Ball v. Commissioner Social Security Administration

Filing 22

Opinion And Order. Ball's claims of error cannot be sustained for the foregoing reasons. The Commissioner's decision is AFFIRMED.(see 11 page opinion and order for further details) Signed on 6/19/13 by Judge Robert E. Jones. (cib)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

ANTHONY H. BALL,
Plaintiff,

v.

)
)
)
)

3: 12-CV-000 14-JO

)

)
CAROLYN W. COLVIN, Acting Commissioner of)
Social Security,
)
)
Defendant.
)
JONES, J.,

OPINION AND ORDER

Plaintiff Anthony Ball appeals the Commissioner's decision denying his application for
disability insurance benefits under Title II of the Social Security Act. The court has jurisdiction
under 42 U.S.C. § 405(g). I AFFIRM the Commissioner's decision.
PRIOR PROCEEDINGS
The procedural history of this case began in May 2001, when Ball initially filed his
application for disability insurance benefits. He alleged he became disabled in June 2000 from
degenerative joint disease of the left shoulder, degenerative disc disease of the lumbar spine, posttraumatic stress disorder ("PTSD"), gastro-esophageal reflux disease, hemorrhoids, flat feet, chronic
fungal skin infection, and chronic irritation of facial hair follicles. He alleged he could no longer
perform his work as an equal opportunity specialist because his impairments caused him to have

1 - OPINION AND ORDER

interpersonal conflicts at work and left him unable to do the physical requirements of his job. The
Commissioner found, however, that Ball resigned his position in June 2000 because he did not want
to accept a transfer that would require him to relocate.
After the first round of administrative proceedings and a hearing before an ALJ, the ALJ
found Ball not disabled and denied his claim. The Appeals Council, however, remanded the matter
for additional proceedings.
In May 2006, after completing additional administrative proceedings and another hearing,

a different ALJ issued another decision, again finding that Ball was not disabled. The ALJ
discounted questionnaires from Thomas Barrett, M.D. and chiropractor Lee Cowan, D.C., which
had been submitted in suppott of Ball's claim. On appeal to this court, Judge Marsh affinned most
of the ALJ' s findings, including a dete1mination that Ball's subjective statements were not credible.
Judge Marsh remanded the case for the ALJ to address lay witness statements and obtain
supplemental testimony from the vocational expe1t ("VE"). Judge Marsh did not address the Ban·ett
and Cowan submissions.
In February 2009, after completing further administrative proceedings and another hearing,
a third ALJ issued another decision, again finding Ball not disabled. On appeal to this court,
Magistrate Judge Hubel found it necessary to remand the case again because the third ALJ had not
discussed the Barrett and Cowan submissions. Judge Hubel remanded for the ALJ to explain the
weight he gave those statements in his decision.
In April20 11, after fu1ther administrative proceedings and another hearing, the present ALJ.
issued the decision on appeal here, in which he again determined that Ball was not disabled. The
ALJ correctly determined that the relevant time for Ball's claim ended on December 31, 2005, when

2 - OPINION AND ORDER

his insured status under the Social Security Act expired. To prevail on his claim, Ball needed to
show that he was disabled on or before that date. 42 U.S.C. § 423(a)(l)(A). See Tidwell v. Apfel,
161 F.3d 599, 601 (9th Cir. 1998).
The ALJ found that during the relevant time, Ball's ability to perfmm basic work activities
was limited by degenerative joint disease in the left shoulder, degenerative disc disease in the lumbar
spine, and PTSD. The ALJ found that, despite these impaitments, Ball retained the residual
functional capacity ("RFC") to perform work at the medium level of exe1iion, with limitations on
the use of his left mm and hand. He could do work involving simple, routine, repetitive tasks and
occasionally more complex tasks. He could have occasional superficial contact with the general
public and co-workers for work-related purposes. The VE testified that a person having Ball's RFC
and other vocational factors could perform the activities required in medium, unskilled occupations
such as kitchen helper and warehouse worker, which represent hundreds of thousands of jobs in the
national economy. The ALJ therefore concluded that Ball was not disabled.

STANDARD OF REVIEW
The district comi must affirm the Commissioner's decision if it is based on proper legal
standards and the findings of fact are supported by substantial evidence in the record as a whole.

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

Under this standard, the

Commissioner's factual findings must be upheld if supported by inferences reasonably drawn from
the record even if evidence exists to suppmi another rational interpretation. Batson v. Comm 'r of

Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004);Andrews v. Shalala, 53 F.3d 1035, 1039-40
(9th Cir. 1995).

3 - OPINION AND ORDER

DISCUSSION

I.

Claims of Error
Ball contends the ALJ improperly discounted the opinions ofVA staff psychiatrist Thomas

Barrett, M.D., and chiropractor Lee Cowan, D.C. Ball asks the court to credit this evidence as a
matter oflaw and to remand for an immediate award of benefits.

II.

Dr. Barrett's medical opinion
In May 2008, Dr. Barrett completed a mental impairment questionnaire on a worksheet

produced by Ball's attorney. Dr. Barrett indicated diagnoses ofPTSD, major depressive disorder,
degenerative joint disease of the spine, chronic back pain, and irritable bowel syndrome. In the
broad categories of mental function known as the B criteria, Dr. Barrett indicated that Ball had
"frequent" deficiencies in concentration, persistence, or pace, and more than three "episodes of
deterioration of decompensation" in work or work-like settings. Admin. R. 1493. Dr. Banett also
checked boxes on the worksheet indicating that, if Ball were employed full time, it would be
reasonable to expect him to experience difficulty with stamina, pain, or fatigue; to require a reduced
work pace; to have difficulty canying out simple instmctions and asking simple questions; to have
one or more of his health problems worsen; to have difficulty getting along with others; and to miss
work more than four times a month. Dr. Barrett said that Ball had been unable to work for 8 years.
The ALJ gave Dr. Barrett's opinion "vety little weight." Admin. R. 1572. An ALJ may
discount a treating or examining physician's opinion that is inconsistent with the opinions of other
physicians, if the ALJ makes findings setting fmih specific, legitimate reasons for doing so that are
based on substantial evidence in the record. },Iolina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012);

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If the opinion is not contradicted by

4 - OPINION AND ORDER

another physician, the ALJ may reject it only for clear and convincing reasons. Thomas v. Barnhart,
278 F.3d 947, 956-57 (9th Cir. 2002). The ALJ found Dr. Banett's opinion inconsistent, in
significant respects described briefly below, with the findings of Dr. Dobscha, a psychiatrist who
treated Ball at the time of the alleged onset of disability. In any event, the ALJ's evaluation of Dr.
Barrett's opinion is sufficient under either standard.
The ALJ found Dr. Barrett's report entitled to less weight because it was prepared several
years after the tennination of Ball's insured status in 2005. In addition, there are no progress notes
or treatment records showing that Dr. Banet! treated Ball, administered testing, or made clinical
observations that supported his opinion. Dr. Banet! did not provide a response when asked to state
the frequency and length ofhis contact with Ball. There is indirect evidence that Dr. Barrett saw Ball
in 2007, but nothing to suggest any contact at the time Ball allegedly became disabled in June 2000
or any other time before Ball's insured status expired in 2005. The ALJ's determination that Dr.
Banett had no contact with Ball during the relevant time is supported by substantial evidence and
compels the inference that Dr. Barrett's opinion could not have been based on treatment or clinical
observations made during the relevant time. An ALJ can reject a physician's opinion that is
unsuppmied by clinical findings. }vfeanal v. Apfel, 172 F.3d 1111, 1117 (9th Cir. 1999).
Dr. Barrett recited clinical findings, but the absence of conoborating treatment records and
notes reflecting clinical observations reasonably infers that these simply restate Ball's subjective
description of his history. For example, Dr. Banet! said his opinion was supported by the following
clinical findings: "Impulsive anger outbursts with family; No friends; No motivation" persisting for
more than 10 years. Admin. R. 1489-90. Dr. Banet! had no basis other than Ball's subjective report
from which he could make findings about Ball's interactions with family and fi'iends during the 10

5 - OPINION AND ORDER

years before they met. Conoborating treatment records and clinical findings are crucial where, as
here, the Commissioner has shown that the claimant is not credible and his subjective statements are
unreliable. AnALJ is entitled to reject a treating physician's opinion that is premised primarily on
subjective complaints that the ALJ properly found unreliable. Tonapetyan v. Halter, 242 F.3d 1144,
1149 (9th Cir. 2001).
The ALJ found Dr. Banett's opinion inconsistent with the treatment records from the
relevant time. In the months leading up to the alleged onset of disability, Dr. Dobscha noted that
Ball was doing well, without severe or persistent depressive periods or problems with initability.
In September 2000, three months after Ball allegedly became disabled, Dr. Dobscha said Ball was
stable and continuing to improve. In July 2001, Ball asked Dr. Dobscha to complete a form
acknowledging that he was totally disabled, but Dr. Dobscha said "I do not think he is totally
disabled." Admin. R. 829. In 2002, Dr. Dobscha rated Ball's global assessment offunctioning at
a level used to signify patients with mild difficulties in the major functional categories, but generally
functioning pretty well. The previous ALJ credited these parts of Dr. Dobscha's opinion, while
discounting other parts of the opinion that were based on Ball's subjective statements. It is not
necessary for an ALJ to agree with everything in a physician's opinion in order for the opinion to
contain substantial evidence. iV!agallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989). Judge
Marsh approved the ALJ's evaluation of Dr. Dobscha's opinion.
The ALJ found no support in the record for Dr. Barrett's conclusion that Ball had
experienced repeated episodes of decompensation. Neither Dr. Ban·ett in his questionnaire, nor Ball
in his briefs to the court, identified any evidence of even a single such episode. The absence of such

6 - OPINION AND ORDER

evidence in the record supports the ALJ's determination that Dr. Barrett's opinion was entitled to
little weight.
The ALJ found Ball's persistence, detennination, and demonstrated abilities while pursuing
government benefits from the VA, the Office of Personnel Management, and the Social Security
Administration, inconsistent with Dr. Banett's assertion that Ball suffered a profound lack of
motivation and would have difficulty canying out simple instructions and asking simple questions.
Ball represented himselfbefore the OPM Merit Systems Protection Board, providing a well reasoned
brief citing evidence and legal precedent. He wrote numerous letters citing documentmy evidence
and legal authority in support of his VA and Social Security disability claims. He went to great
lengths, including cotTespondence with former militmy personnel, to create the appearance that he
had been injured in an incident in the Korean demilitaraized zone to support his alleged PTSD
symptoms. The ALJ rationally concluded that these activities are inconsistent with a profound lack
of motivation and with the inability to cany out simple instructions, ask simple questions, and
engage in occasional superficial contacts with others.
The ALI's reasoning in determining the weight to give Dr. Barrett's opinion is clear and
convincing and based on rational inferences drawn from substantial evidence in the record. The
ALJ's evaluation of Dr. Barrett's opinion must be upheld, even if the record could reasonably
interpreted differently. Batson, 359 F.3d at 1193.

III.

Chiropractor's statements
Dr. Cowan provided chiropractic treatment to Ball for back sprains and strains beginning in

1993. Dr. Cowan wrote a number of letters on Ball's behalf and completed several questionnaires
prepared by Ball's attorney in suppoti of Ball's present disability claim. The ALJ gave these
7 - OPINION AND ORDER

statements "ve1y little weight." Admin. R. 1572.

As the ALJ noted, chiropractors are not

"acceptable medical sources" within the meaning of the regulations. 20 C.P.R.§ 404.1513. The
opinions of such sources must be considered, but may be discounted if the ALJ provides reasons that
are germane to the witness for doing so. Molina, 674 F.3d at 1111. The ALJ addressed each of
Cowan's rep01ts, as described below, and found them inconsistent with the objective medical
evidence and the other credible evidence in the record as a whole.
To establish a baseline, the ALJ considered Ball's treatment during the time leading up to
his alleged onset of disability in June 2000. Ball sought chiropractic treatment from Dr. Cowan for
a rep01ied exacerbation of back pain after a motor vehicle accident in October 1997. In March 1998,
Ball reported symptoms of overall stiffness and soreness with mild spasms and some restriction in
spinal range of motion.

Dr. Cowan expected Ball's condition to stabilize within three to four

months. Ball did not require regular ongoing treatment, but Dr. Cowan saw him as needed. Ball
then complained of occasional knee pain and occasional soreness and stiffness in the neck. In June
2000, Dr. Cowan indicated that Ball was medically stationmy. To summarize, Dr. Cowan's records
indicate that, at the alleged onset of disability, Ball was medically stationary with occasional flare
ups of pain, soreness, and stiffness.
In April 2001, Dr. Cowan wrote a letter on Ball's behalf indicating that Ball could not
perform his previous work as a civil rights specialist without pain. Dr. Cowan specified the work
related activities Ball could not perform. Ball, who stands 6 feet 4 inches, could not travel in
subcompact rental cars ood small commuter aire1:aft without initating his spine. In addition, Ball
could not lift in excess of 50 pounds of luggage and office materials, as required in his travel for
work. The ALJ gave this opinion little weight because the ability to perf01m activities without pain

8 - OPINION AND ORDER

is not the proper standard for determining disability. Many medical conditions produce ·pain that is
not severe enough to preclude gainful employment and millions of people work despite some degree
of pain eve1y day. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). In addition, the ALJ assessed
Ball with the RFC to perform medium work, which does not require lifting in excess of 50 pounds.
20 C.F.R. § 404.1567(c). Accordingly, the exe11ionallimitation in Dr. Cowan's letter was within
the ALJ's RFC assessment.
In May 2002, Dr. Cowan completed a questionnaire worksheet, indicating that Ball had been
limited to less than sedentmy work since December of 2000, with additional limitations in sitting,
standing, and walking. Dr. Cowan cited a decreased range of motion in right lateral flexion, flexion,
and right rotation in the cervical spine with swelling, muscle spasm, and muscle atrophy. The ALJ
gave this opinion no weight because Dr. Cowan's findings were inconsistent with contemporaneous
medical evidence provided by Tatsuro Ogisu, M.D. As the ALJ observed, in October 2001, Dr.
Ogisu performed an mihopedic examination and found that Ball had full range of motion bilaterally
in lateral flexion and rotation of the cervical spine and he had normal muscle bulk. Dr. Ogisu
observed that Ball gave questionable effort and exhibited excessive pain behavior and range of
motion limitations during the examination which he did not exhibit when distracted. Dr. Ogisu
found no basis for any limitation in sitting, standing or walking. Contrary to Dr. Cowan's limitation
to less than sedentary exe~iion, Ball told Dr. Ogisu he could lift up to 50 pounds with the right hand
and up to 40 pounds on the left. Dr. Ogisu opined that these restrictions would be reasonable and
consistent with his objective findings. These lifting limitations are consistent with medium exe11ion
and fall within the ALJ' s RFC assessment. The inconsistency between Dr. Cowan's opinion and the

9 - OPINION AND ORDER

medical evidence is a ge1mane reason sufficient to discount Dr. Cowan's opinion. Bayliss, 427 F.3d
at 1218.
In March 2003, Dr. Cowan indicated that Ball experienced periods of exacerbated pain
during which he may be "incapacitated for hours or days at a time" and "unable to handle daily
physical challenges occupationally or at home." Admin. R. 928-29. The previous ALJ found that
these limitations had been based on Ball's umeliable subjective complaints. In June 2006, Dr.
Cowan responded that his opinion was not based solely on Ball's subjective complaints, but also on
diagnostic imaging that showed degenerative changes with nerve root impingement. The ALJ found
that the diagnostic imaging Dr. Cowan cited showed only mild degenerative changes with "minimal
involvement of the exiting nerve roots." Admin. R. 1104. The ALJ accepted that these medical
findings supp01ied a diagnosis of degenerative disc disease, but found they did not explain the
extremely limiting functional effects in Dr. Cowan's opinion. The ALJ did not believe the fairly
moderate findings supported the degree of limitation Dr. Cowan suggested and agreed with the
previous AU's conclusion that the opinion was based on Ball's unreliable subjective complaints
about the severity of his limitations.
In April 2008, Dr. Cowan completed another questionnaire produced by Ball's attorney,
indicating that Ball had been limited to less than sedentmy activity since before his alleged onset of
disability. Contrmy to the evidence that Ball worked until June 2000, Dr. Cowan opined that he had
been unable to work since 1997. The ALJ gave this statement no weight because it was completed
several years after the expiration of Ball's insured status, unsupp01ied by medical evidence, and
inconsistent with Dr. Cowan's own findings that Ball was having only occasional flare ups of
soreness and stiffness in 1997 and 1998.
10- OPINION AND ORDER

In February and March 2011, Dr. Cowan completed statements indicating that Ball had
suffered spinal stenosis and degeneration with a disc bulge and nerve root impingement since 1997.
He said Ball could not do prolonged labor, sitting, standing, walking, bending or twisting. He could
not perf01m daily activities due to pain, weakness, muscle spasms, and limitations in range of
motion. He said Ball could lift 20 pounds rarely and 10 pounds occasionally. Dr. Cowan said Ball
would have limited ability to concentrate or persist for simple tasks, would require unscheduled
breaks, and would be likely to miss work at least four days each month. The ALJ gave this opinion
no weight. The ALJ found this opinion, insofar as it relates to the period that is relevant for Ball's
claim, generally inconsistent with the objective medical evidence and other credible evidence in the
record. Indeed, the opinion is contradicted by the contemporaneous medical findings of Dr. Ogisu
from 2001 and by Dr. Cowan's own progress notes indicating that Ball was medically stationmy with
only occasional slight soreness in the body and neck.
The ALI's reasons for discounting Dr. Cowan's statements are germane to the witness and
supported by substantial evidence. Accordingly, the ALJ's evaluation of Dr. Cowan's opinion is
legally sufficient. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001 ).

CONCLUSION
Ball's claims of elTor cannot be sustained for the foregoing reasons. The Commissioner's
decision is AFFIRMED .
DATED this

.

i q day of June, 2013.

s, Senior Judge
tates District Court

11 - OPINION AND ORDER