Winward-King v. Commissioner Social Security Administration

Filing 17

Opinion and Order. The Court AFFIRMS the Commissioner's decision and DISMISSES this matter. Signed on 04/17/2014 by Judge Anna J. Brown. See attached 18 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CATHERINE WINWARD-KING,
Plaintiff,

6:13-cv-00455-BR
OPINION AND ORDER

v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration, 1
Defendant.

GEORGE J. WALL
Law Offices of George J. Wall
1336 E. Burnside
Suite 130
Portland, OR 97214
[phone]
Attorney for Plaintiff

1

Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013.
Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this case.
No
further action need be taken to continue this case by reason of
the last sentence of section 205(g) of the Social Security Act,
42 u.s.c. § 405.
1

- OPINION AND ORDER

S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN

Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
LARS J. NELSON
Special Assistant United States Attorneys
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant

BROWN,

Judge.

Plaintiff Catherine Winward-King seeks judicial review of a
final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's applications
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act and Supplemental Security Income (SSI)
payments under Title XVI.
This Court has jurisdiction to review the Commissioner's
decision pursuant to 42 U.S.C. § 405(g).

Following a thorough

review of the record, the Court AFFIRMS the Commissioner's final
decision and DISMISSES this matter.

2

- OPINION AND ORDER

ADMINISTRATIVE HISTORY

Plaintiff filed her applications for DIB and SSI on May 30,
The applications were denied initially and on

Tr. 25.

2010.

reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on July 9, 2011.

Tr. 25.

represented by an attorney.

At the hearing Plaintiff was

Tr. 25.

Plaintiff, lay witness John

Winward, and a Vocational Expert (VE) testified at the hearing.
Tr, 25.
The ALJ issued a decision on August 30, 2012, in which he
found Plaintiff was not disabled and, therefore, is not entitled
to benefits.

Tr. 39.

That decision became the final decision of

the Commissioner on January 17, 2013, when the Appeals Council
denied Plaintiff's request for review.

Tr. 7.

BACKGROUND

Plaintiff was born on August 22, 1963, and was 48 years old
at the time of the hearing.
year of college.

Tr. 310.

Tr. 160.

Plaintiff completed one

She has past relevant work experience

as a bus driver, caregiver, and housekeeper.

Tr. 37, 1042.

Plaintiff alleges she has been disabled since April 29,
2008, due to chronic migraines; chronic neck, shoulder, arm, and
back pain; leg and foot pain; anxiety, and depression.

Tr. 138,

191.
Except when noted, Plaintiff does not challenge the ALJ's

3

- OPINION AND ORDER

summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ's summary of the

See Tr. 27-37.

medical evidence.

STANDARDS

The initial burden of proof rests on the claimant to

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

establish disability.
Cir. 2012).

To meet this burden, a claimant must demonstrate her

inability "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."
§

423(d) (1) (A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari, 276 F.3d
453,

459-60 (9th Cir. 2001)).
The district 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 as a whole.
42 U.S.C. § 405(g).

See also Brewes v. Comm'r of Soc. Sec.

Admin., 682 F. 3d 1157, 1161 (9th Cir. 2012).

Substantial

evidence is "relevant evidence that a reasonable mind might
accept as adequate to support a conclusion."
4

- OPINION AND ORDER

Molina,

674 F.3d.

at 1110-11 (quoting Valentine v. Comm'r Soc. Sec. Admin., 574
F.3d 685, 690 (9'" Cir. 2009)).

It is more than a "mere

scintilla" of evidence but less than a preponderance.

Id.

(citing Valentine, 574 F. 3d at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9'" Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm'r of Soc. Sec., 528 F. 3d 1194, 1198 (9'" Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner's findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9'" Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9'" Cir.

2006) .

DISABILITY ANALYSIS

I.

The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the
meaning of the Act.

Keyser v. Comm'r of Soc. Sec. Admin., 648

F. 3d 721, 724 (9'" Cir. 2011).
5

- OPINION AND ORDER

See also Parra v. Astrue, 481

F.3d 742, 746 (9'" Cir. 2007); 20 C.F.R. §§ 404.1520,

416.920.

Each step is potentially dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. §§ 404.1520(a) (4) (I), 416.920(a) (4) (I).

See

also Keyser, 648 F.3d at 724.
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520 (a) (4) (ii), 416.920 (a) (4) (ii).

20 C.F.R. §§ 404.1509,

See also Keyser, 648 F. 3d

at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§

404.1520 (a) (4) (iii), 416.920 (a) (4) (iii).

F.3d at 724.

20 C.F.R.

See also Keyser, 648

The criteria for the listed impairments, known as

Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments) .
If the Commissioner proceeds beyond Step Three, she must

assess the claimant's residual functional capacity (RFC).

The

claimant's RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.

6

- OPINION AND ORDER

20 C.F.R.

§§

404.1520(e), 416.920(e).

(SSR) 96-8p.

See also Social Security Ruling

"A 'regular and continuing basis' means 8 hours a

day, for 5 days a week, or an equivalent schedule."
at *1.

SSR 96-8p,

In other words, the Social Security Act does not require

complete incapacity to be disabled.

Taylor v. Comm'r of Soc.

Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011) (citing Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

The assessment of

a claimant's RFC is at the heart of Steps Four and Five of the
sequential analysis when the ALJ is determining whether a
claimant can still work despite severe medical impairments.

An

improper evaluation of the claimant's ability to perform specific
work-related functions "could make the difference between a
finding of 'disabled' and 'not disabled.'"

SSR 96-8p, at *4.

At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
416.920(a)(4)(iv).

20 C.F.R. §§ 404.1520(a) (4) (iv),

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a) (4) (v).

20 C.F.R. §§ 404.1520(a) (4) (v),

See also Keyser, 648 F. 3d at 724-25.

Here the

burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.

Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th

7

- OPINION AND ORDER

Cir. 2010).

The Commissioner may satisfy this burden through the

testimony of a VE or by reference to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.

If the Commissioner meets this burden,

the claimant is not disabled.

20 C.F.R.

§§

404.1520(g)(l),

416.920 (g) (1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since April 29, 2008, her alleged
onset date.

Tr. 27.

At Step Two the ALJ found Plaintiff has the severe
impairments of "cervical strain, obesity, degenerative disc
disease, migraines, and panic disorder associated with a
psychological and general medical condition." 2

Tr. 27.

At Step Three the ALJ found Plaintiff's impairments do not
meet or equal the criteria for any impairment in the Listing of
Impairments.

Tr. 28.

The ALJ found Plaintiff has the residual

functional capacity to perform sedentary work "except that she
can occasionally climb stairs and ramps, but can never climb
ladders, ropes and scaffolds.

2

She can no more than occasionally

The Court notes the ALJ based his findings as to these
impairments on the medical diagnoses of Plaintiff that appear in
the record rather than statements in Plaintiff's applications.
See Tr. 13-14, 203.
8

- OPINION AND ORDER

stoop, crouch, and perform overhead work bilaterally.

She is

limited generally to unskilled work with only occasional public
contact.n

Tr. 30.

At Step. Five the ALJ found Plaintiff could perform jobs that
exist in significant numbers in the.national economy such as
addresser, semiconductor wafer breaker, and microfilm document
preparer.

Tr. 38.

disabled.

Accordingly, the ALJ found Plaintiff is not

Tr. 39.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
rejected the opinion of treating physician Elizabeth Callaghan,
M.D.;

(2) improperly rejected the opinion of treating physician

Eric Murray, M.D.; and (3) improperly discredited Plaintiff's
testimony.

I.

Medical opinion testimony
An ALJ may reject an examining or treating physician's

opinion when it is inconsistent with the opinions of other
treating or examining physicians if the ALJ makes "findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record."
278 F. 3d 947, 957

Thomas v. Barnart,

(9th Cir. 2002) (quoting Magallanes v. Bowen,

881 F.2d 747, 751 (9th Cir. 1989)).

Specific, legitimate reasons

for rejecting a physician's opinion may include reliance on a

9

- OPINION AND ORDER

claimant's discredited subjective complaints, inconsistency with
medical records, inconsistency with a claimant's testimony, and
inconsistency with a claimant's daily activities.

As true, 533 F. 3d 1035, 1040 (9th Cir. 2008) .

Tommasetti v.

See also Andrews v.

Shalala, 53 F. 3d 1035, 1042 (9th Cir. 1995).
When the medical opinion of an examining or treating
physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.
278 F. 3d 947, 957
830-32

(9~

(9th Cir. 2002).

Thomas v. Barnhart,

See also Lester, 81 F. 3d 821,

Cir. 1995).

Gene·rally, the more consistent an opinion is with the record
as a whole, the more weight an opinion should be given.

20

C.F.R. § 416.927(c) (4).
A.

Dr. Callaghan's opinion

Plaintiff contends the ALJ erred when he improperly rejected
treating physician Dr. Callaghan's opinion that Plaintiff is
limited to work activities that allow her to alternate between
sitting and standing and that do not require her to tilt her head
down more than occasionally.
The ALJ noted Dr. Callaghan recommended Plaintiff be
restricted to performing modified light-duty office work between
October 31, 2008, and November 15, 2008, due to the fact that
Plaintiff's former work driving a school bus exacerbated
Plaintiff's cervical spine condition.
10 - OPINION AND ORDER

Tr. 31, 618.

The ALJ also

noted Dr. Callaghan cleared Plaintiff for light-duty work in
January 2009.

Tr. 36, 624.

In July 2012, Dr. Callaghan completed a check-off form
provided by Plaintiff's attorney on which Dr. Callaghan checked
"yes" when asked if Plaintiff was: limited to lifting, pushing,
and pulling more than 10 pounds occasionally; limited to work
activities that allow her to alternate sitting and standing; and
restricted from work that requires her to tilt her head down more
than occasionally.

Tr. 991.

Dr. Callaghan also checked "yes"

when asked if Plaintiff would be able to sustain more than three
to five hours of work per day, but noted:
is likely the case.

"At this point, this

It may change over time."

Tr. 991.

The ALJ rejected Dr. Callaghan's opinion in part on the
grounds that "Dr. Callaghan did not explain why the claimant
needed to alternate sitting and standing and tilt down her head
only occasionally."

Tr. 36.

Accordingly, the ALJ did not adopt

these limitations into the residual functional capacity.

Tr. 36.

When a medical opinion lacks a sufficient explanation, the
Commissioner may give less weight to that opinion.
§

404.1527 (c) (3),

§

See 20 C.F.R.

416.927 (c) (3) ("The better an explanation a

source provides for an opinion, the more weight we will give that
opinion.").

Furthermore, an ALJ may reject medical opinions

"because they [are] check-off reports that [do] not contain any
explanation of the bases of their conclusions."

11 - OPINION AND ORDER

Crane v.

Shalala, 76 F. 3d 251, 253 (9ili Cir. 1996).

Accordingly, the

Court concludes the ALJ properly discounted the opinion of
Dr. Callaghan with respect to these two limitations.
In any event, the Court concludes the limitations
Dr. Callaghan suggested are not supported by evidence in the
record.

As noted, Dr. Callaghan cleared Plaintiff for light-duty

work in 2008.

At that time, Dr. Callaghan did not indicate

Plaintiff needed to alternate between sitting and standing
throughout the day.

Tr. 624.

Similarly, on March 3, 2009, Dorie

Halsey, P.T., completed a Physical Capacity Evaluation II report
and opined Plaintiff was limited to the

~sedentary/light

category

of work," and did not suggest Plaintiff needed a sit-stand
option.

Tr. 696.

As to Dr. Callaghan's opinion that Plaintiff cannot tilt her
head down more than occasionally, the record reflects Plaintiff's
neck pain primarily caused her to have difficulty turning her
head from side to side and tilting it up, rather than tilting it
down.

For example, in March 2009 physical therapist Dorie Halsey

opined Plaintiff could not return to her work as a bus driver
because she could not fully turn her head from side-to-side.
696.

Tr.

Similarly, in January 2010, examining physician Matthew

McGehee, M.D., evaluated Plaintiff for neck pain at which time
Plaintiff complained her pain was
[and] looking over her shoulder."

12 - OPINION AND ORDER

~worse

with driving, lifting,

Tr. 834.

Dr. McGehee noted

•

Plaintiff had increased pain with extension (tilting up), but did
not note she had pain with flexion (tilting down).

Tr. 836.

Furthermore, by late 2010, Plaintiff appears to have regained
range of motion in her neck.

In December 2010, treating

physician Eric Murray, M.D. noted Plaintiff's neck was
with good range of motion."

Tr. 894.

~supple

On August 21, 2012,

examining physician Kirk L. Weller, M.D., similarly noted
Plaintiff's neck was

~supple

with full range of motion."

Tr. 1008.
Accordingly, the Court concludes on this record that the ALJ
did not err when he rejected Dr. McCallaghan's opinion because
the ALJ provided legally sufficient reasons supported by the
record for doing so.

B.

Dr. Murray's opinion

Plaintiff also contends the ALJ erred when he improperly
rejected the opinion of treating physician Dr. Murray.
In July 2012, Dr. Murray completed an identical check-off
form from Plaintiff's attorney as that which Dr. McCallaghan
completed.

Dr. Murray checked

~yes"

when asked if Plaintiff was:

limited to lifting, pushing, and pulling more than 10 pounds
occasionally; limited to work activities that allow her to
alternate sitting and standing; and restricted from work which
requires her to tilt her head down more than occasionally.
Tr. 994.

Dr. Murray also checked

13 - OPINION AND ORDER

~yes"

to when asked if

Plaintiff would be able to sustain more than three to five hours
of work per day and wrote "yes" when asked if Plaintiff was
"likely to miss one or more days per week because of the effects
of her condition."

Tr. 994.

In the "Comments" section of the

form, Dr. Murray wrote: "[Plaintiff] also has poorly controlled
diabetes with neuropathy, which adds to her disability."
Tr. 994.
The ALJ gave Dr. Murray's opinion limited weight because he
found it was not consistent with the evidence in the record and
not supported with objective evidence of neuropathy.

Tr. 36.

As noted, the Court concludes the limitations restricting
Plaintiff to work that allows her to alternate between sitting
and standing and that only requires her to tilt her head down
occasionally is not supported by evidence in the record.

The

Court also notes the record does not include any positive tests
for neuropathy.

Although examining physician Dr. Weller

diagnosed Plaintiff with "diabetic polyneuropathy" in August
2012, the severity of the symptoms related to this diagnosis is
questionable in light of the fact that Dr. Weller also commented
"I do not doubt [Plaintiff] may at times have 'shooting pains'
but I do think there is an element of exaggerated pain responses
in this woman."

Tr. 1009.

The Court also notes Plaintiff did

not object to the ALJ's decision that Plaintiff's diabetes is not
a severe impairment.

14 - OPINION AND ORDER

The ALJ al.so noted Dr, Murray's opinion that Plaintiff would
likely miss one or more days of work per week is contradicted by
Dr. McCallaghan who did not indicate Plaintiff would miss work
due to her medical conditions.

Tr. 36, 991.

Accordingly, the Court concludes on this record that the ALJ
did not err when he rejected Dr. Murray'·s opinion because the ALJ
provided legally sufficient reasons supported by the record for
doing so.
II.

Plaintiff's _testimony

Plaintiff alleges the ALJ erred when he failed to give clear
and convincing reasons for discrediting her testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).

Cotton, 799 F.2d 1403, 1407 (9th

The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity.
Smolen v. Chater, 80 F. 3d 1273, 1284 (9th Cir. 1996).
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and
convincing reasons for doing so.

15 - OPINION AND ORDER

Parra, 481 F.3d at 750 (citing

Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).

General

assertions that the claimant's testimony is not credible are
insufficient.

Id.

The .ALJ must identify "what testimony is not

credible and what evidence undermines the claimant's complaints."

I d.

(quoting Lester, 81 F. 3d at 834) .
The consistency of claimant's daily activities with the

medical record is relevant when determining the claimant's
credibility and may constitute a clear and convincing reason to
reject a claimant's testimony.

Smolen, 80 F.3d at 1284.

Plaintiff testified she hurt her back in April 2008 when she
was driving and hit a sinkhole.

Tr. 709, 1021.

She stated she

is unable to sit or stand for long periods of time and has to lay
down after two hours of sitting or standing.

Tr. 1023.

Plaintiff testified pain radiates down both of her legs
"constantly."

Tr. 1023.

Tr. 1023-25.

Plaintiff also testified

her neck pain radiates down her arms and hands, makes it
difficult for her to turn her head from side-to-side, and is
worse when she looks up or down.

Tr. 1027.

Plaintiff also

testified she has migraines four-to-five times per week.
Tr. 1025.

Plaintiff testified her diabetes was not under control

at the time of her hearing in July 2012, but had previously been
under control in March 2012.

Tr. 1027.

Plaintiff testified she

spends much of the day laying down and does not like to leave her
house.

Tr.

1031-32.

16 - OPINION AND ORDER

The ALJ concluded Plaintiff's ability to perform various
activities of daily living

~reflects

a higher level of

functioning than alleged in her application and testimony."

For

example although Plaintiff testified she lays down much of the
day and is in constant pain, she testified she lives with her
29-year-old son who is disabled and takes care of him.

Tr. 1029.

In April 2010 Plaintiff completed a Function Report in which she
stated she is generally able to prepare simple meals; performs
household chores such as laundry, dusting, and mopping; and goes
shopping one time per week.

Tr. 269-70.

In the same report

Plaintiff also stated she is able to pay bills, count change,
handle a savings account, and use a checkbook.

Tr. 270.

The ALJ also considered Plaintiff's testimony
because he found she has an

~exaggerated

~with

caution"

pain behavior that is

out of proportion to the severity of her impairments."

Tr. 34.

The ALJ noted examining physician Jon Benson, Psy.D. diagnosed
Plaintiff with a pain disorder associated with psychological
factors.

Tr. 829.

Dr. Benson found Plaintiff's

~level

somatic preoccupation is above average" and that she

of

~appears

to

be unusually preoccupied by her health and physical complaints."
Tr. 829.

This is consistent with the opinion of examining

physician Dr. Weller that Plaintiff exaggerates her pain
symptoms.

Tr. 1009.

The ALJ also discredited Plaintiff's testimony because he

17 - OPINION AND ORDER

found she had a "poor work history" that suggests she is not
motivated to work consistently.

Tr. 34, 37.

The ALJ noted

Plaintiff worked sporadically with limited earnings even before
her alleged onset date.

Tr. 34.

wages between 1997 and 2003.

Plaintiff did not earn any

Tr. 167.

Plaintiff contends her

work history reflects the fact that she was primarily a
homemaker.

Nevertheless, the record reflects Plaintiff worked

from 2003 though 2009, the year of her alleged onset date.
Nevertheless, her earnings only reached the level of substantial
gainful activity in 2005 during this time period.

Tr. 167.

On this record the Court concludes the ALJ provided clear
and convincing reasons supported by substantial evidence in the
record for finding Plaintiff's testimony not entirely credible.
The Court, therefore, concludes the ALJ properly discredited
Plaintiff's testimony.

CONCLUSION
~or

these reasons, the Court AFFIRMS the Commissioner's

decision and DISMISSES this matter.
IT IS SO ORDERED.
DATED this

day of April, 2014.

AN~

United States District Judge

18 - OPINION AND ORDER