Toler-Dubanski v. Commissioner Social Security Administration
Filing
28
OPINION & ORDER: The Commissioner's decision is reversed and remanded for additional proceedings. On remand, the ALJ must determine whether Plaintiff is credible and proceed with the disability analysis if necessary. See 14-page opinion & order attached. Ordered by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CLARISSA TOLER-DUBANSKI,
Plaintiff,
v.
CAROLYN COLVIN, Commissioner,
Social Security Administration,
Defendant.
Bruce W. Brewer
Law Offices of Bruce W. Brewer, PC
PO Box 421
West Linn, OR 97068
Attorney for Plaintiff
Adrian L. Brown
U.S. Attorney’s Office
District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97204
1 - OPINION & ORDER
No. 3:12-cv-00973-HZ
OPINION & ORDER
Daphne Banay
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900, M/S 901
Seattle, WA 98105-7075
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Clarissa Toler-Dubanski brings this action for judicial review of the
Commissioner’s final decision denying his application for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act. I have jurisdiction under 42 U.S.C. § 405(g)
(incorporated by 42 U.S.C. § 1382(c)(3)). For the following reasons, I reverse the
Commissioner’s decision and remand for additional proceedings on the issue of Plaintiff’s
credibility.
BACKGROUND
Plaintiff was born in 1968 and was 40 years old at the alleged onset of disability. Tr.
141. She has a high school degree (Tr. 151) and reports past work as an office specialist. Tr.
146. Plaintiff alleged disability since November 9, 2008 (Tr. 33) due to fibromyalgia, a back
injury from an ATV accident, depression, and anxiety. Tr. 145.
The Commissioner denied her application initially and upon reconsideration (Tr. 58-59),
and an Administrative Law Judge (“ALJ”) held a hearing on November 17, 2010. Tr. 32. The
ALJ found Plaintiff not disabled on December 2, 2010. Tr. 14-16. The Appeals Council
declined review of the matter on March 30, 2012, making the ALJ’s decision the final decision
of the Commissioner. Tr. 2-4.
///
///
2 - OPINION & ORDER
SEQUENTIAL DISABILITY ANALYSIS
A claimant is disabled if 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).
Disability claims are evaluated according to a five-step procedure. See Valentine v.
Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the ultimate burden of proving disability.
Id.
In the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S.
137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In 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 not, the
claimant is not disabled.
In step three, the Commissioner determines whether the impairment meets or equals “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 141; 20 C.F.R. §§ 404.1520(d),
416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner
proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (RFC) to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the
claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five,
3 - OPINION & ORDER
the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at
141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his
burden and proves that the claimant is able to perform other work which exists in the national
economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
The ALJ found Plaintiff’s spine, rib, and scapula fractures; obesity; and fibromyalgia
“severe” at step two in the sequential proceedings. Tr. 19. At step three, the ALJ found that the
impairments, singly or in combination, did not meet or equal the requirements of any listed
impairment. Tr. 20. The ALJ assessed Plaintiff’s RFC and concluded that she could perform
“sedentary work…however she should never climb ladder/rope/scaffolds, crawl, or reach
overhead with her right (dominant) arm…avoid concentrated exposure to vibration…[and] is
limited to no more than occasional stooping, balancing, kneeling, crouching and climbing of
stair/ramp.” Tr. 21. The ALJ found that this RFC allowed Plaintiff to perform her past relevant
work as a secretary. Tr. 25. The ALJ therefore found Plaintiff not disabled under the
Commissioner’s regulations. Id.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if the Commissioner
applied proper legal standards and the findings are supported by substantial evidence in the
record. 42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th
Cir. 2004). “Substantial evidence” means “more than a mere scintilla, but less than a
preponderance.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009)
(quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Id.
4 - OPINION & ORDER
This court must weigh the evidence that supports and detracts from the ALJ’s conclusion.
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d
715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the
Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see
also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the
evidence are insignificant if the Commissioner’s interpretation is a rational reading. Id.; see also
Batson, 359 F.3d at 1193. However, this court cannot now rely upon reasoning the ALJ did not
assert in affirming the ALJ’s findings. Bray, 554 F.3d at 1225-26 (citing SEC v. Chenery Corp.,
332 U.S. 194, 196 (1947)); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)
(citing same).
DISCUSSION
Plaintiff raises several errors in the ALJ’s decision: (1) rejecting Plaintiff’s testimony as
not credible, (2) failure to find depression and other mental health impairments severe at step
two, (3) rejecting the opinion of treating physician Dr. Gordon Wolfe, and (4) rejecting the lay
witness statement of Henrietta Nelson.
I.
Credibility
The ALJ must consider all symptoms and pain which “can be reasonably accepted as
consistent with the objective medical evidence, and other evidence.” 20 C.F.R. § 404.1529(a).
Once a claimant shows an underlying impairment which may “reasonably be expected to
produce pain or other symptoms alleged,” absent a finding of malingering, the ALJ must provide
“clear and convincing” reasons for finding a claimant not credible. Lingenfelter, 504 F.3d at
1036 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)).
5 - OPINION & ORDER
The ALJ’s credibility findings 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 v. Sullivan, 947 F.2d 341, 345-46 (9th
Cir. 1991)(en banc)). 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 ALJ may additionally employ ordinary techniques of credibility
evaluation, such as weighing inconsistent statements regarding symptoms by the claimant. Id.
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,
466 F.3d at 883; see also Bunnell, 947 F.2d at 346-47.
As factors in his credibility determination, the ALJ cited to inconsistent statements about
physical limitations, activities of daily living, failure to seek treatment, and work history. Tr. 2223.
A.
Inconsistent Statements
The ALJ found inconsistencies in Plaintiff’s statements throughout the record, and relied
upon these inconsistencies in rejecting Plaintiff’s symptom testimony. Tr. 22-23. The ALJ may
cite such statements in assessing a claimant’s testimony. Smolen, 80 F.3d at 1284.
1.
Sitting Limitation
The ALJ cited to Plaintiff’s testimony that she could sit for only 10-15 minutes before
experiencing pain and numbness in her legs, and yet observed Plaintiff sitting through the 45minute hearing without apparent discomfort. Tr. 34. Additionally, Plaintiff testified that she
6 - OPINION & ORDER
drives once or twice a week for 20-minutes to visit her aunt’s house despite the 10-15 minute
sitting limitation. Tr. 49.
First, Plaintiff argues that the observation improperly turned the ALJ into a witness in the
proceeding. Pl.’s Br. 6. I disagree. “In instances where the individual attends an administrative
proceeding conducted by the adjudicator, the adjudicator may also consider his or her own
recorded observations of the individual as part of the overall evaluation of the credibility of the
individual’s statements.” Social Security Ruling (“SSR”) 1996 SSR LEXIS 4, at *14 (1996). It
was not improper for the ALJ to consider his own observations.
Second, Plaintiff argues that the ALJ may not apply a “sit and squirm” test to find
Plaintiff not credible regarding her sitting limitation. Pl.’s Br. 6. Plaintiff cited to Coats v.
Heckler, 733 F.2d 1338 (9th Cir. 1984) in support. In Coats, the issue was whether the ALJ
improperly rejected a doctor’s opinion because the claimant’s “appearance and physical
manifestations at the hearing belied her complaints of constant back and leg pain.” 733 F.2d at
1340. The court held that the ALJ’s reason was not sufficiently clear and convincing to reject
the doctor’s opinion. Id. Coats does not support Plaintiff’s argument that the ALJ could not
evaluate Plaintiff’s credibility based on personal observations.
2.
Walking Limitation
Plaintiff testified that she could only walk 35 feet before having to stop because of pain
and numbness in her legs. Tr. 35. But in her function report, Plaintiff stated that she could walk
for 10 minutes before needing rest (Tr. 174) and went shopping a few times a week for 30
minutes at a time (Tr. 172). The ALJ noted this inconsistency as a reason for finding Plaintiff
not credible. Tr. 22. Plaintiff’s function report is dated February 12, 2009, almost two years
7 - OPINION & ORDER
before the hearing. Given the temporal discrepancy of the statements from the hearing and
function report, there is no inconsistency. This finding is not affirmed.
B.
Activities of Daily Living
The ALJ noted that Plaintiff had no significant difficulty with personal care, taking care
of the household, cooking, cleaning, washing clothes, doing dishes, grocery shopping, and caring
for her four-year old child. Tr. 22. Plaintiff testified at the hearing that her arm function has
improved since she filled out the function report. Tr. 37.
The ALJ may cite a claimant’s activities of daily living in his credibility analysis,
Smolen, 80 F.3d at 1284, and may cite such activities in finding them inconsistent with a
claimant’s allegation of total disability. Batson, 359 F.3d at 1196. The record reflects the ALJ’s
findings regarding Plaintiff’s reports of her daily activities. Tr. 117-24, 263. This court must
defer to an ALJ’s interpretation of a claimant’s daily activities, even where other interpretations
more favorable to the claimant may arise. Rollins v. Massinari, 261 F.3d 853, 857 (9th Cir.
2001). This finding is affirmed.
C.
Failure to Seek Treatment
The ALJ found that other than pain medications and care immediately following the ATV
accident, Plaintiff self-discontinued physical therapy after two appointments. An ALJ may cite a
claimant’s failure to seek treatment in finding a claimant not credible. Smolen, 80 F.3d at 1284.
However, the ALJ failed to consider that Plaintiff lost her health insurance after December 2009.
Defendant concedes that this omission was error.
D.
Work History and Unemployment Benefits
The ALJ found that Plaintiff stopped working for reasons other than her impairments. Tr.
23. Plaintiff’s alleged onset date of disability is November 9, 2008—the date of the ATV
8 - OPINION & ORDER
accident. However, a treatment note dated October 29, 2008 stated that Plaintiff had been off
work the previous three weeks due to harassment at work. Tr. 227. Plaintiff’s treating physician
had put her on medical leave due to anxiety and depression as a result of harassment at work. Tr.
305. Defendant concedes that it was error to not consider that Plaintiff stopped work due to
anxiety and depression because of the harassment. Def.’s Br. 12.
Additionally, the ALJ’s credibility analysis discussed Plaintiff’s collection of
unemployment benefits. Tr. 23. The ALJ reasoned that Plaintiff represented herself as available
for work, which contradicted his application for disability benefits. Id. Collection of
unemployment benefits may undermine a claimant’s alleged inability to work full time.
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citing Copeland
v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988)). This is because unemployment benefit
applications may require that a claimant hold herself out as available for full time work.
Copeland, 861 F.2d at 542. Plaintiff’s unemployment benefits application is not in the record.
The record therefore does not establish the manner in which Plaintiff held herself available for
work. I cannot determine that Plaintiff made an assertion regarding her availability for work,
and an ALJ’s inference on the matter does not constitute a clear and convincing reason for
discrediting a claimant. Carmickle, 533 F.3d at 1162. Defendant concedes this error. Def.’s Br.
13.
E.
Credibility Conclusion
In summary, the ALJ’s findings regarding Plaintiff’s inconsistent statements about her
sitting limitation and her reported activities of daily living are based upon the record and
appropriate legal standards. The other three reasons given by the ALJ (walking limitation,
failure to seek treatment, and work history) were not affirmed. Although this court may affirm
9 - OPINION & ORDER
an ALJ’s overall credibility conclusion when not all of the ALJ’s reasons are upheld, Batson,
359 F.3d at 1197, I am unable to determine whether the ALJ would still have found Plaintiff not
credible based only on the two reasons that were affirmed. On remand, the ALJ must determine
whether Plaintiff is credible. Depending on the finding, it may be necessary to reformulate
Plaintiff’s RFC and proceed with the disability analysis.
II.
Step Two Severe Impairments
Plaintiff argues that the ALJ failed to find her depression and other mental impairments
severe at step two of the sequential analysis. 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 [a plaintiff’s] physical and mental ability to do basic work
activities.” 20 C.F.R. § 416.920(c). “The severity regulation increases the efficiency and
reliability of the evaluation process by identifying at an early stage those claimants whose
medical impairments are so slight that it is unlikely that they would be found disabled even if
their age, education, and experience were not taken into account.” Yuckert, 482 U.S. at 153.
Where the plaintiff meets the de minimis threshold, the ALJ continues with the sequential
analysis, considering the effect of all of the plaintiff’s impairments, whether severe or nonsevere. SSR 96-8p, 1996 SSR LEXIS 5 at *14-15. Therefore, reversible error occurs only when
a severe impairment excluded at step two caused additional functional limitations not accounted
for in the RFC assessment. Lewis v. Astrue, 498 F. 3d 909, 911 (9th Cir. 2007).
In this case, step two of the sequential analysis was resolved in Plaintiff’s favor, as the
ALJ continued to subsequent steps. Thus, any error in neglecting to mention Plaintiff’s
depression or bipolar disorder was harmless so long as all of her impairments were considered in
10 - OPINION & ORDER
the RFC. Id. Plaintiff does not argue that limitations due to her depression or bipolar disorder
were omitted from the RFC. In fact, the evidence in the record indicates that Plaintiff responded
well to medication to treat her depression and bipolar disorder. Tr. 309 (“depression is
reasonably controlled”), 310 (“bipolar II is well-controlled”), 383 (Plaintiff is “getting along
pretty well.”). Therefore, any error at step two was harmless.
III.
Treating Physician Opinion
Plaintiff argues that the ALJ failed to give controlling weight to treating physician Dr.
Gordon Wolfe.
Disability opinions are reserved for the Commissioner. 20 C.F.R. § 404.1527(e)(1).
When making that determination, the ALJ generally must accord greater weight to the opinion of
a treating physician than that of an examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th
Cir. 1995). The ALJ must also generally give greater weight to the opinion of an examining
physician over that of a reviewing physician. Id. If two opinions conflict, an ALJ must give
“specific and legitimate reasons” for discrediting a treating physician in favor of an examining
physician. Id. at 830. The ALJ may reject physician opinions that are “brief, conclusory, and
inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005).
Dr. Wolfe submitted a letter in which he concluded that Plaintiff should be found
disabled. Tr. 390-91. The ALJ found that Dr. Wolfe’s opinion was not supported by his
treatment notes. Tr. 24. For example, Dr. Wolfe stated in the letter that Plaintiff had undergone
extensive therapy, yet the record only reflects that she attended two physical therapy
appointments. Id. On September 10, 2009, Dr. Wolfe found that Plaintiff had normal strength
and reflexes in the lower extremities. Id. He could not find spinal etiology for Plaintiff’s
11 - OPINION & ORDER
symptoms and noted that Plaintiff’s symptoms did not fit a peripheral neuropathy. Id. On
October 1, 2009, Dr. Wolfe noted that Tramadol significantly helped with her back and right
scapular pain. Id. Finally, on December 29, 2009, there is no mention of back or scapular pain.
Id. The ALJ gave Dr. Wolfe’s opinion of disability little weight because his opinion was not
supported by treatment notes and his opinion was heavily based on Plaintiff’s self-report rather
than objective findings. Id.
Plaintiff argues that the ALJ erred because he failed to weigh the six factors in 20 C.F.R.
§ 404.1527 when weighing Dr. Wolfe’s opinion. When the treating source’s opinion is not given
controlling weight, these factors are used to determine the weight to give the opinion. 20 C.F.R.
§ 404.1527(2). The factors consider the length of the treatment relationship, the extent of the
treatment, evidence provided to support the opinion, consistency of the opinion, specialization of
the treating physician, and any other factors the claimant wishes the ALJ to consider. Id. at §
404.1527(2)(c). Plaintiff argues that if the ALJ had considered these factors, Dr. Wolfe’s
opinion should have been given controlling weight.
Plaintiff’s argument is unavailing. The ALJ’s reasons are reflected in the factors of 20
C.F.R. § 404.1527, specifically the evidence used to support the opinion and the consistency of
the opinion. As explained above, the ALJ found that the opinion was largely based on Plaintiff’s
self-report of symptoms and was inconsistent with his treatment notes. Plaintiff rebuts the ALJ’s
findings with argument, rather than evidence in the record. 1 Pl.’s Br. 13-14. The ALJ provided
specific and legitimate reasons to give Dr. Wolfe’s opinion little weight. The ALJ’s finding is
affirmed.
1
For example, to rebut the treatment notes that the ALJ cited regarding an absence of spinal
etiology or peripheral neuropathy, Plaintiff argues “Inaccurate: Dr. Wolfe found Plaintiff to be
completely straightforward and in 19 years never once did he see signs of malingering. The
referenced tests are like comparing apples and oranges[.]” Pl.’s Br. 13.
12 - OPINION & ORDER
IV.
Lay Witness Testimony
Plaintiff argues that the ALJ improperly rejected the testimony of Henrietta Nelson, her
mother. Tr. 13. The ALJ stated that he considered Nelson’s testimony but found it unhelpful
because it “closely followed claimant’s own self-report to an incredible degree[.]” Tr. 22.
The ALJ has a duty to consider lay witness testimony. 20 C.F.R. §§ 404.1513(d),
404.1545(a)(3); Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009). Friends and family
members in a position to observe the claimant’s symptoms and daily activities are competent to
testify regarding the claimant’s condition. Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir.
1993). The ALJ may not reject such testimony without comment and must give reasons germane
to the witness for rejecting her testimony. Bruce, 557 F.3d at 1115; Nguyen v. Chater, 100 F.3d
1462, 1467 (9th Cir. 1996).
Plaintiff argues that the ALJ rejected Nelson’s testimony because the testimony was
similar to Plaintiff’s own function report. Pl.’s Br. 15. Plaintiff misunderstands the ALJ’s
assessment of Nelson’s testimony. The ALJ did consider the testimony. But because the
testimony was so similar to Plaintiff’s own function report, the testimony did not provide
additional insight into Plaintiff’s limitations. Tr. 22. The ALJ’s finding is affirmed.
///
///
///
///
///
///
///
13 - OPINION & ORDER
CONCLUSION
Based on the foregoing, the Commissioner’s decision is reversed and remanded for
additional proceedings. On remand, the ALJ must determine whether Plaintiff is credible and
proceed with the disability analysis if necessary.
IT IS SO ORDERED.
Dated this
day of November, 2013
MARCO A. HERNANDEZ
United States District Judge
14 - OPINION & ORDER
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?