Chapman v. Commissioner Social Security Administration
Filing
16
OPINION AND ORDER. For the foregoing reasons, the decision of the ALJ is AFFIRMED. IT IS SO ORDERED. Signed on 07/15/2013 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SUSAN MARIE CHAPMAN,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
LISA R. J. PORTER
KP Law LLC
16200 S.W. Pacific Highway, Suite H-280
Portland~ Oregon 97224
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 s.w. Third Avenue, Suite 600
Portland, Oregon 97204-2902
MATTHEW W. PILE
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
3: 12-cv-01481-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff,
Susan
Marie
Chapman,
brings
this
action
for
judicial revie1v of a final decision of the Conunissioner of Social
Security (the Conunissioner) denying her application for disability
insurance benefits (DIB) under Title II of the Social Security Act
(the Act).
See 42 U.S.C.
pursuant to 42 U.S.C.
§
§§
401-434.
405(g).
This court has jurisdiction
For the reasons set forth below,
I affirm the final decision of the Conunissioner.
PROCEDURAL BACKGROUND
Plaintiff filed a prior application for DIB on March 30, 2005
alleging disability beginning October 30,
denied initially and upon reconsideration.
administrative law judge
February 19, 2008.
2003.
That claim was
After a hearing,
an
(ALJ) denied plaintiff's prior claim on
The Appeals Council affirmed and plaintiff did
not seek review in this court.
Plaintiff protectively filed the instant application for DIB
on April 23, 2009, alleging disability due to:
Panic a,nd Anxiety D/0, Bulged/herniated discs, back/neck,
Fluid
on
spine,
Hole
on
right
shoulder,
Arthritis/Scoliosis, lump in hip, Migraines herniated
discs in neck and back, migraine headaches, panic
attacks, anxiety, fluid on spine, Right shoulder area has
soft tissue problems that doctor described as "swiss
cheese" which causes pain, limitations in range of
motion, and weakness in right upper extremity.
Panic
anxiety attacks and problems throughout back.
Tr. 201 (errors in original).
and
upon
reconsideration.
2 - OPINION AND ORDER
Her application was denied initially
A
hearing
was
held
before
an
Administrative
Law
Judge
(ALJ)
on
April
14,
2010,
plaintiff was represented by counsel and testified.
plaintiff's mother-in-law,
Eileen Nutt,
Chapman, testified at the hearing.
On
December
2,
2010,
the
at
which
In addition,
and daughter,
Christein
Tr. 70-83.
ALJ
issued
a
decision
plaintiff not disabled within the meaning of the Act.
finding
After the
Appeals Council declined review of the ALJ's decision, plaintiff
timely filed a complaint in this court.
FACTUAL BACKGROUND
Born on March 24,
1960,
plaintiff was 43 years old on the
alleged onset date of disability and 50 years old on the date of
the
hearing.
Plaintiff
has
a
relevant work as a rating clerk,
high
school
diploma,
and
assistant office clerk,
past
credit
clerk, customer service representative, data entry clerk, janitor,
and babysitter.
Plaintiff alleges her disabilities became disabling on January
20,
2004.
In
addition
submitted an Adult
to
the
hearing
Function Report.
Tr.
testimony,
222-29.
plaintiff
Plaintiff's
friends, Gil Aragon and Jo A. Guffey, as well as her husband, Aaron
Chapman, submitted witness statements.
Tr. 269-92.
As relevant to this case, Jae Park, M.D., one of plaintiff's
treating physicians, submitted an opinion dated August 5, 2008, and
a Physical Residual Functional Capacity Report dated May 21, 2009.
Tr. 324, 339-40.
Another of plaintiff's treating physicians, Petya
3 - OPINION AND ORDER
Gueordjeva, M.D., submitted two opinions dated January 11, 2007,
one
concerning plaintiff's
physical
Tr.
plaintiff's mental limitations.
Wicher,
Ph.D.,
limitations
293-'96,
M.D.,
Lahr,
evaluated
M.D.,
other
Donna C.
evaluated plaintiff and submitted a Comprehensive
plaintiff
evaluation dated April 20, 2009.
B.
the
378-81.
Psychodiagnostic Evaluation dated May 1, 2009.
Cowan,
and
reviewed
and
submitted
Tr. 333-37.
plaintiff's
Tr. 325-29.
a
Amy
physical
In addition, Martin
records
and
Physical Residual Functional Capacity Assessment.
submitted
a
Tr. 369-76.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
sequential
Bowen v.
process for determining whether a person is disabled.
Yuckert,
482
u.s.
137,
potentially dispositive.
Cir. 1999).
show that
(1987);
20
C.F.R.
Each
416.920 (a) (4) (i)- (v).
404.1520(a) (4) (i)-(v),
Steps One through Four.
140-42
step
§§
is
The claimant bears the burden of proof at
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th
The burden shifts to the Commissioner at Step Five to
a
significant
number of
jobs
economy that the claimant can perform.
exist
in the
See Yuckert,
national
482 U.S. at
141-42; Tackett, 180 F.3d at 1098.
At Step One, the ALJ determined that plaintiff did not engage
in
substantial
gainful
activity during
the
period between the
alleged onset date, January 20, 2004, and her last date insured,
March 31, 2008.
See 20 C.F.R.
4 - OPINION AND ORDER
§
404.1571 et seq.; Tr. 26.
At Step Two, the ALJ determined that plaintiff's degenaerative
disc disease of the lumbar and cervical spine, headaches, anxiety
disorder, and adjustment disorder are severe impairments.
C.F.R.
See 20
404.1520(c); Tr. 26.
§§
At Step Three, the ALJ determined that plaintiff does not have
an impairment or combination of impairments that meet or medically
equal
any
listed
impairment.
See
20
C.F.R.
§§
404.1520(d),
404.1525, 404.1526; Tr. 26-28.
The
capacity
ALJ found
(RFC)
that
plaintiff has
to perform light work,
the
residual
functional
except that plaintiff can
only occasionally climb, balance, stoop, kneel, crouch, and crawl;
can only perform simple tasks involving minimal interaction with
the
public;
and
can
have
occasional
interaction
with
others,
although she can only perform tasks requiring minimal input from
others, such as supervisors.
At
Step
Four,
Tr. 28-34.
the ALJ found
perform any past relevant work.
At
Step
Five,
significant numbers
however,
that
plaintiff
See 20 C.F.R.
the ALJ found
§
is
unable
to
404.1565; Tr. 30.
that
jobs
exist
in
in the national economy that plaintiff can
perform, including Small Products Assembler and Cleaner/Polisher.
See 20 C.F.R.
§§
Accordingly,
404.1569, 404.1569(a), 404.1568(d); Tr. 35-36.
the ALJ found that plaintiff was not disabled
within the meaning of the Act.
Ill
5 - OPINION AND ORDER
ISSUES ON REVIEW
Plaintiff raises three issues on appeal.
First,
plaintiff
Second,
argues that the ALJ improperly rejected her testimony.
plaintiff submits that the ALJ inappropriately weighed the medical
testimony by improperly discrediting the opinions of Drs. Park and
Cowan,' and gave too much weight to Dr.
Third,
Lahr's opinion.
plaintiff maintains that the ALJ improperly discredited the lay
As such, plaintiff concludes that the RFC is
witness testimony.
unsupported by substantial evidence.
STANDARD OF REVIEW
The
court must
affirm the
Commissioner's
decision
if
the
Commissioner applied proper legal standards and the findings are
supported by substantial evidence
405(g); Andrews v.
Shalala,
in the
53 F.3d 1035,
42
record.
1039
u.s.c.
(9th Cir.
§
1995).
"Substantial evidence means more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
court must
weigh all
of
the
evidence,
whether
detracts from the Commissioner's decision.
807 F.2d 771, 772 (9th Cir. 1986).
to
more
than
one
rational
1
it
Id.
The
supports
Martinez v. Heckler,
If the evidence is susceptible
interpretation,
the
Commissioner's
Although plaintiff mentions Dr. Gueordjeva in her
discussion of the rejection of· Dr. Park's opinions, it does not
appear plaintiff assigns error to the ALJ's treatment of Dr.
Gueordjeva's opinions.
6 - OPINION AND ORDER
or
Andrews,
decision must be upheld.
53 F.3d at 1039-40.
If the
evidence supports the Commissioner's conclusion, the Commissioner
must be affirmed;
"the court may not substitute its judgment for
Edlund v. Massanari,
that of the Commissioner."
253 F.3d 1152,
1156 (9th Cir. 2001).
DISCUSSION
I.
Res Judicata
As
a
preliminary
matter,
the
doctrine
of
res
judicata
significantly affects this court's review of the ALJ's decision in
this case.
"The principles of res judicata apply to administrative
proceedings."
Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988).
Where a prior final decision of the Commissioner finds a claimant
not disabled within the meaning of the Act, the ALJ's decision is
generally conclusive as to the adjudicated period and creates a
presumption of continuing non-disability.
Id.; Stubbs- Danielson v.
Astrue, 539 F. 3d 1169, 1173 (9th Cir. 2008).
burden
of
overcoming
that
presumption
The claimant has the
by
circumstances indicating greater disability.
693.
by
proving
changed
Chavez, 844 F.3d at
As relevant here, a claimant may prove changed circumstances
demonstrating
existence
of
application."
an
an
exacerbation
impairment
not
of
her
impairment
considered
in
the
or
"the
previous
Lester v. Chater, 81 F. 3d 821, 827 (9th Cir. 1995).
An ALJ's determination that a claimant has failed to prove changed
circumstances ·is reviewed for substantial evidence.
7 - OPINION AND ORDER
See Schuff v.
Astrue, 327 Fed. Appx. 756, 2009 WL 1416747, at *1 (9th Cir. May
21, 2009) .
A claimant must
establish disability before her last date
See Webb v. Barnhart, 433 F. 3d 683, 690 (9th Cir. 2005).
insured.
Thus, plaintiff must prove that her circumstances changed so as to
rebut the presumption of continuing non-disability between the date
the ALJ issued the decision denying plaintiff's prior application
and the last date insured.
The prior ALJ issued his opinion on
February 19, 2008 and plaintiff's last date insured was March 31,
Tr.
2008.
103,
197.
Thus,
plaintiff
must
that
prove
her
circumstances changed so as to indicate greater disability between
February 19 and March 31, 2008.
Plaintiff argues that res judicata does not apply because the
syrinx in her thoracic spine was a new impairment that was not
considered in the pri2r adjudication.
I ·disagree.
While I agree
that "the existence of an impairment not considered in the previous
applicationn constitutes changed circumstances, plaintiff's syrinx
was considered by the prior ALJ.
Tr.
96-97; Lester,
81 F. 3d at
In fact, the only imaging of plaintiff's syrinx currently in
827.
the record is that which the prior ALJ considered.
existence
of
plaintiff's
syrinx
is
not,
by
itself,
Thus,
a
the
changed
circumstance. 2
2
Plaintiff also argues that alleged errors by counsel after
the denial of her prior application bar the application of res
8 - OPINION AND ORDER
Plaintiff's
burden,
then,
was
to
demonstrate
that
her
impairments worsened between February 19, 2008 and March 31, 2008
The ALJ
such that they were indicative of greater disability.
concluded that plaintiff failed to carry that burden.
Tr. 24.
As
discussed below, I find that the ALJ's conclusion in this respect
is supported by substantial evidence, and accordingly affirm.
II.
Plaintiff's Testimony
In deciding whether to accept subjective symptom testimony, an
ALJ must perform two stages of analysis.
416.929.
evidence
First,
the
claimant
of an underlying
must
produce
impairment
that
expected to produce the symptoms alleged.
F. 3d 1273, 1281-82 (9th Cir. 1996).
20 C.F.R.
§§
404.1529,
objective
medical
could reasonably be
Smolen v.
Chater,
80
Second, absent a finding of
malingering, the ALJ can reject the claimant's testimony about the
severity of her symptoms
only by offering specific,
convincing reasons for doing so.
clear and
Id. at 1281.
If an ALJ finds that the claimant's testimony regarding her
subjective symptoms is unreliable, the "ALJ must make a credibility
the
reasons
why
the
testimony
is
determination
citing
unpersuasive."
Morgan v. Apfel, 169 F.3d 595, 599 (9th Cir. 1999).
judicata to this application.
This argument is without merit.
Administrative res judicata may not apply if a claimant was not
represented by counsel in the prior hearing.
Lester, 81 F.3d at
827-28.
Plaintiff was represented by counsel in her prior
proceeding.
9 - OPINION AND ORDER
In doing so, the ALJ must identify what testimony is credible and
what
testimony
undermines
the
claimant's
complaints,
and make
"findings sufficiently specific to permit the court to conclude
that
the
testimony.
ALJ
n
did
not
arbitrarily
discredit
[the]
claimant's
Thomas v. Barnhart I 278 F. 3d 94 7 I 958 (9th Cir. 2002) .
The ALJ may rely upon ordinary techniques of credibility evaluation
in weighing the claimant's credibility.
F. 3d 1035,
Tommasetti v. Astrue, 533
1039 (9th Cir. 2008).
At the November 16, 2010 hearing, consistently speaking in the
present tense,
plaintiff testified that she can only stand for
between 15 and 20 minutes, and can sit for approximately 20 minutes
at a time.
to-two
Tr. 48.
blocks
Plaintiff stated that she can only walk one-
before
having
to
squat
or
bend over.
Tr.
47.
Plaintiff reported that she has severe migraine headaches that
require shots twice per month that can last from a few hours up to
a
week.
Tr.
49.
Plaintiff testified that
her left
shoulder
problems have caused her to stop using her left arm because she
cannot lift it past her shoulder, straighten it, or lay on it.
50-51.
Tr.
Plaintiff reported that a bulged or herniated disc in her
neck limits her ability to turn her head laterally and, to a lesser
extent, look up or down.
Tr. 51-52.
Plaintiff testified that she
has debilitating panic attacks three to four times per week that
can last from one to three hours, and has been suffering from such
attacks since at least 2000.
10 - OPINION AND ORDER
Tr. 53-54.
Plaintiff testified that
her
conditions
have
worsened
since
greater pain, anxiety, and panic.
February
Tr.
of
2008,
causing
60-61.
As to her daily activities, plaintiff testified that she only
performs 25 to 30 percent of the household chores, and spends three
to five hours per day reclining.
Tr. 62.
Plaintiff reported that
she can stay in a crouching position for one or two minutes,
crawl for up to five minutes,
significant pain.
Tr.
63-64.
can
but cannot bend or stoop without
Plaintiff stated that she does not
like to be among crowds, and has difficulty completing tasks in a
timely manner.
Tr. 65-66.
In addition, plaintiff stated that she
has difficulty with her memory such that she cannot follow the plot
of a movie, and often cannot recall what took place five minutes in
the past.
Tr. 67.
Plaintiff concluded that her pain is so severe
that she is unable to function 50 percent of the time.
Tr.
69.
In an Adult Function Report completed June 18, 2009, plaintiff
reported that in a typical day she walks with her daughter part of
the way to school,
returns home to lie down,
walks the dog for a
block-and-a-half two to three times per day,
puts dishes in the
washer,
watches
Plaintiff
television,
reported that
she
and cooks
feeds,
albeit with her daughter's help.
simple meals.
walks,
Tr. 223.
and bathes
Tr.
222.
her
dog,
Plaintiff stated that
she does "extremely minimal cleaning or housework" and does no yard
work.
Tr. 224.
telephone,
Although she speaks with friends and family on the
plaintiff reported she
11 - OPINION AND ORDER
only visits people
in person
about once every four months.
the house,
with
Tr. 226.
When plaintiff does leave
she reported she needs her daughter or husband to go
her.
Id.
Plaintiff
reported
that
she
has
difficulty
following written and spoken instructions, and becomes overwhelmed
very easily.
Tr.
Plaintiff checked that her conditions
227.
affect her abilities to lift, squat, bend, stand, reach, walk, sit,
kneel,
climb
remember,
stairs,
complete
understand, and follow instructions.
reported that "[within)
Id.
tasks,
concentrate,
On the whole, plaintiff
just the last 12 month [sic) my physical
and mental condition has gotten even worse."
Tr. 229.
The ALJ rejected plaintiff's testimony because plaintiff's
allegations of substantial functional limitations are inconsistent
with record evidence,
including plaintiff's activities of daily
living; plaintiff has only received conservative, routine medical
treatment; and plaintiff's testimony does not significantly differ
from
her
testimony
application.
in
the
proceedings
concerning
her
prior
Tr. 30-31.
Plaintiff's testimony of significant functional limitations is
inconsistent
plaintiff
with
told
other
Dr.
Cowan
record
that
evidence.
As
the
"[s) he
do
all
can
ALJ
of
noted,
her
own
activities of daily living and laundry, but she does need help with
deep
housecleaning."
Tr.
334.
Similarly,
although plaintiff
described somewhat lesser activities of daily living to Dr. Wicher,
she still reported that during the day she "'putzes' around the
12 - OPINION AND ORDER
house, trying to do dishes and other household chores," although
she is behind on them.
these
varying
testimony
Tr.
statements
that
she
327.
were
does
inconsistent
"extreme
housework due to pain/fatigue."
at
a
September
3,
2010
The ALJ reasonably concluded
[sic]
Tr. 224.
appointment
with
minimal
plaintiff's
cleaning
or
As the ALJ also noted,
with
Dr.
Park,
plaintiff
reported she had "[j]ust [come] from the beach [and] walked a lot,"
although that was followed by a note that simply stated "[m] ore
painful."
that
Tr. 407.
this
was
Nonetheless, the ALJ could reasonably conclude
inconsistent
with
significant walking limitations.
plaintiff's
testimony
of
Moreover, plaintiff's allegations
of significant memory problems,
such that
she cannot at times
remember "five minutes from now," are contradicted by Dr. Wieber's
finding that "no gross deficits in memory or concentration were
noted."
Tr. 67, 327.
plaintiff's
activities
The ALJ properly cited inconsistency between
testimony
of
other
record
living,
daily
and
as
basis
a
evidence,
for
including
discrediting
her
testimony.
The ALJ also rejected plaintiff's testimony because her course
of treatment was routine and conservative.
A conservative course
of treatment is a proper basis on which to reject a claimant's
testimony of severe impairment.
(9th
Cir.
2007).
As
the
documentation in the record,
13 - OPINION AND ORDER
Parra v. Astrue, 481 F.3d 742, 751
ALJ
noted,
throughout
the
medical
plaintiff is consistently treated
exclusively with pain medication.
aggressive treatment.
There is no discussion of more
In fact, as Dr. Park noted, plaintiff "was
evaluated by a neurologist who does not think any interventions
plaintiff
while
As the ALJ also pointed out,
Tr. 324.
[are) needed at this time.n
that
testified
for
injections
received
she
migraines, there does not appear to be any medical documentation in
the record of such treatment.
a
routine,
Tr. 31. 3
course
conservative
of
The ALJ reasonably cited
treatment
as
a
for
basis
rejecting plaintiff's testimony.
Finally, the ALJ pointed out that plaintiff's testimony was
not evidence of changed circumstances because it was largely the
and
same as the testimony she provided in the prior proceeding,
thus was not directly relevant to whether plaintiff's condition
worsened during the relevant period.
Indeed, as the ALJ pointed
out, much of plaintiff's testimony appears similar to that which
the
prior ALJ
summarized
in
her
decision.
See
tr.
In
94.
addition, plaintiff's June 18, 2009 Function Report states that her
condition had worsened "[within] just the last 12 month [sic],
of which was after the
last date
insured.
Tr.
229.
n
all
The ALJ
properly rejected plaintiff's testimony because it largely did not
relate
to
the
circumstances.
relevant
In sum,
3
period
for
determining
changed
I conclude that the ALJ cited clear and
I note, however, that many of plaintiff's treatment notes
are illegibly handwritten.
14 - OPINION AND ORDER
convincing
reasons
for
discrediting
plaintiff's
testimony
as
relevant to establishing changed circumstances during the relevant
period.
The ALJ properly discredited plaintiff's testimony.
III. Medical Testimony
Plaintiff next argues that the ALJ erroneously weighed the
medical
The
testimony.
convincing
reasons
to
Commissioner
reject
treating or examining physician.
the
must
provide
uncontradicted
clear
opinion
Lester, 81 F.3d at 830-31.
and
of
a
Where
a physician's opinion is contradicted by that of another physician,
the ALJ may reject the physician's opinion by providing specific
and legitimate reasons supported by substantial evidence in the
"'The
record.
physician,
brief,
ALJ need
including a
conclusory,
findings.'•
not
accept
treating physician,
and
inadequately
the
if
opinion
that
supported
of
any
opinion is
by
clinical
Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012)
(quoting Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th
Cir. 2009)).
evidence,
"'Where . . . the record contains conflicting medical
the
ALJ is
charged with
resolving the conflict.' •
Id.
F. 3d 1030,
1040
(9th Cir.
2003)).
translating
the
claimant's
limitations in the RFC.
credibility and
(quoting Benton v.
medical
Barnhart,
331
The ALJ is responsible for
conditions
into
functional
See Stubbs-Danielsen v. Astrue, 539 F.3d
1169, 1174 (9th Cir. 2008).
15 - OPINION AND ORDER
determining
Ultimately, the RFC is sufficient if
it
is
"consistent with
in
identified
the medical
Id.
testimony."
A.
restrictions
Park
Dr.
Dr. Park submitted three opinions.
First, on August 5, 2008,
Dr. Park submitted a brief letter in which he listed plaintiff's
stated
diagnoses,
that
plaintiff's
limitations
appear
to
be
worsening, and that plaintiff was evaluated by a neurologist but
that no, intervention was necessary.
Tr.
324.
Second,
Dr.
Park
completed a Physical Residual Functional Capacity Report on May 21,
Dr. Park opined that plaintiff could only lift less than 10
2009.
pounds occasionally, and nothing at all frequently; could only sit
or stand for 30 minutes per day; could only occasionally climb, and
never stoop,
kneel, crouch, or crawl; that plaintiff could never
handle or engage in gross manipulation, and only occasionally reach
in all directions; should avoid all exposure to extreme cold and
hazards, and avoid occasional exposure to extreme heat, humidity,
noise, and vibration.
Tr. 339-40.
Dr. Park listed "vaginal bleed,
syrinx, spinal stenosis, and disc hernia scoliosis as plaintiff's
diagnoses
and
indefinitely.
opined
Tr. 340.
that
plaintiff's
condition
would
last
Finally, Dr. Park submitted another short
letter on March 3, 2011 that largely mirrored his August 5, 2008
letter.
Tr. 412.
The ALJ gave Dr. Park's opinions limited weight because they
did not specifically relate to the relevant time period, were not
16 - OPINION AND ORDER
supported by objective medical evidence, and were inconsistent with
plaintiff's self-report of activities.
Tr.
Dr.
31-32.
Park's
opinion and Residual Functional Capacity Report were inconsistent
with the limitations found by examining physician, Dr. Cowan, and
reviewing physician,
Dr.
Lahr.
Thus,
the ALJ was
required to
provide specific and legitimate reasons, supported by substantial
record evidence, to reject Dr. Park's opinion.
See Lester, 81 F.3d
I conclude that the ALJ's reasons for rejecting Dr.
at 830-31.
Park's opinions surpass this standard.
The
ALJ' s
specifically
finding
address
that
Dr.
relevant
the
substantial evidence and is a
Park's
period
opinions
is
did
supported
compelling reason why Dr.
opinions do not establish changed circumstances.
not
by
Park's
In his first
opinion, Dr. Park referred to an evaluation by a neurologist, but
the only neurological evaluation in the record took place on April
4, 2007, almost one year before the relevant period.
Tr. 297.
In
addition, Dr. Park's second opinion was completed on May 21, 2009,
more than one year after the relevant period.
Tr. 339.
Finally,
Dr. Park's third opinion was written on March 3, 2011, three years
after the relevant period.
Tr. 412.
None of Dr. Park's opinions
make reference to the relevant period or any changes that took
place between February and March of 2008.
cited
Dr.
Park's
failure
17 -OPINION AND ORDER
to
The ALJ appropriately
specifically address
the
relevant
period as a reason why Dr. Park's opinions do not establish changed
circumstances.
The ALJ also discredited Dr. Park's opinions because they were
not
supported by objective medical
evidence.
Notably,
in
his
August 5, 2008 opinion, Dr. Park opined that plaintiff had a disc
hernia at L4-5, but the only lumbar spine imaging in the record, a
fvlarch 28, 2009 exam, revealed an "unremarkable lumbar spine," with
only "[m] ild endplate irregularity
vertebral bodies."
Tr. 338.
of the Ll through L4
In addition, Dr. Park noted "spinal
stenosis CS-6 level," but the only imaging in the record found only
"mild impingement" at CS-6.
Tr. 307-08.
In his RFC report,
Dr.
Park noted that plaintiff could never engage in handling and gross
manipulation.
Tr.
340.
Yet,
during her examination,
Dr. Cowan
found no limitation in plaintiff's grasping or gross motor skills.
Tr.
336-37.
The ALJ reasonably discredited Dr.
Park's opinion
because it was unsupported by objective evidence.
Finally, the ALJ discredited Dr. Park's opinion because it was
inconsistent with plaintiff's activities of daily living.
ALJ noted,
Dr.
As the
Park opined that plaintiff could never crouch,
despite her testimony that she can crouch provided she does not
have to stay in a crouching position for an extended period of
time.
Tr.
63-64,
339.
In addition,
Dr.
Park's
opinion that
plaintiff has severe limitations in walking is in tension with
plaintiff's report to him that she "walked a lot" at the beach.
18 - OPINION AND ORDER
Compare tr. 324, 339, 412, with tr. 407.
The ALJ reasonably cited
inconsistency between Dr. Park's opined limitations and plaintiff's
self-reported activities of daily living in discrediting Dr. Park's
opinion.
In
sum,
legitimate reasons,
I
conclude that
the ALJ cited specific and
supported by substantial record evidence to
reject Dr. Park's opinions.'
B.
Dr. Cowan
Plaintiff
next
argues
that
rejecting Dr. Cowan's opinion.
the
ALJ
erred
in
partially
Dr. Cowan evaluated plaintiff on
April 20, 2009, more than one year after the relevant period.
Dr.
Cowan opined that plaintiff could sit for up to four hours,
and
stand and walk for up to four hours in an eight-hour day;
lift 20 pounds occasionally and 10 pounds
frequently;
limited to occasional stooping, crouching, or crawling.
could
and was
Tr. 337.
The ALJ gave Dr. Cowan's opinion some weight, and incorporated all
of Dr. Cowan's opined functional limitations into the RFC except
4
The ALJ additionally found that Dr. Park failed to list
the specific symptoms and limitations associated with plaintiff's
syrinx.
Plaintiff argues that this was an invalid basis to
reject Dr. Park's opinion because the ALJ failed to fully develop
the record in this respect.
The mere fact that a more detailed
opinion from Dr. Park may have provided additional support to
plaintiff's case does not trigger the ALJ's duty to develop the
record, especially where, as here, plaintiff was represented by
counsel.
See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th
Cir. 2001). There is ample evidence of plaintiff's back
limitations in the record as a whole.
In any event, I find that
the ALJ's reasons for rejecting Dr. Park's opinions are
sufficient independent of this reason.
19 - OPINION AND ORDER
the four-hour limitation on sitting, standing, and walking.
Tr.
Because Dr. Cowan's opinion as to the sitting and standing
28.
limitations was contradicted by Dr. Lahr, the ALJ was required to
cite
supported by substantial
specific and legitimate reasons,
record evidence,
to reject Dr. Cowan's opinion in this respect.
See Lester, 81 F.3d at 830-31.
Along with much of the rest of the opinion evidence, the ALJ
partially rejected Dr. Cowan's opinion because it did not cover the
period relevant for the disability determination.
Tr.
31.
Dr.
Cowan's evaluation took place more than one year after the relevant
The ALJ reasonably concluded that Dr. Cowan's findings on
period.
examination bear a limited relationship to the determination of
whether plaintiff's condition changed between February and March of
Additionally, while Dr. Cowan appears to have reviewed some
2008.
records provided by plaintiff, the only records cited predate the
relevant period.
Tr. 333-34.
As such, the ALJ properly partially
rejected Dr. Cowan's opinion as to sitting, standing, and walking
limitations because it did not cover the relevant period.
a
and
specific
legitimate
reason,
by
supported
This is
substantial
evidence, to partially reject Dr. Cowan's opinion.
C.
Dr. Lahr
Plaintiff also argues that the ALJ gave Dr.
weight
in
treating
adopting
and
Dr.
examining
20 - OPINION AND ORDER
Lahr' s
Although
RFC.
physicians
are
Lahr too much
the
generally
opinions
given
of
greater
weight than those of reviewing physicians, because the ALJ properly
discredited the opinions of Drs.
Park and Cowan, at least to the
extent inconsistent with Dr. Lahr, the ALJ could reasonably rely on
Dr.
Lahr' s opinion. 5
(9th Cir. 2012).
See Chaudhry v. As true,
688 F. 3d 661,
671
I conclude that the ALJ appropriately weighed the
medical testimony with respect to whether plaintiff demonstrated
changed circumstances between the date of the last ALJ opinion and
plaintiff's last date insured.
IV.
Lay Testimony
Plaintiff next argues that the ALJ improperly rejected the lay
testimony of Gil Aragon and Jo Guffey, plaintiff's friends; Aaron
Chapman,
plaintiff's
husband;
plaintiff's
daughter
Chapman; and plaintiff's mother-in-law, Eileen Nutt.
Christein
Lay testimony
regarding a claimant's symptoms or how an impairment affects her
ability to work is competent evidence that an ALJ must take into
account.
Molina v. Astrue,
674 F. 3d 1104, 1114
(9th Cir. 2012).
To discount lay witness testimony, the ALJ must give reasons that
are germane to the witness.
5
Id.
Plaintiff's argument that Dr. Lahr mischaracterized the
Indeed, plaintiff's characterization of
record is without merit.
For example, Dr. Lahr did not
Dr. Lahr's opinion was inaccurate.
minimize plaintiff's syrinx as "fluid on the spine,n as plaintiff
Rather, Dr. Lahr's reference to
Pl's Brief at 23.
argues.
a verbatim reference to plaintiff's own
"fluid on the spinen was
Moreover, a
Compare Tr. 374, with Tr. 201.
allegations.
reviewing physician need not summarize every piece of evidence in
the record, especially where, as here, much of that evidence
predates the period relevant to establishing disability.
21 - OPINION AND ORDER
A.
Mr. Aragon
Mr.
Aragon
plaintiff
submitted
two
to
neighborhood.
three
a
statement
times
per
reporting
week
that
walking
he
in
saw
their
Mr. Aragon stated that he frequently sees plaintiff
walking her dog, and that she appears depressed and often tearful.
Tr. 270.
Mr. Aragon reported that plaintiff would tell her that
she was having problems with pain and that walking the dog was
painful.
Id.
The ALJ partially discredited Mr. Aragon's statement
because it was written two-and-a-half years after the
period.
Tr.
33.
I
conclude that this is a germane reason to
reject Mr. Aragon's statement.
statement that
relevant
There is nothing in Mr. Aragon's
suggests that plaintiff's
condition worsened or
changed between February and March of 2008.
Moreover,
the fact
that it was written in September of 2010 makes it unlikely that Mr.
Aragon's comments regarded the relevant period as opposed to any of
the hundreds of other occasions he reports seeing plaintiff between
2006 and 2010.
The ALJ cited sufficient reasons for rejecting Mr.
Aragon's statement.
B.
Ms. Guffey
Ms.
Guffey submitted a
statement
reporting
that
she
sees
plaintiff two to four times per week in their neighborhood.
Ms.
Guffey reported that when plaintiff walks her dog she walks very
carefully and sometimes with a limp.
Tr.
278.
She stated that
plaintiff cannot stand long, which often makes visits short because
22 - OPINION AND ORDER
plaintiff needs to sit down.
In addition, Ms. Guffey reported
Id.
that plaintiff sometimes attends church with her, but that it is
Guffey's opinion for the same reason as Mr.
ALJ discredited Ms.
Tr.
Aragon's.
The
Id.
difficult for plaintiff to sit for long periods of time.
I conclude that the ALJ' s rationale applies
34.
with equal force to Ms. Guffey and accordingly find that he cited
reasons germane to Ms. Guffey's testimony to reject her statement.
C•
Mr. Chapman
Mr.
Chapman,
plaintiff's
statement
a
submitted
husband,
written on November 14, 2010, attesting to his wife's functional
Chapman
Mr.
limitations.
attested
that
pain
plaintiff's
and
anxiety interfere with virtually all aspects of her daily life.
Tr.
Mr.
286.
Chapman
unable
is
plaintiff
that
reported
to
concentrate enough to complete tasks, and has disrupted sleep due
to the discomfort
Chapman
stated
caused by her conditions.
that
he
and
their
plaintiff due to her back pain.
daughter
Tr.
287-90.
Tr.
have
Mr.
help
dress
to
The ALJ rejected Mr.
292.
Chapman's statement because it was written in the present tense in
of
November
circumstances
2010,
suggesting
between
February
it
did
and
not
March
relate
of
to
2008,
changed
and
was
inconsistent with the testimony of t'heir daughter with respect to
plaintiff's left arm limitations.
reasons
constitute
germane
statement.
23 - OPINION AND ORDER
Tr. 34.
reasons
to
I conclude that these
reject
Mr.
Chapman's
The present nature of Mr. Chapman's statements, as well as the
fact that it was written two-and-a-half years after the relevant
period are compelling reasons to find that Mr. Chapman's statements
do not establish changed circumstances during the relevant period.
Moreover,
there
is
nothing
in
Mr.
Chapman's
report
that
specifically relates the stated limitations to February and March
of
2008.
The
ALJ
also
reasonably
found
that
Mr.
Chapman's
statement about plaintiff's left arm limitations was contradicted
by his daughter's testimony that such limitations began much more
recently.
Compare Tr. 286 with Tr. 79.
The ALJ properly rejected
Mr. Chapman's statement.
D.
Ms . Chapman
Plaintiff's daughter testified at the hearing that during the
relevant period, plaintiff could only walk slowly for one or two
blocks.
Tr. 79.
Ms. Chapman stated that her mother has problems
with her left 'arm that have only developed recently.
Chapman testified that her mother
seemed to be
Ms.
in pain eighty
percent of the time, became fatigued easily, and could only perform
household tasks for fifteen minutes before needing to sit and rest.
Tr. 80.
As to mental impairments, Ms. Chapman testified that her
mother has crying spells four to five times per month, has memory
problems,
week.
and experiences panic attacks three to four times per
Tr. 81.
The ALJ accepted Ms. Chapman's testimony insofar as
it confirmed that plaintiff has pain and mental health problems,
24 - OPINION AND ORDER
but partially discredited it because it was given two-and-a-half
years after the relevant period.
I
conclude this \vas a germane
reason for partially discrediting Ms. Chapman's testimony.
The ALJ could reasonably conclude that
the
fact
that
Ms.
Chapman was testifying in November of 2010 about a relatively short
period
in
February
accuracy of her
and
March
of
recollection.
2008
calls
Additionally,
into
question
the
while plaintiff's
counsel asked some of the questions to Ms. Chapman so as to target
her answers toward the relevant period,
there is nothing in her
testimony indicating that plaintiff's condition changed during that
period.
The ALJ' s partial rejection of Ms. Chapman's testimony \vas
proper.
E.
Ms. Nutt
Ms. Nutt, plaintiff's mother-in-law, testified at the hearing
that
she
sa'N
plaintiff
relevant period.
Tr. 71.
five
to
six times
per week during
Ms. Nutt testified that plaintiff's back
problems limited her ability to walk more than one block,
plaintiff
has
problems
the
with
an
arm
although
she
could
that
not
remember which arm - and was in pain around eighty percent of the
time.
easily
Tr. 72.
while
Ms. Nutt reported that plaintiff became fatigued
performing
household
chores,
had
anxiety, and frequently experienced crying spells.
problems
with
Tr. 73-74.
Ms.
Nutt stated that plaintiff had memory problems, experienced panic
attacks, and would have trouble sitting through church.
25 - OPINION AND ORDER
Tr.
75.
The ALJ rejected Ms. Nutt's testimony because it seemed to describe
limitations that postdated the relevant period.
Tr. 34.
Indeed, Ms. Nutt's testimony about arm limitations that have
been going
on
"for a
long
time"
is
seemingly contradicted by
plaintiff's daughter's testimony that plaintiff's left arm problems
are more recent.
Compare Tr. 72 with Tr. 79.
Moreover, although
plaintiff's lawyer geared his questions to the relevant period,
nothing in Ms. Nutt' s answers suggested that plaintiff's conditions
changed
during
that
period.
Considering
the
brevity
of
the
relevant period and the two-and-a-half years that elapsed between
the last date insured and the hearing, it was reasonable for the
ALJ to conclude that Ms. Nutt's testimony did not refer to changed
limitations during February and March of 2008.
discredited Ms. Nutt's testimony.
The ALJ properly
The ALJ's consideration of the
lay testimony was not error.
V.
The RFC
Because I have found the ALJ properly discredited plaintiff's
testimony,
permissibly
weighed
the
medical
testimony,
and
appropriately weighed the lay testimony, I conclude that the RFC is
supported by substantial evidence.
Simply put, plaintiff submitted
very little - if any - evidence of changed circumstances between
the
date
insured.
of
I
the
prior ALJ decision and plaintiff's
accordingly conclude
that
the
ALJ' s
last
date
finding
that
plaintiff did not demonstrate changed circumstances during
26 - OPINION AND ORDER
the
relevant period is supported by substantial evidence.
Therefore,
the ALJ appropriately applied the principles of res judicata to the
prior opinion, and was entitled to rely on the prior nondisability
finding.
CONCLUSION
For
the
foregoing
reasons,
the
decision
of
the
ALJ
AFFIRMED.
IT IS SO ORDERED.
DATED this
~day of July, 2013.
:iz7w~
-t ht~
Malcolm F. Marsh
United States District Judge
27 - OPINION AND ORDER
is
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