Tr. 807.
Citations to the official transcript of record filed by
the Commissioner on August 26, 2010, are referred to as "Tr."
3 - OPINION AND ORDER
Plaintiff alleges disability due to a herniated disc,
hepatitis C, chondromalacia of the left knee, and a right elbow
injury.
Tr. 105, 120, 748.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 26-31.
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).
4 - 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 whether 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. §§ 404.1520, 416.920.
potentially dispositive.
5 - OPINION AND ORDER
Each step is
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. §§ 404.1520(a)(4)(I),
416.920(a)(4)(I).
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.
1052.
Stout, 454 F.3d at
See also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii),
416.920(a)(4)(ii).
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 they preclude substantial gainful activity.
454 F.3d at 1052.
416.920(a)(4)(iii).
Stout,
See also 20 C.F.R. §§ 404.1520(a)(4)(iii),
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 his limitations.
§§ 404.1520(e), 416.920(e).
6 - OPINION AND ORDER
20 C.F.R.
See also Social Security Ruling
(SSR) 96-8p.
"A 'regular and continuing basis' means 8 hours a
day, for 5 days a week, or an equivalent schedule."
*1.
SSR 96-8p at
In other words, the Social Security Act does not require
complete incapacity to be disabled.
1273, 1284 n.7 (9th Cir. 1996).
Smolen v. Chater, 80 F.3d
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
work-related 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.
Stout, 454 F.3d at 1052.
See also
20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(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.
Stout, 454 F.3d at 1052.
C.F.R. §§ 404.1520(a)(4)(v), 416.920(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.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
The
Commissioner may satisfy this burden through the testimony of a
VE or by reference to the Medical-Vocational Guidelines set forth
7 - OPINION AND ORDER
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.
20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).
ALJ'S FINDINGS
At Step One, the ALJ found Plaintiff has not engaged in
substantial gainful activity since his January 1, 1999, alleged
onset date.
Tr. 21.
At Step Two, the ALJ found Plaintiff has the severe
impairments of degenerative joint disease "of no more than
moderate to mild degree," chondrocalcinosis in the lateral
compartment of his left knee, mild stenosis, bilateral
neuroforaminal encroachment and discogenic degenerative changes
at L4-5, bilateral neuroforaminal encroachment at L5-S1,
dysthemia, and personality disorders.
Tr. 22.
The ALJ found
Plaintiff's alleged manganese intoxication is not "a medically
determinable impairment."
Tr. 22.
At Step Three, the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P, appendix
1.
Tr. 24.
The ALJ also found Plaintiff has the RFC to perform
"light exertional work" including the ability to lift and/or to
carry ten pounds frequently and twenty pounds occasionally; to
stand and/or to walk for two hours in an eight-hour work day; to
8 - OPINION AND ORDER
sit for six hours in an eight-hour work day; to stoop, to kneel,
to crouch, and to crawl occasionally; and never to climb ladders,
ropes, or scaffolds.
Tr. 25.
The ALJ found Plaintiff should
avoid hazards such as heights and moving machinery.
Tr. 25.
Finally, the ALJ found although Plaintiff's mental impairments
allow him to understand, to remember, and to carry out simple and
complex instructions, Plaintiff should avoid working with the
public, avoid "unstructured work responsibilities and
expectations," and avoid "unstructured interaction with coworkers."
Tr. 25.
At Step Four, the ALJ concluded Plaintiff is not capable of
performing his past relevant work.
Tr. 31.
At Step Five, the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy.
Tr. 32-33.
Accordingly, the ALJ found Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
rejected Plaintiff's testimony, (2) improperly rejected the
opinions of Plaintiff's treating physicians and medical
professionals, and (3) found at Step Five that Plaintiff could
perform other jobs in the national economy.
I.
The ALJ did not err when he rejected Plaintiff's testimony.
Plaintiff alleges the ALJ erred when he failed to provide
9 - OPINION AND ORDER
clear and convincing reasons for rejecting Plaintiff's testimony.
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 he provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)).
General assertions that the claimant's testimony is
not credible are insufficient.
Id.
The ALJ must identify "what
testimony is not credible and what evidence undermines the
claimant's complaints."
Id. (quoting Lester, 81 F.3d at 834).
The ALJ found Plaintiff's "medically determinable
impairments could reasonably be expected to produce the alleged
symptoms," but Plaintiff's "statements concerning the intensity,
persistence and limiting effects of these symptoms are not
credible."
Tr. 31.
The ALJ found Plaintiff made inconsistent
10 - OPINION AND ORDER
statements and took actions inconsistent with his alleged level
of impairment.
For example, the ALJ noted Plaintiff alleges
disability due to his left knee beginning January 1, 1999, but in
December 2000, Plaintiff reported to his doctor that he had
contacted poison oak after hiking.
Tr. 188.
In addition,
Plaintiff reported to a emergency room doctor in March 2000 that
his left knee had become painful only two weeks before he engaged
in spring cleaning.
Tr. 179.
The ALJ also pointed out that
Plaintiff's assertion that sitting increased his lower-back pain
is "refuted" by the fact that Plaintiff regularly drives between
Bandon, Oregon, and Los Angeles, California.
Tr. 31.
In
addition, the ALJ noted in January 2006 when Plaintiff was
incarcerated, he asked treating Nurse Practitioner (NP) Deanna L.
McDermott for a letter stating that he can perform light-duty
work because he "could get some time taken off [his jail term] if
he could work."
Tr. 654.
Finally, the ALJ noted several
instances in the record of drug-seeking behavior by Plaintiff.
Tr. 22, 246, 492, 498.
The Court concludes on this record that the ALJ did not err
when he rejected Plaintiff's testimony because the ALJ provided
legally sufficient reasons supported by the record for doing so.
II.
Medical opinion testimony.
Plaintiff contends the ALJ erred when he improperly rejected
the opinions of Seigrid Nixon, M.D., treating physician; Richard
11 - OPINION AND ORDER
Staggenborg, M.D., treating psychiatrist; and Nancy McDermott,
C.N.P.
A.
Dr. Nixon and NP McDermott
On April 12, 2007, Dr. Nixon opined Plaintiff was able
to stand and/or to walk for less than two hours in an eight-hour
work day and to rarely lift ten pounds.
Tr. 687-88.
Dr. Nixon
also opined Plaintiff would miss more than four days per month of
work.
Tr. 689.
On January 2, 2007, NP McDermott also opined
Plaintiff was able to stand and/or to walk for less than two
hours in an eight-hour work day and that he would miss four or
more days per month of work.
Tr. 681-83.
The ALJ noted the opinions of Dr. Nixon and
NP McDermott were contradicted by the November 30, 2006, opinion
of Dara Parvin, M.D., treating physician, who noted Plaintiff had
grossly adequate range of motion and intact strength in all
extremities and Plaintiff's left knee was stable.
Tr. 672-73.
In addition, in January 2005 Howard Bourdages, M.D., treating
physician, noted Plaintiff was "doing well," did not report any
problems with pain, and was "ambulating freely."
Tr. 395.
Similarly, in October 2005 William E. Davis, D.O., examining
physician, noted Plaintiff "ambulate[d] without apparent
discomfort or loss of function."
Tr. 744.
On April 24, 2007,
Linda Bufton, M.D., examining physician, noted Plaintiff "had 5/5
strength with normal bulk and tone throughout the upper and lower
12 - OPINION AND ORDER
extremities."
Tr. 709.
In addition, the ALJ noted the opinions
of Dr. Nixon and NP McDermott were contradicted by the opinions
of reviewing agency physicians Martin B. Lahr, M.D., and Linda L.
Jensen, M.D.
Finally, the ALJ noted neither Dr. Nixon nor
NP McDermott provided any explanation for their opinions that
Plaintiff would be absent from work for more than four days per
month.
An ALJ may properly reject an opinion that is conclusory
and unsupported by objective medical evidence.
Combs v. Astrue,
387 F. App'x 706, 708 (9th Cir. 2010)(citing Batson, 359 F.3d at
1195).
The Court concludes on this record that the ALJ did not
err and provided legally sufficient reasons supported by the
record for rejecting the opinions of Dr. Nixon and NP McDermott
that Plaintiff was able to stand and/or to walk for less than two
hours in an eight-hour work day, to rarely lift ten pounds, and
would miss more than four days per month of work.
B.
Dr. Staggenborg
On July 30, 2007, Dr. Staggenborg, treating
psychiatrist, opined in a "check-off form" that Plaintiff's
depression "associated with pyschomotor retardation mentally
rendered him unable to sustain full time competitive work."
Tr. 30, 735-37.
The ALJ rejected Dr. Staggenborg's opinion on
the ground that it was "inconsistent with his own mental status
evaluations of [Plaintiff] that were essentially normal in June
13 - OPINION AND ORDER
2006 and August 2006."
Tr. 30.
The ALJ noted Dr. Staggenborg
did not document any evidence of psychomotor retardation due to
depression by Plaintiff.
Tr. 719-34.
Nevertheless,
Dr. Staggenborg checked "yes" in the "check-off form" in response
to a question asking whether he agreed with the opinion of
Dr. Bufton that Plaintiff suffered psychomotor retardation due to
depression.
Tr. 735.
In addition, the ALJ notes the question
regarding Dr. Bufton's opinion is misleading because Dr. Bufton
found Plaintiff had "near normal mental status on testing and
normal cognitive functioning on evaluation in April 2007."
Tr. 30.
Finally, the ALJ notes Dr. Staggenborg noted in March
2007 that Plaintiff's dysthymia had improved after Plaintiff
consistently complied with prescribed antidepressants.
Tr. 721.
The Court concludes on this record that the ALJ did not
err when he rejected Dr. Stagenborg's opinion that Plaintiff's
depression "associated with pyschomotor retardation mentally
rendered him unable to sustain full time competitive work,"
because the ALJ provided sufficient reasons supported by the
record for doing so.
III. The ALJ did not err at Step Five.
Plaintiff contends the ALJ erred at Step Five when he found
Plaintiff could perform other jobs in the national economy
because the ALJ failed to consider the limitations indicated by
Plaintiff, Drs. Nixon and Staggenborg, and NP McDermott in his
14 - OPINION AND ORDER
decision.
Because the Court has concluded the ALJ properly
rejected Plaintiff's testimony as well as the opinions of
Drs. Nixon and Staggenborg and NP McDermott, the Court also
concludes the ALJ did not err at Step Five when he failed to
include those limitations in his assessment of Plaintiff's
ability to do other jobs existing in the national economy.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 18th day of April, 2011.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
15 - OPINION AND ORDER
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