Smith v. Commissioner Social Security Administration
Filing
20
Opinion and Order. The Court AFFIRMS the final decision of the Commissioner and DISMISSES this matter. Signed on 06/11/2015 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
JULIE SMITH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
H. PETER EVANS
610 S.W. Broadway, Suite 405
Portland, OR 97205
(503) 200-2718
Attorney for Plaintiff
BILLY J. WILLIAMS
Acting United States Attorney
RONALD K. SILVER
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1044
1 - OPINION AND ORDER
3:14-cv-00743-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
JORDAN D. GODDARD
Special Assistant United States Attorneys
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104-7075
(206) 615-2733
Attorneys for Defendant
BROWN, Judge.
Plaintiff Julie Smith seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff’s application
for Disability Insurance Benefits (DIB) under Title II of the
Act.
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 final decision of the
Commissioner.
ADMINISTRATIVE HISTORY
Plaintiff filed her application for DIB on March 15, 2011.
Tr. 16.1
Her applications were denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on November 8, 2012.
1
Tr. 67.
At the hearing Plaintiff
Citations to the official transcript of record filed by
the Commissioner on September 19, 2014, are referred to as “Tr.”
2 - OPINION AND ORDER
was represented by an attorney.
Plaintiff and a vocational
expert (VE) testified at the hearing.
Tr. 67.
The ALJ issued a decision on December 21, 2012, in which she
found Plaintiff is not entitled to benefits.
Tr. 16-25.
That
decision became the final decision of the Commissioner on
March 28, 2014, when the Appeals Council denied Plaintiff’s
request for review.
Tr. 1-3.
See Sims v. Apfel, 530 U.S. 103,
106-07 (2000).
BACKGROUND
Plaintiff was born on May 18, 1977; was 35 years old on the
date of the hearing; and has a high-school education and
certification as a nursing assistant.
Tr. 80, 82, 212, 224, 228.
Plaintiff has prior relevant work experience as a nurse’s
assistant.
Tr. 43, 102.
Plaintiff alleges disability since May 29, 2007, due to
epilepsy, seizures, and sleep apnea.
Tr. 212, 224, 228.
Based
on an ALJ decision on a prior application, however, the ALJ found
the relevant period for determination of Plaintiff’s disability
began on October 31, 2009, and continued through December 31,
2009, Plaintiff’s date last insured.
Tr. 16.
Except as noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
3 - OPINION AND ORDER
medical evidence.
See Tr. 18-23.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
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, 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.”
Molina, 674 F.3d. at 1110-11 (quoting Valentine v.
Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)).
is "more than a mere scintilla" of evidence but less than a
4 - OPINION AND ORDER
It
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 (9th 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 (9th 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 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
Social Security Regulations set out a five-step sequential
process for determining whether an applicant is disabled within
the meaning of the Social Security Act.
Keyser v. Comm’r of
Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011).
See also
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R.
§ 404.1520.
Each step is potentially dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
5 - OPINION AND ORDER
activity.
20 C.F.R. § 404.1520(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.
Stout v. Comm’r Soc.
Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
See also 20
C.F.R. § 404.1520(a)(4)(ii); Keyser, 648 F.3d at 724.
At Step Three the Commissioner must determine whether a
claimant’s impairments meet or equal one of the listed
impairments and are so severe that they preclude substantial
gainful activity.
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).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
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.
§ 404.1520(e).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
6 - OPINION AND ORDER
“A
'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."
SSR 96-8p, at *1.
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.
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.
20 C.F.R. § 404.1520(a)(4)(v).
Keyser, 648 F.3d at 724-25.
See also
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 Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
7 - OPINION AND ORDER
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)(1).
ALJ’S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since May 29, 2007, her alleged
onset date.
Tr. 18.
At Step Two the ALJ found Plaintiff has the severe
impairments of petit mal seizures, pseudotumor cerebri, obesity,
high blood pressure, and sleep apnea.
Tr. 18-19.
The ALJ
concluded Plaintiff’s depression was not a medically determinable
impairment.
Tr. 19.
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. 19-20.
In her assessment of Plaintiff’s RFC,
the ALJ found Plaintiff has the functional capacity to perform a
“less than the full range of light work” that restricts Plaintiff
to standing no more than two hours total per day and no more than
30 minutes at a time; walking no more than five minutes at a
time; sitting no more than six hours per day; occasionally
climbing “ladders and stairs”; “never climb[ing] ladders, ropes
or scaffolds”; and occasionally kneeling, crouching, and
8 - OPINION AND ORDER
crawling.
In addition, the ALJ found Plaintiff must avoid
workplace hazards such as heights and machinery.
Tr. 20-23.
At Step Four the ALJ found Plaintiff is unable to perform
her past relevant work as a nurse’s assistant.
Tr. 23.
At Step Five, however, the ALJ found Plaintiff is capable of
performing other work that exists in significant numbers in the
national economy, including work as a “hand packager,” “parking
lot cashier,” and “product assembler.”
Tr. 24.
Accordingly, the
ALJ found Plaintiff is not disabled and, therefore, is not
entitled to benefits.
Tr. 25.
DISCUSSION
Plaintiff contends the ALJ erred when she (1) did not list
Plaintiff’s “joint pain” and depression as severe impairments at
Step Two; (2) made inconsistent findings in the assessment of
Plaintiff’s RFC about how much Plaintiff could climb ladders;
(3) failed to assess Plaintiff’s ability to engage in sustained
work or discuss Plaintiff’s abilities on a regular and continuing
basis in her assessment of Plaintiff’s RFC; and (4) discounted
Plaintiff’s testimony without citing legally sufficient reasons
for doing so.
I.
Step Two
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
9 - OPINION AND ORDER
impairment or combination of impairments.
Stout v. Comm’r Soc.
Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
See also 20
C.F.R. § 416.920(a)(4)(ii); Keyser v. Comm’r of Soc. Sec. Admin.,
648 F.3d 721, 724 (9th Cir. 2011).
A severe impairment
“significantly limits” a claimant’s “physical or mental ability
to do basic work activities.”
20 C.F.R. §§ 416.921(a), (b).
Such abilities and aptitudes include walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, handling, seeing,
hearing, and speaking; understanding, carrying out, and
remembering simple instructions; using judgment; responding
appropriately to supervisors, co-workers, and usual work
situations; and dealing with changes in a routine work setting.
Id.
The Step Two threshold is low:
[A]n impairment can be considered as not severe only if
it is a slight abnormality which has such a minimal
effect on the individual that it would not be expected
to interfere with the individual’s ability to work
. . . . [T]he severity regulation is to do no more
than allow the Secretary to deny benefits summarily to
those applicants with impairments of a minimal nature
which could never prevent a person from working.
Social Security Ruling 85-28, at *2 (Nov. 30, 1984)(internal
quotations omitted).
To be included at Step Two the record
evidence concerning an impairment must include “signs - the
results of ‘medically acceptable clinical diagnostic techniques,’
such as tests - as well as symptoms, i.e., [the claimant’s]
representations regarding [her] impairment.”
10 - OPINION AND ORDER
Ukolov v. Barnhart,
420 F.3d 1002, 1005 (9th Cir. 2005).
The Ninth Circuit has held when the ALJ has resolved Step
Two in a claimant’s favor, any error in designating specific
impairments as severe does not prejudice a claimant at Step Two
if the ALJ properly considers the omitted condition later in the
sequential analysis.
Burch v. Barnhart, 400 F.3d 676, 682-84
(9th Cir. 2005)(any error in omitting an impairment from the
severe impairments identified at Step Two was harmless when Step
Two was resolved in claimant’s favor).
As noted, Plaintiff contends the ALJ erred by not finding
“joint pain” and depression as a severe or medically determinable
impairment at Step Two.
As to Plaintiff’s alleged depression,
there is not any evidence in the record, however, that Plaintiff
had been diagnosed with or was being treated for that condition
during the period relevant to Plaintiff’s disability application
(October 31, 2009, through December 31, 2009).
Accordingly, the
ALJ properly did not include Plaintiff’s depression as a severe
impairment at Step Two.
As noted, Plaintiff contends her joint pain is a symptom of
her obesity and that the ALJ erred when she did not list joint
pain as a severe impairment.
The ALJ, however, listed obesity as
a severe impairment at Step Two and included substantial physical
limitations in her assessment of Plaintiff’s RFC based on
Plaintiff’s obesity.
The ALJ, therefore, implicitly included
11 - OPINION AND ORDER
Plaintiff’s joint pain at Step Two and considered it in
formulating her assessment of Plaintiff’s RFC.
On this record the Court concludes the ALJ did not err when
she did not list depression or joint pain as severe limitations
at Step Two.
II.
ALJ’s Assessment of Plaintiff’s RFC
A.
Inconsistent Findings in the RFC
Plaintiff contends the ALJ’s assessment of Plaintiff’s RFC
was deficient because the ALJ found Plaintiff could both
“occasionally” and “never” climb ladders.
Indeed, the ALJ made
contradictory statements concerning Plaintiff’s ability to climb
ladders in both the written opinion and in her initial
hypothetical posed to the VE.
Tr. 20, 102.
It appears the ALJ
initially misspoke at the hearing and that error was later
transferred to the ALJ’s written decision.
At the hearing,
however, the ALJ subsequently clarified her hypothetical to the
VE by stating that Plaintiff would be limited to never climbing
ladders, but occasionally climbing ramps and stairs.
Tr. 106.
The VE testified Plaintiff could still perform the occupations
that the ALJ relied on at Step Five.
The Court concludes the
ALJ’s error, therefore, was harmless.
B.
Scope of the RFC
Plaintiff contends the ALJ erred in her assessment of
Plaintiff’s RFC because the ALJ did not address Plaintiff’s
12 - OPINION AND ORDER
ability to sustain “work activity for eight hours a day, five
days a week” and did not discuss those abilities in the context
of a “regular and continuing basis.”
See SSR 96-8p, 1996 WL
374184, at *2 (1996).
Plaintiff, however, does not point to any specific aspect of
the ALJ’s assessment of Plaintiff’s RFC that suggests the ALJ did
not assess Plaintiff’s abilities on a regular and continuing
basis.
To the contrary, viewed as a whole it is clear that the
ALJ’s assessment of Plaintiff’s RFC addresses Plaintiff’s
abilities on a regular and continuing basis to engage in
sustained work activity.
Accordingly, on this record the Court concludes in her
evaluation of Plaintiff’s RFC the ALJ appropriately addressed
Plaintiff’s ability to engage in sustained work activity on a
continuous basis.
III. ALJ’s Determination of Plaintiff’s Credibility
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
See also Spelatz v. Astrue, 321 F. App’x 689, 692
(9th Cir. 2009).
The claimant, however, need not produce
13 - OPINION AND ORDER
objective medical evidence of the actual symptoms or their
severity.
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
See also Delgado v. Commissioner of Social Sec. Admin., 500 F.
App’x 570, 570 (9th Cir. 2012).
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 she provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(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."
Id. (quoting Lester, 81
F.3d at 834).
At the November 8, 2012, hearing, Plaintiff testified she
stopped working because she had a seizure at work, missed too
much work thereafter, and lost her job as a result.
Tr. 83.
Plaintiff testified she has “a blank kind of stare” and becomes
disoriented during her seizures.
Tr. 87.
Plaintiff stated her
seizures leave her confused, disoriented, weak, and tired, and
the effects of a seizure can last for two days.
Tr. 83, 87.
Plaintiff testified she experienced six seizures in the preceding
six months and that she last experienced a seizure the morning of
the hearing.
Tr. 87.
14 - OPINION AND ORDER
Plaintiff stated her seizure medication
was effective.
Tr. 91.
Plaintiff stated she experiences significant joint pain and
high blood pressure as a result of her obesity.
Tr. 83.
Plaintiff reported at the hearing that she is 5'5" tall and
weighs 365 pounds.
Tr. 93.
Plaintiff testified her blood
pressure is controlled by medication, but her joint pain results
in her being unable to perform doctor-recommended exercise
(although Plaintiff admitted she has not discussed that with her
physician).
Tr. 88-90.
Plaintiff reported her joint pain is not
constant, and once a day she experiences pain that is either a
six or seven on a ten-point scale.
Tr. 95-96.
As a result of
these conditions, Plaintiff stated she has to lay down once or
twice a day for two-to-three hours, can only walk one-half of a
block, can stand for 30 minutes, and can lift between five and
ten pounds.
Tr. 93, 98-99.
Plaintiff also testified she has depression that causes her
to cry two or three times per day and for which she takes Zoloft.
Tr. 91, 94.
Plaintiff stated she began taking medication for
depression approximately one month before the hearing.
Tr. 92.
Plaintiff testified she uses a bi-level positive airway
pressure (BiPAP) system to treat her sleep apnea, and the BiPAP
has brought her sleep apnea under control.
Tr. 92-93.
The ALJ discredited Plaintiff’s testimony because
(1) Plaintiff’s allegations concerning her seizures were
15 - OPINION AND ORDER
inconsistent with her presentation at the hearing, (2) Plaintiff
admitted she has not told her doctors about her inability to
exercise due to joint pain, (3) Plaintiff’s allegations are
inconsistent with objective medical findings, (4) Plaintiff’s
treatment has been “essentially routine and conservative in
nature,” and (5) Plaintiff’s primary-care physician opined
Plaintiff did not have a medical condition that prevented her
from working.
Plaintiff contends the ALJ cited insufficient reasons to
reject Plaintiff’s testimony because (1) the ALJ incorrectly
found Plaintiff made inconsistent statements concerning her
seizures and (2) the ALJ was not permitted to rely on
inconsistencies between Plaintiff’s allegations and the objective
medical evidence.
The ALJ found Plaintiff’s statements that she experiences
confusion, disorientation, and fatigue for two days after
seizures were inconsistent with her testimony that she had a
seizure the morning of the hearing and the fact that she did not
demonstrate any “after effects” at the hearing.
Although an
ALJ’s observations of the claimant’s function at the hearing may
not constitute the ALJ’s only reason for rejecting the claimant’s
testimony, the ALJ’s observations “may be used . . . in ‘the
overall evaluation of the credibility of the individual’s
statements.’”
Orn v. Astrue, 495 F.3d 625, 639-40 (9th Cir.
16 - OPINION AND ORDER
2007)(quoting SSR 96-7p, 1996 WL 374186, at *5).
See also
Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999).
Thus, on
this record the ALJ could reasonably find Plaintiff’s testimony
and her presentation at the hearing without any observable “after
effects” were inconsistent with her statements regarding the
effects of other seizures generally.
Plaintiff also contends the ALJ improperly cited the
inconsistency between Plaintiff’s allegations and the objective
medical evidence as a reason to discount Plaintiff’s testimony.2
It is well-established, however, that “[a]lthough lack of medical
evidence cannot form the sole basis for discounting pain
testimony, it is a factor that the ALJ can consider in his
credibility analysis.”
See Burch, 400 F.3d at 681.
Accordingly,
the ALJ did not err by pointing out the lack of objective medical
evidence as a reason to reject Plaintiff’s testimony.
Accordingly, on this record the Court concludes the ALJ did
not err when she found Plaintiff’s testimony was not credible
because the ALJ provided legally sufficient reasons supported by
substantial evidence in the record for doing so.
2
Plaintiff, nevertheless, does not contend the objective
medical evidence was, in fact, consistent with her allegations.
17 - OPINION AND ORDER
CONCLUSION
For these reasons, the Court AFFIRMS the final decision of
the Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 11th day of June, 2015.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
18 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?