Jones v. Commissioner of Social Security Administration
Filing
31
Opinion and Order. The Commissioner's decision is Reversed and Remanded for further proceedings consistent with this opinion. See attached opinion. Signed on 12/11/2013 by Chief Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JACKY J. JONES,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
Tim D. Wilborn
Wilborn Law Office, P.C.
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 97201
Kathy Reif
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
Page 1 - OPINION AND ORDER
Case No. 3:12-cv-00913-AA
OPINION AND ORDER
AIKEN, Chief Judge:
Plaintiff Jacky J.
Social Security Act
Jones brings this action pursuant to the
("Act")
to obtain judicial review of a final
decision of the Cormnissioner of Social Security ("Cormnissioner").
The
Cormnissioner
denied
plaintiff's
disability insurance benefits
security income
below,
("SSI")
applications
for
Title
II
("DIB") and Title XVI supplementary
under the Act.
For the reasons set forth
the Cormnissioner's decision is reversed and remanded for
further proceedings.
PROCEDURAL BACKGROUND
Plaintiff filed his applications for DIB and SSI on February
18, 2005. Tr. 58-62, 63-65. Both applications were denied initially
and upon reconsideration. Id. After a hearing which took place on
November 8,
2007,
the Administrative Law Judge
("ALJ")
issued a
decision finding plaintiff not disabled within the meaning of the
Act. Plaintiff requested review by the Appeals Council, which was
declined. Tr. 3-6. Plaintiff then filed a civil action, which upon
stipulation of the parties,
resulted in an order by this Court
remanding the matter for further proceedings. Tr.
861
See Civil
No. 6:10-cv-00661-AA. After a second hearing on December 14, 2011,
the
ALJ
disabled.
issued
Tr.
another
832-48.
decision
The
again
Appeals
finding
Council
plaintiff
again
not
declined
plaintiff's request for review, making the 2011 decision the final
decision
of
the
Cormnissioner.
Plaintiff
complaint, which is now before the Court.
Page 2 - OPINION AND ORDER
then
filed
his
second
STATEMENT OF FACTS
Born December 29, 1951, plaintiff was 45 years old on the
alleged onset date of disability, June 3, 1997. He was 51 years
old on his date last insured for Title II benefits, December 31,
2002. Plaintiff earned his GED and was employed as a construction
worker from 1974 until his alleged onset date. Tr. 91, 95. On
June 3, 1997, plaintiff injured his neck and back in a workplace
accident resulting in a disability due to a combination of
impairments including degenerative disc disease, limited
mobility, numbness, back and neck pain, and headaches. Tr. 90.
STANDARD OF REVIEW
The court must affirm the Commissioner's decision if it is
based on proper legal standards and the findings are supported by
substantial evidence in the record. Hammock v. Bowen, 879 F.2d
498, 501 (9th Cir. 1989). Substantial evidence is "more than a
mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol.
Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The court must
weigh "both the evidence that supports and detracts from the
[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771,
772
(9th Cir. 1986). Variable interpretations of the evidence are
insignificant if the Commissioner's interpretation is rational.
See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The initial burden of proof rests upon the claimant to
Page 3 - OPINION AND ORDER
establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th
Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected .
to last for a continuous
period of not less than 12 months." 42 U.S.C.
§
423(d) (1) (A).
The Commissioner has established a five-step sequential
process for determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
§§
404.1502,
416.920. First, the Commissioner determines whether a claimant is
engaged in "substantial gainful activity." Yuckert, 482 U.S. at
140; 20 C.F.R.
§§
404.1520(b), 416.920(b). If so, the claimant is
not disabled.
At step two, the Commissioner determines whether the
claimant has a "medically severe impairment or combination of
impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R.
§§
404.1520(c), 416.920(c). If the claimant does not have a severe
impairment, she is not disabled.
At step three, the Commissioner determines whether the
claimant's impairments, either singly or in combination, meet or
equal "one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Yuckert, 482 U.S. at 140-41; 20
C.F.R.
§§
404.1520(d), 416.920(d). If so, the claimant is
presumptively disabled; if not, the Commissioner proceeds to step
four. Yuckert,
482 U.S. at 141.
Page 4 - OPINION AND ORDER
At step four, the Commissioner determines whether the
claimant can still perform "past relevant work."
20 C.F.R. §§
404.1520(e), 416.920(e). If the claimant can work, she is not
disabled; if she cannot perform past relevant work, the burden
shifts to the Commissioner. At step five, the Commissioner must
establish that the claimant can perform other work that exists in
significant numbers in the national and local economy. Yuckert,
482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e)
& (f), 416.920(e)
&
(f). If the Commissioner meets this burden, the claimant is not
disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ's FINDINGS
At step one of the five step sequential evaluation process
outlined above,
the ALJ found that plaintiff did not engage in
substantial gainful activity during the adjudication period between
June 3, 1997, and his date last insured of December 31, 2002. Tr.
837.
At
step
two,
the
ALJ
determined
that
plaintiff
had
the
following severe impairments through the date last insured: strain
of the cervical spine and mild degenerative disc disease at C5-6.
Tr. 838.
At step three, the ALJ found that plaintiff did not have
an impairment or combination of impairments that met or medically
equaled the requirements of a listed impairment. Id.
Because he did not establish disability at step three, the ALJ
continued to evaluate whether plaintiff's impairments affected his
ability to work. The ALJ determined that plaintiff had the residual
functional capacity ("RFC") to perform
generally light work .
Page 5 - OPINION AND ORDER
subject to limitations and
modifications . . . includ[ing] lifting and carrying 5 to
15 pounds frequently, and 25 to 40 pounds occasionally,
but overhead lifting and carrying is limited to 10
pounds,
and
pushing and pulling with
the
upper
extremities is limited to 25 pounds occasionally and 15
pounds frequently. Sitting is limited to 30 minutes at a
time and a total of 2 hours in an 8-hour day. Standing
and walking are each limited to one hour at a time and a
total each of 4 hours in an 8-hour day. Climbing stairs
and ramps, overhead reaching, and grasping can be done
frequently; bending, balancing, stooping, kneeling, and
crawling can be done occasionally; and climbing ropes,
ladders, and scaffolds is limited to minimal.
Tr. 839.
At
step
four,
the ALJ found
that
plaintiff was
unable
to
perform any past relevant work through the date last insured. Tr.
846.
At
step
testimony,
five,
the
ALJ
concluded
plaintiff could perform a
that
based
on
the
VE's
significant number of jobs
existing in the national economy, including office helper, cashier,
and small products assembler. Tr.
847. Accordingly, the ALJ found
that plaintiff was not disabled for the adjudication period from
June 3, 1997 through December 31, 2002. Id.
DISCUSSION
Plaintiff argues that the ALJ erred by:
( 1)
failing to find
plaintiff's headaches a severe impairment at step 2;
assessing plaintiff's
credibility;
opinion of Dr. Dejan Dordevich, M.D.;
(3)
(2) improperly
improperly rejecting the
(4) improperly rejecting lay
witness testimony; and (5) failing to consider plaintiff's alleged
manipulative limitations.
Page 6 - OPINION AND ORDER
I. Step Two
Plaintiff first contends that the ALJ erred by failing to
find his headaches were a severe impairment at step two. The step
two inquiry is the de minimis screening device used to dispose of
groundless claims. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.
1996) . At step two, a plaintiff must present evidence of an
impairment or impairments which are so severe that it
"significantly limits [his] physical and mental ability to do
basic work activities." 20 C.F.R.
§
416.920(c). Where the
claimant meets the de minimis threshold, the ALJ continues the
sequential analysis, considering the effect of all of his
impairments, whether severe or non-severe. Social Security Ruling
("SSR")
96-9p, available at 1996 WL 374184 at *5. Therefore,
reversible error occurs only when a severe impairment excluded at
step two caused additional functional limitations not accounted
for in the RFC. Lewis v. Astrue, 498 F.3d 909,
911 (9th Cir.
2007).
Here, the ALJ resolved step two in plaintiff's favor and
proceeded to subsequent steps in the analysis. Tr. 838. Thus, the
Court may only find error if additional functional limitations
caused by plaintiff's headaches were not accounted for in the
RFC. Lewis, 498 F.3d at 911. Plaintiff argues that pain caused by
headaches affected his concentration, persistence, and pace,
which were not accounted for in the RFC. Pl.'s Op. Br. at 12-13.
In support, plaintiff highlights several sources in the
record. First, plaintiff asserts that Dr. Dordevich opined on a
Page 7 - OPINION AND ORDER
2007 checklist form that plaintiff's pain would negatively impact
"activities requiring concentration, persistence, and pace." Id.;
Tr. 134. However, Dr. Dordevich did not make any specific
reference to headaches being the source of pain. Id. Furthermore,
for reasons explained below, the ALJ found Dr. Dordevich's post2002 opinions to be of limited probity. Tr. 843-44. Thus, Dr.
Dordevich's opinion that undifferentiated pain impairs
plaintiff's concentration, persistence, and pace is not
compelling evidence that his headaches were severe under the Act.
Plaintiff also submits that his math and language tutor
noted that his headaches interfered with his ability to
concentrate. Pl.'s Op. Br. at 12; Tr. 205. Indeed, vocational
case manager Jerome Gillis noted that "continuing headaches" had
"slowed progress" in plaintiff's math tutoring. Tr. 205. However,
Mr. Gillis also suggested that plaintiff had trouble with his
"visual tracking system" which possibly caused him to misread
numbers. Id. Further, the alleged deficits caused by plaintiff's
headaches did not appear to slow plaintiff's English skill
progression, as he completed that subject matter with "90% to
100% success." Id. As such, the evidence is at best equivocal.
Plaintiff further asserts that his vocational aptitude tests
were compromised by his inability to concentrate due to pain. The
test administrator noted that plaintiff "exhibited a good deal of
pain behavior" during testing, including "changing positions,
trying several different chairs, grimacing, moving stiffly and
taking one additional break." Tr. 217. The test administrator
Page 8 - OPINION AND ORDER
also noticed that plaintiff was "visibly anxious upon arrival"
and "appeared fidgety and nervous," and inferred that this
anxiety may also have affected the results. Id. As with Dr.
Dordevich's opinion discussed above, however, unspecified
references to "pain" in the record does not necessarily entail
pain caused by headaches as opposed to another of plaintiff's
alleged impairments. Thus, there is no indication that
plaintiff's headache pain caused any functional impairment beyond
that caused by his back and neck pain, which was incorporated in
the RFC.
Finally, plaintiff asserts that both he and the lay witness
described his headaches as interfering with his concentration.
First, as explained in following sections, the ALJ properly
discounted the credibility of both plaintiff and the lay witness
such that their opinions are of diminished evidentiary value. See
Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (The ALJ
properly "took into account those limitations for which there was
record support that did not depend on [the claimant's] subjective
complaints" in favor of those that lacked credibility.). Second,
plaintiff's citation to testimony from the hearing in support of
his claim makes no reference to headaches at all, but involves a
discussion of pain and stiffness resulting from his neck pain.
Tr. 810-11; Pl.'s Op. Br. at 12. Finally, while the lay witness's
letter did state that plaintiff suffers from severe headaches,
there was no reference whatsoever to plaintiff's alleged
inability to concentrate due to headaches, or any other
Page 9 - OPINION AND ORDER
functional impairment arising from headaches. Tr. 85. Instead,
there were references to neck and back pain as limiting his
ability to sit, lift a gallon of milk, stargaze, and complete
other activities. Id. Thus, plaintiff's arguments regarding his
own testimony and the statements of the lay witness are
unavailing.
In sum, while plaintiff alleges severe pain due to
headaches, he has cited no objective evidence in the record which
suggests that his headaches impair his ability to function beyond
the limitations included in the ALJ's modified light duty RFC.
Tr. 839. It is plaintiff's burden to show that his headaches had
more than a minimal effect on his ability to perform work
activities. Burch, 400 F.3d at 683. As plaintiff has not shown
his headaches cause additional functional limitations not
accounted for in the RFC, any step two error was harmless. Lewis,
498 F.3d at 911.
II. Plaintiff's Credibility Assessment
Plaintiff disputes the ALJ's finding that his testimony
described his symptomology outside of the adjudication period
and/or was otherwise incredible. Tr. 840, 841. When a claimant
has medically documented impairments that could reasonably be
expected to produce some degree of the symptoms complained of,
and the record contains no affirmative evidence of malingering,
"the ALJ can reject the claimant's testimony about the severity
of .
symptoms only by offering specific, clear and convincing
Page 10 - OPINION AND ORDER
reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th
Cir. 1996) (citation omitted).
A general assertion that plaintiff is not credible is
insufficient; the ALJ must "state which
. testimony is not
credible and what evidence suggests the complaints are not
credible." Dodrill v. Shalala, 12 F.3d 915, 918
(9th Cir. 1993).
The reasons proffered 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) (citation omitted). If, however, the
"ALJ's credibility finding is supported by substantial evidence
in the record, we may not engage in second-guessing."
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)
Thomas v.
(citation omitted).
At the 2007 hearing, plaintiff testified that due to the
workplace accident in 1997, he experienced intense pain in his
neck at all times, which was exacerbated by movement. Tr. 809-10.
He stated that his neck pain radiated down his lower back,
affecting his ability to sit, stand, walk, and perform
'activities of daily living'
("ADL's"). Tr. 811, 813. Plaintiff
further explained that movement caused tingling sensations in his
arms and legs. Tr. 809-811. He described spending days unable to
do anything but sit in his recliner due to neck and back pain.
Tr. 810. Plaintiff noted that he didn't take certain pain
medications because they made him sick, so he took Tylenol until
approximately 2005, when he was prescribed Lyrica. Tr. 816.
Page 11 - OPINION AND ORDER
Plaintiff further testified that he lives alone but is often
assisted by his niece, who lives nearby. Tr. 813. She assists him
with cleaning, and her husband assists with yard care. Id.
Plaintiff stated that he does little cooking and instead relies
on soups and microwave meals. Tr. 814. He does little driving,
most often to the store or to his niece's house. Id. He avoids
climbing stairs because of pain. Tr. 815.
After summarizing plaintiff's testimony, the ALJ determined
that plaintiff's medically determinable impairments could
reasonably be expected to produce some degree of symptoms, but
that niece's statements regarding the extent of these symptoms
were not fully credible for the following reasons:
(1) failure to
differentiate between the adjudication period at issue and
subsequent time period leading up to the hearing;
(2)
conservative treatment including long gaps between physician
visits;
(3) pain allegations which were out of proportion with
objective medical evidence; and (4) the ALJ's observations of
plaintiff at hearings in 2007 and 2011. Tr. 840-42.
First, the ALJ found that plaintiff's testimony was vague
regarding whether plaintiff was describing his pain and
impairment during or after the adjudication period. An ALJ may
rely on ordinary techniques of credibility evaluation. Smolen, 80
F.3d at 1284. Providing vague testimony with respect to alleged
period of disability and pain symptoms is an acceptable rational
for an ALJ to discount a claimant's credibility. Tommasetti v.
Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). Plaintiff generally
Page 12 - OPINION AND ORDER
did not differentiate between the adjudication period of 19972002 and the subsequent time period leading to the 2007 hearing
while testifying. Tr. 840. The ALJ noted that much of the
testimony appeared to describe his current, rather than past,
symptoms as plaintiff often spoke in the present tense when
describing his daily activities and pain complaints. See Tr. 809814. The ALJ explained that the medical records available from
2001 and 2002 do not mention complaints about "neck or back pain,
limitation in motion, neurological deficits, or sensory
complaints." Tr. 615-16, 844. However, two years after the 2002
date last insured, plaintiff reported that his neck pain
worsened, particularly following an incident in 2004. Tr. 613,
818-19, 844. As it was unclear whether plaintiff was describing
past or current limitations in his testimony, it was acceptable
for the ALJ to question its probity.
The ALJ also noted that medical records over the course of
the adjudication period revealed conservative treatment. Tr. 840.
Conservative treatment can be "sufficient to discount a
claimant's testimony regarding [the] severity of an impairment."
Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007). During the
relevant time period, Dr. Dordevich stated that conservative pain
medication was used because plaintiff "did not have evidence of
reflex changes or motor loss." Tr. 207. Plaintiff alleged that he
primarily used a non-prescription pain medication because more
powerful medications made him sick. Tr. 816. Acknowledging that
more powerful medication made plaintiff feel ill, the ALJ noted
Page 13 - OPINION AND ORDER
that plaintiff nonetheless failed to seek out alternative
medications. Tr. 840.
The ALJ also highlighted long gaps in plaintiff's treatment.
"The ALJ is permitted to consider lack of treatment in his
credibility determination." Burch, 400 F.3d at 681. The ALJ noted
that plaintiff "either did not need medical treatment, or was
unable to obtain medical treatment, for a significant number of
years" after settling his worker's compensation claim. Tr. 84041. Indeed, the record reflects that after February 1999 and
before the date last insured, plaintiff only sought care in
February 2001 for a tetanus shot, December 2001 for a flu shot,
and in July 2002 for a subcutaneous cyst; neck and back pain are
not mentioned at all. Tr. 615, 616, 844. Plaintiff's next
treatment for neck and back pain occurred in October 2004, two
years after the conclusion of the adjudication period, and
immediately following an incident where plaintiff was watching
his brother-in-law climb a ladder, looked upward, and suddenly
felt numbness. Tr. 613, 819. It is permissible to rely on
failure to report symptoms when assessing credibility. Greger v.
Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).
Plaintiff contends that he did not seek medical treatment
for two reasons: first, he was uninsured and unable to afford
care, and second, he was told doctors could not help him. Pl.'s
Reply Br. at 7. Plaintiff's contention that he was unable to
afford medical care is contradicted by the fact that he was able
to procure care in 2001 and 2002 for reasons other than his
Page 14 - OPINION AND ORDER
alleged disabling impairments, and then again when he resumed
treatment for his neck and ·back after the adjudication period.
Tr. 840, 844, 919-20. Similarly, plaintiff's assertion that he
did not seek treatment for his pain upon learning from his
doctors that he was not a good candidate for surgery is belied by
the fact that he returned to Dr. Dordevich for treatment in 2004.
Tr. 820.
Thus, the ALJ presented clear evidence supporting his
finding that plaintiff's conservative treatment and long gaps in
care suggested that his pain and impairment allegations were not
entirely credible. Even assuming that evidence relating to
plaintiff's conservative treatment and gaps in care was capable
of more than one rationale interpretation, because the ALJ's
finding was reasonable, it must be upheld. See Batson v. Comm'r
of Soc. Sec. Admin., 359 F.3d 1190, 1198
(9th Cir. 2004).
The ALJ also found that plaintiff's pain allegations were
often disproportionate to the objective medical evidence. Tr.
840. "While subjective pain testimony cannot be rejected on the
sole ground that it is not fully corroborated by objective
medical evidence, the medical evidence is still a relevant factor
in determining the severity of the claimant's pain and its
disabling effects." Rollins v. Massanari, 261 F.3d 853, 857
(9th
Cir. 2001). For example, the ALJ noted that not long after
plaintiff's accident, he was given an orthopedic and neurological
examination by neurologist Lawrence S. Ziven, M.D. and orthopedic
surgeon L. Phaon Gambee, M.D. Tr. 842-43; 545. Those doctors
Page 15 - OPINION AND ORDER
noted "no sensory dysfunction .
reflex loss .
. no motor dysfunction .
no
[i]n essence, no hard neurological findings
except for the small disc herniation." Id. Moreover, they would
"discount" his hyperextension complaints because his neck was
"vigorously" hyperextended during his back examination without
neck or upper extremity complaints. Id.
The ALJ explained that when plaintiff was evaluated by
neurological surgeon Dr. David J. Silver, M.D. in October 1997,
Dr. Silver was "hard-pressed to explain the worsening pain in
[plaintiff's] thoracic and lumbar areas in physical terms." Tr.
843; 394. Dr. Silver also noted that while the 1997 MRI revealed
a "small right paracentral disc protrusion," a 1998 MRI showed
that the disc protrusion appeared even smaller. Tr. 493.
Similarly, when plaintiff was examined by Thomas Rosenbaum, M.D.,
he noted that plaintiff's symptoms did not correspond to a 2004
MRI. Tr. 842; 435. Finally, as discussed above, despite
plaintiff's claims of persistent debilitating pain, the ALJ found
that plaintiff's visits to Dr. Dordevich between February 1999
and October 2004 did not include "any mention of neck or back
pain, limitation in motion, neurological defects, or sensory
complaints." Tr. 844. These specific examples clearly support the
ALJ's finding that the objective medical evidence did not always
support plaintiff's pain allegations. Thus, while these findings
are not alone dispositive of plaintiff's credibility, it was not
improper for the ALJ to find that plaintiff's pain allegations
Page 16 - OPINION AND ORDER
were not necessarily corroborated by the objective medication
evidence. Rollins, 261 F.3d at 857.
Finally, plaintiff objects to the ALJ's observation during
the hearings in 2007 and 2011 that "claimant's testimony of being
able to sit for only 10 minutes at a time is inconsistent with
his actions at either .
. with both [] lasting more than an
hour." Tr. 841. Plaintiff asserts that the ALJ discredited his
pain testimony because he did not exhibit pain symptoms at the
hearing. See Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir.
1984).
The ALJ stated he was only observing the inconsistency
inherent in plaintiff's ability to sit for substantially more
than ten minutes at a time despite his testimony to the contrary.
Tr. 841. However, the Court does not find the distinction
compelling because plaintiff alleged he could sit for no longer
than ten minutes during the adjudication period, not on the dates
of the hearings. Tr. 820.
Nonetheless, the ALJ's overall credibility conclusion may be
upheld even if some of the ALJ's reasons for rejecting the
claimant's testimony are upheld. Batson, 359 F.3d at 1197; see
also Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 116263. Therefore, the Court does not disturb the ALJ's ultimate
credibility finding.
III. Dr. Dordevich's Opinions
Plaintiff argues that the ALJ improperly discounted medical
opinions provided by Dr. Dordevich in affording them "little
weight." Tr. 845. The ALJ found that "the testimony and more
Page 17 -OPINION AND ORDER
recent reports from this primary care provider are not supported
by the objective records, and more importantly, are contradicted
by his own earlier opinions, which are consistent with the
records." Tr. 845 The ALJ explained that "[i]t is evident that
[the] role of this individual evolved from that of a primary care
provider to that of an active advocate for the claimant." Tr.
843. Plaintiff contends that the ALJ's rationale was unfoundedthat Dr. Dordevich's opinion did not change over time, and that
the ALJ "cited absolutely no evidence of improper advocacy."
Pl.'s Op. Br. at 16-17.
There are three types of medical opinions in social security
cases: those from treating, examining, and non-examining doctors.
Lester, 81 F.3d at 830. In considering medical evidence, "a
treating physician's opinion carries more weight than an
examining physician's, and an examining physician's opinion
carries more weight than a reviewing physician's." Holohan v.
Massanari, 246 F.3d 1195, 1202 (9th Cir.2001). More weight is
afforded to "opinions that are explained than to those that are
not,
and to the opinions of specialists concerning matters
relating to their specialty over that of nonspecialists." Id.
(citations omitted). To reject the uncontroverted opinion of a
treating or examining doctor, the ALJ must present clear and
convincing reasons for doing so. Bayliss, 427 F.3d at 1216
(citing Lester, 81 F.3d at 830-31). If a treating or examining
doctor's opinion is contradicted by another doctor's opinion, it
may be rejected for specific and legitimate reasons. Id. An ALJ
Page 18 - OPINION AND ORDER
is not required to accept a doctor's opinion that is brief,
conclusory, or inadequately supported by clinical findings.
Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
In support of his finding, the ALJ explained that Dr.
Dordevich's opinions changed over time, and that his more recent
opinions were not based on objective medical evidence. Tr. 84445. Most recently, Dr. Dordevich testified at the 2011 hearing
that he believed that plaintiff's cervical disc disease was
progressively worsening, as evidenced by the changes seen when
comparing MRI results between 1997 and 2004. Tr. 910. Dr.
Dordevich further testified that progressive degenerative
cervical disc disease could have caused plaintiff's alleged
aggravating neck and headache pain prior to 2002. Tr. 916.
In May 2005, several months after plaintiff exacerbated his
neck injury in October 2004, Dr. Dordevich wrote a letter to the
Social Security Administration in which he stated that plaintiff
had severe degenerative arthritic changes to his cervical spine
related to his 1997 work accident. Tr. 136. Dr. Dordevich further
noted that plaintiff had cervical radiculopathy, foraminal
stenosis, and sensory loss, precluding work activity with his
right and left upper extremity, and inability to sit or stand for
significant periods of time. Id. Dr. Dordevich concluded that
plaintiff "has not been able to able to work since 6/3/97, the
date of the injury" and that "[h]e has been disabled since that
date and is currently disabled." Id. Two years later in 2007, Dr.
Dordevich completed a checkbox form which indicated that
Page 19 - OPINION AND ORDER
plaintiff had not been capable of sedentary or light work, and
had severe limitations in ability to maintain concentration,
perform work activities on a schedule and maintain regular
attendance, and perform at a consistent pace. Tr. 132-35. Dr.
Dordevich added a hand-written note stating it was his "opinion
that patient's inability to work is not psychologically based.
His inability to work is based on physical limitations and pain
associated with the accident of 9/3/97 [sic]." Tr. 134.
The ALJ found that Dr. Dordevich's opinion that plaintiff
was disabled from the alleged onset date in 1997 until 2011 was
contradicted by his earlier opinions and treatment notes. Indeed,
a review of the record shows that in July 1997, Dr. Dordevich
released plaintiff to work without restrictions. Tr. 370. In
February 1998, Dr. Dordevich again released plaintiff to work,
this time with restrictions for light duty with some
limitatiops. Tr. 277-80. Furthermore, at the 2011
hear~ng,
Dr.
Dordevich stated that in 1998, he agreed with the physical
capacity evaluation which determined that plaintiff was capable
of light duty work. Tr. 842, 907. Significantly, the ALJ noted
that at that time, "the impartial therapists working with and
assessing the claimant, as well as the primary care provider, Dr.
Dordevich, were all in agreement on functional level." Tr. 843.
Based on the forgoing, the Court is somewhat perplexed by
plaintiff's contention that Dr. Dordevich's opinions did not
shift over time; in 1998, during the adjudication period, Dr.
Dordevich agreed that plaintiff was capable of light work;
Page 20 - OPINION AND ORDER
however, by 2005, Dr. Dordevich averred that plaintiff was
completely disabled, and had been so since 1997. Tr. 136, 907.
These opinions are in direct conflict.
Moreover, Dr. Dordevich's nearly illegible treatment notes
during the adjudication period do indeed indicate subjective pain
complaints, but despite plaintiff's contentions, only mention
extremity tingling once, on April 3, 1998. Pl.'s Op. Br. at 15;
Tr. 166. Dr. Dordevich's notes prior to 2004 regularly report
intact reflexes, adequate strength, and normal neurological
findings. Tr. 150-57, 160, 164, 165. Further, as noted above,
after February 23, 1999, there are no records regarding
plaintiff's work injury until nearly five years later, in October
2004. Tr. 169-71.
Plaintiff's assertion that Dr. Dordevich's more recent
opinions "are supported by the objective medical evidence,
including the progressive worsening of plaintiff's cervical
degenerative disc disease on each subsequent MRI" is unavailing.
Pl.'s Op. Br. at 17. As previously discussed, Dr. Silver found
that plaintiff's disc herniation actually appeared to decrease in
between the two MRI's during the adjudication period. Tr. 493.
Further, the complete absence of objective medical evidence
regarding the status of plaintiff's allegedly disabling
impairments between 1999 and 2002 supports the ALJ's finding that
Dr. Dordevich's opinions regarding plaintiff's condition during
that time are merely conjectural. Tr. 845.
Page 21 - OPINION AND ORDER
In sum, substantial evidence supports the ALJ's finding that
Dr. Dordevich's retrospective opinions regarding plaintiff's
functional ability conflict with the opinions he expressed
contemporaneous to the adjudication period. Such inconsistency is
a legitimate reason to afford Dr. Dordevich's opinions diminished
weight. 1 Bayliss, 427 F.3d at 1216. Moreover, even if the ALJ's
interpretation is one of several reasonable interpretations of
the evidence, it is rational and based on substantial evidence.
Therefore, the ALJ's conclusion is upheld. Burch, 400 F.3d at
679.
IV. Lay Witness Testimony
Plaintiff alleges that the ALJ erred by discrediting the
statements of Lisa Lee Jones-Garner, plaintiff's niece, which was
offered in the form of a letter in 2007. Tr. 85. An ALJ must
consider lay testimony as to a claimant's symptoms, and must also
provide a reason germane to the witness in order to discredit
her. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694
(9th
Cir. 2009). Here, the ALJ provided several germane reasons for
discrediting the witness:
(1) the degree of impairment she
described was unsupported by the objective medical records and
inconsistent with medical reports of plaintiff's functional and
actual abilities;
(2) she did not consider the date last insured
in describing claimant; and (3) her allegation that plaintiff was
1
Because the Court affirms the ALJ's finding regarding the
weight afforded the opinions of Dr. Dordevich, it is unnecessary
for the Court to comment on whether Dr. Dordevich's role as
plaintiff's primary care provider changed to active disability
advocate, as the ALJ suggested. Tr. 843-44.
Page 22 - OPINION AND ORDER
unable to spell and could barely read was contradicted by
documents found in the record. Tr. 841.
Ms. Jones-Garner asserted that since the day of the
accident, plaintiff has been unable to work. Tr. 85. She stated
that he is currently in constant neck and back pain even when at
rest, cannot stand or sit for any significant amount of time,
cannot lift his head to normal position most days, has severe
headaches and tingling arms, cannot lift a gallon of milk, is
unable to sleep, and is depressed, among other things. Id. While
Jones-Garner stated that plaintiff is unable to lift a gallon of
milk, a number of sources in the record suggests that plaintiff
could lift up to 25 pounds, at least during the adjudication
period. Tr. 85, 210, 502. Similarly, medical records from the
relevant period reflect that plaintiff was able to maintain
normal posture, which contrasts Jones-Garner's allegation that
plaintiff cannot maintain normal head positioning. Tr. 210, 249.
Further, the ALJ's observation that plaintiff's spelling and
reading levels are greater than Jones-Garner alleged are
supported in the record. Tr. 85, 841. The ALJ mentioned that
handwritten documents in the record contradict the contention
that plaintiff cannot spell and can hardly read, which is
supported by substantial evidence. Tr. 115-22 (benefits
application), 563-564 (1997 handwritten note). Plaintiff's
contention that the ALJ referred to an "unspecified" note and
that he could not "know if plaintiff had help from a friend or
family member in completing the note" are unconvincing. Pl.'s
Page 23 - OPINION AND ORDER
Rep. Br. at 9. The ALJ specifically identified the note as that
written on August 27, 1997; moreover, the note was written in the
first person and signed by plaintiff. Tr. 563-64, 841.
Thus, the ALJ supported his finding that inconsistencies
between the lay witness statements and the record diminished her
credibility. Tr. 841. Even if the ALJ was mistaken as to the
1997 note writer's true identity, the other reasons provided were
germane to the lay witness. Thus, the ALJ's finding must be
upheld.
V. Manipulative Limitations
Finally, plaintiff argues that the ALJ failed to account for
alleged manipulative limitations when questioning the VE and
identifying jobs in the national economy. Indeed, the ALJ did not
mention the vocational testing report dated May 5, 1998, which
determined that plaintiff had extremely limited finger and manual
dexterity. Tr. 218. However, "in interpreting the evidence and
developing the record, the ALJ does not need to discuss every
piece of evidence." Howard ex rel. Wolff v. Barnhart, 341 F.3d
1006, 1012 (9th Cir. 2003) (internal quotations omitted).
Plaintiff argues that his limited dexterity precludes him from
performing the three jobs the ALJ identified at step five, as the
jobs identified generally require manual dexterity. Pl.'s Rep.
Br. at 3. The Commissioner maintains that the ALJ was not
required to address the report insofar as it was not significant,
probative evidence. Def.'s Resp. Br. at 12. In support, the
Commissioner directs the Court to the cautious approach urged by
Page 24 - OPINION AND ORDER
the test's administrator, vocational evaluator Roy Katzen, M.S.,
C.R.C.:
[g]reat care must be exercised in interpreting
[plaintiff's] test results. This counselor's
observations may indicate that some of these low scores
are more a measure of the worker's pain level and/or
anxiety rather than aptitudes .
. any decisions
regarding [plaintiff's] vocational future should not be
based solely on these test results ...
Tr. 219.
While Mr. Katzen's report may not be probative alone, the
record reflects that plaintiff was administered a Minnesota Rate
of Manipulation Test in conjunction with the work capacity
evaluation in April 1998, wherein he scored in the very low range
of dexterity. Tr. 445. The ALJ purported to give the assessment
great weight. Tr. 843. Thus, as two independent pieces of
evidence support plaintiff's allegation that he had significant
dexterity limitations during the adjudication period, it was
improper for the ALJ not to address the issue. Because such
limitations were not included in the hypothetical questions to
the VE, the Commissioner failed to carry the burden of proof at
step five to identify jobs in the national economy.
On remand, the ALJ should assess the foregoing evidence of
plaintiff's manipulation limitations during the relevant period.
If the evidence is determined to be probative of a manipulative
impairment, the ALJ must identify jobs in the national economy
which plaintiff is capable of performing at step five.
Page 25 - OPINION AND ORDER
CONCLUSION
The
Commissioner's
decision
is
REVERSED
and
further proceedings consistent with this opinion.
Dated this
~y
of
Ann
United States District Judge
Page 26 - OPINION AND ORDER
REMANDED
for
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?