Bergstrom v. Commissioner Social Security Administration
Filing
16
OPINION AND ORDER. For the foregoing reasons, the decision of the ALJ is AFFIRMED. IT IS SO ORDERED. Signed on 10/11/2012 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JUDITH BERGSTROM,
Case No. 3:11-cv-00984-MA
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
TIM WILBORN
P.O. Box 370578
Las Vegas, NV 89137
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 97204-2902
L. JAMALA EDWARDS
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
Marsh, Judge
Plaintiff,
Judith
M.
Bergstrom,
brings
this
action
for
judicial review of a final decision of the Commissioner of Social
Security (the Commissioner) denying her application for disability
insurance benefits (DIB) under Title II of the Social Security Act
(the Act) .
See 42 U.S. C.
pursuant to 42 U.S.C.
reasons
set
forth
§
423.
This court has
405(g) and 42 U.S.C.
§
below,
I
AFFIRM
the
jurisdiction
1383(c) (3).
§
final
For the
decision
of
the
Commissioner.
PROCEDURAL BACKGROUND
Plaintiff filed an application for DIB on August 27,
alleging
disability
due
obesity, and depression.
upon reconsideration.
to
type
one
diabetes,
2008,
hypothyroidism,
Her application was denied initially and
A hearing was held before an Administrative
Law Judge (ALJ) on May 25, 2010, at which plaintiff was represented
by
counsel
Tittlefitz
and
Vocational
testified.
also
testified
at
the
Expert
(VE)
Jeffrey
F.
Additionally,
hearing.
plaintiff's treating physician, Aaron W. Pardini, M.D., submitted
a
functional
capacity
questionnaire
Plaintiff's
husband,
Bruce
Bergstrom,
statement.
Finally,
Richard Alley,
and
written
submitted
M.D.,
a
opinion.
lay witness
reviewed plaintiff's
record and submitted a physical residual functional capacity (RFC)
assessment.
2 - OPINION AND ORDER
On June 7, 2010, the ALJ issued a decision finding plaintiff
not disabled within the meaning of the Act.
After the Appeals
Council declined review of the ALJ's decision,
plaintiff timely
filed a complaint in this court.
FACTUAL BACKGROUND
Born on December 5, 1957, plaintiff was 50 years old on the
alleged onset date of disability, and 52 years old on the date of
the hearing.
Plaintiff has an associate degree, and past relevant
work as a computer assistant, newspaper carrier, and social service
specialist.
Plaintiff alleges her diabetes first became disabling on July
1, 2008.
Plaintiff regularly has seen Dr. Pardini, her treating
endocrinologist, regarding her diabetes treatment.
using
an
insulin
pump
in
early
2007,
but
Plaintiff began
has
been
largely
unsuccessful in controlling her blood glucose levels.
THE ALJ'S DISABILITY ANALYSIS
The
Social
Security
Commissioner
established
a
five-step
sequential process for determining whether a person is disabled.
Bowen
v.
Yuckert,
482
404.1520(a) (4) (i)-(v).
U.S.
137,
140-42
(1987);
20
C.F.R.
Each step is potentially dispositive.
§
The
claimant bears the burden of proof at Steps One through Four.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
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
3 - OPINION AND ORDER
perform.
See Yuckert,
482 U.S. at 141-42; Tackett, 180 F.3d at
1098.
At Step One, the ALJ found that plaintiff did not engage in
substantial gainful activity between the alleged onset date of July
2, 2008, and September 30, 2009, the final date on which plaintiff
met
the
requirements
404.1520 (a) (4) (i),
for
insured
See
status.
20
C.F.R.
§
(b); Tr. 38.
At Step Two, the ALJ found that plaintiff's diabetes, thyroid
deficiency, and obesity were severe impairments.
404.1520 (a) (4) (ii),
At Step Three,
See 20 C.F.R.
§
(c); Tr. 38-39.
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.
§§
404.1520(d),
404.1525,
404.1526; Tr. 39-40.
The ALJ determined plaintiff had the RFC to perform the full
range of light work described in 20 C.F.R.
§
404.1567(b).
Tr. 40-
43.
At
Step
Four,
the
ALJ
found
plaintiff
performing her past relevant work as a
C.F.R.
§
was
capable
social worker.
of
See 20
404.1520(a) (4) (iv); Tr. 43.
Because the ALJ found that plaintiff was capable of performing
past relevant work,
the ALJ did not proceed to Step Five,
and
determined that plaintiff was not disabled within the meaning of
the Act.
4 - OPINION AND ORDER
ISSUES ON REVIEW
Plaintiff asserts that the ALJ erred in four ways.
First,
plaintiff argues that the ALJ improperly rejected her testimony.
Second,
plaintiff asserts that the ALJ improperly rejected the
opinion of Dr.
improperly
Pardini.
rejected
plaintiff's husband.
Third,
the
lay
plaintiff argues that the ALJ
testimony
of
Bruce
Bergstrom,
Based on these errors, plaintiff claims that
the ALJ's resulting RFC fails to include all of her limitations.
STANDARD OF REVIEW
The
court must
affirm the Commissioner's decision
if
the
Commissioner applied proper legal standards and the findings are
42
supported by substantial evidence in the record.
405(g); Andrews v.
Shalala,
53 F.3d 1035,
1039
u.s.c.
(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."
court must weigh all of the
evidence,
whether it
detracts from the Commissioner's decision.
807 F.2d 771, 772 (9th Cir. 1986).
to
more
than
one
rational
decision must be upheld.
supports
The
or
Martinez v. Heckler,
If the evidence is susceptible
interpretation,
Andrews,
Id.
the
Commissioner's
53 F.3d at 1039-40.
I f the
evidence supports the Commissioner's conclusion, the Commissioner
must be affirmed;
"the court may not substitute its judgment for
5 - OPINION AND ORDER
Edlund v. Massanari,
that of the Commissioner."
253 F.3d 1152,
1156 (9th Cir. 2001).
DISCUSSION
I.
Plaintiff's Testimony
In deciding whether to accept subjective symptom testimony, an
ALJ must perform two stages of analysis.
20 C.F.R.
§
404.1529.
First, the claimant must produce objective medical evidence of an
underlying impairment that reasonably could be expected to produce
the symptoms alleged.
Cir.
1996).
Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th
Second, absent affirmative evidence of malingering,
the ALJ must provide clear and convincing reasons for discrediting
the
plaintiff's
testimony about
the
severity of
her
symptoms.
Carmickle v. Comm'r, Social Sec. Admin., 533 F.3d 1155, 1160 (9th
Cir. 2008).
If an ALJ finds that the claimant's testimony regarding her
subjective symptoms is unreliable, the "ALJ must make a credibility
the
reasons
why
the
testimony
is
determination
citing
unpersuasive."
Morgan v. Apfel, 169 F.3d 595, 599 (9th Cir. 1999).
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."
v. Barnhart, 278 F. 3d 947,
6 - OPINION AND ORDER
958 (9th Cir. 2002).
Thomas
At the hearing, plaintiff testified that she has to lay down
for extended periods of time two to four times per week due to low
or high blood sugar levels.
23.
Tr.
During blood sugar lows,
plaintiff stated she generally must lie down or rest in a chair for
half an hour before she can resume activity.
Id.
During blood
sugar highs, plaintiff testified she must cease normal activity for
as long as "four hours up to a couple days."
Id.
In her Function Report, plaintiff reported that during "good"
days she takes care of her disabled husband; cares for the family
dogs, cats, and goats; cooks one to two meals per day from scratch;
cleans the house;
maintenance;
does laundry,
goes shopping;
yard work,
reads;
gardening,
and does crafts.
and home
17 4-77.
Tr.
Plaintiff noted she receives help feeding the animals when she is
not feeling well, but otherwise does not state that she receives
help with her daily activities.
Tr. 174.
The ALJ found that, while plaintiff's medically determinable
impairments
could reasonably be
expected to cause
some
of the
alleged symptoms, plaintiff's statements concerning the intensity,
persistence,
and
entirely credible.
limiting
effects
of
these
symptoms
were
not
Tr. 41.
The ALJ did not make a finding that plaintiff was malingering.
Therefore, the ALJ was required to identify clear and convincing
reasons for discounting plaintiff's testimony.
1281.
Smolen, 80 F.3d at
I conclude that the ALJ's reasons meet this standard.
7 - OPINION AND ORDER
Specifically,
that
found
ALJ
the
plaintiff's
testimony
regarding the intensity of the symptoms and limitations was not
credible in light of her noncompliance with diabetes treatment and
the
extent
Noncompliance with
of her daily activities.
medical treatment is a proper basis for discrediting a claimant's
testimony about the severity of symptoms.
Fair v. Bowen, 885 F.2d
597, 603 (9th Cir. 1989).
The ALJ's finding of noncompliance is amply supported in the
record.
Tr. 246, 260, 263-64, 270, 274, 279, 283, 305.
~,
For
example, on November 26, 2007, Dr. Pardini instructed plaintiff to
remember to bolus before meals and continue to work on carbohydrate
counting after he found that plaintiff's failure
to do so was
resulting "in poor control on average, as well as a large amount of
glucose variability."
discussed,
that
Tr. 263-64.
Yet, as the ALJ specifically
at an appointment six weeks later,
plaintiff
reported
that
she
continued
Dr.
to
Pardini noted
snack
on
high
carbohydrate foods, such as corn chips, popcorn and ice cream after
dinner.
Tr. 41, 260-61.
The record reflects numerous instances in which Dr. Pardini
noted that plaintiff was not complying with her diet,
~equirements,
or both.
Tr.
246,
271,
300,
283,
305,
treatment
306,
318.
Also, as the ALJ noted, when asked at the hearing, plaintiff was
not
forthcoming
about
adherence
to
her
dosing
compliance with Dr. Pardini's recommendations.
8 - OPINION AND ORDER
schedule
Tr. 23.
and
Thus, the
ALJ could reasonably conclude that plaintiff did not adequately
explain why a
regular work schedule could not
accommodate
her
needs . 1
The ALJ also discredited plaintiff's testimony because her
alleged restrictions were inconsistent with her activities of daily
living.
Tr. 41.
Inconsistency between a claimant's activities of
daily living and claimed disability is a proper basis for rejecting
a claimant's testimony.
Molina v. Astrue, 674 F.3d 1104, 1112-13
(9th Cir. 2012); Fair, 885 F.2d at 603.
At the hearing and in her Function Report, plaintiff described
a high level of daily activity, including caring for her disabled
husband; cooking one to two meals per day; feeding and exercising
pet dogs,
reading;
cats,
and goats; doing house and yard work;
and doing
craft
alleged disability,
projects.
plaintiff makes
shopping;
Tr.
173-80.
Despite
her
only
passing
reference
to
receiving help with her daily activities, stating that her husband
'Plaintiff argues that the ALJ improperly considered
plaintiff's noncompliance without notification and opportunity to
show cause or undergo the prescribed treatment, as required by
I
Pl's Brief at 12-13.
Social Security Ruling (SSR) 82-59.
SSR 82-59's requirements apply when a claimant is
disagree.
found to have a disabling impairment, but the application is
nonetheless denied because the claimant did not comply with a
prescribed treatment which is expected to restore the claimant's
SSR 82-59;
capacity to engage in substantial gainful activity.
see also Roberts v. Shalala, 66 F.3d 179, 183 (9th Cir. 1995),
cert. denied, 517 U.S. 1122 (1996). Here, SSR 82-59 does not
apply because the ALJ did not deny plaintiff's claim solely based
on noncompliance, but rather properly cited noncompliance as one
reason for discrediting plaintiff's testimony.
9 - OPINION AND ORDER
or daughter help feed the animals when she is not feeling well.
Tr.
174.
Plaintiff's extensive activities of daily living with
little reference to help from others is inconsistent with her claim
that she is largely incapacitated for between thirty minutes and
several hours, two to four times per week.
The ALJ did not err in
finding plaintiff's activities of daily living inconsistent with
plaintiff's alleged disability.
The ALJ also discredited plaintiff's testimony because there
was no diagnosis in the record to substantiate plaintiff's claim
that she could not work because of depression.
seek
medical
treatment
is
a
proper
basis
~ailure
to
discrediting
a
Tr. 41.
for
claimant's testimony as to the severity of symptoms.
~.3d
at 1112
(9th
Cir.
(quoting Tommasetti v. Astrue,
2008)).
plaintiff
sought
depression,
and
There
is
treatment
thus
the
no
for,
ALJ
evidence
or
674
533 F.3d 1035,
1039
in
that
received
properly
Molina,
the
a
record
diagnosis
discounted
of,
plaintiff's
testimony.
In short, the ALJ provided clear and convincing reasons, amply
supported
by
substantial
evidence
in
the
record,
to
discount
plaintiff's testimony.
II.
Rejection of Dr. Pardini's Opinion
The
ALJ
must
present
clear
and
convincing
reasons
for
rejecting the uncontroverted opinion of a treating or examining
doctor.
Bayliss v. Barnhart, 427
10 - OPINION AND ORDER
~.3d
1211, 1216 (9th Cir. 2005).
If,
however,
a
treating
or
examining
doctor's
opinion
is
contradicted by another doctor's opinion, an ALJ may reject it by
providing specific and legitimate reasons that are supported by
substantial evidence.
Id.
With respect to plaintiff's difficulty managing her blood
sugar levels and the effect episodes of low and high blood sugar
have
on
plaintiff's
uncontroverted.
employability,
Dr.
Pardini's
opinion
was
While Dr. Alley's RFC assessment disagreed with
other aspects of Dr. Pardini's opinion, it did not contradict Dr.
Pardini's opinion as
to plaintiff's difficulty controlling her
blood sugar levels or the effect that has on her ability to work.
Tr.
297.
Thus,
the
ALJ
was
required
to
present
clear
convincing reasons for discounting Dr. Pardini's opinion.
and
Bayliss,
427 F.3d at 1216.
Dr.
Pardini
was
plaintiff's
treating
throughout the period relevant to her claim.
endocrinologist
Tr.
340.
In an
opinion signed by Dr. Pardini, but drafted by plaintiff's counsel,
Dr. Pardini stated that plaintiff "suffers abnormal and potentially
dangerous low and high levels of blood sugar,
efforts and treatment.''
Tr. 339-40.
despite her best
Dr. Pardini opined that he
would expect plaintiff to have one 2-3 hour episode of low blood
sugar weekly, causing mental confusion and lack of concentration,
and recurring more commonly when plaintiff is very active.
340-41.
11 - OPINION AND ORDER
Tr.
Additionally,
Dr.
Pardini opined that it is reasonable for
plaintiff to expect to have one to three episodes of high blood
sugar every week, causing fatigue and difficulty engaging in even
minimal physical activity.
Dr. Pardini noted that recovery from
high blood sugar episodes can take four or more hours.
Dr.
Id.
Pardini stated that when plaintiff's blood sugar levels
were stable, she could function at a relatively normal level, but
opined that plaintiff would have difficulty maintaining a regular
work schedule due to her periodic episodes.
The ALJ gave limited weight to Dr.
Id.
Pardini's opinion with
respect to the effect of plaintiff's diabetes on her ability to
work.
Tr. 42.
The ALJ found that Dr. Pardini's opinion did not
address plaintiff's noncompliance with recommended treatment, was
inconsistent with his treatment notes,
subjective
complaints,
and
was
inconsistent
numerous activities of daily living.
The
ALJ
has
provided
was based on plaintiff's
clear
with
plaintiff's
Tr. 42.
and
convincing
reasons
for
discounting Dr. Pardini's opinion that plaintiff is unable to work
due to periodic episodes of high and low blood sugar.
Importantly,
the ALJ discounted Dr. Pardini's opinion because it did not address
plaintiff's history of noncompliance with recommended treatment.
Tr.
42.
diabetes
As
discussed
treatment
is
above,
an
Pardini's treatment notes.
12 - OPINION AND ORDER
plaintiff's
unmistakable
~'
noncompliance
theme
throughout
with
Dr.
Tr. 246, 260, 263-64, 270, 274,
279, 283, 305.
Nonetheless, Dr. Pardini stated in his opinion that
plaintiff's blood sugar levels were unstable,
efforts and treatment."
Tr. 340.
''despite her best
Dr. Pardini's opinion makes no
effort to explain the inconsistency between his representation of
plaintiff's
compliance
noncompliance his notes.
reflect numerous
in
his
opinion
and
the
record
of
As detailed above, Dr. Pardini's notes
instances of noncompliance,
and the ALJ could
reasonably discount his opinion on that basis.
The
ALJ's
conclusion
that
Dr.
Pardini's
opinion
is
inconsistent with his treatment notes is supported by the record.
The crux of Dr. Pardini's opinion is that plaintiff may experience
hypo- and hyperglycemic episodes that preclude her from consistent
work two to four times per week, lasting from 30 minutes to several
hours each.
Tr. 340-41.
Although Dr.
Pardini's treatment notes
reflect wide variability in plaintiff's blood sugar levels,
the
alleged
and
frequency
and
severity
of
plaintiff's
hypoglycemic episodes are rarely, if ever, discussed.
244,
246,
249,
260,
263,
273-74,
321.
hyper~'
Tr.
I conclude the ALJ could
discount Dr. Pardini's opinion based on this inconsistency.
Finally,
inconsistent
proper.
the
with
ALJ' s
finding
plaintiff's
that
Dr.
activities
Pardini's
opinion
of
living
daily
is
was
As discussed above, plaintiff reported engaging in a wide
variety of daily activities.
Tr. 173-80.
While plaintiff notes
that her husband or daughter sometimes help feed the animals when
13 - OPINION AND ORDER
she is not feeling well,
her testimony and Function Report only
mention such help in passing.
Tr. 174.
Also, Dr. Pardini opined
that when plaintiff's blood sugar was in balance she could perform
activities at a
hypoglycemic
relatively normal level,
episode
could
for
occur
several
two
but that a hyper- or
to
per week,
lasting
Pardini's
notes
schedule.
As discussed above, the ALJ could reasonably find that
that
Tr.
times
sometimes
reflect
hours.
four
plaintiff
340-41.
has
an
Yet,
active,
Dr.
busy
plaintiff's extensive daily activities without substantial aid are
inconsistent
with
the
extent
of
disability
described
in
Dr.
Pardini's opinion.
I
find that the ALJ' s
reasons for discounting the opinion
signed by Dr. Pardini are clear and convincing, and supported by
substantial evidence in the record.
III. Bruce Bergstrom's Lay Witness Statement
Lay
testimony
regarding
a
claimant's
symptoms
or
how
an
impairment affects her ability to work is competent evidence that
an ALJ must take into account.
Molina,
674 F.3d at 1114.
To
discount lay witness testimony, the ALJ must give reasons that are
germane to the witness.
Id.
Plaintiff's husband, Bruce Bergstrom, provided a Third Party
Function Report in which he reports that on a "good day" plaintiff
could perform household and yard chores, and had no problems with
routines of personal care.
14 - OPINION AND ORDER
Mr. Bergstrom also reported that on a
"bad day" with hyper- or hypoglycemic episodes,
plaintiff would
have to adjust her activities to ''suit the day.''
Tr. 181.
The ALJ discounted Mr. Bergstrom's statements because the ALJ
found his description of plaintiff's limitations to be inconsistent
with his description of the activities of daily living.
Tr. 43.
Indeed, the ALJ noted that despite the limitations described by Mr.
Bergstrom, he also stated that plaintiff was able to prepare daily
meals, walk daily, drive a car, and shop for necessities.
I find
the ALJ's reasons for discrediting Mr. Bergstrom's testimony are
germane to the witness and supported by substantial evidence.
IV.
Adequacy of the Vocational Hypothetical
A vocational hypothetical is sufficient if it includes all of
the
claimant's
limitations
evidence in the record.
that
are
supported
by
substantial
See Bayliss, 427 F.3d at 1217-18.
An ALJ
may exclude limitations unsupported by substantial evidence in the
record.
Id.
I have concluded that the ALJ properly discredited plaintiff's
testimony, Dr. Pardini's opinion, and Mr. Bergstrom's lay witness
statement.
The limitations included in the RFC and hypothetical
were those that the ALJ found to be credible and supported by
substantial evidence in the record.
sufficient,
answer.
Thus,
the hypothetical was
and it was proper for the ALJ to rely on the VE's
Id.
Ill
15 - OPINION AND ORDER
CONCLUSION
For
the
foregoing
reasons,
the
decision
of
the
ALJ
AFFIRMED.
IT IS SO ORDERED.
DATED this~ day of October, 2012.
Malcolm F. Marsh
United States District Judge
16 - OPINION AND ORDER
is
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?