Niktab v. Commissioner Social Security Administration

Filing 28

Opinion and Order signed on 4/30/2014 by Judge Ancer L. Haggerty. Based upon the record, the Court finds that the decision of the Acting Commissioner is based upon the correct legal standards and is supported by substantial evidence in the record. The final decision of the Acting Commissioner denying pklaintiff Abdoreza E. Niktab's application for Disability Insurance Benefits is AFFIRMED. (sp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

ABDOREZA E. NIKTAB,
Plaintiff,

Case No. 3:13-cv-00586-HA
OPINION AND ORDER

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

HAGGERTY, District Judge:
Plaintiff Abdoreza Niktab seeks judicial review of a final decision by the Acting
Commissioner of the Social Security Administration denying his application for Disability
Insurance Benefits (DIB). This court has jurisdiction to review the Acting Commissioner's
decision under 42 U.S.C. § 405(g). After reviewing the record, this court concludes that the
Acting Commissioner's decision must be affomed.

1 - OPINION AND ORDER

STANDARDS
A claimant is considered "disabled" under the Social Security Act if: (I) he or she is
unable to engage in any substantial gainful activity (SGA) "by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve months," and
(2) the impairment is "of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy." Hill v. Astrue, 688 F.3d 1144,
1149-50 (9th Cir. 2012) (citing 42 U.S.C. § 1382c(a)(3); Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999)); 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential evaluation process for
determining if a person is eligible for benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a). In steps
one through four, the Commissioner must determine whether the claimant (1) has not engaged in
SGA since his or her alleged disability onset date; (2) suffers from severe physical or mental
impairments; (3) has severe impairments that meet or medically equal any of the listed
impairments that automatically qualify as disabilities under the Social Security Act; and (4) has a
residual functional capacity (RFC) that prevents the claimant from performing his or her past
relevant work. Id An RFC is the most an individual can do in a work setting despite the total
limiting effects of all his or her impairments. 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(l), and
Social Security Ruling (SSR) 96-8p. The claimant bears the burden of proof in the first four
steps to establish his or her disability.
At the fifth step, however, the burden shifts to the Commissioner to show that jobs exist

2 - OPINION AND ORDER

in a significant number in the national economy that the claimant can perfotm given his or her
RFC, age, education, and work experience. Gomez v. Chafer, 74 F.3d 967, 970 (9th Cir. 1996).
If the Commissioner cannot meet this burden, the claimant is considered disabled for purposes of
awarding benefits. 20 C.F.R. §§ 404.1520(±)(1), 416.920(a). On the other hand, ifthe
Commissioner can meet its burden, the claimant is deemed to be not disabled for purposes of
detetmining benefits eligibility. Id.
The Commissioner's decision must be affirmed if it is based on the proper legal standards
and its findings are supported by substantial evidence in the record as a whole. 42 U.S.C. §
405(g); Tackett, 180 F.3d at 1097;Andrews v. Shala/a, 53 F.3d 1035, 1039 (9th Cir. 1995).
Substantial evidence is more than a scintilla but less than a preponderance; it is "such relevant
evidence as a reasonable mind might accept as adequate to supp01i a conclusion." Sandgathe v.

Chafer, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted).
When reviewing the decision, the court must weigh all of the evidence, whether it
supp01is or detracts from the Commissioner's decision. Tackett, 180 F.3d at 1098. The
Commissioner, not the reviewing court, must resolve conflicts in the evidence, and the
Commissioner's decision must be upheld in instances where the evidence suppotis either
outcome. Reddickv. Chafer, 157 F.3d 715, 720-21 (9th Cir. 1998). If, however, the
Commissioner did not apply the proper legal standards in weighing the evidence and making the
decision, the decision must be set aside. Id at 720.

FACTUAL AND PROCEDURAL HISTORY
Plaintiff was born on Februmy 22, 1957 and worked as a manager of a lodging facility
until Februaiy 5, 2011. Plaintiff protectively filed his application for DIB on Februmy 22, 2011,

3 - OPINION AND ORDER

alleging that he has been disabled since February 5, 2011. The claim was denied initially on May
13, 2011, and upon reconsideration on July 12, 2011. At plaintiff's request, an Administrative
Law Judge (ALJ) conducted a hearing on January 9, 2012. The ALJ heard testimony from
plaintiff, who was represented by counsel, as well as an independent vocational expert (VE).
On Janumy 27, 2012, the ALJ issued a decision finding that plaintiff was not disabled
under the Social Security Act. At step one of the sequential analysis, the ALJ found that plaintiff
had not engaged in SGA since February 5, 2011, the alleged disability onset date. Tr. 16,
Finding 1. 1 At step two, the ALJ found that plaintiff suffers from the following medically
dete1minable severe impairments: muscle disorders and back disorders. Tr. 16, Finding 3. After
considering plaintiff's severe and non-severe impairments, the ALJ determined that plaintiff does
not have an impairment or combination of impairments that meets or equals a listed impahment
in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 17, Finding 4. After consulting the record,
the ALJ concluded that plaintiff has the RFC to perfo1m the full range of light, semiskilled work
as defined in 20 C.F.R. 404.1567(b), but such work could not require:
Lifting more than 7-10 pounds at a time, primarily with the right upper extremity
(claimant is right handed), on more than a "less than occasional" basis;
Lifting and canying lighter miicles, primarily with the right upper extremity,
weighing more than 7-10 pounds, on more than an "occasional" basis (which
means from very little up to 1/3 of the day);
Standing or walking more than 15-20 minutes at one time, nor more than six total
hours in an 8-hour day;
Sitting more than 60 minutes at one time, nor more than six total hours in an 8"
hour day;

1

"Tr." refers to the Transcript of the Administrative Record.

4 - OPINION AND ORDER

Bending, twisting or squatting on more than a "less than occasional" basis;
Stooping on more than an "occasional" basis;
Work on the floor (e.g. kneeling, crawling or crouching) on more than a "less than
occasional" basis;
Climbing or descending flights of stairs (but a few stairs up or down not
precluded);
Left upper extremity overhead lifting or overhead reaching more than a "less than
occasional" basis;
More than frequent left upper extremity reaching, handling and fingering; and
More than occasional left upper extremity pushing, pulling, gripping and grasping;
with a requirement that he not handle breakable items on the job.
Tr. 17-18, Finding 5. The ALJ found that, at all times relevant to this decision, the claimant has
been unable to perform any past relevant work. Tr. 22, Finding 6. Based on plaintiffs age, the
ALJ found that he was an individual closely approaching advanced age on the alleged disability
onset date. Tr. 22, Finding 7. Considering plaintiffs age, education, work experience, and RFC,
the ALJ found that there are jobs that exist in significant numbers in the national economy that
plaintiff can perform. Tr. 22-24, Finding 10. Therefore, the ALJ concluded that plaintiff is not
disabled. Tr. 24, Finding 11. The Appeals Council denied plaintiffs request for administrative
review, making the ALJ's decision the final decision of the Acting Commissioner. Plaintiff
subsequently initiated this action seeking judicial review.

DISCUSSION
Plaintiff asserts that the ALJ en-ed by (1) failing to provide any explanation for her
adverse determination at step three of the sequential analysis; (2) finding plaintiffs symptom

5 - OPINION AND ORDER

testimony not fully credible; (3) affording little weight to the testimony of treating physician
Jodie Levitt, M.D and treating physicians' assistant Melinda Roalstad; (4) relying on VE
testimony that diverged from the Dictionmy of Occupational Title (DOT) without adequate
explanation; and ( 5) using the medical vocational guidelines to deny his claim. The court will
address each argument in turn.

1.

Step Three Analysis

Plaintiff argues that the ALJ failed to adequately explain her conclusion that the effects of
plaintiff's impairments do not meet or equal any of those listed in 20 C.F.R. §Part 404, Subpart
P, Appendix 1. In particular, plaintiff argues that his impairments satisfy section 1.04 of the
listings, which concerns disorders of the spine. According to plaintiff, the ALJ concluded that
plaintiff's impahments did not meet the listing requirements without providing any analysis.
However, the ALJ explained that the medical evidence does not suppo1t a finding that plaintiff's
impahments meet the listing requirements. She supp01ted this conclusion with the opinions of
two state agency medical consultants who each found that it was necessmy to access plaintiff's
RFC in order to make a disability dete1mination - not that plaintiff's impairments satisfied section
1.04.
Plaintiff argues that his impairments meet eve1y element of listing 1.04. Section 1.04
requires that, among other things, the medical record contain evidence oflimitation of motion of
the spine. While plaintiff directs the cou1t to a po1tion of the record that shows plaintiff's
shoulder has a limited range of motion due to neurologic changes in the spine, plaintiff fails to
demonstrate any limitation of motion in the spine itself. Therefore, plaintiff fails to satisfy each
element in section 1.04 of the listing. Because plaintiff fails to show that section 1.04 is

6 - OPINION AND ORDER

satisfied, the court finds it reasonable for the ALJ to rely on the opinions of medical experts to
conclude that the criteria of the listings have not been met. Therefore, the ALJ did not err at step
three of the sequential analysis.

2.

Plaintiffs Credibility

Plaintiff argues that the ALJ eITed in rejecting plaintiffs testimony and statements about
his impairments and their limiting effects. The ALJ found plaintiff credible to the extent that he
would experience some exe11ional, postural, and manipulative limitations, and she reduced his
RFC to accommodate those limitations. However, the ALJ found that plaintiffs allegations that
he is incapable of all work activity were not fully credible.
As an initial matter, the parties disagree regarding the applicable standard of review for
the ALJ's factual finding concerning the credibility of plaintiffs symptom testimony. The Ninth
Circuit has made clear that, in the absence of evidence showing that the claimant is malingering,
it is the Commissioner's burden to articulate "clear and convincing" reasons to reject a claimant's
subjective pain testimony. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citing Lester v.

Chater, 81F.3d821, 834 (9th Cir. 1995)). Because there is no evidence of malingering in this
case, the comi will analyze the credibility finding using the "clear and convincing" standard. A
discrepancy between objective medical evidence and subjective pain complaints is a relevant
factor, but can never be the sole dete1minative factor in assessing credibility. Id.
Plaintiff argues that, in making her credibility dete1mination, the ALJ relied solely on
general findings, which are insufficient to unde1mine plaintiffs subjective complaints. However,
the ALJ's rejection of plaintiffs testimony was partial and far less expansive than plaintiff
suggests. In fact, the ALJ found plaintiff fully credible as to his exertional, postural, and

7 - OPINION AND ORDER

manipulative limitations and reduced his RFC accordingly. The ALJ found plaintiff incredible
only to the extent that he testified that he was incapable of all work activity.
In so doing, the ALJ provided several clear and convincing reasons. First, and most
significantly, the ALJ found that an incapacity to do all work is inconsistent with the fact that
plaintiff predominantly attributes his inability to work to pain in his left upper extremity and
plaintiff is right handed. "The medical record does not indicate or suggest disabling pain when
the left upper extremity is at rest or used only minimally." Tr. 18. Accordingly, the RFC
significantly limited plaintiff's use of his left upper extremity, but such limited use of the area in
which plaintiff experiences pain does not necessitate a finding of disability. Plaintiff argues that
the majority of upper extremity limitations were imposed on plaintiff's right upper extremity, but
this is a misinterpretation of the RFC. The RFC limits any lifting to primarily plaintiff's right
hand, the amount of which is also limited.
Second, the ALJ noted individual medical records that contradicted plaintiff's testimony
of his complete inability to work. She noted that plaintiff's grip strength, even with his left arm,
was solid. Tr. 19. Additionally, she noted that plaintiff made progress through medication and
physical therapy, which increased his bicep and tricep strength, improved his muscular endurance
overall, and decreased his level of pain enabling him to sleep through the night. Tr. 19.
Third, the ALJ found that plaintiffs daily activities are inconsistent with his testimony
that his pain prevents all work activity. As the ALJ noted, plaintiff independently cares for
himself, performs household chores, such as loading and unloading the dishwasher, prepares
meals, does the laund1y, shops, walks outside everyday, goes on drives, and visits with friends.
Tr. 20. This comi finds that such daily activity is inconsistent with plaintiff's testimony

8 - OPINION AND ORDER

regarding complete disability. Renaud v. Apfel, 243 F.3d 549 (9th Cir. 2000) (finding that a
claim of total disability is inconsistent with daily activities that include half-mile walks, groce1y
shopping, washing dishes, taking out the trash, occasionally cleaning the house and attending
church).
In sum, the ALJ explained that plaintiffs testimony was inconsistent with the objective
medical evidence and evidence of his ability to conduct daily activities. The court finds these
reasons clear and convincing; therefore, the ALJ did not en in partially rejecting plaintiffs
testimony.

3.

Opinions of Jodie Levitt, JVI.D. and Melinda Roalstad, PA-C

Plaintiff argues that the ALJ ened in partially rejecting the opinions of treating physician
Jodie Levitt, M.D. and treating physicians' assistant Melinda Roalstad. In a "fill in the blank"
type form, Dr. Levitt opined that plaintiff was unable to use his left arm and work due to
continuous pain. The medical opinion of plaintiffs treating physician can be rejected only for
specific and legitimate reasons when contradicted by a non-treating doctor. Holohan v.

ivlassanari, 246 F.3d 1195, 1202 (9th Cir. 2001). The ALJ explained that the medical evidence
indicates that plaintiffs pain and limitations are experienced predominantly in his left arm, while
plaintiff is right-handed. Therefore, the ALJ found that the record is inconsistent with Dr.
Levitt's opinion that plaintiff is unable to work completely. Fmihermore, the ALJ found that Dr.
Levitt's opinion was brief and conclusory, consisting oflittle more than check boxes. Tr. 20
(citing Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).2 This comi agrees that Dr. Levitt's

2

Plaintiff argues that the ALJ improperly relied on precedent outside the Ninth Circuit.
This court finds that argument unpersuasive because the Ninth Circuit has similarly held that
"[a]n ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and
9 - OPINION AND ORDER

opinion was unsupported by any clinical analysis. Therefore, the ALJ provided specific and
legitimate reasons for partially rejecting Dr. Levitt's opinion.
Melinda Roalstad opined that plaintiffs chronic pain and numbness in his left arm
prevent him from working in any occupation. Additionally, she opined that plaintiff is able to
perform

adesk job for 20 hours per week, but is unable to perf01m full-time work.

As a

physicians' assistant, Ms. Roalstad is not an "acceptable medical source" under the regulations .
. 20 C.F .R. § 404.1513(a). Still, the regulations allow the consideration of a physicians' assistant's
opinion as an "other source." 20. C.F.R. § 404.1513(d). An ALJ may disregard the testimony of
an "other source" ifthe ALJ provides reasons ge1mane to each witness for doing so. Turner v.

Comm'r ofSoc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010) (citing Lewis v. Apfel, 236 F.3d 503,
511 (9th cir. 2001)). The ALJ pmiially rejected Ms. Roalstad's opinion because it was brief and
conclusory. Much like Dr. Levitt, above, Ms. Roalstad's opinion were set forth in a checkbox
foim, offering no clinical suppo1i. Therefore, the ALJ did not err in limiting the weight afforded
to Ms. Roalstad's opinion.

4.

Reliance on Testimony of the Vocational Expert

Plaintiff argues that the ALJ erred by relying on the testimony of the VE, which diverged
from the Dictionmy of Occupational Titles without sufficient explanation. The ALJ found that
plaintiff caffilot lift more than 7-10 pounds at a time on more than a "less than occasional" basis.
Plaintiff asse1is that this limitation precludes plaintiffs performance of light level jobs, which
require the lifting of I 0 pounds frequently and 20 pounds occasionally. Neve1iheless, the ALJ

inadequately supported by clinical findings." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005).
10- OPINION AND ORDER

relied on the testimony of the VE, who identified light level jobs that plaintiff could perform.
Plaintiff argues that the VE did not provide adequate explanation for this divergence from the
Dictiomny of Occupational Titles.
However, the VE did explain that the elements of the ALJ's hypothetical are not
contained in the Dictionary of Occupational Titles. She explained that she based her testimony
on her "understanding of these jobs, [her] understanding of the essential elements of the workemployer tolerances, with respect to the issues." Tr. 82. Moreover, the VE significantly reduced
the number of jobs in the national economy to reflect all of the hypothetical limitations in
plaintiffs RFC. She reduced the 45,000 Office Helper jobs by 40 percent; the 30,000 Parking
Lot Attendant jobs by 30 percent; and the 20,000 Storage Rental Clerk jobs by 40 percent. Tr.
23. The ALJ may rely on the testimony of a VE "even if it is inconsistent with the job
descriptions set foiih in the Dictionmy." Johnson v. Shalala, 60 F.3d 1428, 1435. The role of a
VE is to translate facts into realistic job market probabilities. Therefore, it was appropriate for
the ALJ to rely on expe1i testimony to find that plaintiff could perform the three job types,
regardless of their classification by the Dictionmy of Occupational Titles as "light." Id. at 1436
(citing Sample v. Schweiker, 694 F.2d 639, 643 (9th Cir. 1982))

5.

Medical-Vocational Rule 202.15

Plaintiff argues that the ALJ erred in making an alternative finding at step five that
plaintiff is not disabled pursuant to Medical-Vocational Rule 202.15. Because the court finds no
error in the ALJ's prima1y decision, it need not address what plaintiff has described as an
alternative finding.

Ill
11 - OPINION AND ORDER

CONCLUSION
Based upon the record, the comi finds that the decision of the Acting Commissioner is
based upon the c01Tect legal standards and is supported by substantial evidence in the record.
The final decision of the Acting Commissioner denying plaintiff Abdoreza E. Niktab's
application for Disability Insurance Benefits is AFFIRlvfED.
IT IS SO ORDERED.

fa day of April, 2014.

DATED this

Ancer L. Hagge1iy
United States District Judge

12 - OPINION AND ORDER