Lombard v. Commissioner Social Security Administration

Filing 22

Opinion and Order: The Commissioner's final decision is Affirmed. Signed on 3/31/2015 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

RONALD LOMBARD,
Plaintiff,

Civ. No. 6:13-cv-01530-MC

v.
OPINION AND ORDER
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security
Administration,
Defendant.
_____________________________

MCSHANE, Judge:
Plaintiff Ronald Lombard brings this action for judicial review of the Commissioner’s
final administrative decision denying his application for disability benefits and supplemental
security income under the Social Security Act. This court has jurisdiction pursuant to 42 U.S.C.
§ 1383(c) and 405(g). Because the Commissioner’s decision is based on proper legal standards
and supported by substantial evidence, the Commissioner’s decision is AFFIRMED.

PROCEDURAL BACKGROUND
Plaintiff protectively filed his claims for SSDIB and SSI on March 16, 2010. (Tr 21).
Plaintiff alleged he became disabled on September 11, 2009. Id. Plaintiff turned 50 on October
17, 2009 (Tr. 179) and had worked as a nursing assistant for 30 years. [#21 at p.8]. His claims
were twice denied administratively and he timely requested a hearing. A hearing was held on
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November 15, 2011 (Tr. 179) at which time Administrative Law Judge (ALJ) denied the
Plaintiff’s claims. The Appeals Council denied Plaintiff’s request for review on June 25, 2013,
making the ALJ’s decision the final agency decision. (Tr. 1). Plaintiff timely requested judicial
review through this appeal.
Plaintiff’s reported impairments include degenerative disc disease of the cervical spine,
degenerative joint disease of the right knee, a bilateral flat-foot deformity, and a mental health
impairment. Plaintiff argues the ALJ erred by failing to account for the Plaintiff’s mental health
impairment, improperly rejecting the opinion of the Plaintiff’s treating podiatrist, improperly
finding plaintiff less-than credible, and failing to identify transferable skills in the RFC.

STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if it is based on proper
legal standards and the legal findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Batson v. Comm’r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence is ‘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.’” Hill
v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980
(9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative
record as a whole, weighing both the evidence that supports and that which detracts from the
ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).

DISCUSSION
The Social Security Administration utilizes a five step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520 and 416.920. The initial burden of proof
rests upon the claimant to meet the first four steps. If the claimant satisfies his or her burden
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with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R.
§ 404.1520. At step five, the Commissioner’s burden is to demonstrate that the claimant is
capable of making an adjustment to other work after considering the claimant’s residual
functional capacity (“RFC”), age, education, and work experience. Id. Here, the Commissioner’s
final decision is based on proper legal standards and supported by substantial evidence. I address
each of Plaintiff’s arguments in turn.
I.

The ALJ’s Adverse Credibility Determination
Where, as here, the plaintiff has presented objective medical evidence of an impairment

that could reasonably be expected to produce the pain or other symptoms she has testified to, the
ALJ can only reject that testimony by giving “specific, clear and convincing reasons” for his
rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (quoting Lingenfelter v. Astrue,
504 F.3d 1028, 1035–36 (9th Cir.2007). However, the ALJ is not “required to believe every
allegation of disabling pain, or else disability benefits would be available for the asking, a result
plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.
2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989)).
The ALJ “may consider a wide range of factors in assessing credibility.” Ghanim v.
Colvin, 12-35804, 2014 WL 4056530, at *7 (9th Cir. Aug. 18, 2014). These factors can include
“ordinary techniques of credibility evaluation,” id., as well as:
(1) whether the claimant engages in daily activities inconsistent with the alleged
symptoms; (2) whether the claimant takes medication or undergoes other
treatment for the symptoms; (3) whether the claimant fails to follow, without
adequate explanation, a prescribed course of treatment; and (4) whether the
alleged symptoms are consistent with the medical evidence.
Lingenfelter, 504 F.3d at 1040.
The ALJ provided numerous reasons supporting his finding that Plaintiff was less-than
credible. For example, the ALJ found Plaintiff’s history of treatment and medications were not
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consistent with Plaintiff’s alleged levels of debilitating pain. Tr 26. For all of his ailments,
Plaintiff here received only conservative treatments, which the ALJ may point to in discounting
allegations of severe pain. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007).
Additionally, the ALJ correctly noted that on occasion, Plaintiff failed to follow up with the
recommended treatment plan. As discussed by the ALJ, Dr. Greenberg instructed Plaintiff to
“report by phone to me any difficulties” with a new ankle orthosis and to return for a follow up
in three weeks. Tr 28; 331. There is no record of Plaintiff reporting any difficulties or following
up with Dr. Greenberg. At the time of the hearing before the ALJ, Plaintiff was not undergoing
any treatment, even conservative treatment, for his back and neck pain.
The ALJ also noted that Plaintiff’s last job ended not because of Plaintiff’s disabling
pain, but because Plaintiff was terminated over alleged patient neglect. Tr 28. This is a valid
reason an ALJ may rely on in finding a Plaintiff less-than credible. Bruton v. Massanari, 268
F.3d 824, 828 (9th Cir. 2001).
Finally, the ALJ noted Plaintiff’s allegations of disabling pain were inconsistent with
Plaintiff’s activities of daily living. TR 27. Plaintiff alleges disability as of September 11, 2009.
Tr 21. Two weeks after the alleged onset of disability, Plaintiff reported exercising three times
per week, walking 30-60 minutes at a time. Tr 27; 284. In fact, Plaintiff reported he recently lost
weight due to eating better and “more exercise.” Tr 284. Six months later, Plaintiff reported
spending his time “doing some reading, watching TV, and taking walks.” Tr 300.
All of the above findings referenced by the ALJ are specific and legitimate reasons,
supported by the record, in finding Plaintiff less-than credible.

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II.

Plaintiff’s Mental Health Diagnoses
The Plaintiff claims that the ALJ erred at step two by failing to find his mental health

impairments severe. The Plaintiff argues this was in error because “the record is replete with the
diagnosis of depression and evidence of the functional impairment it imposes. (Tr 374, 376, 384,
386, 388).” Pl.’s Br., 6. Specifically, the Plaintiff references two global assessments of
functioning (GAF); one administered by Marriage & Family Therapist Noelle Osborn wherein
plaintiff was given a GAF score of 50 (Tr 388), and another administered by Licensed Clinical
Social Worker Deborah Jackson wherein plaintiff was given a GAF score of 54 (Tr 374).
The ALJ provided a germane reason in rejecting the opinion of Licensed Clinical Social
Worker Deborah Jackson. As Jackson is an “other source,” the ALJ need only provide a germane
reason for rejecting her opinion. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The
ALJ noted Jackson’s opinion was inconsistent with the opinion of Dr. Belcherm Ph.D. Tr 29. Dr.
Belcherm, a Licensed Psychologist, assessed Plaintiff a GAF of 65. Tr 303. Additionally, Dr.
Belcherm opined:
Anti-depressant medication appears to have relieved the depression. Neither the
depressed mood nor the anxiety should prevent him from working. Rather, being
employed again would seem to be beneficial for relieving his symptoms.
Tr 302. Dr. Belcherm’s opinion clearly differs from Jackson’s opinion. It is the ALJ’s job to
weigh conflicting evidence. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). Dr.
Belcherm is an “acceptable medical source.” 20 C.F.R. §§ 404.1513(a); 416.913(a). As an
opinion from an “acceptable medical source” is generally entitled to more weight than that of an
“other source,” the ALJ provided a germane reason for rejecting Jackson’s opinion. Molina v.
Astrue, 674 F.3d 1104, 1111-12 (9th Cir. 2012); Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir.
1996).

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Additionally, the ALJ noted Jackson’s opinion appeared to stem largely from Plaintiff’s
self-reporting. Tr 29. As the ALJ properly found Plaintiff’s reports of pain less-than credible, this
is an additional germane reason for rejecting Jackson’s opinion. Tommasetti v. Astrue, 533 F.3d
1035, 1041 (9th Cir. 2008).
Following the ALJ’s decision, Plaintiff submitted Ms. Osborne’s opinion to the Appeals
Council. Like Ms. Jackson, Ms. Osborne, a Marriage & Family Therapist, qualifies as an “other
source.” Ms. Osborn assigned Plaintiff a GAF of 50 and resembles Ms. Jackson’s opinion. Tr
388. Even though the ALJ never reviewed Ms. Osborne’s opinion, this evidence is part of the
administrative record before me. Brewes v. Comm’r for Soc. Sec. Admin., 682 F.3d 1157, 115960 (9th Cir. 2012). Ms. Osborn’s opinion, therefore, must be considered in determining whether
the Commissioner’s final decision is supported by substantial evidence. Id.
For the same reasons discussed with regard to Ms. Jackson’s opinion above, Ms.
Osborn’s opinion does not undermine the ALJ’s conclusion in this instance. Ms. Osborn’s
opinion, like that of Ms. Jackson, is contradicted by an acceptable medical source. Additionally,
Ms. Osborn’s opinion relies heavily on Plaintiff’s self-reporting, which the ALJ properly
determined was less-than credible.
In short, as discussed above, the ALJ’s finding that Plaintiff did not have a severe mental
impairment was supported by substantial evidence in the record. The ALJ presented the evidence
of mental impairments in some detail. Tr 24-25. The ALJ accorded significant weight to the
opinions of the reviewing psychological consultants, Tr 25, and that of Dr. Belcher, Tr 24. The
ALJ walked through the “paragraph B” criteria when evaluating mental disorders. Tr 24. The
finding that Plaintiff’s mental impairments were not severe is supported by the record and free of
legal error.
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III.

Dr. Greenberg’s Opinion
At step four, the ALJ found Plaintiff capable of "light work." Light work would require

the Plaintiff to be on his feet for up to six hours of an eight-hour workday, five days per week. Tr
25. The Plaintiff argues that this assessment is in error because the Plaintiff’s physical condition
is such that he can only be on his feet for a maximum of two hours per work day. This two-hour
estimation is based on the opinion of Plaintiff’s treating physician Dr. David Greenberg, a
podiatrist (DPM) who examined and treated Plaintiff for his feet and ankle impairments on three
occasions from June to August, 2011. Tr 331-334.
To reject an un-contradicted opinion of a treating physician, the ALJ must present clear
and convincing reasons supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211,
1216 (9th Cir. 2005); 20 C.F.R. § 404.1527(c)(2). Regarding Dr. Greenberg’s opinion, the ALJ
stated:
Dr. Greenberg completed a form dated October 6, 2011 , at the request of the
claimant's attorney indicating that the claimant has pain with standing or walking.
He opined that the claimant is limited to sedentary work with standing and/or
walking limited to two hours of an eight-hour workday. However, little weight is
given to Dr. Greenberg's opinion because he treated the claimant on only three
occasions during the period June 29, 2011, to August 10, 2011, and he reported he
was unaware of the claimant's response to left foot/ankle orthosis which was
expected to result in greater functioning with less pain. Although Dr. Greenberg
opined that the claimant would need unscheduled breaks during the workday, he
indicated that the claimant would need breaks every two hours, suggesting that
this could be accommodated by regular breaks and lunch periods. His opinion that
the claimant would miss about two days of work per month is given no weight
because it is purely speculative.
Tr 29. Considering the record as a whole, these are adequate reasons for assigning little weight to
Dr. Greenberg’s opinion.

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As noted by the Commissioner, Plaintiff reported experiencing ankle pain and swelling
during a May 17, 2011 appointment. Tr 355. Plaintiff reported pain from two weeks prior to that
appointment. Tr 355. Nina O’Mailia, PA-C referred Plaintiff to Dr. Greenberg, a podiatrist. TR
333. Dr. Greenberg first treated Plaintiff on June 29, 2011. Tr 333. Dr. Greenberg noted Plaintiff
“is an excellent candidate for an attempt at management of his left foot symptoms with use of a
properly designed custom ankle foot orthosis.” Tr 333. During the second visit, on July 20, 2011,
Dr. Greenberg “Suggested again the use of the ankle foot orthosis properly designed for his
condition.” Tr 332. One month later, during Plaintiff’s third and final visit with Dr. Greenberg,
Plaintiff received the ankle orthosis. Tr 331. Dr. Greenberg observed that Plaintiff “was able to
ambulate with the [ankle orthosis] and shoe with relative comfort and with no apparent
difficulties.” Tr 331. As discussed above, Dr. Greenberg ordered a follow up appointment in
three weeks, directing Plaintiff to “report by phone to me any difficulties” with the orthosis.
Plaintiff never followed up with Dr. Greenberg. The ALJ properly noted that because of
Plaintiff’s failure to floow up, and the fact that the orthosis appeared to address Plaintiff’s foot
problems, Dr. Greenberg’s opinion that Plaintiff could stand only two hours per workday was
entitled to little weight. Tr. 29. The ALJ simply accorded more weight to the opinions of the
reviewing physicians who, after reviewing all the medical evidence, opined that Plaintiff could
stand six hours per workday. Tr 28. Considering Dr. Greenberg treated Plaintiff on three
occasions during a small time period, the ALJ properly concluded Dr. Greenberg’s opinion was
not entitled to great weight as to whether Plaintiff would experience foot trouble over a larger
portion of time necessary to find Plaintiff disabled under the regulations.

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Additionally, considering Plaintiff never followed up as directed, and considering the
orthosis appeared to correct the problems, the ALJ was entitled to dismiss as “speculative” Dr.
Greenberg’s opinion that Plaintiff would miss two days of work per month due to foot problems.
As noted, the ALJ is charged with resolving conflicts in the record. Here, there was a
conflict over whether Plaintiff could stand for two hours per workday as opined by Dr.
Greenberg, or six hours per workday as opined by several other sources. The ALJ committed no
error in resolving the conflicts, and his conclusion, as stated in Plaintiff’s RFC assessment, is
supported by substantial evidence in the record. Further, the ALJ provided clear and convincing
reasons for rejecting Dr. Greenberg’s opinion that Plaintiff would miss two days of work per
month.
IV.

Transferrable Skills
The Plaintiff argues that the ALJ’s initial RFC was flawed because it only identified

“traits” rather than actual transferable “skills.” The Commissioner admits that “It may be true
that some of the skills identified by vocational expert and the ALJ may best be characterized as
either traits or work activities rather than skills,” Resp., 17, but argues that the FRC was
nonetheless not flawed because “it was evident that the VE was analyzing the traits, skills, and
activities in the context of Plaintiff’s 30 years of nurse assistant work…” and that “The line
between skills, traits, and work activities can be difficult to divine.” Resp., 16-17.
The court agrees with the Commissioner on this point. While generalized traits alone
cannot form the basis of the ALJ’s analysis in step five, the mere fact that traits and work
activities are included in the analysis do not render the opinion unfounded. It is clear from the
record that both the VE and the ALJ evaluated the Plaintiff’s skill set level in the context of the
Plaintiff’s 30 year career in patient care as certified nurse assistant. The work skill from past
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relevant work was appropriately identified by the ALJ as semi-skilled. The ALJ properly
identified a number of work traits and skills that the Plaintiff was capable of performing under
the general skill set of patient care: “attending to the needs of a specific individual or group;
following oral and written instructions; using eyes, hands, and fingers to handle equipment and
instruments and collect medical data; and adapting to emergencies and frequent changes in job
duties.” Tr 30.

CONCLUSION
The Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
DATED this 31st day of March, 2015.
_______/s/ Michael J. McShane________
Michael J. McShane
United States District Judge

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