Courser v. Commissioner of Social Security
Filing
17
OPINION AND ORDER. For the reasons set forth above, the Commissioner's final decision denying benefits to plaintiff is AFFIRMED. This action is DISMISSED. IT IS SO ORDERED. Signed on 01/23/2012 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
NICOLE COURSER,
Case No. 3:11-cv-717-MA
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
MERRILL SCHNEIDER
Schneider Caver Law Offices
P.O. Box 14490
Portland, Oregon 97293
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
JEFFREY R. MCCLAIN
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 MiS 901
Seattle, Washington 98104
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
MARSH, Judge:
Plaintiff
Nicole
Courser
brings
this
action
for
judicial
review of a final decision of the Commissioner of Social Security
denying her application for supplemental security income ("SSI")
benefits under Title XVI of the Social Security Act (the "Act"), 42
U.S.C.
§§
U.S.C.
§
1381-1383f.
This Court has jurisdiction pursuant to 42
405(g) and 42 U.S.C.
§
1383(c) (3).
For the reasons set
forth below, I AFFIRM the final decision of the Commissioner.
PROCEDURAL BACKGROUND
Plaintiff filed an application for SSI on March 13,
alleging disability due to neck pain as of March 4,
application was
denied initially and
upon
2006.
Her
reconsideration.
hearing was held before Administrative Law Judge
Montano on April 10, 2009.
2006,
("ALJ")
A
Donna
On August 26, 2009, the ALJ issued a
decision finding plaintiff not disabled within the meaning of the
Act.
After
the
Appeals
Council
declined
to
review
the
ALJ
decision, plaintiff filed a complaint in this Court.
FACTUAL BACKGROUND
Born on August 29,
1981, plaintiff was 24 years old on the
alleged onset date of disability and 27 years old at the time of
the hearing.
Plaintiff left high school during the ninth grade
because she was pregnant; she never obtained a GED.
In March 2006,
plaintiff was in a motor vehicle accident in which she fractured
her cervical spine and left hand.
2 - OPINION AND ORDER
Plaintiff has no past relevant
work, but was briefly employed as a cashier, gas station attendant,
and house cleaner.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
§
416.920.
sequential
Bowen
V.
Each step
is potentially dispositive.
The claimant bears the burden of proof
at steps one through four.
See Tackett
1098
(9th Cir.
1999).
V.
Apfel, 180 F.3d 1094,
The burden shifts to the Commissioner at
step five to show that a significant number of jobs exist in the
national economy that the claimant can perform.
Yuckert, 482 U.S.
at 141-42.
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity.
See 20 C.F.R.
§§
416.920(b), 416.971
et seq.
At step two,
the ALJ found that plaintiff has the following
severe impairments: mood disorder, NOS; status post C6-7 fusion;
obesity;
fractures.
and
status
post
See 20 C.F.R.
At step three,
§
left
third
and
fourth
metacarpal
416.920(c).
the ALJ found that plaintiff's impairments,
either singly or in combination, did not meet or medically equal a
listed impairment.
See 20 C.F.R.
§§
416.920(d), 416.925, 416.926.
The ALJ determined that plaintiff has the residual functional
capacity
("RFC")
to perform light work as defined in 20 C.F.R.
3 - OPINION AND ORDER
416.967(b), but is limited to simple repetitive tasks consistent
with unskilled work.
At step four,
work.
See 20 C.F.R.
step
416.927, 416.929.
the ALJ found plaintiff has no past relevant
See 20 C.F.R.
At
§§
five,
§
416.965.
the
ALJ
found
that
considering
her
age,
education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that plaintiff can
perform.
See 20 C.F.R.
§§
416.960(c), 416.966. Accordingly, the
ALJ concluded that plaintiff is not disabled within the meaning of
the Act.
ISSUES ON REVIEW
Plaintiff
asserts
that
the
ALJ
erred
by:
1)
failing
to
properly assess her credibility; and 2) improperly evaluating the
opinions of Drs. Ugolini, Harris, and Eder.
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.
§
42 U.S.C.
405(g); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
"Substantial evidence means more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
Id.
The
court must weigh all the evidence, whether it supports or detracts
from the Commissioner's decision.
4 - OPINION AND ORDER
Martinez v. Heckler,
807 F.2d
771,
772
upheld,
(9th Cir.
even
if
1986).
the
The Commissioner's decision must be
evidence
is
susceptible
to
more
one rational interpretation .. Andrews, 53 F.3d at 1039-40.
than
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).
DISCUSSION
I.
Plaintiff's Credibility
Rollins
contends
that
the
ALJ
improperly
assessed
the
credibility of her testimony regarding the severity of her pain and
the degree to which it incapacitates her.
In deciding whether to accept subjective symptom testimony,
such as pain or depression,
20 C.F.R.
analysis.
§
an ALJ must perform two stages of
404.1529.
The first stage is a threshold
test in which the claimant must produce objective medical evidence
of an underlying impairment that could reasonably be expected to
produce the symptoms alleged.
(9th
Cir.
1996).
Here,
Smolen v. Chater, 80 F.3d 1273, 1282
there
is
no
dispute
that
plaintiff
presented objective medical evidence in support of her claims of
pain and depression.
(Tr.17.)
At the second stage of the credibility analysis,
there is no affirmative
provide
clear
and
5 - OPINION AND ORDER
evidence of malingering,
convincing
reasons
for
assuming
the ALJ must
discrediting
the
claimant I
S
testimony
regarding
the
severity of the
symptoms.
Smolen, 80 F.3d at 1284; see also Lingenfelter v. Astrue, 504 F.3d
1028, 1036 (9th Cir. 2007); Morgan V. Apfel, 169 F.3d 595, 599 (9th
Cir.
1999) .
Clear
and
convincing
reasons
may
include
inconsistencies in a claimant's testimony, including those between
daily activities and the alleged symptoms.
See Burch
400 F.3d 676, 680-1 (9th Cir. 2005); Rollins
V.
V.
Barnhart,
Massanari, 261 F.3d
853, 856-57 (9th Cir. 2001); Smolen, 80 F.3d at 1284 n.7.
The ALJ
also may consider the claimant's history of medical treatment or
prior work history in assessing a claimant's credibility.
Burch,
400 F.3d at 681; Thomas v. Barnhart, 278 F.3d 947, 958-9 (9th Cir.
2002) .
If an ALJ finds that the claimant's testimony regarding his
subjective symptoms is unreliable, the "ALJ must make a credibility
determination
citing
the
reasons
unpersuasive."
Morgan, 169 F.3d at 599.
why
the
testimony
is
In doing so, the ALJ must
identify what testimony is credible and what testimony undermines
the claimant's complaints and make "findings sufficiently specific
to permit the court to conclude that the ALJ did not arbitrarily
discredit the claimant."
Thomas, 278 F.3d at 958.
Here,
the ALJ identified numerous reasons for discrediting
plaintiff.
To begin, the ALJ found that inconsistencies between
plaintiff's daily activities and her alleged symptoms undermined
her credibility.
(Tr.
6 - OPINION AND ORDER
15.)
Specifically,
the ALJ found that
plaintiff's ability to take care of her personal hygiene, cook and
clean, leave the house, socialize, enjoy hobbies, and take care of
her six year old son
"suggest a level of functioning greater than
what she alleged in her application and testimony."
(Id.)
At the hearing, plaintiff testified that she needs assistance
dressing and bathing herself.
(Tr. 41.)
that
of
her
boyfriend
laundry.
does
(Tr. 27-41.)
all
the
Plaintiff also explained
cleaning,
vacuuming,
and
In addition, plaintiff testified that she
can only cook or do dishes while sitting in a chair.
(Tr.
36.)
Finally, plaintiff stated that her roommates and neighbors provide
help with her son's care when he is not in school.
(Tr. 97, 217.)
Plaintiff's hearing testimony is commensurate with the activities
that she described to her doctors and on disability forms.
(Tr.
97-8, 217.)
Thus, the ALJ's did not fully consider the record in assessing
plaintiff's acti vi ties
of daily living.
While
inconsistencies
between a claimant's daily activities and the alleged impairments
can serve as a basis for discrediting subjective testimony, the ALJ
may not selectively refer to certain activities out of context in
making its evaluation.
(9th Cir. 1998)
See Reddick v. Chater, 157 F.3d 715, 722-3
(ALJ's "paraphrasing of record material" was "not
entirely accurate regarding the content and tone of the record"
and,
thus,
Because,
did
not
support
an
adverse
when viewed in its entirety,
7 - OPINION AND ORDER
credibility
the
finding).
record reveals
that
plaintiff's activities of daily living were very limited, the ALJ's
finding was not based on substantial evidence.
Further, many of
the daily activities that the ALJ cited as vitiating plaintiff's
credibility
are
not
allegations of pain,
inherently
inconsistent
with
plaintiff's
such as cooking while sitting in a chair.
Thus, the ALJ's failure to consider plaintiff's entire statements
regarding the extent of her daily activities when assessing her
credibility
was
error
and,
accordingly,
cannot
be
sustained.
If this was the only reason that the ALJ provided for finding
plaintiff's testimony not credible,
she may be entitled to the
relief
concluding
she
seeks.
However,
after
that
plaintiff's
testimony was not credible to the extent that it was inconsistent
with her daily activities, the ALJ identified five other reasons,
citing specific record evidence,
minimal treatment record,
for discrediting plaintiff: her
her limited work history prior to the
alleged onset date, inconsistencies in her testimony, exaggeration,
and her criminal history.
Notably,
the
ALJ
concluded
that
plaintiff's
"use
of
medications and history of treatment does not suggest the presence
of impairments which are more limited than those found in this
decision.reason
to
(Tr. 16.)
discredit
While a lack of medical treatment is a valid
a
claimant's
testimony,
negative inference, the ALJ must consider
the
individual
may provide,
8 - OPINION AND ORDER
or other
~any
before
drawing
a
explanations that
information
in the
case
record, that may explain infrequent or irregular medical visits."
See SSR 96-7p, available at 1996 WL 374186, *7; Burch, 400 F.3d at
681.
Here,
plaintiff
acknowledged
the
total
lack
of
medical
treatment for her alleged physical disabilities, but stated that
her anxiety and trust issues have prevented her from going to the
doctor.
(Tr. 33-4.)
Plaintiff explained that she only takes her
prescribed pain medication at night because it interferes with her
son's care during the day and because "it doesn't work."
(Tr.33.)
However, plaintiff also testified she has not received treatment
for her psychological issues.
(Tr.
35.)
Plaintiff offered no
explanation for this refusal to seek treatment other than stating
that she was scared of the potential side-effects associated with
medication.
(Id. )
In regard to plaintiff's treatment
for
her alleged mental
impairments, the ALJ acknowledged plaintiff's testimony regarding
side-effects, but found it significant that she failed to consider
taking newer antidepressants, even after being educated about their
lessened side-effects by a medical professional.
regard to her alleged physical disabilities,
(Tr.
16.)
In
the ALJ noted that
plaintiff did not follow-up with her neurosurgeon, Dr. Adler, after
back surgery not because of trust and anxiety issues, but rather
because it was merely "not convenient" for her.
(Tr.
16,
180.)
Finally, the ALJ found it significant that plaintiff had not sought
9 - OPINION AND ORDER
any treatment whatsoever for her allegedly disabling physical or
mental conditions.
(Tr. 16.)
As such, the ALJ pointed to specific evidence in the record
that undermines plaintiff's claims regarding her impairments.
finding
is
supported
by
substantial
evidence
and,
as
This
such,
constitutes a clear and convincing reason.
Moreover, the ALJ found plaintiff less than credible because
of her limited work history: "it is clear that the claimant worked
only very sporadically prior to the alleged disability onset date,
which raises a question as to whether the claimant's continuing
unemployment is actually due to medical impairments."
(Tr. 16.)
The fact that a claimant has "an 'extremely poor work history'
and 'has shown little propensity to work in her lifetime'" is a
clear and convincing reason to discredit the claimant's alleged
inability to work.
2006
accident,
Thomas, 278 F.3d at 958.
plaintiff's
entire
work
Here, prior to her
history
consisted
of
occasionally cleaning houses with her mother when she was fifteen
and working for less than a week as a cashier at Dari Mart when she
was twenty-two.
(Tr. 217.)
work history was
erratic,
As such, as the ALJ noted, plaintiff's
at best,
with years of unemployment
between jobs, even before the alleged onset date.
In
addition,
the
ALJ
found
that
plaintiff's
regarding why she quit working were inconsistent.
statements
(Tr.
16-17.)
Here, plaintiff told a medical examiner that she quit her job as a
10 - OPINION AND ORDER
cashier at the Dollar Tree after two months "to go to Mexico to try
to work things
out
with
her boyfriend."
(Tr.222.)
At
the
hearing, however, she testified she stopped working at the Dollar
Tree because of back pain.
these
inconsistencies
determination.
when
(Tr. 28.)
making
The ALJ explicitly noted
plaintiff's
credibility
(Tr. 16.)
These facts clearly undermine plaintiff's main argument that
pain resulting from her 2006 accident is the reason why she cannot
work.
As the ALJ found, plaintiff's actual employment history is
not consistent with this contention.
To be sure, when a claimant's
work history undercuts her assertions,
the ALJ may rely on that
contradiction to discredit the claimant.
See Bruton v. Massanari,
268 F.3d 824,
828
(9th Cir.
2001)
(noting sufficient reasons to
disregard subj ecti ve pain testimony included stopping work due
reasons
other than the alleged disability and failure
to seek
treatment, despite complaints of severe pain); see also Parra v.
Astrue, 481 F.3d 742, 750 (9th Cir. 2007), cert. denied, 128 S. Ct.
1068 (2008) (inconsistencies between testimony and medical evidence
was a clear and convincing reason to discount testimony of pain) .
Thus, the foregoing discussion reveals that the ALJ did,
fact,
identify
ample
specific
evidence
in
undermines plaintiff's subjective testimony.
the
record
Therefore,
I
in
that
find
that the ALJ provided at least three clear and convincing reasons
to
rej ect
plaintiff's
11 - OPINION AND ORDER
statements
regarding
the
extent
of
her
limitations and,
as
such,
it
is unnecessary for
further discuss the other reasons provided.
this Court to
Accordingly,
even
though it was legal error for the ALJ to use plaintiff's daily
activities to discredit her testimony, I find that such an error
was harmless since additional, valid reasons support the ultimate
credibility determination.
See Carmickle v.
Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008)
Comm' r,
Soc.
Sec.
("[s)o long as there
remains 'substantial evidence supporting the ALJ's conclusions on
... credibility' and the error 'does not negate the validity of the
ALJ's ultimate [credibility) conclusion,' such is deemed harmless
and does not warrant reversal," (citations and internal quotations
omitted)) .
II.
Medical Opinion Evidence
Plaintiff
also
contends
that
the
ALJ
erred
by
providing
legally insufficient reasons for rejecting the opinions of Katie
Ugolini,
Ph.D.,
James Harris,
M.D.,
and Sharon Eder,
M.D.
In
addition, plaintiff asserts that the ALJ erred by not incorporating
all
of
Dr.
Eder's
limitations
into
her
RFC,
which
adversely
affected her ultimate disability determination at step five.
To
reject
the
examining physician,
uncontroverted
of
a
treating
or
the ALJ must present clear and convincing
reasons for doing so.
(9th Cir. 2005).
opinion
Bayliss v.
Barnhart,
427 F.3d 1211,
1216
If a'treating or examining doctor's opinion is
12 - OPINION AND ORDER
contradicted by another doctor's opinion,
specific and legitimate reasons.
it may be rejected by
Id.
When evaluating conflicting opinions, an ALJ is not required
to accept an opinion that is not supported by clinical findings, or
is
brief
or
conclusory.
restrictions based on a
Id.
In
claimant's
addition,
subj ecti ve
a
doctor's
work
statements about
symptoms are reasonably discounted when the ALJ finds the claimant
less than credible.
See, e.g., Bray v. Comm'r of Soc. Sec. Admin.,
554 F.3d 1219, 1228 (9th Cir. 2009); see also Batson v. Comm'r of
Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)
(ALJ provided
clear and convincing reason to reject a doctor's opinion where it
was
in
the
form
of
a
checklist,
lacks
supporting
objective
evidence, was contradicted by other statements on the record, and
was based on subjective descriptions).
A.
Dr. Ugolini's Opinion
In May 2009,
Dr.
Ugolini
conducted a
one-time
consultive
"neuropsychological screening exam" in conj unction wi th plaintiff's
application
Ugolini's
for
is
disability
the
only
benefits.
opinion
(Tr.
addressing
20,
Dr.
213-27.)
plaintiff's
mental
impairments because, as discussed above, plaintiff has not sought
any treatment in conjunction with her alleged disabilities.
As
such, Dr. Ugolini's opinion is uncontroverted; thus, the ALJ needed
to provide clear and convincing reasons for rejecting it.
13 - OPINION AND ORDER
Dr. Ugolini diagnosed plaintiff with a posttraumatic stress
disorder,
chronic,
and a mood disorder,
NOS.
(Tr.
223.)
Dr.
Ugolini noted that plaintiff was "cooperative" during the testing
and "put forth fairly good effort on memory measures."
within
the
same
plaintiff's
responded
report,
"MMPI -2
to
the
however,
profile
[test]
in
Dr.
Ugolini
was
invalid,
an
extremely
(Tr. 233.)
concluded
indicating
that
that
exaggerated
she
manner,
endorsing a wide variety of rare symptoms and attitudes."
(Id.)
In addition to making a psychological diagnosis, Dr. Ugolini
filled out an RFC form,
in which she opined that plaintiff has
moderate difficulties with making judgments on simple work-related
decisions
and
instructions.
in
understanding
(Tr.
225-26.)
and
Dr.
carrying
Ugolini
also
out
complex
opined
that
plaintiff has marked difficulties with making judgments on complex
work-related decisions and in interacting appropriately with the
public, supervisors, and co-workers.
(Id. )
Beyond checking the
box, the doctor made no reference to any objective evidence in the
RFC.
(Id. )
Here, The ALJ gave Dr. Ugolini's opinion some weight.
20.)
Specifically,
(Tr.
the ALJ credited the doctor's opinion that
plaintiff suffers from a mood disorder,
NOS,
and has "moderate
difficulty sustaining concentration and attention and persisting in
productive activity."
remainder of Dr.
(Id. )
However,
the ALJ did not find the
Ugolini's opinion "entirely persuasive as she
14 - OPINION AND ORDER
apparently takes claimant's statements of her symptoms at face
value
in
spite
of the
fact
claimant responded in an
that
the MMPI-2
profile
indicated
'extremely exaggerated manner.'" . (Id.)
The ALJ also found it problematic that Dr. Ugolini's report was
based on an uncorroborated report of plaintiff's medical history
and symptoms.
Moreover,
(Id. )
the
ALJ
noted
that
portions
of
Dr.
Ugolini's
assessment were not consistent with "other persuasive evidence of
record."
(Tr. 19-20.)
For example, the ALJ noted that plaintiff
testified that she never had a problem with authority figures or
coworkers but did have some anxiety dealing with customers.
(Tr.
19.)
good
Plaintiff,
however,
also
remarked
relationship with her current boyfriend,
Thus,
(Id. )
the
ALJ
found
that,
that
she
had
neighbors,
contrary
to
a
and family.
Dr.
Ugolini's
determination that plaintiff had marked restrictions, plaintiff's
own testimony revealed instead that she had only mild difficulties
in social functioning.
(Id. )
The ALJ is not required to accept a medical opinion that is
not supported by clinical findings or is based on an uncredible
claimant's subj ecti ve reports.
See Bayliss,
427
F. 3d at 1216;
Bray,
359 F. 3d at 1195.
As discussed
554 F. 3d at 1228; Batson,
above, there is substantial evidence in the record supporting the
ALJ's finding that plaintiff is not credible.
noted,
Also,
as the ALJ
Dr. Ugolini's report is not consistent internally or with
15 - OPINION AND ORDER
the administrative record.
which
portions
of
her
Further, Dr. Ugolini does not specify
assessment
are
based
on
plaintiff's
subjective testimony as opposed to independent clinical findings;
thus, it is impossible to decipher which segments of Dr. Ugolini's
RFC are supported by objective medical evidence.
Ugolini's
opinion,
even if accepted as
true,
In addition, Dr.
does
not
support
findings of substantially greater functional limitations than those
already addressed in the RFC.
(Tr. 17-9, 213-27.)
As such, I find
that the ALJ set forth clear and convincing reasons for not fully
crediting Dr. Ugolini's medical opinion.
B.
In
Dr. Eder's and Dr. Harris's Opinions
May
2006,
Dr.
Harris
conducted
a
one-time
examination relating to plaintiff's physical abilities.
consul ti ve
(Tr. 195-
210.)
Dr. Harris diagnosed plaintiff with chronic neck and lower
back
pain,
bilateral
deconditioning.
knee
(Tr. 198.)
pain,
obesity
and
In making his diagnosis,
physical
Dr. Harris
noted that plaintiff could walk comfortably at a normal pace with
a normal gait, and had a natural arm swing and cadence.
In addition,
hand
(Tr. 196.)
Dr. Harris reported that x-rays of plaintiff's left
revealed
no
fracture/dislocation.
evidence
(Tr. 199.)
of
joint
erosion
or
other
Lumbar films of plaintiff's back
showed spina bifida but no osteoarthritis; thoracic films exposed
no
abnormalities
and
16 - OPINION AND ORDER
cervical
films
showed
evidence
of
prior
surgical fusion with mild degenerative changes.
(Tr. 197-8, 201-
2. )
Accordingly, Dr. Harris opined that plaintiff was capable of:
frequently lifting up to 10 pounds and occasionally lifting 11 to
20
pounds;
sitting
for
eight
hours
in
an
eight-hour
workday,
standing for four hours in an eight-hour workday, and walking for
two hours in an eight-hour workday; occasionally pushing, pulling
and reaching overhead with her right hand;
frequently reaching,
handling, fingering, and feeling; occasionally climbing stairs and
ramps; occasionally balancing, stooping, kneeling, crouching, and
crawling.
(Tr.
204-8. )
However,
Dr.
plaintiff should never climb ladders,
Harris
ropes,
reported
or scaffolds,
that
and
should limit her exposure to environmental extremes and hazards,
because of her "narcotic usage."
(Tr. 207-8.)
Dr. Eder also performed a one-time consultive examination of
plaintiff in 2006 in conjunction with her application for SSI.
(Tr. 185-92.)
work.
Dr. Eder opined that plaintiff was capable of light
(Tr. 186.)
Specifically, Dr. Eder reported that plaintiff
was capable of: lifting and/or carrying up to 10 pounds frequently
and up to 20 pounds occasionally;
sitting for six hours in an
eight-hour workday and standing and/or walking for six hours in an
eight-hour
handling,
workday;
fingering,
unlimited
pushing
and
pulling;
unlimited
and feeling; frequently climbing stairs and
ramps and occasionally climbing ladders,
17 - OPINION AND ORDER
ropes,
and scaffolds;
occasionally stooping and crawling; frequently balancing, kneeling,
and crouching.
(Tr. 186-8.)
The only other limitation that Dr.
Eder included in plaintiff's RFC was "no constant reaching over
head."
(Tr.188.)
In making plaintiff's RFC assessment, the ALJ fully credited
Dr.
Eder's
opinion
and
found
the
Dr.
Harris's
opinion
was
"essentially in accord with that of Dr. Eder."
(Tr. 18.)
However,
the
opinion
regarding
ALJ gave
little
weight
to
Dr.
Harris's
plaintiff's ability to stand and walk because "this limitation is
not
supported by the medical
evidence
and is based solely on
plaintiff's subjective complaint's of lower back pain."
(Tr. 18.)
In addition, the ALJ rejected Dr. Harris's diagnosis of bilateral
knee
pain
supported
and
by
chronic
the
low
medical
back
pain,
evidence
and
as
"they
are
are
claimant's description of her symptoms."
(Tr. 18-9.)
evidence
the
supports
this
conclusion,
as
not
solely
based
also
on
Substantial
objective
findings
regarding plaintiff's back and neck pain were minimal and there is
no objective medical evidence supporting plaintiff's assertions of
knee pain.
Thus,
(Tr. 196,201-2.)
because
a
medical
opinion
can
appropriately
be
discredited when it is based largely on a plaintiff's subjective
reports, which have been appropriately discounted, I find that the
ALJ provided specific and legitimate reasons for rejecting the
18 - OPINION AND ORDER
opinion of Dr. Harris to the extent that it is inconsistent with
Dr. Eder's opinion.
Regardless,
See Bray, 554 F.3d at 1228.
the ALJ failed to integrate all of Dr.
limitations into plaintiff's RFC.
Dr.
Eder's opinion,
Eder's
Because the ALJ did not reject
plaintiff is correct that these limitations
should have been incorporated.
Plaintiff contends that, if these
restrictions had been included, the ALJ would have been foreclosed
from using the Medical-Vocational Guidelines (the "Guidelines") in
its step five assessment.
The Guidelines consist of a matrix of combinations relating to
the four vocational factors used in a disability case: age, work
experience, education, and physical ability.
Heckler v. Campbell,
461
F.3d
U.S.
458,
461-2
(1983);
Tackett,
180
at
1101.
The
Guidelines may be applied, even in the presence of nonexertional
limitations, as long as those limitations are not significant.
Tackett,
180
inapplicable
F.3d
when
at
a
Conversely,
1102.
claimant's
the
nonexertional
See
Guidelines
"are
limitations
are
'sufficiently severe' as to significantly limit the range of work
permitted by the claimant's exertional limitations."
Astrue,
499
nonexertional
F.3d
1071,
1075
limitations
environmental limitations."
are
(9th
pain,
Cir.
2007).
postural
Hoopai v.
"Ex<;lmples
of
limitations,
or
Tackett, 180 F.3d at 1102.
Here, the ALJ did not expressly include Dr. Eder's limitations
that plaintiff could only occasionally climb ladders,
19 - OPINION AND ORDER
ropes, and
scaffolds or occasionally stoop and crawl.
Nevertheless,
these
restrictions do not significantly erode the occupational base at
the light level of exertion.
See SSR 83-14, available at 1983 WL
31254, *5 (inability to ascend or descend scaffolding, poles and
ropes,
or to climb on hands and knees "have very little or no
effect on the unskilled light occupational base").
Further,
Dr.
Eder's
limitation
that
plaintiff
could
not
constantly reach overhead is not severe enough to significantly
limit the range of work permitted by the claimant's light level
RFC.
"[S] ignificant limitations in reaching" may "eliminate a
large
number
of
occupations
a
available at 1985 WL 56857, *7.
person
could do."
SSR
85-15,
Dr. Eder, however, did not opine
that plaintiff was precluded from reaching overhead altogether;
rather,
he
unceasingly.
only
stated
Thus,
that
the
she
could
restriction
is
not
not
reach
overhead
significant,
as
plaintiff remains capable of reaching overhead intermittently and
in all other directions frequently.
Therefore,
does not alter plaintiff's occupational base.
these
limitations
are
not
significant,
expressly incorporate them was harmless.
Soc. Sec. Admin.,
454 F.3d 1050,
1055
this limitation
Accordingly, because
the
ALJ's
failure
to
See Stout v. Comm'r of
(9th Cir.
2006)
(mistakes
that are "nonprejudicial to the claimant or irrelevant to the ALJ's
ultimate disability conclusion" are
harmless
error).
In
sum,
because these restrictions do not significantly erode plaintiff's
20 - OPINION AND ORDER
,
'
light level occupational base, the ALJ did not err by applying the
Guidelines at step five.
Therefore, I find that the ALJ properly evaluated the opinions
of Drs.
Ugolini,
Harris,
and Eder.
To the extent that the ALJ
erred in that evaluation, such as error was harmless.
Accordingly,
the ALJ's interpretation of the medical record does not provide a
basis to overturn the decision.
CONCLUSION
For the reasons
set forth above,
the Commissioner's final
decision denying benefits to plaintiff is AFFIRMED.
This action is
DISMISSED.
IT IS SO ORDERED.
DATED this
1.,$ day of January, 2012.
Malcolm F. Marsh
United States District Judge
21 - OPINION AND ORDER
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