Hagstrand v. Commissioner Social Security Administration
Filing
12
Opinion and Order - The ALJ provided legally sufficient reasons for giving little weight to certain opinions of Dr. Craft, for discrediting certain testimony of Mr. Hagstrand, and in formulating his RFC. The Commissioner's decision that Mr. Hagstrand is not disabled is AFFIRMED. Signed on 4/30/2013 by Judge Michael H. Simon. (mja)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
MICHAEL HAGSTRAND,
Case No. 3:12-cv-0511-SI
Plaintiff,
OPINION AND ORDER
v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.
Merrill Schneider, Schneider Kerr Law Offices, P.O. Box 14490, Portland, OR 97293.
Attorney for Plaintiff.
S. Amanda Marshall, United States Attorney, and Adrian L. Brown, Assistant United States
Attorney, United States Attorney’s Office, District of Oregon, 1000 S.W. Third Avenue,
Suite 600, Portland, OR 97204-2902; Jordan D. Goddard, Special Assistant United States
Attorney, Office of the General Counsel, Social Security Administration, 701 Fifth Avenue,
Suite 2900 M/S 221A, Seattle, WA 98104.
Attorneys for Defendant.
1
Subsequent to the filing of the Complaint in this case, the term expired of Michael J.
Astrue, the named defendant Commissioner of Social Security, and, thus, the name of the current
acting Commissioner has been substituted in the caption.
SIMON, District Judge.
Michael Hagstrand seeks judicial review of the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying his application for Disability
Insurance Benefits. For the following reasons, the Commissioner’s decision is AFFIRMED.
BACKGROUND
A. The Application
Mr. Hagstrand is a 65-year old gentleman whose work history in the fifteen years before
the onset of his alleged disability includes two years as an addiction counselor, approximately
two and one-half years as a school custodian, a few months as a sales associate in a home
improvement store, approximately nine months as a construction worker, and approximately six
and one-half years a general contractor. AR 121. Mr. Hagstrand received a Bachelor of Science
in Religious Education and has a certificate from the Steamfitter’s Apprenticeship in New York,
Local 638. AR 34.
Mr. Hagstrand protectively filed an application for Disability Insurance Benefits (“DIB”)
on October 6, 2009, alleging disability beginning on November 15, 2006.2 AR 10. He alleges
disability due to left knee and left ankle arthritis and alleges that he has great difficulty
navigating stairs and ladders and uneven terrain. AR 120. The Commissioner denied his
application initially and upon reconsideration; thereafter, Mr. Hagstrand requested a hearing
before an Administrative Law Judge (“ALJ”). AR 54-58, 62-65, 66-67. An administrative
hearing was held on April 14, 2011, at which Mr. Hagstrand testified. On April 27, 2011, the
ALJ found Mr. Hagstrand not disabled. AR 10-20. The Appeals Council denied Mr. Hagstrand’s
2
He initially filed alleging disability beginning December 31, 2002, but at the hearing he
amended his application to allege a disability onset date of November 15, 2006. AR 10, 106.
OPINION AND ORDER, Page 2
request for review, making the ALJ’s decision the final decision of the Commissioner. AR 1-6.
Mr. Hagstrand now seeks judicial review of that decision.
B. The Sequential Analysis
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§ 404.1520 (DIB); 20 C.F.R. § 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each
step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4). The five-step
sequential process asks the following series of questions:
1.
Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless
expected to result in death, an impairment is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted
or must be expected to last for a continuous period of at least 12 months.
20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe
impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii);
416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis
proceeds to step three.
3.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
OPINION AND ORDER, Page 3
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii);
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds beyond step three. At that
point, the ALJ must evaluate medical and other relevant evidence to assess
and determine the claimant’s “residual functional capacity” (“RFC”). This
is an assessment of work-related activities that the claimant may still
perform on a regular and continuing basis, despite any limitations imposed
by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c);
416.920(e); 416.945(b)-(c). After the ALJ determines the claimant’s RFC,
the analysis proceeds to step four.
4.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c);
416.960(c). If the claimant cannot perform such work, he or she is
disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566; 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
OPINION AND ORDER, Page 4
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
The ALJ began his opinion by noting that Mr. Hagstrand met the insured status
requirements of the Social Security Act through March 31, 2007. AR 10. The ALJ further noted
that Mr. Hagstrand must establish disability on or before that date in order to be entitled to a
period of disability and disability benefits.3 Id. Because the alleged disability onset date is
November 15, 2006, the period at issue for determining disability is November 15, 2006 through
March 31, 2007.
The ALJ applied the sequential process. AR 11-20. At step one, the ALJ found that
Mr. Hagstrand had not engaged in substantial gainful activity during the period at issue (from the
alleged disability onset date of November 15, 2006, through the date last insured of March 31,
2007). AR 12. At step two, the ALJ found that Mr. Hagstrand’s diabetes mellitus and his history
of ankle repair in 1998 and 2001 were severe impairments. Id. At step three, the ALJ found that
3
Section 423 of the Social Security Act establishes the statutory eligibility requirements
to receive a disability insurance benefit, requiring, among other things, that the applicant be
considered “insured,” which involves a calculation of the number of quarters employed within a
certain time frame. 42 U.S.C. § 423. The Ninth Circuit has held “that an individual cannot
receive disability benefits for a recurrence of a disability, after a period of medical improvement
when the individual was no longer disabled under the Act, unless the individual can establish that
the current period of disability began on or prior to the expiration of insured status.” Flaten v.
Secretary of Health & Human Services, 44 F.3d 1453, 1458 (9th Cir. 1994) (emphasis in
original). Thus, if an individual applies for benefits after the expiration of insured status (as is the
case with Mr. Hagstrand), if the claimant was not disabled on the last day of insured status, then
the claimant cannot recover disability benefits for a new period of disability, “even if the
claimant suffers a recurrence of the same disability from which the claimant suffered during a
time when the claimant [was insured].” Id. Any deterioration in condition after that time is
irrelevant. Id. at 1461 n.4 (quoting with approval Waters v. Gardner, 452 F.2d 855, 858 (9th Cir.
1971)).
OPINION AND ORDER, Page 5
Mr. Hagstrand did not have an impairment or combination of impairments that met or equaled
one of the specific impairments listed in the regulations. AR 14.
The ALJ then determined that during the period at issue, Mr. Hagstrand had the RFC to
perform the full range of medium work. AR 14-19. In reaching this conclusion, the ALJ
considered Mr. Hagstrand’s testimony, but found that it was not fully credible to the extent it
conflicted with the ALJ’s RFC assessment. AR 15-18. The ALJ noted that the Disability
Determination Services medical consultants indicated that there was insufficient medical
evidence to adjudicate Mr. Hagstrand’s claim, but the ALJ found that the medical records
support a finding of full range of medium work. AR 18.
The ALJ gave little weight to three reports by Dr. Richard W. Craft, Sr., Mr. Hagstrand’s
treating physician because they were vague, not fully supported by Dr. Craft’s treatment records,
not limited to the relevant time period, not supported by medical findings, and inconsistent with
other evidence in the record. AR 18-19.
At step four, the ALJ found that Mr. Hagstrand was able to perform his past relevant
work as a school custodian as he actually performed it. AR 19. Based on the finding that
Mr. Hagstrand could perform his past relevant work, the ALJ concluded that Mr. Hagstrand was
not disabled. AR 19.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r Soc. Sec. Admin.,
554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
OPINION AND ORDER, Page 6
1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r, 359 F.3d 1190, 1193 (9th Cir. 2004).
“However, a reviewing court must consider the entire record as a whole and may not affirm
simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625,
630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)
(internal quotations omitted)). The reviewing court, however, may not affirm the Commissioner
on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.
DISCUSSION
Mr. Hagstrand seeks review of the determination by the ALJ that Mr. Hagstrand is not
disabled. Mr. Hagstrand argues that the ALJ erred in making that determination by:
(1) improperly finding Mr. Hagstrand’s subjective symptom testimony not fully credible;
(2) improperly rejecting the opinion of Dr. Craft, a treating physician; and (3) improperly
formulating an RFC by failing to perform a function-by-function analysis of Mr. Hagstrand’s
abilities and limitations, as is required by Social Security Ruling (“SSR”) 96-8P.
A. Mr. Hagstrand’s Credibility
The Ninth Circuit has developed a two-step process for evaluating the credibility of a
claimant’s own testimony about the severity and limiting effect of the claimant’s symptoms.
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ “must determine whether
OPINION AND ORDER, Page 7
the claimant has presented objective medical evidence of an underlying impairment ‘which could
reasonably be expected to produce the pain or other symptoms alleged.’” Lingenfelter v. Astrue,
504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.
1991) (en banc)). When doing so, the claimant “need not show that her impairment could
reasonably be expected to cause the severity of the symptom she has alleged; she need only show
that it could reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d
1273, 1282 (9th Cir. 1996).
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.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
The ALJ may consider 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, 80 F.3d
at 1284. The Commissioner recommends assessing the claimant’s daily activities; the location,
duration, frequency, and intensity of the individual’s pain or other symptoms; factors that
precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any
OPINION AND ORDER, Page 8
medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other
than medication, the individual receives or has received for relief of pain or other symptoms; and
any measures other than treatment the individual uses or has used to relieve pain or other
symptoms. See SSR 96-7p, available at 1996 WL 374186.
Further, the Ninth Circuit has said that an ALJ also “may consider . . . ordinary
techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent
statements concerning the symptoms, . . . other testimony by the claimant that appears less than
candid [and] unexplained or inadequately explained failure to seek treatment or to follow a
prescribed course of treatment.” Smolen, 80 F.3d at 1284. The ALJ may not, however, make a
negative credibility finding “solely because” the claimant’s symptom testimony “is not
substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin., 466
F.3d 880, 883 (9th Cir. 2006).
Mr. Hagstrand’s disability claim is based on ankle and knee pain. The ALJ found that
Mr. Hagstrand’s diabetes mellitus and ankle repair history are severe impairments. AR 12. The
ALJ specifically found that the left knee pain, which Mr. Hagstrand alleges contributes to his
disability, was not supported by objective medical evidence and did not result in a severe
impairment during the relevant time period. AR 12-13. The ALJ also noted that there is
insufficient medical evidence of the other symptoms and complaints that appear from time to
time in the medical record, including depression, anxiety, back pain, hepatitis C, hypothyroidism,
hypertension, and hyperlipidemia to show that they are more than transient or caused significant
vocational limitations during the relevant time period. AR 13-14. It does not appear that
Mr. Hagstrand relies on any of these conditions as contributing to his disability, nor did he
OPINION AND ORDER, Page 9
provide much testimony relating to these conditions (other than back pain) at the hearing. To the
extent Mr. Hagstrand is relying on these conditions to support his claim of disability, the record
supports the ALJ’s determination that Mr. Hagstrand has not presented objective medical
evidence of these impairments nor that they could reasonably be expected to produce the pain or
other symptoms alleged. Lingenfelter, 504 F.3d at 1036.
Mr. Hagstrand testified at the hearing relating to his knee, back, and ankle pain and his
limitations caused by those issues. AR 36-37, 39-42, 44-45. Mr. Hagstrand alleges that the ALJ
did not provide clear and convincing reasons for finding Mr. Hagstrand’s subjective symptom
testimony not fully credible. The ALJ found that Mr. Hagstrand’s testimony concerning the
intensity, persistence, and limiting effects of the symptoms was not credible to the extent those
statements are inconsistent with the ALJ’s RFC determination. AR 15. Notably, much of
Mr. Hagstrand’s testimony at the hearing is consistent with the ALJ’s RFC determination.
Mr. Hagstrand testified at the hearing that he had two ankle surgeries, one in 1998 and
one in 2001. AR 39. The second surgery was to remove the steel plate that was installed in the
first surgery. AR 40. When asked if the second surgery helped, Mr. Hagstrand replied “yes,
absolutely.” AR 40. For the time period 2005 and 2006, Mr. Hagstrand testified that his ankle
would give him problems when he walked on construction sites with uneven ground and debris
and other items laying around if his ankle “shift[ed] from the vertical in any way it would flareup.” AR 40. This would cause a sharp pain and swelling and he would be forced to rest his ankle,
sometimes for days. AR 40. This testimony is consistent with the ALJ’s assessment that
Mr. Hagstrand could work as a school custodian, which does not involve walking on uneven
ground with significant construction debris. Additionally, when asked if his ankle pain would
OPINION AND ORDER, Page 10
have been a problem while sitting down in March of 2007, Mr. Hagstrand replied that it “could”
at times, depending on temperature and humidity. AR 45 He also testified that if his ankle got
cold during the day it would take hours to heat up and if he was not able to keep it warm it would
be aggravated and would interrupt his sleep. AR 45. This testimony does not support a
debilitating disability related to Mr. Hagstrand’s ankle injury and does not contradict the ALJ’s
RFC determination.
Relating to his knee pain, Mr. Hagstrand testified that he had a knee injury in the mid-70s
and knee surgery in 1980 and again in 1981. AR 41-42. He testified he had arthritis in his left
knee and that particularly on cold, wet days he would get swelling and weakness in the knee.
AR 42. He also testified that he had grown accustomed to his knee pain. AR 45.
Relating to his back pain, Mr. Hagstrand testified that his back pain caused problems
when sitting for lengthy periods of time and caused him to change his job from a drug and
alcohol counselor to one in which he could stand more frequently. AR 38. Mr. Hagstrand never
had back surgery and does not consider himself to have a “major back injury” but instead to have
“bad wear and tear” and disk problems, which he has had for 25 years. AR 42. He has seen
chiropractors, but, he reports, “fortunately” he has not had to see one for at least the past six
years, which encompasses the time period at issue. AR 42.
Mr. Hagstrand’s specific testimony relating to his knee, back, and ankle pain is not
inconsistent with the ALJ’s RFC assessment. To the extent it could be considered inconsistent,
the ALJ provided sufficient reasons for finding it not credible, as discussed below.
There was, however, some testimony by Mr. Hagstrand relating to his limitations that
was inconsistent with the ALJ’s RFC assessment. He testified that he could only be on his feet
OPINION AND ORDER, Page 11
for two to two and one-half hours, would need to take a thirty minute break, and then could be on
his feet for another two hours. AR 41. He testified that he could sustain that level of activity for
only three weeks or so before he would need to take anywhere from two days to a week off to
recover. AR 41. He also testified that he could sit in one place for a couple of hours at a time.
AR 44.
In evaluating the credibility of Mr. Hagstrand’s testimony, the ALJ, applying the first
step of the credibility framework, found “that the claimant’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms[.]” AR 15. In applying the second
step, however, the ALJ concluded that Mr. Hagstrand’s “statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent they are
inconsistent with the [RFC] assessment.” Id. In support of this credibility finding, the ALJ
offered several specific reasons: (1) the inconsistency between the testimony and the reported
activities during the relevant time period, as reported by Mr. Hagstrand and his wife; (2) the
disparity between his hearing testimony and the relevant medical evidence; and
(3) Mr. Hagstrand’s failure to comply with medical advice or seek treatment. AR 15-18.
1. Activities reported
Daily activities can form the basis of an adverse credibility finding where the claimant's
activities either contradict his or her other testimony or meet the threshold for transferable work
skills. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012); Orn, 495 F.3d at 639. For a
credibility analysis, the ALJ “need not consider whether a claimant’s daily activities are
equivalent to full-time work; it is sufficient that the claimant’s activities ‘contradict claims of a
totally debilitating impairment.’” Whittenberg v. Astrue, Civil No. 3:11-cv-00475-AC, 2012 WL
3922151 at * 4 (D. Or. Aug. 20, 2012) (quoting Molina, 674 F.3d at 1113); see also Denton v.
OPINION AND ORDER, Page 12
Astrue, No. 3:11-cv-01066-SI, 2012 WL 4210508 at * 6 (D. Or. Sept. 19, 2012) (“While
[claimant’s] activities of daily living do not necessarily rise to the level of transferable work
skills, they do contradict his testimony regarding the severity of his limitations.”). A claimant,
however, need not be utterly incapacitated to receive disability benefits, and sporadic completion
of minimal activities is insufficient to support a negative credibility finding. Vertigan v. Halter,
260 F.3d 1044, 1050 (9th Cir. 2001); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998) (requiring the level of activity to be inconsistent with the claimant’s claimed limitations to
be relevant to his or her credibility).
Mr. Hagstrand testified that he did not actively pursue jobs after 2004, he did some work
in 2005 but recorded a loss, and after that “was pretty much done.” AR 35. Mr. Hagstrand
reported greater activity to his physician than his hearing testimony indicates. On November 11,
2005, he reported “doing a lot of work on insulation.” AR 205. On November 16, 2007, he
reported “doing a lot of work lately.” AR 197. Mr. Hagstrand testified at the hearing that his
reference to doing a lot of work in November 2007 was “probably my work around the house,”
including yard work, cleaning, and remodeling. AR 46. Regardless of whether the volume of
work he reported in 2007 was at his house or as a contractor, it suggests, as the ALJ found,
greater abilities around the time of his date last insured than Mr. Hagstrand claims.
Additionally, in a report completed on November 14, 2009, more than two and one-half
years after the date last insured, Mrs. Hagstrand reported on her husband’s activities and
limitations. She reported that he remains able to perform self-care activities independently,
prepares his meals daily, goes outside daily, performs household chores—including
vacuuming—without any need for help, babysits his two young grandchildren two to three days
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a week and drives them to school, drives independently, goes grocery shopping, engages in
weekly baking, golfs one or two times per month, goes out for meals, and leads bible study.
AR 135-39. She also reported that his walking ability varies with terrain, he has difficulty
walking uphill, that he finishes what he starts, he has no difficulty with concentration, and he has
no difficulty handling stress. AR 139-41.
Although not cited by the ALJ, Mr. Hagstrand also completed a daily activity living
report on November 13, 2009.4 This report indicates his self-reported abilities as of the date of
the report, so it is not greatly instructive as to his activities and limitations as of March 31, 2007,
but it does show some inconsistency with his testimony at the hearing. In the report,
Mr. Hagstrand states that he cleans the house daily for two hours, does the laundry twice a week
for two hours, cooks daily for two to three hours, and handles household repairs as needed. AR
129. His statement that he cleans and cooks daily for four to five hours contradicts his testimony
that he could only be on his feet four to five hours daily for two to three weeks before needing a
break of a few days to a week.
The written records of daily living and contemporaneous reports of activities to
physicians, even if they do not rise to the level of transferable work skills, are inconsistent with a
completely debilitating impairment. Molina, 674 F.3d at 1113.
4
The Court is not permitted to affirm the Commissioner on a ground upon which the
Commission did not rely, but the Court is permitted to consider additional support for the ALJ’s
position. See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1005 n.3 (9th Cir. 2006).
Here, the ALJ based his credibility determination, in part, on the ground that Mr. Hagstrand’s
testimony contradicted reports in the record of daily living and activities and this Court may
consider additional records other than those specifically cited by the ALJ in considering that
ground.
OPINION AND ORDER, Page 14
2. Inconsistency with reports to treating physicians at the time and failure to report
symptoms
The ALJ also found Mr. Hagstrand’s subjective testimony regarding his symptoms not
credible because it contradicted reports that he made to treating physicians and because he did
not complain of knee or ankle pain in and around the relevant time period. AR 16-17. A
claimant’s inconsistent or non-existent reporting of symptoms is competent evidence for an ALJ
to consider when making a credibility assessment. See Greger v. Barnhart, 464 F.3d 968, 972
(9th Cir. 2006).
Mr. Hagstrand visited his physician several times from November 11, 2005 through
November 16, 2007, and at no time did he complain of knee or ankle pain during those visits.
AR 197-205. Of particular importance, on November 27, 2006, less than two weeks after the
alleged onset of disability, Mr. Hagstrand visited Dr. Craft and complained of facial and sinus
pain, without any mention of knee, ankle, or back pain. AR 203. Less than a month later, on
December 11, 2006, Mr. Hagstrand reported that he “is feeling all right.” AR 202. And on
April 3, 2007, only a few days after the last insured date, Mr. Hagstrand visited Dr. Craft and
complained of not feeling well in general, and they discussed at length Mr. Hagstrand’s
noncompliance with his diabetes treatment. AR 201. Again, there was no discussion of
musculoskeletal pain. A few months later, on July 3, 2007, Mr. Hagstrand reported “feeling
fairly well in general.” AR 200. On November 16, 2007, Mr. Hagstrand complained of pain in
the right part of his neck and his right arm and some fingers in his right hand. AR 197. He noted
that the had been “doing a lot of work lately.” Id. Although November 16, 2007 is eight months
after the last insured date, it is instructive that Mr. Hagstrand complained that doing a “a lot of
work” caused him pain and failed to mention any knee, ankle, or back pain. This report to his
OPINION AND ORDER, Page 15
physician is contradictory to Mr. Hagstrand’s disability claim because it shows that he could do
“a lot of work” after the alleged disability date, it indicates that doing such work caused neck and
arm pain, but not ankle or knee pain, and it indicates that Mr. Hagstrand did complain to his
physician regarding musculoskeletal pain, and there were no such complaints made during visits
to his physician in and around the time period at issue.
3. Failure to seek treatment or comply with medical advice
The ALJ also found Mr. Hagstrand’s complaints not credible because he failed to seek
treatment for some of his alleged complaints and failed to follow his physicians’ treatment
advice for others. AR 16-18. An ALJ may consider a claimant’s failure to follow a prescribed
course of treatment when weighing a claimant's credibility. See Tommasetti v. Astrue, 533 F.3d
1035, 1039-40 (9th Cir. 2008) (quoting Smolen, 80 F.3d at 1284) (The ALJ may consider
“unexplained or inadequately explained failure . . . to follow a prescribed course of treatment.”)
(internal quotations omitted); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995).
In February 2004, Mr. Hagstrand suffered a fall that affected his left knee and, to a lesser
degree, his left ankle. AR 208. He was sent for x-rays and instructed to elevate his leg, use ice
packs, and use over-the-counter medication. AR 208. Dr. McGowan (who appears to be part of
Dr. Craft’s medical practice) suggested an orthopedic follow-up. There is no evidence, however,
that Mr. Hagstrand pursued any orthopedic follow-up. There is also no evidence that Mr.
Hagstrand followed up with Dr. Craft for any pain or difficulty as a result of this fall. Mr.
Hagstrand’s next visit with Dr. Craft was on April 20, 2004, in which he reported doing “okay”
and the focus of the visit appears to have been his lack of compliance with his diabetes
medication. AR 207. Dr. Craft’s notes do not indicate any discussion of knee or ankle pain.
OPINION AND ORDER, Page 16
Additionally, on December 11, 2008 (more than eighteen months after the last insured
date), Mr. Hagstrand complained of left ankle pain, but he refused an orthopedic consult and to
partake in physical therapy. AR 194.
Mr. Hagstrand argues that Dr. Craft opined that Mr. Hagstrand did not seek medical
treatment for his ankle because Mr. Hagstrand figured there was not much that could be done.
Plf. Br. at 12. This is argument is unavailing for several reasons. First, it is Dr. Craft’s opinion of
Mr. Hagstrand’s motivations—Mr. Hagstrand did not testify as such. Second, Mr. Hagstrand
testified that his second ankle surgery “absolutely” provided relief (AR 40), and there is no
evidence in the record that he attempted other treatments that did not provide relief, so there is no
substantiation for the theory that he believed during the relevant time period that seeking medical
treatment would be fruitless. Third, Mr. Hagstrand did seek medical treatment for
musculoskeletal issues with his neck and arm in November 2007, but did not seek medical
treatment for musculoskeletal issues with his ankle until 2008 and 2009. This provides support
that he sought treatment when it was needed, and that his ankle and knee problems were not
severe enough to require treatment during the relevant time period.
Mr. Hagstrand has a well-documented history of refusing to take his medication and
follow his doctor’s prescribed course of treatment for nearly all of his medical issues for more
than seven years. See AR 189-210. It was proper for the ALJ to consider this conduct in
assessing Mr. Hagstrand’s credibility. See Tommasetti, 533 F.3d at 1039–40
The ALJ offered clear and convincing reasons supported by substantial evidence in
finding that Mr. Hagstrand’s subjective symptom and limitation testimony regarding his
symptoms as of March 31, 2007 was not credible. Thus, the ALJ’s credibility finding is affirmed.
OPINION AND ORDER, Page 17
B. Dr. Craft’s Opinions
The ALJ gave little weight to three of Dr. Craft’s reports, finding that: (1) the
November 12, 2009, chart notes of Dr. Craft relating to the duration of the ankle issues are vague
and not fully supported by his treatment records during the relevant time period and other
evidence in the record; (2) the January 29, 2010, letter by Dr. Craft appears to discuss
Mr. Hagstrand’s abilities and functionality as of that date and not as of the time period at issue
and is inconsistent with other evidence in the record; and (3) the April 12, 2011, questionnaire
completed by Dr. Craft is a check-box form that does not include objective findings to support its
conclusions and it is inconsistent with Dr. Craft’s treatment notes from around the relevant time
period. AR 18-19.
An ALJ must determine the weight to give each source of evidence. 20 C.F.R.
§§ 404.1527(d), (f), 416.927(d), (f). Opinions from “acceptable medical sources” may generally
be accorded more weight than those from “other sources.” Gomez v. Chater, 74 F.3d 967, 970-71
(9th Cir. 1996). An ALJ may wholly or partially discount the opinion of any source, but the
regulations and Ninth Circuit case law establish specific standards that an ALJ must apply in
order to do so. See 20 C.F.R. §§ 404.1527, 416.927 (standards for evaluating medical opinions);
Lester v. Chater, 81 F.3d 821, 830–33 (9th Cir. 1995) (standards for evaluating acceptable
medical sources); Dodrill, 12 F.3d at 918–19 (standards for evaluating other sources). An ALJ
may only reject the uncontradicted opinion of a treating or examining doctor if the ALJ states
“clear and convincing reasons that are supported by substantial evidence.” Bayliss v. Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005).
Dr. Craft treated Mr. Hagstrand since approximately 1999. AR 188. As discussed above,
Dr. Craft treated Mr. Hagstrand for various issues in and around the relative time period, and in
OPINION AND ORDER, Page 18
none of those visits was ankle or knee pain identified as a problem. Mr. Hagstrand did not
identify his ankle pain as a problem until September 2008. AR 195. Mr. Hagstrand then
continued to complain about some level of discomfort from his ankle from 2008 through 2010.
AR 189-195. The ALJ, however, can only consider symptoms and limitations from the relevant
time period (November 15, 2006 through March 31, 2007) in determining whether a disability
was present while Mr. Hagstrand had insured status. Flaten v. Secretary of Health & Human
Services, 44 F.3d 1453, 1458 (9th Cir. 1994), 44 F.3d at 1458-59, 1461. Thus, even if his
symptoms became debilitating sometime between 2008 and 2010 (which the medical records do
not support),5 they are not relevant to the determination of whether he was disabled as of the date
last insured. Id.
Mr. Hagstrand does not allege Dr. Craft’s chart notes are incomplete or inaccurate. The
contemporaneous medical notes in and around the relevant time period contain references to how
well Mr. Hagstrand was doing in late 2006 and early 2007. AR 197-205. Further, Dr. Craft’s
medical records from the relevant time period are devoid of any reference to knee or ankle
problems or issues, thus providing no clinical support for his conclusions in the three disputed
reports relating to such impairments. AR 197-205. Inconsistency between a doctor’s report and
his own medical records provides an independent specific and legitimate reason to reject that
doctor’s opinion on limitations. Tommasetti, 533 F.3d at 1041 (inconsistency between
assessment questionnaire and doctor’s medical records); Bayliss, 427 F.3d at 1216 (inconsistency
between assessment report and doctor’s medical records). Dr. Craft’s medical records, as well as
the record evidence of daily living reports discussed above, contradict Dr. Craft’s statements that
5
For example, on January 4, 2010, Mr. Hagstrand reported to Dr. Craft that he was
“doing okay in general” and that his left ankle was merely “uncomfortable.” AR 189.
OPINION AND ORDER, Page 19
may be considered supporting a finding of total disability in the three contested reports. Thus, the
ALJ’s finding that the three reports are contradicted by medical and other record evidence is
supported by substantial evidence in the record.
Further, the ALJ’s finding regarding the vagueness of the statements of the November 12,
2009, report is well-founded. AR 18. Dr. Craft states that Mr. Hagstrand had “significant” ankle
problems for “some time.” AR 191. “Some time” is a vague reference that could mean, for
example, six months or four years, and it is not clear that Dr. Craft meant to include the time
period before March 31, 2007 by this reference. Dr. Craft also reports that Mr. Hagstrand “has
not been very active for the last number of years because of significant muscular skeletal issues.”
AR 191. Again, “last number of years” is vague and not necessarily inclusive of the date last
insured. To the extent it is intended to encompass the late 2006-early 2007 time frame, it is
contradicted by Dr. Craft’s contemporaneous medical records. Dr. Craft also states that the ankle
pain “is becoming quite severe,” indicating that the increase in symptoms is a recent problem.
Thus, the ALJ’s findings related to the November 12, 2009 report are supported by substantial
evidence in the record.
The ALJ’s finding that the January 29, 2010, letter report appears to discuss
Mr. Hagstrand’s symptoms as of that date and not as of the date last insured is also well-founded.
Dr. Craft states that the ankle pain “has become such that [Mr. Hagstrand] has a very hard time
getting around.” AR 188. Dr. Craft also discusses Mr. Hagstrand’s limitations in the present
tense. Nothing in the letter indicates that Dr. Craft is opining about Mr. Hagstrand’s symptoms
and limitations during the relevant time period.
OPINION AND ORDER, Page 20
The ALJ has properly identified specific and legitimate reasons to give the three
contested reports by Dr. Craft little weight—the inconsistency between Dr. Craft’s reports and
his medical records, the inconsistency between the reports and other record evidence, and the
lack of support in the medical records. See Tommasetti, 533 F.3d at 1041 (conclusory responses
on a questionnaire that are inconsistent with the physician’s medical records may be rejected);
Bayliss, 427 F.3d at 1216 (“[A]n ALJ need not accept the opinion of a doctor if that opinion is
brief, conclusory, and inadequately supported by clinical findings.”).
C. ALJ’s RFC Formulation
Mr. Hagstrand also argues that in formulating his RFC, the ALJ failed to follow SSR 968p, which “requires” that the ALJ perform a function-by-function analysis. Pl.’s Br. at 9-10.
SSR 96-8p is a policy interpretation that explains that the RFC assessment ordinarily must
identify functional limitations and assess the claimant’s “work-related abilities on a function-byfunction basis.” SSR 96-8p(4), available at 1996 WL 374184. SSRs are binding on the Social
Security Administration, but do not have the force of law and are not binding on courts. See
Holohan v. Massanari, 246 F.3d 1199, 1202 n.1 (9th Cir. 2001). They are, however, entitled to
some deference because they represent the Commissioner’s interpretation of the agency’s
regulations. Id. The “RFC assessment considers only functional limitations and restrictions that
result from an individual's medically determinable impairment or combination of impairments,
including the impact of any related symptoms.” SSR 96-8p(2) (emphasis added); see also 42
U.S.C. § 423(d)(3); 20 C.F.R. § 404.1528(b)-(c). The ALJ does not need to prepare “a functionby-function analysis for medical conditions or impairments that the ALJ found neither credible
nor supported by the record.” Bayliss, 427 F.3d at 1217.
OPINION AND ORDER, Page 21
Here, in his assessment of Mr. Hagstrand’s RFC, the ALJ thoroughly addressed the
medical record, including medical findings and opinions. He adequately discussed the reasons
underlying his RFC assessment, and his RFC assessment is consistent with the medical records.
The ALJ addressed and resolved conflicts and ambiguities in the medical record and other record
evidence. This is sufficient to meet the requirements of SSR 96-8p. Id.; see also SweeneyEmanuel v. Astrue, Civil No. 3:11-cv-00962-JE, 2012 WL 5996932, at *15 (D. Or. Nov. 1,
2012). The Court finds the ALJ properly weighed the evidence, gave sufficient justification for
his findings regarding Mr. Hagstrand’s functional abilities, and that there is substantial evidence
in the record supporting the ALJ’s conclusions.
CONCLUSION
The ALJ provided legally sufficient reasons for giving little weight to certain opinions of
Dr. Craft, for discrediting certain testimony of Mr. Hagstrand, and in formulating his RFC. The
Commissioner’s decision that Mr. Hagstrand is not disabled is AFFIRMED.
DATED this 30th day of April, 2013.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
OPINION AND ORDER, Page 22
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