Wilson v. Commissioner Social Security Administration
Filing
21
Opinion and Order. The Commissioner's decision is AFFIRMED and this case is DISMISSED. See formal Opinion and Order. Signed on 10/28/2014 by Chief Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KATRINA WILSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
MERRILL SCHNEIDER
Schneider, Kerr & Gibney Law Offices
P.O. Box 14490
Portland, Oregon 97293
Attorney for plaintiff
S. AMANDA MARSHALL
RONALD K. SILVER
United States Attorney's Office
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97201
COURTNEY GARCIA
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 901
Seattle, Washington 98104
Attorneys for defendant
Page 1 - OPINION AND ORDER
Case No. 3:13-cv-01858-AA
OPINION AND ORDER
AIKEN, Chief Judge:
Katrina Wilson ("plaintiff") brings this action pursuant to
the Social Security Act
final
decision
of
("Commissioner") .
("Act")
the
The
to obtain judicial review of a
Commissioner
of
Commissioner
Social
denied
Security
plaintiff's
applications for Title II disability insurance benefits
and
Title
XVI
supplemental
security
income
("SSI") .
( "DIB")
For
the
reasons set forth below, the Commissioner's decision is affirmed
and this case is dismissed.
PROCEDURAL BACKGROUND
On July 15,
159-72.
Her
held
plaintiff
before
was
plaintiff applied for
applications
reconsideration.
was
2010,
Tr.
an
were
99-107,
initially
111-16. On May 24,
Administrative
represented by
denied
Law
counsel
DIB and SSI.
Judge
and
2012,
and
upon
a hearing
( "ALJ") ,
testified,
Tr.
wherein
as
did
a
vocational expert. Tr. 31-60. On June 28, 2012, the ALJ issued a
decision finding plaintiff not disabled within the meaning of the
Act. Tr. 19-26. After the Appeals Council denied her request for
review, plaintiff filed a complaint in this Court. Tr. 9-13.
STATEMENT OF FACTS
Born November 19,
1958,
plaintiff was 51 years old on the
alleged onset date and 53 years old on the date of the hearing.
Tr.
15 9,
166.
She graduated high school and attended Clackamas
Community College for a short time before quitting in 1981. Tr.
Page 2 - OPINION AND ORDER
35.
Plaintiff
worked
representative,
previously
machine
as
operator,
customer
a
photo
and
service
production
specialist. Tr. 197-204. Plaintiff alleges disability as of April
26, 2010, due to deteriorating hip joints, asthma, back problems,
arthritis, and diabetes. Tr. 47-48, 191.
STANDARD OF REVIEW
The 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.
4 98,
501
(9th Cir.
mere scintilla.
mind
might
198 9) .
Bowen,
879 F.2d
Substantial evidence is "more than a
It means such relevant evidence as a reasonable
accept
Richardson v.
Hammock v.
as
Perales,
internal
quotations
evidence
that
adequate
402
U.S.
omitted).
supports
and
conclusions." Martinez v.
to
389,
The
401
court
detracts
Heckler,
support
a
conclusion."
(1971)
must
from
the
(citation and
weigh
"both
the
[Commissioner's]
807 F.2d 771,
772
(9th Cir.
1986) . Variable interpretations of the evidence are insignificant
if
the
Commissioner's
interpretation
is
rational.
Burch
v.
claimant
to
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The
initial
burden
of
proof
rests
upon
the
establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th
Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability
reason
of
to
engage
any
in
any
medically
Page 3 - OPINION AND ORDER
substantial
determinable
gainful
physical
activity
or
by
mental
impairment which can be expected .
. to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d) (1) (A).
The
process
Commissioner
has
established
a
five-step
sequential
for determining whether a person is disabled.
Yuckert,
416.920.
482
U.S.
First,
137,
140
(1987);
20
C.F.R.
§§
Bowen v.
404.1502,
the Commissioner considers whether a claimant is
engaged in "substantial gainful activity." Yuckert,
4 8 2 U.S.
at
140; 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the claimant is
not disabled.
At step two, the Commissioner evaluates whether the claimant
has
"medically
a
impairments."
404.1520 (c),
severe
Yuckert,
impairment
u.s.
482
416.920 (c).
or
combination
140-41;
at
20
C.F.R.
If the claimant does not have a
of
§§
severe
impairment, she is not disabled.
At
step
three,
the
claimant's impairments,
equal
"one
of
[Commissioner]
a
of
acknowledges
gainful
C.F.R.
determines
whether
the
either singly or in combination, meet or
number
substantial
404.1520(c),
§§
Commissioner
are
listed
so
impairments
severe
activity." Yuckert,
416.920(c).
If
482
so,
as
U.S.
the
to
at
that
the
preclude
140-41;
20
claimant
is
presumptively disabled; if not, the Commissioner proceeds to step
four. Yuckert, 482 U.S. at 141.
At step four,
the Commissioner resolves whether the claimant
can still perform "past relevant work." 20 C.F.R. §§ 404.1520(f),
Page 4 - OPINION AND ORDER
416.920(f). If the claimant can perform her past work, she is not
disabled;
if a claimant cannot perform past relevant work,
the
burden shifts to the Commissioner. At step five, the Commissioner
must establish that the claimant can perform other work existing
in
significant
Yuckert,
u.s.
482
416.920 (g).
numbers
at
in
the
national
141-42;
20
and
C.F.R.
local
404.1520 (g)'
§§
If the Commissioner meets this burden,
is not disabled. 20 C.F.R.
§§
economy.
the claimant
404.1566, 416.966.
THE ALJ'S FINDINGS
At step one of the five-step sequential evaluation process
outlined above,
substantial
April
26,
the ALJ found that plaintiff had not engaged in
gainful
2010.
Tr.
activity
21.
At
since
the
step two,
alleged
found
that
and diabetes mellitus.
plaintiff's
Id.
impairments,
date
of
the ALJ determined that
plaintiff had the following severe impairments:
replacement
onset
At
status post hip
step three,
either
singly
the ALJ
or
in
combination, did not meet or equal the requirements of a listed
impairment. Tr. 22.
Because she did not establish presumptive disability at step
three, the ALJ continued to evaluate how plaintiff's impairments
affected her ability to work. The ALJ resolved that plaintiff had
the residual functional capacity ("RFC") to perform less than the
full range of sedentary work:
[s]he can lift ten pounds occasionally and less than 10
pounds frequently; she can stand and walk up to two out
Page 5 - OPINION AND ORDER
of eight hours; she can occasionally stoop and bend,
and she should not climb, balance, kneel, crouch, or
crawl.
At step four, the ALJ found that plaintiff could perform her
past relevant work as a customer service representative. Tr. 26.
Accordingly,
the ALJ concluded that plaintiff was not
disabled
under the Act. Id.
DISCUSSION
Plaintiff
contends
the
ALJ
erred
opinion of Jeffrey Young, D.O.; and (2)
by:
(1)
rejecting
the
finding that she did not
meet or medically equal listing 1.03 at step three.
I. Medical Opinion Evidence
Plaintiff contends the ALJ failed to provide a legally sufficient
reason,
supported by substantial evidence,
opinion of Dr.
in
social
Young.
security
There are three types of medical opinions
cases:
non-examining doctors.
for discrediting the
those
Lester v.
from
treating,
Chater,
examining,
81 F.3d 821,
830
and
(9th
Cir. 1995). To reject the uncontroverted opinion of a treating or
examining
doctor,
the
reasons for doing so.
(9th Cir.
2005)
ALJ
must
Bayliss v.
present
Barnhart,
(citation omitted).
clear
427
and
convincing
F.3d 1211,
1216
If a treating or examining
doctor's opinion is contradicted by another doctor's opinion, it
may be rejected for specific and legitimate reasons supported by
substantial evidence in the record. Id.
Page 6 - OPINION AND ORDER
In 2004, plaintiff initiated care with Dr. Young; he treated
her approximately once per month for asthma,
diabetes,
and back pain associated with her hip impairments.
In
May
2 012,
Dr.
Young
plaintiff's attorney.
box form,
leg,
Dr.
completed
Tr.
a
4 60-62.
and leg
Tr.
questionnaire
250-308.
prepared by
In this three-page check-the-
Young indicated that plaintiff suffers from back,
and hip pain,
and would need to alternate between sitting,
standing, and lying down approximately every 30 minutes. Tr. 460.
He also opined that plaintiff's symptoms would likely increase in
a competitive work environment; she would be expected to miss two
full work days per month due to "flares of pain." Id.
to
plaintiff's
alleged
peripheral
neuropathy,
Dr.
In regard
Young
noted
that "specific treatment has not been tried" and he was "unsure"
whether
opin~d
this
condition
existed.
Tr.
461.
Finally,
Dr.
Young
that plaintiff did not need a hand-held assistive device
to ambulate effectively. Id.
The ALJ gave "limited weight" to Dr. Young's opinion for two
reasons.
First,
plaintiff
because
would
her
the
ALJ
rejected
need
to
alternate
testimony
did
sitting for extended periods.
not
Tr.
Dr.
Young's
positions
indicate
24.
limitation
every
any
Second,
30
that
minutes
difficulty
with
the ALJ found Dr.
Young's opinion that plaintiff would need to miss work two days
per month inconsistent with the medical records, which reflected
that plaintiff's hip pain improved since surgery.
Page 7 - OPINION AND ORDER
Id. An ALJ may
discount
a medical
report
that
is
inconsistent with the
other
evidence of the record, including the doctor's own chart notes or
the claimant's testimony.
Morgan v.
Comm'r of Soc.
Sec. Admin.,
169 F.3d 595, 603 (9th Cir. 1999).
An independent review of Dr.
Young's brief and conclusory
opinion confirms that his assessed limitations are contravened by
plaintiff's testimony and the other evidence of record. First, as
the ALJ observed, there is an absence of evidence indicating that
plaintiff is unable to sit for a significant amount of time or
must
frequently
household
change
chores,
positions.
drive
to
Notably,
appointments,
she
dance
can
to
perform
music
for
exercise, watch movies, play video games, and do embroidery. 1 Tr.
24,
40-41,
activities
Moreover,
45,
213-20.
evince
plaintiff
the
The ALJ reasonably resolved that
these
ability
sedentary
work.
that
could
testified
to
at
engage
the
in
hearing
she
return to her previous job if given sufficient restroom breaks.
Tr.
47, 54. Plaintiff did not indicate any difficulty performing
the
sitting,
standing,
and
walking
requirements
for
her
past
relevant work as a customer service representative.
Plaintiff's treatment
records
also demonstrate
significant
improvement since her October 26, 2010, surgery. Two weeks post-
1
Significantly, the ALJ relied on plaintiff's activities of
daily living to reject her subjective symptom testimony and
plaintiff does not challenge this finding on appeal. Tr. 23; see
generally Pl.'s Opening Br.; Pl.'s Reply Br.
Page 8 - OPINION AND ORDER
surgery,
plaintiff needed crutches
to
walk,
whereas
Dr.
Young
noted, as of September 2011, that she could ambulate effectively
without an assisti ve device.
post-operative report
Tr.
reveals
4 58,
that
4 61.
she
Plaintiff's ten-week
recovered well,
increased strength and range of motion.
Tr.
3 8 4.
As
reported being "very happy with her left hip.". Id.
showing
such,
Dr.
she
Young's
opinion that plaintiff's pain would interfere with her ability to
attend
work
consistently
is
further
undermined
by
her
daily
activities and her admission at the hearing that she was capable
of
performing
the
physical
requirements
of
her
past
relevant
work. Tr. 46-47, 54, 205-20.
In
supported
sum,
by
the
ALJ
provided
substantial
Young's evaluation.
legally
evidence,
to
sufficient
disregard
The ALJ's assessment of Dr.
reasons,
some
of
Dr.
Young's opinion
is affirmed.
II. Step Three Finding
Plaintiff also argues that the ALJ erred by failing to find
that
she
met
or
equaled
listing
1. 03.
To
establish
a
listed
impairment at step three, the claimant must demonstrate that "all
of the specified medical criteria [are met]." Sullivan v. Zebley,
493 U.S. 521, 530 (1990). "An impairment that manifests only some
of those criteria, no matter how severely, does not qualify." Id.
Listing
1. 03
"[r]econstructive
requires
surgery
Page 9 - OPINION AND ORDER
or
that
surgical
a
claimant
arthrodesis
of
undergo
a
major
weight-bearing
joint,
with
inability
[the]
effectively, as defined in 1. 00 (B) (2) (b),
of onset." 20 C.F.R.
§
to
ambulate
. within 12 months
404, Subpt. P, App. 1
§
1.03. To establish
ineffective ambulation, the claimant must demonstrate:
an extreme limitation of the ability to walk; i.e., an
impairment ( s) that interferes very seriously with the
individual's
ability
to
independently
initiate,
sustain, or complete activities. Ineffective ambulation
is defined generally as having insufficient lower
extremity
functioning
(see
1.00(J))
to
permit
independent ambulation without the use of a hand-held
assistive device(s) that limits the functioning of both
upper extremities.
20
C.F.R.
words,
§
404,
Subpt.
P,
App.
nto ambulate effectively,
1
l.OO(B) (2) (b).
§
In
other
individuals must be capable of
sustaining a reasonable walking pace over a sufficient distance
to be able to carry out activities of daily living [and] have the
ability
to
travel
without
companion
assistance
to
and
from
a
place of employment or school." Id.
At step three, the ALJ expressly considered listing 1.03 but
found that plaintiff did not meet or equal it because ntreatment
records
do not
effectively on
reflect
a
that
[plaintiff]
sustained basis
[or
is
that
unable
she]
to
was
ambulate
unable
to
return to effective ambulation within twelve months of onset."
Tr. 22.
Here,
the
record supports
the ALJ' s
conclusion.
Plaintiff
testified at the hearing that she can navigate her apartment and
other nshort distances" without use of an assistive device;
Page 10 - OPINION AND ORDER
for
longer distances,
feel
as
above,
did
she "take [ s]
"stable
or
[her]
cane" because she does not
comfortable without
plaintiff's treating doctor,
not
need
hand-held
a
effectively.
Tr.
independently
carries
461.
Dr.
her
Tr.
Young,
assistive
Also
out
it."
activities
As
noted
opined that she
device
noted
as
4 6.
ambulate
to
above,
of
plaintiff
daily
living.
Specifically, she can shop, drive, and perform limited household
chores,
such as cooking and cleaning.
Roybal v.
(affirming
Colvin,
the
2013 WL 4768033,
ALJ' s
step
three
*9
Tr.
205-11,
(C.D.Cal.
finding
where
214;
Sept.
the
see also
4,
2013)
claimant's
activities of daily living demonstrated the ability to ambulate
effectively and the claimant's medical providers did not indicate
that
an assisti ve device was warranted) .
The ALJ' s
step three
finding is affirmed.
CONCLUSION
The Commissioner's decision is AFFIRMED and this
DISMISSED.
ofa: 2?2Lv
IT IS SO ORDERED ~
Dated
this
1/?
Ann Aiken
United States District Judge
Page 11 - OPINION AND ORDER
case is
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