Allen v. Commissioner Social Security Administration
Filing
22
OPINION AND ORDER. The Commissioners decision is supported by substantial evidence and is therefore AFFIRMED. Signed on 3/30/12 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
LUCIOUS C. ALLEN,
Plaintiff,
No. 3:11-cv-00263-MO
v.
OPINION AND ORDER
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
MOSMAN, J.,
Luscious C. Allen, Jr., challenges the Commissioner’s decision partially denying his
claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). I
have jurisdiction under 42 U.S.C. § 405(g) and now affirm the Commissioner’s decision.
PROCEDURAL BACKGROUND
On September 15, 2005, Mr. Allen filed for DIB and SSI under Title II and Title XVI of
the Social Security Act, claiming disability beginning on September 17, 2005. AR 13. The
applications were denied on February 27, 2006, and upon reconsideration on October 4, 2006.
Id. An administrative law judge (“ALJ”) held a hearing on January 15, 2009. Id. On February
10, 2009, the ALJ issued her decision, finding Mr. Allen disabled for DIB and SSI purposes
1 – OPINION AND ORDER
beginning on December 1, 2007, but not disabled prior to that date. Id. at 20. The Appeals
Council denied review on January 28, 2011, making the ALJ’s decision the final decision of the
Commissioner. Id. at 1. Mr. Allen appealed on March 2, 2011.
THE ALJ’S FINDINGS
The ALJ made her decision based upon the five-step sequential process established by
the Commissioner. See Bowen v. Yuckert, 482 U.S. 137, 140–41 (1987); 20 C.F.R. §§ 404.1520,
416.920 (establishing the five-step evaluative process for DIB and SSI claims). At step one, the
ALJ found Mr. Allen had not engaged in substantial gainful activity since the alleged onset date
of September 17, 2005. AR 15. The ALJ then found Mr. Allen has the following severe
impairment: degenerative disc disease of the lumbar spine with chronic strain. Id. Continuing to
step three, the ALJ concluded Mr. Allen’s severe impairment did not equal a disorder listed in
the Commissioner’s regulations. Id. at 16.
The ALJ then evaluated Mr. Allen’s residual functioning capacity (“RFC”). She found
that, before December 1, 2007, Mr. Allen had the RFC to perform medium work as defined in 20
C.F.R. § 404.1567(c) and § 416.967(c), with the limit that Mr. Allen do no more than the
following:
[L]ift 20 pounds frequently, 25 pounds occasionally, and 50 pounds maximum.
He could sit 8 hours out of an 8-hour day with normal breaks, stand 8 hours out of
an 8-hour day with normal breaks, and walk 8 hours out of an 8-hour day with
normal breaks. He had no significant postural or manipulative limitations. He
had no environmental limitations.
AR 16. Beginning on December 1, 2007, the ALJ found Mr. Allen only had the RFC to perform
light work, as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b). Id. at 18. At step four, the
ALJ found that, prior to December 1, 2007, Mr. Allen could perform his past relevant work. Id.
at 19. Therefore, he was not disabled prior to December 1, 2007. Id. at 20. However, beginning
on December 1, 2007, Mr. Allen could not perform his past relevant work. Id. at 19. Moving on
2 – OPINION AND ORDER
to step five for that time period, the ALJ concluded there were not a significant number of jobs in
the national economy Mr. Allen could perform as of December 1, 2007. Id. at 20. Accordingly,
the ALJ concluded Mr. Allen became disabled on December 1, 2007. Id.
STANDARD OF REVIEW
I review the Commissioner’s decision to ensure the Commissioner applied proper legal
standards and the ALJ’s 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.
DISCUSSION
Mr. Allen attacks the ALJ’s conclusion that he was not disabled until December 1, 2007,
arguing the ALJ improperly (1) failed to identify Mr. Allen’s peripheral neuropathy as “severe”;
(2) discredited Mr. Allen’s testimony; (3) discredited testimony from Mr. Allen’s daughter; (4)
rejected opinions of Dr. Mathew J. Breeze and Dr. Stephen J. Thomas, plaintiff’s treating
physicians; and (5) identified an erroneous RFC for the time period before December 1, 2007.
I.
The ALJ’s Step Two Findings
Mr. Allen first argues the ALJ erred at step two by not finding his peripheral neuropathy
to be a “severe” impairment. (Pl.’s Br. [16] 11). However, where an ALJ finds one severe
impairment at step two, a failure to identify additional severe impairments is harmless if the ALJ
3 – OPINION AND ORDER
considers the additional impairments later in the sequential analysis. See, e.g., Burch v.
Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (“Assuming without deciding that this omission
constituted legal error, it could only have prejudiced Burch in step three (listing impairment
determination) or step five (RFC) because the other steps, including this one, were resolved in
her favor.”). Thus, any error at step two was harmless here, and I reject this argument.
II.
Claimant’s Credibility
In analyzing a claimant’s subjective testimony, an ALJ must engage in a two-step
inquiry. First, the ALJ must determine whether the claimant presented “objective medical
evidence of an underlying impairment which could reasonably be expected to produce the pain
or other symptoms alleged.” Lingenfelter, 504 F.3d at 1036 (quotation omitted). “Second, if the
claimant meets this first test, and there is no evidence of malingering, the ALJ can reject the
claimant’s testimony about the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so.” Id. (quotation omitted). The ALJ may consider ordinary
credibility factors, objective medical evidence and the claimant’s treatment history, as well as the
claimant’s daily activities, work record, and observations of physicians and third parties with
personal knowledge of the claimant’s functional limitations. Smolen v. Chater, 80 F.3d 1273,
1284 (9th Cir. 1996).
Mr. Allen testified that he stopped working in 2005 due to back and foot pain, frequently
has to lie down for several hours, can stand no more than fifteen minutes, and can sit no more
than twenty minutes. See AR 16. The ALJ found Mr. Allen’s impairments could reasonably be
expected to produce the alleged symptoms, but that Mr. Allen’s statements as to intensity,
persistence, and limiting effects of the his symptoms were not credible to the extent they were
4 – OPINION AND ORDER
inconsistent with the RFC defined for the time period prior to December 1, 2007. Id. at 17.1
This adverse credibility determination only applied prior to December 1, 2007; the ALJ did not
discredit Mr. Allen’s claimed limitations after that date. The ALJ gave at least two sufficient
reasons for this conclusion.
First, the objective medical evidence was not consistent with Mr. Allen’s claimed
symptoms prior to December 1, 2007. Id; see Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.
1995) (ALJ properly discredited testimony where ALJ “identified several contradictions between
claimant’s testimony and the relevant medical evidence”). Several pieces of evidence from 2005
and 2006 indicate Mr. Allen’s limitations were not as drastic during those years. For example, in
January of 2006, Dr. Terri Robinson examined plaintiff and opined that he could stand, walk, sit,
lift, and carry without limitation. AR 246. Dr. Robinson identified only “mild” tenderness in
Mr. Allen’s spine. Id. Moreover, in May of 2007, Dr. Breeze recommended that Mr. Allen find
a job and maintain his activity level. Id. at 298. This evidence does not align with Mr. Allen’s
asserted inability to stand or sit during this time period.
Plaintiff argues several records support Mr. Allen’s statements, but, critically, the records
that provide the strongest support were generated after December 1, 2007. (See Pl.’s Br. [16]
13–14). The only cited records that preceded December 1, 2007, are (a) a note by a physical
trainer in October of 2006 that plaintiff had mild weakness in his right foot, and (b) a February of
2007 note by Dr. Breeze that Mr. Allen had no reflexes at the bilateral knees (which was
followed a few months later by the recommendation that he find work and maintain activity).
Neither piece of evidence shows Mr. Allen’s impairments were as severe as he claimed before
1
Plaintiff argues the ALJ improperly defined an RFC and then, without more, simply found Mr. Allen not credible
to the extent his testimony was inconsistent with the RFC. However, “[t]here is nothing wrong with an ALJ stating
a conclusion and then explaining it, as opposed to providing explanation and then reaching a conclusion.” Black v.
Astrue, 10-cv-06409-MO, 2011 WL 6130534, at *6 (D. Or. Dec. 7, 2011). Thus, I reject this argument. The issue is
whether the reasons the ALJ gave after this conclusion are sufficient.
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December 1, 2007. And records from 2008 and 2009 do not conflict with the ALJ’s analysis.
Thus, inconsistencies with the medical evidence justified partially discrediting Mr. Allen’s
testimony for the time period prior to December 1, 2007.
Second, Mr. Allen’s testimony was not consistent with his activities of daily living. He
reported that he takes walks, cleans, does not require assistance with household chores, and visits
friends frequently. AR 132–33. On March 30, 2007, Mr. Allen reported that he had been
working around the house, doing countertop work and painting. Id. at 236. He now argues that
physical activity worsened his condition. (Pl.’s Br. [16] 15). However, the reported daily
activities appear inconsistent with Mr. Allen’s purported inability to stand or sit for more than
twenty minutes, and the ALJ’s interpretation was reasonable. See Rollins v. Massanari, 261
F.3d 853, 857 (9th Cir. 2001) (“It is true that Rollins’ testimony was somewhat equivocal about
how regularly she was able to keep up with all of these activities, and the ALJ’s interpretation of
her testimony may not be the only reasonable one. But it is still a reasonable interpretation and
is supported by substantial evidence; thus, it is not our role to second-guess it.”). Thus, the ALJ
did not err in her treatment of Mr. Allen’s testimony.
III.
Lay Testimony
An ALJ must take into account lay testimony concerning a claimant’s symptoms, unless
she gives germane reasons to discount such evidence. See Stout v. Comm’r of Soc. Sec. Adm’n,
454 F.3d 1050, 1053 (9th Cir. 2006). In this case, Mr. Allen’s daughter completed a report,
which generally supported Mr. Allen’s claims of pain and difficulty sitting or standing. AR 115–
21. The ALJ partially discredited this testimony, citing the same reasons discussed above that
applied to Mr. Allen’s own testimony. For the same reasons discussed above, the ALJ did not
err in her treatment of Mr. Allen’s daughter’s testimony. See Krueger v. Astrue, 10-cv-1092-
6 – OPINION AND ORDER
MO, 2011 WL 3510939, at *3 (D. Or. Aug. 9, 2011) (“If the ALJ provided clear and convincing
reasons to discredit the claimant’s subjective complaints, and the lay witness’s testimony is
similar to those complaints, then it follows that the ALJ also gave germane reasons for rejecting
the lay witness’s testimony.”) (citing Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694
(9th Cir. 2009)).
IV.
Treating Physicians
“Although a treating physician’s opinion is generally afforded the greatest weight in
disability cases, it is not binding on an ALJ with respect to the existence of an impairment or the
ultimate determination of disability.” Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir.
2001). If the treating doctor’s testimony is “contradicted by another doctor” the ALJ can reject
the testimony for “specific and legitimate reasons supported by substantial evidence in the
record.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If a treating doctor’s opinion “is not
contradicted by another doctor, it may be rejected only for ‘clear and convincing’ reasons.” Id.
Dr. Breeze and Dr. Thomas both eventually opined that Mr. Allen was unable to work. Plaintiff
argues the ALJ should have found him disabled as of September 2005, based on these treating
physicians’ opinions. The issue is whether the ALJ rejected these doctors’ opinions and, if so,
whether she provided sufficient reasons for doing so.
The ALJ did not err in her treatment of Dr. Thomas’s opinion. Dr. Thomas did not even
examine plaintiff until November of 2007. And it was not until December 18, 2007, that he
concluded plaintiff was unable to work. AR 286. The ALJ gave Dr. Thomas’s opinion
“significant weight” in finding Mr. Allen disabled as of December 1, 2007, but did not discuss it
in regards to the time period preceding December 1, 2007. Id. at 19. Plaintiff seems to argue
this record suggests Mr. Allen became disabled prior to December 1, 2007. Plaintiff cites no
7 – OPINION AND ORDER
statements from Dr. Thomas to that effect, however. To the contrary, nothing on the face of the
records Dr. Thomas generated conflicts with the ALJ’s conclusion. There was no need for the
ALJ to better explain why she rejected Dr. Thomas’s opinion because the ALJ simply did not
reject that opinion.
Likewise, the ALJ did not err in her treatment of Dr. Breeze’s statements. Plaintiff
specifically claims the ALJ mistreated two records from Dr. Breeze. (See Pl.’s Reply [21] 3).
First, a May 2007 note from Dr. Breeze indicates Mr. Allen cannot lift “significant” weight or sit
for “extended periods.” AR 287. The ALJ noted this submission is entitled to little weight
because it “provides no specific functional limitation,” conflicts with Mr. Allen’s reported
activities of daily living, is unsupported, and is inconsistent with other medical records. Id. at
17. I agree. “When confronted with conflicting medical opinions, an ALJ need not accept a
treating physician’s opinion that is conclusory and brief and unsupported by clinical findings.”
Tonapetyan, 242 F.3d at 1149. Dr. Breeze’s statement is conclusory and contradicts Dr.
Robinson’s 2006 findings and Dr. Breeze’s own statement from May of 2007 that Mr. Allen
should seek out work. It also conflicts with Mr. Allen’s daily activities, discussed above. The
other records, and the conclusory nature of Dr. Breeze’s statement, provide a “specific and
legitimate” reason for giving Dr. Breeze’s May of 2007 statement little weight.
Second, plaintiff argues the ALJ mistreated a January of 2009 letter from Dr. Breeze. In
this letter, Dr. Breeze opined that Mr. Allen’s peripheral neuropathy meets a listing criteria under
the Commissioner’s regulations, that Mr. Allen has not shown signs of exaggerating his
symptoms, and that Mr. Allen is unable to work (although he did not state when Mr. Allen
became unable to work). The ALJ gave this letter “little weight” for the time period prior to
December of 2007. AR 18.
8 – OPINION AND ORDER
As to the peripheral neuropathy, the ALJ explained that Dr. Breeze’s 2009 opinion is
inconsistent with other medical evidence in the record. Id. Specifically, Mr. Allen saw a
neurology expert in December of 2008, who described Mr. Allen’s gait as “normal.” Id. at 370.
And Dr. Robinson’s 2006 analysis indicated Mr. Allen’s movements were not significantly
disturbed at that time. Given Dr. Breeze’s lack of explanation on this point and the other records
that indicate Dr. Breeze’s 2009 conclusion did not apply prior to December of 2007, the ALJ
properly concluded that—before December of 2007—Dr. Breeze’s 2009 opinion should receive
little weight. Similarly, the ALJ explained that Dr. Breeze’s statement about symptom
exaggeration received little weight because it was not consistent with other evidence in the
record, which mostly consisted of notes from Mr. Allen’s chiropractor. Mr. Allen told his
chiropractor intern that he was concerned about how vocational therapy might affect his
disability claim and the chiropractor intern noted that Mr. Allen’s disability claim had removed
his desire for employment. Id. at 327–28. These statements in the record constituted a
legitimate reason for giving Dr. Breeze’s opinion about Mr. Allen’s tendency to exaggerate
relatively little weight. Moreover, the reasons for discrediting Mr. Allen’s testimony, discussed
above, apply equally here because they too undermine Dr. Breeze’s opinion that Mr. Allen is not
prone to exaggeration.
Finally, Dr. Breeze’s 2009 letter does not even state that Mr. Allen has been disabled
since September of 2005. In fact, in May of 2007, Dr. Breeze opined that Mr. Allen should
return to work, which conflicts with any claim that Mr. Allen was then unable to do so. See id. at
298. Thus, to the extent plaintiff argues this 2009 letter shows Mr. Allen was disabled as of
September 2005, I reject that argument. Even plaintiff’s treating physician does not reach the
conclusion that plaintiff says the ALJ should have reached. Thus, the fact that this 2009 letter
9 – OPINION AND ORDER
does not specify when, in Dr. Breeze’s opinion, Mr. Allen became disabled constitutes another
valid reason to give it little weight as to the time period prior to December 1, 2007.
V.
The RFC
Plaintiff argues that, based on the arguments discussed above, the RFC was erroneous.
Having concluded the ALJ did not otherwise err, I reject this argument. The only attempt at an
independent argument plaintiff seems to make is that, as a matter of common sense, it is “highly
unlikely” that any individual of Mr. Allen’s age and limitations would be able to perform
medium duty work, and it is “much more realistic” that such an individual would be limited to
sedentary work. (Pl.’s Br. [16] 17). However, this argument is circular and plaintiff cites no
evidence to support it. I therefore reject it.
CONCLUSION
The Commissioner’s decision is supported by substantial evidence and is therefore
AFFIRMED.
IT IS SO ORDERED.
DATED this
30th
day of March, 2012.
/s/ Michael W. Mosman
MICHAEL W. MOSMAN
United States District Court
10 – OPINION AND ORDER
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