Banks v. Commissioner, Social Security Administration

Filing 21

Opinion and Order. Signed on 7/27/2015 by Judge Robert E. Jones. (sss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

KRISTY L. BANKS,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN, Acting Commissioner of )
Social Security,
)
)
Defendant.
)
JONES, J.,

3: 14-CV-00568-JO

OPINION AND ORDER

Plaintiff Kristy Banks appeals the Commissioner's decision denying her application for
supplemental security income under Title XVI of the Social Security Act. The court has jurisdiction
under 42 U.S.C. § 405(g). I AFFIRl\1 the Commissioner's decision.
PRIOR PROCEEDINGS
Banks initially filed concmTent applications under Title II and Title XVI, alleging disability
beginning in February 2007. Admin. R. 66. Banks later amended her alleged onset of disability to
August 2010. Her insured status under the Act expired on September 30, 2008. Thus Banks no
longer qualifies for Title II benefits and seeks review of only her Title XVI claim. Pl.'s Br. 2.

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OPINION AND ORDER

The ALJ applied the sequential disability dete1mination process described in the regulations.

See Bowen v. Yuckert, 482 U.S. 13 7, 140 (1987)(describing the sequential process). The ALJ found
Banks' s ability to perfo1m basic work limited by a moderate disc bulge, a mood disorder, and a
substance abuse disorder. Admin. R. 68. The ALJ found that, despite these impahments, Banks
retained the residual functional capacity ("RFC") to perform a range of light work with lifting or
carrying up to 20 pounds occasionally and 10 pounds frequently, standing, walking, or sitting for up
to 6 hours each during an 8 hour day, and limiting all postural activities such as stooping, bending,
crouching, and so f011h. The ALJ said she could perform only simple repetitive tasks and needed
to limit her contact with the general public and her exposure to hazards. Admin. R. 71.
The ALJ compared Banks's RFC with the physical and mental demands of her previous job
as a storage rental clerk and found that her RFC did not preclude performing that work as she had
actually done it in the past. The vocational expe1t ("VE") testified that a person with Banks's RFC
could perf01m the storage rental clerk job as it is generally performed in the national economy.
Admin. R. 77. In addition, the VE testified that a person with Banks' s RFC could perform other
occupations in the national economy, such as document clerk, mail so11er, and office helper which
represent hundreds of thousands of jobs in the national economy. Admin. R. 78. The ALJ
concluded that Banks was not disabled within the meaning of the Social Security Act. Admin. R.
79.

STANDARD OF REVIEW
The district comi must affirm the Commissioner's decision if it is based on proper legal
standards and the findings of fact are supported by substantial evidence in the record as a whole. 42
U.S.C. § 405(g); Batson v. Comm 'r ofSoc. Sec. Admin., 359F.3d1190, 1193 (9th Cir. 2004). Under
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OPINION AND ORDER

this standard, the Commissioner's factual findings must be upheld if suppo1ted by inferences
reasonably drawn from the record even if evidence exists to suppo1t another rational interpretation.
Batson, 359 F.3d at 1193; Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

DISCUSSION
I.

Claims of Error
Banks alleges the ALJ failed to assess her RFC accurately because he improperly discounted

her subjective statements, the statements of her mother, Jayne Jones, and the statements of her
treating mental health practitioners, Kristina Stewart, Q.M.H.P. and Gerald Peake, P.M.H.N.P.

II.

Credibility Determination
In her application, Banks said she stopped working because of bursitis in the hips, tendinitis

in the shoulders, chronic pain from fibromyalgia, depression, anxiety, carpal tunnel syndrome,
endometriosis, high blood pressure, a deformity of her right foot, and a deficiency of vitamin D.
Admin. R. 320, 370. Banks said her medications made concentration difficult. Admin. R. 326. She
estimated she could walk less than a block before needing to stop to rest and usually could not
resume walking after resting. Admin. R. 331.
In her hearing testimony, Banks said that she stopped working in 2007 because she became
pregnant and her chronic pain became worse. Admin. R. 9. She said she continued to be unable to
work because she could not focus and she needed to be with her children to protect them from
pedophiles. Admin. R. 10, 16. In addition, Banks said her hands no longer worked, due to nerve
damage, and her feet, knees, and hips kept her from "being able to do stuff." Admin. R. 12. Banks
said she got shaky and tearful on a daily basis and suffered from panic attacks about once a week.
Admin. R. 14-15.
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OPINION AND ORDER

The ALJ believed that Banks's impairments could cause some degree of the symptoms she
alleged, but did not believe her statements about their limiting effects to the extent she claimed
limitations in excess of those in the RFC assessment. He did not believe her claim that she could
not perfo1m work within the limitations of the RFC assessment. Admin. R. 71.
An ALJ must engage in a two-step analysis when assessing the credibility of a claimant's

subjective complaints. Vasquez v. Astrue, 572 F. 3d 586, 591 (9th Cir. 2009). First, the ALJ must
determine if the claimant has presented "objective medical evidence of an underlying impairment
which could reasonably be expected to produce the pain or other symptoms alleged." Lingenfelter
v. Astrue, 504 F. 3d 1028, 1036 (9th Cir. 2007). Here, the ALJ found that Banks had satisfied the
first prong.
Second, if the claimant has met the first prong and there is no evidence of malingering, the
ALJ must make a credibility determination and can reject the claimant's testimony only by making
specific findings supported by substantial evidence and providing a clear and convincing
explanation. Lingenfelter, 504 F.3d at 1036. Here, there was affirmative evidence of malingering.
The ALJ identified statements of treating sources suggesting that Banks engaged in malingering and
misrepresentation. Admin. R. 75. For example, in April 2010, emergency depaiiment staff noted
that when Banks thought she was not being observed, her symptoms disappeai·ed. Her symptoms
"seem[ed] to come and go" and were "not congruent with any sort of specific organic process [and
seemed] entirely volitional." Admin. R. 75, 402, 405. In addition, at her consultative psychological
evaluation, Jane Starbird, Ph.D., questioned Banks's credibility and suggested that secondary gain
might be a basis of her symptoms. Admin. R. 75, 414.

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OPINION AND ORDER

Despite finding evidence of malingering, the ALJ performed a full credibility determination.
In assessing credibility, an ALJ must consider all the evidence in the case record, including the
objective medical evidence, the claimant's treatment histmy, medical opinions, daily activities, work
history, the observations ofthird parties with knowledge ofthe claimant's functional limitations, and
any other evidence that bears on the consistency and veracity of the claimant's statements.

Tommasetti, 533 F3d at 1039; Smolen, 80 F3d at 1284; SSR 96-7p, 1996 WL 374186, at *5.
Here, the ALJ considered proper factors in assessing Banks's credibility. He found that the
objective medical evidence did not suggest the extreme limitations she claimed. Aside from the
clinical observations that led to the suggestion of malingering, Banks's objective findings were
generally mild. For example, in October 2010, Banks sought treatment for extreme constant pain
in the neck and right ann. On examination, Banks had only generalized muscle tenderness, with full
strength, reflexes, and sensation in all muscle groups and de1matomes. She received conservative
treatment with pain medication and instructions to try massage with alternating heat and cold and
gentle stretching. Admin. R. 73, 676. An x-ray study of the thoracic spine was completely nmmal.
Admin. R. 560-61. An MRI study ofBanks's cervical spine showed a moderate disk bulge at C5-6
causing a moderate nanowing of the spinal canal with the disk touching the left ventral aspect of the
spinal cord. Admin. R. 73, 560. While significant, these findings are inconsistent with Banks's
right-sided symptoms and the extreme weakness she claimed.
As discussed more fully below, the ALJ adequately considered the medical opinions of
Banks's doctors and concluded the opinions did not support her subjective statements about the
limiting effects of her symptoms.

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OPINION AND ORDER

The ALJ found that Banks described activities "that are not limited to the extent one would
expect, given the complaints of disabling symptoms and limitations." Admin. R. 75. For example,
Banks reported she could take care of her three children at home without assistance while attending
community college part time. Admin. R. 75. She could cook and clean and take her children outside
to play. Banks could pay bills, count change and use a check book. Admin. R. 70.
Fmthermore, the ALJ looked at Banks' s social functioning. Banks' smother said that Banks
talked on the phone and had visits from friends several times a month. She had no difficulty
attending doctor appointments or school functions for her oldest daughter. Admin. R. 70. These
social activities, while limited, suppmt an inference that Banks can tolerate occasional contact with
the public as the ALJ found in his RFC assessment.
The ALJ also considered Banks's work history, which shows she worked sporadically prior
to her alleged disability onset date. Banks also "expressed no interest in working and expressed no
regrets that she is ve1y dependent on others." Admin. R. 75. This caused the ALJ to question
whether Banks' continual unemployment was actually related to any medical impainnent. Admin.
R. 75. This inference was fmther supported by Banks's testimony that she stopped working due to

pregnancy and did not want to return to work because she wanted to be home with her children.
When a claimant stops working for reasons other than disability the ALJ may draw an adverse
inference as to her credibility. Bruton v. i\!Jassanari, 268 F.3d 824, 828 (9th Cir. 2001).
Finally, the ALJ noted that Banks's drug seeking behavior discounted her credibility. Drug
seeking behavior is a proper basis for discounting a claimant's credibility. Edlund v. Aiassanari, 253
F. 3d 1152, 1157 (9th Cir. 2001 ). The ALJ identified repeated episodes in which Banks sought to
obtain medications in excess of her prescriptions. In 2008, the claimant tested positive for
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OPINION AND ORDER

benzodiazepine when she did not have a prescription for benzodiazepine. Admin. R. 73, 813. In
2010, Dr. Elder denied Banks's request for additional Oxycodone because it exceeded the limits of
her pain medication contract. Admin R. 74, 652. Later, Banks again requested more medication
from another physician who noted that Banks was clearly exceeding her contract with Dr. Elder.
Admin. R. 74, 702. In 2011, Banks requested a refill of her Oxycodone prescription 13 days after
receiving 560 tablets from a pharmacy. Admin. R. 74, 724. Banks blamed her boyfriend for taking
the pain medication, but failed to produce evidence to supp01i this claim. Admin. R. 74, 729.
The ALJ' s findings are supp01ied by substantial evidence in the record and are sufficiently
specific for me to conclude that the ALJ did not arbitrarily reject Banks' s subjective statements. His
reasoning is clear and convincing and the credibility determination will not be disturbed.

Tommasetti, 533 F.3d at 1039; Carmickle, 533 F.3d at 1160.

III.

Lay Witness Statement
The ALJ considered the testimony and the 2008 third patiy function repo1i submitted by

Banks's mother, Jayne Jones ("Jones"). At the hearing, Jones said she thought Banks experienced
extreme anxiety and turned into a "basket case" when she was around people. Adm in. R. 23. Jones
also testified that Banks had a hard time concentrating on her school work. Admin R. 24. She
rep01ied that Banks could not get comfortable lying down or sitting because of pain. Admin. R. 295.
Jones also said that Banks was a great mom and that the kids were well adjusted. Admin. R. 19. In
her function report, Jones said Banks was up with her children every morning and helped get her
oldest daughter ready for school. Admin. R. 77. She also rep01ied that Banks prepared meals on a
daily basis and could walk a couple of blocks before resting. Admin. R. 77.

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OPINION AND ORDER

The ALJ found Jones generally credible in describing the activities she observed, but found
her statements about Banks's limitations not fully credible to the extent they were not based on her
own first hand knowledge.
An ALJ must consider the testimony of a lay witness, unless the ALJ gives reasons germane
to the witness, for discounting the testimony. Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d
685, 694 (9th Cir. 2009). An ALJ need not clearly link the reasons to his detennination that the lay
witness testimony should be discounted, as long as he notes gennane reasons somewhere in the
decision and they are suppotted by substantial evidence. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir.
2001).
Here, the ALJ believed Jones' s observations but discounted her statements about limitations
that were based on Banks 's subjective complaints, such as Banks 's ability to walk only a couple of
blocks before stopping, her level of anxiety around people, her difficulty concentrating and her
discomfort when sitting. When an opinion is premised on subjective statements, that opinion is no
more reliable than the subjective statements which it relies on. Tonapetyan v. Halter, 242 F.3d 1144,
1149 (9th Cir. 2001). An ALJ can properly disregard an opinion based on subjective statements
when the ALJ has already discounted those subjective statements. Fair v. Bowen, 885 F. 2d 597, 605
(9th Cir. 1989).
This reasoning provides an adequate basis for the ALJ' s evaluation of the Jones' s testimony
and lay witness report. Valentine, 574 F.3d at 694; Lewis, 236 F.3d at 512. The ALJ's interpretation
of Jones's statements is suppo1ted by inferences reasonably drawn from the record, and will not be
disturbed. lvfolina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Batson, 359 F.3d at 1193;

Andrews, 53 F.3d at 1039-40.

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OPINION AND ORDER

VI.

Medical Opinions
Banks claims the ALJ ened in discrediting the statements of treating sources Kristina Stuart,

Q.M.H.P. and Gerald Peake P .M.H.N.P. Stumi and Peake concluded that Banks had moderate and
marked limitations in various areas of mental functioning and that Banks could tolerate only low
stress work. Admin. R. 76. They opined that Banks would be absent more than tlll'ee times a month
if she were working a nonnal work schedule. Admin. R. 76. The ALJ attributed some weight to the
opinions of Stuart and Peake. He gave less than full weight however, because he found them
inconsistent with the record as a whole.
The Commissioner's regulations distinguish between acceptable medical sources, such as
licensed physicians and psychologists, and other medical sources, such as counselors and nurse
practitioners. An ALJ may disregard the opinions of "other medical sources" so long as the ALJ
gives reasons germane to each witness for doing so. Turner v. Comm 'r Soc. Sec., 613 F. 3d 1217,
1224 (9th Cir. 2010). Even a single reason may suffice. Valentine, 574 F.3d at 694.
The ALJ found the opinion of Stumi and Peake inconsistent with the record as a whole,
which indicates that Banks retains the mental capacity to perform simple repetitive tasks involving
limited contact with the general public. For example, Banks had no difficulty caring for her children,
providing meals, and keeping a clean household on a daily basis without taking days off. Admin.

R. 8. Stumi and Peake questioned Banks's ability to concentrate, but Jones said that Banks can pay
attention as long as she needs to. Admin. R. 299. Banks can concentrate sufficiently to take
community college classes. Admin. R. 70. Such inconsistencies provide a proper basis to discount
the opinion of an "other medical source." See Rollins v. i\!fassanari, 261 F. 3d 853, 856 (9th Cir.
2001) (ALJ provided a legitimate reason for discounting a medical restriction that was "inconsistent
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OPINION AND ORDER

with the level of activity that Rollins engaged in by maintaining a household and raising two young
children, with no significant assistance"). In addition, it appears Stuait and Peake relied on Banks' s
subjective description of her limitations in fo1ming their opinion. The ALJ provided adequate
reasoning ge1mane to Stuait and Peake for discounting their opinion of Banks' s limitations.
CONCLUSION

Banks's assignments of error cannot be sustained. Accordingly, the Commissioner's final
decision is AFFIRMED.
DATED this

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1J~ dayofJuly,2015.

OPINION AND ORDER