Lee v. Commissioner Social Security Administration
Filing
18
OPINION AND ORDER. The Commissioners decision is supported by substantial evidence. Therefore, I AFFIRM the Commissioners decision, and Mr. Lees appeal is DISMISSED. Signed on 7/7/2011 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
PATTON LEE,
Plaintiff,
No. CV 10-6158-MO
v.
OPINION AND ORDER
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MOSMAN, J.,
Plaintiff Patton Lee challenges the Commissioner‘s decision denying his claim for
Supplemental Security Income (―SSI‖) disability benefits. This Court has jurisdiction under 42
U.S.C. § 405(g). For the reasons stated below I AFFIRM the Commissioner‘s decision.
PROCEDURAL BACKGROUND
On May 6, 2008, Mr. Lee applied for SSI under Title XVI of the Social Security Act. AR
98–100.1 This application was denied initially on August 19, 2008, and upon reconsideration,
Mr. Lee requested a hearing. AR 14. An administrative law judge (―ALJ‖) held a hearing on
October 20, 2009. AR 23. Following the hearing, Mr. Lee amended his alleged onset of
disability from March 29, 2008 to January 1, 2009. AR 10. On February 4, 2010, the ALJ issued
his decision denying Mr. Lee‘s application. AR 7. The Appeals Council denied review on April
1
Citations to ―AR‖ refer to indicated pages in the official transcript of the administrative record filed with the
Commissioner‘s Answer on November 17, 2010.
PAGE 1 – OPINION AND ORDER
26, 2010, making the ALJ‘s decision the final decision of the Commissioner. AR 1-3. Mr. Lee
timely appealed to this Court on June 18, 2010.
THE ALJ’S FINDINGS
The ALJ made his decision based upon the five-step sequential process established by the
Commissioner. Bowen v. Yuckert, 482 U.S. 137, 140–41 (1987); see also 20 C.F.R. §§ 404.1520,
416.920 (establishing the five-step evaluative process for SSI claims). At Step One the ALJ
found that Mr. Lee has not engaged in substantial gainful activity since the amended alleged onset
date. AR 12. At Step Two the ALJ found that Mr. Lee suffered from depressive
disorder/schizoaffective disorder; panic disorder with agoraphobia/post-traumatic stress disorder
(―PTSD‖); and substance abuse. Id. Continuing to Step Three, the ALJ found that the
combination of impairments does not meet or medically equal a disorder listed in the
Commissioner‘s regulations. Id.
The ALJ next evaluated Mr. Lee‘s residual functioning capacity (―RFC‖), finding that he
could perform a full range of work at all exertion levels, but with certain nonexertional limitations.
Mr. Lee is limited to work involving simple instructions in a routine setting free from frequent or
rapid change. AR 14. He cannot perform work that involves frequent coworker interaction, or
interaction with the public. Id. He also cannot work at heights or with hazards. Id. Based on
this RFC, the ALJ found at Step Four that Mr. Lee could perform his past relevant work as a
landscape laborer. AR 17.
The ALJ continued to Step Five, relying upon testimony from the vocational expert (―VE‖)
to find that Mr. Lee could work as a packer of agricultural produce, machine trimmer, or small
PAGE 2 – OPINION AND ORDER
product assembler, and that these jobs existed in significant numbers in the national economy.
AR 18. Based on the Step Four and Step Five findings, the ALJ denied benefits. AR 19.
STANDARD OF REVIEW
I review the Commissioner‘s decision to ensure the Commissioner applied proper legal
standards and that his findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).
―‗Substantial evidence‘ means more than a mere scintilla, but less than a preponderance; it is such
relevant evidence as a reasonable person might accept as adequate to support a conclusion.‖
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin.,
466 F.3d 880, 882 (9th Cir. 2006)). The Commissioner‘s decision must be upheld if it is a
rational interpretation of the evidence, even if there are other possible rational interpretations.
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The reviewing court may not substitute
its judgment for that of the Commissioner. Robbins, 466 F.3d at 882. Finally, ―the court will not
reverse an ALJ‘s decision for harmless error, which exists when it is clear from the record that the
ALJ‘s error was inconsequential to the ultimate nondisability determination.‖ Tommasetti v.
Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted).
DISCUSSION
Mr. Lee contends that the ALJ erred on three issues. First, Mr. Lee alleges the ALJ erred
in failing to give credit to the opinion of Mr. Tracy Taschler, the treating therapist. Second, he
alleges the ALJ failed to give full credit to the opinion of Dr. Michael Vallanueva, the examining
psychologist. Lastly, Mr. Lee alleges the ALJ erred in failing to fully credit the lay witness
testimony of Ms. Hernandez, Mr. Lee‘s wife. In turn, the government argues that Mr. Lee failed
PAGE 3 – OPINION AND ORDER
to show that he is unable to perform his past relevant work, either as actually or generally
performed.
I.
The ALJ provided legally sufficient reasons to discredit the lay witness opinion of
treating therapist, Tracy Taschler
The ALJ has a duty to consider lay witness testimony. Lewis v. Apfel, 236 F.3d 503, 511
(9th Cir. 2001); 20 C.F.R. §§ 404.1513(d)(4); 404.1545(a)(3); 416.913(d)(4); 416.945(a)(3).
Friends and family members in a position to observe the claimant‘s symptoms and daily activities
are competent to testify regarding the claimant‘s condition. Dodrill v. Shalala, 12 F.3d 915, 918–
19 (9th Cir. 1993). The value of lay witness testimony lies in their eyewitness observations,
which may ―often tell whether someone is suffering or merely malingering.‖ Id. at 919. The ALJ
may not reject such testimony without comment, but he may reject lay testimony inconsistent with
the medical evidence. Lewis, 236 F.3d at 512. If an ALJ rejects lay witness testimony entirely,
he must give reasons germane to the witness. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.
1996).
Mr. Lee contends that the ALJ erred in failing to give credit to the opinion of Mr. Taschler,
the treating therapist. Evidence from an ―acceptable medical source‖ is required to establish a
―medically determinable impairment.‖ 20 C.F.R. § 404.1513(a). Acceptable medical sources
include licensed physicians, psychologists, optometrists, podiatrists, and so forth. Id.
Therapists, such as Mr. Taschler, are not acceptable medical sources, but are instead considered
―other sources,‖ on par with lay witnesses. Id. at § 404.1513(d). While the ALJ ―may also use
evidence from other sources‖ in determining the severity of an applicant‘s impairment, he is not
required to adopt the opinion of that source. Id.
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Mr. Taschler stated that Mr. Lee had marked limitations in his ability to complete a normal
day of work without interruptions due to psychologically based symptoms. AR 422. Mr.
Taschler further stated that Mr. Lee had marked limitations in interactions with coworkers and the
general public, as well as moderate limitations in his ability to concentrate and carry out simple
instructions. AR 421–22. Mr. Lee argues that this opinion should be given full credit and, as
such, a finding of disability should be compelled.
I find that the ALJ has provided sufficient and germane reasons for discrediting the opinion
of Mr. Taschler. The ALJ noted that Mr. Taschler gave numerous disclaimers concerning his
own opinion, stating that it ―is not well-supported by clinical findings or a longitudinal treatment
history.‖ AR 17, 417–23.
Mr. Taschler also commented on the infrequency with which he had
seen Mr. Lee, and that his opinion is not supported by formal testing. Id. Further, the ALJ found
that Mr. Taschler‘s lay opinion conflicted with the medical opinion of state agency psychologist,
Sandra L. Lundblad. Dr. Lundblad declared that while Mr. Lee is not able to work in
environments with frequent coworker or public interaction, or perform detailed instructions, he is
―able to perform simple routine tasks.‖ AR 206. As Dr. Lundland‘s medical opinion is
consistent with the record evidence, I find that the ALJ properly discredited the conflicting lay
witness opinion of Mr. Taschler.
II.
The ALJ appropriately credited the medical opinion of examining psychologist,
Dr. Michael Villanueva
The ALJ is responsible for resolving conflicts in the medical evidence. Carmickle v.
Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). In rejecting an uncontradicted
opinion, the ALJ must give clear and convincing reasons for doing so. Id. If the opinion is
contradicted, however, only specific and legitimate reasons are required. Id. An opinion‘s
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reliance on a claimant‘s discredited subjective complaint is a specific and legitimate reason for
rejecting that opinion. Tommasetti, 533 F.3d at 1040.
Mr. Lee contends that the ALJ erred in failing to fully credit the medical opinion of Dr.
Michael Villanueva, the examining psychologist. Dr. Villanueva notes that Mr. Lee was often
restless and confrontational, and had been fired from jobs due to conflicts with supervisors or
coworkers. AR 185, 187. Dr. Villanueva further states that Mr. Lee shows ―marked difficulties
in interpersonal situations,‖ and has had his parole revoked due to arguments with his parole
officer. AR 187–88. The ALJ recognized that Mr. Lee‘s limitations preclude him from having
frequent interaction with coworkers or from working with the general public. AR 14. Mr. Lee
argues, however, that the ALJ erred in not incorporating his limitation in responding appropriately
to supervision in his residual functional capacity (―RFC‖) assessment, and that fully crediting Dr.
Villanueva‘s opinion on this matter would compel a finding of disability. Conversely, the
government challenges the subjective credibility of Mr. Lee as a reason for rejecting the opinion of
Dr. Villanueva. AR 16.
I believe both parties have missed the mark. I find that the ALJ did, in fact, give full and
proper credit to the opinion of Dr. Villanueva. Dr. Villanueva notes—and the ALJ agrees—that
Mr. Lee has marked difficulties in social functioning and interpersonal situations. AR 13, 188.
Dr. Villanueva also notes that Mr. Lee has been ―fired from multiple jobs because of arguments
with supervisors or getting into fights with co-workers.‖ AR 185. Dr. Villanueva does not
recommend, however, that Mr. Lee‘s history precludes him from ever working under supervision.
Merely detailing a claimant‘s history of problems with supervisors and other coworkers does not
prove the existence of a work-related disability.
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I find that the ALJ did credit and incorporate Dr. Villanueva‘s opinion. Limiting Mr. Lee
to simple and routine instructions ensures that any coworker or supervisor interaction will be
minimal and infrequent. As such, Mr. Lee‘s RFC does account for his history as noted by Dr.
Villanueva. The government‘s argument that Dr. Villanueva‘s opinion lacked objective findings
due to Mr. Lee‘s lack of credibility is therefore superfluous. I find that there is no conflict in the
medical evidence, and that the ALJ properly credited the opinion of Dr. Villanueva.2
III.
The ALJ appropriately discredited the lay witness testimony of the plaintiff’s
wife, Ms. Hernandez
As stated above, the ALJ has a duty to consider lay witness testimony. Lewis, 236 F.3d at
511. The ALJ may not reject such testimony without comment, but he may reject lay testimony
inconsistent with the medical evidence. Id. at 512. If an ALJ rejects lay witness testimony
entirely, he must give reasons germane to the witness. Nguyen, 100 F.3d at 1467.
Mr. Lee argues that the ALJ gave insufficient consideration to the lay witness testimony of
Ms. Hernandez, his wife, and put forth no justification doing so. Ms. Hernandez testified that Mr.
Lee has trouble helping with housework. He helps with chores only ―once in a great while,‖ and
Ms. Hernandez must remind him numerous times how she wants him to do things. AR 120. Mr.
Lee must be reminded to shower, change his clothes, and sometimes to eat. AR 119–20. People
must constantly repeat themselves for Mr. Lee to understand them. AR 123. Ms. Hernandez
testified that Mr. Lee has trouble responding to authority, and has been fired from previous jobs
2
The government argues that Dr. Villanueva’s opinion was properly rejected due to its reliance on Mr. Lee’s
non-credible subjective complaints. Dr. Villanueva notes that Mr. Lee was a difficult historian, had a history of
using hallucinogens, and had a recall of one out of three. AR 185–89. Though I find that the ALJ did properly
credit and incorporate Dr. Villanueva’s opinion, in the alternative, I agree that any part of the opinion based on Mr.
Lee’s non-credible subjective complaints that are not supported by the record should be rejected.
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due to this problem. AR 124. She also testified that Mr. Lee has bad knees and back injuries.
AR 123.
A ―failure to comment on such competent testimony‖ has consistently been grounds for
reversal of the Commissioner‘s decision. Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050,1056
(9th Cir. 2006). The ALJ did comment on the testimony of Ms. Hernandez, however. The ALJ
incorporated part of Ms. Hernandez‘s testimony into Mr. Lee‘s RFC assessment, so far as the
testimony was corroborated by the medical record. The ALJ noted Ms. Hernandez‘s claim that
Mr. Lee has ―difficulties interacting with others,‖ and that he is sometimes able to help with
household chores and needs instructions repeated. AR 16. This testimony is consistent with the
ALJ‘s finding in the RFC that Mr. Lee is ―limited to work that involves simple instructions in a
routine work setting that does not change frequently or rapidly, and that involves no frequent
coworker interaction.‖ AR 14. So the ALJ did not reject Ms. Hernandez‘s lay witness testimony
in its entirety. The ALJ did reject, however, those claims that are inconsistent with the overall
record, such as Mr. Lee‘s alleged back and knee injuries. Id. This is an acceptable reason for
rejecting lay witness testimony, so Mr. Lee‘s contention fails.
IV.
Mr. Lee failed to show that he is unable to perform his past relevant work
It is a claimant‘s burden to show that he can no longer perform his past relevant work.
Barnhart v. Thomas, 540 U.S. 20, 25 (2003); Carmickle, 533 F.3d at 1166. Past relevant work
can either be the particular job performed by the claimant or the occupation as generally
performed. Social Security Ruling (―SSR‖) 82-61.
Mr. Lee had past relevant work as a landscape laborer. AR 17. The vocational expert
(―VE‖) testified that Mr. Lee‘s RFC allows him to perform this past relevant work. AR 56.
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Further, the ALJ found that Mr. Lee could perform this work as it is actually and generally
performed. AR 17–18. Mr. Lee argues that the ALJ‘s finding, however, is inconsistent with the
limitations assessed by Mr. Taschler and that the hypothetical propounded by the ALJ to the VE
did not include limitations relating to Mr. Lee‘s difficulty responding to supervision. Had these
limitations been included in the assessment, Mr. Lee argues, it would show he is unable to perform
his past relevant work.
As mentioned above, the ALJ provided germane reasons for rejecting the lay witness
testimony of Mr. Taschler. As such, it was appropriate for the ALJ to exclude Mr. Taschler‘s
opinion in determining Mr. Lee‘s ability to perform his past work. Also, Mr. Lee‘s contention
that the hypothetical put forth to the VE insufficiently stated his limitations is unpersuasive. ―An
ALJ must propound a hypothetical to a VE that is based on medical assumptions supported by
substantial evidence in the record that reflects all the claimant‘s limitations.‖ Osenbrock v. Apfel,
240 F.3d 1157, 1165 (9th Cir. 2001). However, ―[a]n ALJ is free to accept or reject restrictions in
a hypothetical question that are not supported by substantial evidence.‖ Id. at 1164–65. Here,
the ALJ properly considered Mr. Lee‘s difficult history with supervisors and adequately applied
this limitation in his RFC, restricting Mr. Lee to infrequent coworker interaction. Thus, the ALJ
propounded an appropriate hypothetical to the VE, including Mr. Lee‘s limitations based on
substantial evidence in the record. The ALJ found that this limitation would not preclude Mr. Lee
from performing his past relevant work, and I agree. Mr. Lee has not met his burden to show that
he is unable to perform his past relevant work, either as actually or generally performed.
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CONCLUSION
The Commissioner‘s decision is supported by substantial evidence. Therefore, I AFFIRM
the Commissioner‘s decision, and Mr. Lee‘s appeal is DISMISSED.
IT IS SO ORDERED.
DATED this
7th
day of July, 2011.
/s/ Michael W. Mosman
MICHAEL W. MOSMAN
United States District Court
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