Burns v. Commissioner Social Security Administration
Filing
18
OPINION & ORDER: The Commissioner's decision is AFFIRMED. See 2-page opinion & order attached. Signed on 7/10/2015 by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHRISTOPHER BURNS
No. 3:14-cv-00789-HZ
Plaintiff,
OPINION & ORDER
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION
Defendant.
Tim Wilborn
Wilborn Law Office, P.C.
P.O. Box 370578
Las Vegas, NV 89137
Attorney for Plaintiff
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1 - OPINION & ORDER
Billy J. Williams
Acting United States Attorney, District of Oregon
Ronald K. Silver
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97201
L. Jamala Edwards
Special Assistant United States Attorney
Social Security Administration
SSA Office of General Counsel
701 5th Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant
HERNÁNDEZ, District Judge:
Plaintiff Christopher Andre Burns brings this action under the Social Security Act
(“Act”), 42 U.S.C. § 405(g), for judicial review of the Commissioner of Social Security’s final
decision denying his claim for Disability Insurance Benefits (“DIB”) under Title II of the Act.
Because it is based on legally sufficient reasons supported by substantial evidence, the
Commissioner’s decision is affirmed.
BACKGROUND
Burns’s medical problems started in earnest after he was assaulted with a tree branch in
2007 and suffered a traumatic brain injury. Tr. 253. After recovering from emergency surgery in
the hospital, he moved in with his mother. Tr. 28. He experienced cognitive impairment,
confusion, and short term memory issues. Tr. 240–41. His primary problem, however, was
constant, throbbing headaches. Tr. 239–41. Over the years, he has visited multiple doctors and
pain specialists to treat the headaches, with little success finding lasting relief. Tr. 412–31, 446,
527, 529–36, 1021–42.
2 - OPINION & ORDER
Burns applied for Supplemental Security Income (“SSI”) and DIB on April 5, 2007. Tr.
149, 154. The Commissioner denied both applications, and Burns requested a hearing before an
Administrative Law Judge (“ALJ”). Tr. 65. After a hearing in March of 2010, ALJ Deborah Van
Vleck found Burns was not disabled. Tr. 5–18. Burns appealed, but the Appeals Council denied
his request for review. Tr. 1–3. Burns then filed a civil action in this court in 2011, and after the
parties stipulated that the case should be remanded for further administrative proceedings,
Magistrate Judge John Jelderks issued an order to that effect in February of 2012. Tr. 717–21.
On remand, ALJ Riley Atkins held a new hearing on July 1, 2013, and ruled on July 10, 2013,
that Burns was disabled as of January 1, 2011. Tr. 565, 584. Burns was, therefore, entitled to SSI
benefits, but since his date of last insured for DIB benefits was March 31, 2009, he was not
entitled to disability benefits. Tr. 584. Burns again appealed the ALJ’s decision to the Appeals
Council, which denied his request for review, making ALJ Atkins’s ruling the Commissioner’s
final decision that Burns now challenges in this Court.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if he is unable 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.” 42 U.S.C. §
423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. See Valentine
v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). Each step is potentially
dispositive. At step one, the presiding ALJ determines whether the claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled; if not, the analysis continues. 20
C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has
one or more severe impairments. If not, the claimant is not disabled. 20 C.F.R. §§ 404.1520(c),
3 - OPINION & ORDER
416.920(c). At step three, the ALJ determines whether the impairment meets or equals one of the
impairments listed in the SSA regulations and deemed “so severe as to preclude substantial
gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987); 20 C.F.R. §§ 404.1520(d),
416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis moves to
step four. 20 C.F.R. §§ 404.1520(d), 416.920(d). At step four, the ALJ determines whether the
claimant, despite any impairments, has the residual functional capacity (“RFC”) to perform past
relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant cannot perform his or her
past relevant work, the analysis moves to step five, where the ALJ determines whether the
claimant is able to do any other work in the national economy considering the claimant’s RFC,
age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g).
The burden to show disability rests with the claimant at steps one through four, but if the
analysis reaches step five, the burden shifts to the Commissioner to show that a significant
number of jobs exist in the national economy that the claimant could perform. 20 C.F.R. §§
404.1520(e) & (f), 416.920(e) & (f); Tackett v. Apfel, 180 F.3d 1094, 1098–1100 (9th Cir.
1999). If the Commissioner demonstrates a significant number of jobs exist in the national
economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§
404.1520(g)(1), 416.920(g).
ALJ DECISION
Before proceeding through the five-step evaluation, ALJ Atkins found that Burns had
“acquired sufficient quarters of coverage to remain insured through March 31, 2009,” meaning
Burns had to establish disability on or before that date to be entitled to disability insurance
benefits. Tr. 569–70. At step one, the ALJ found that Burns had not engaged in substantial
gainful activity since 2006. Tr. 572. At step two, the ALJ found that Burns had the “following
4 - OPINION & ORDER
severe impairments: residual effects of traumatic brain injury, with temporal bone fracture and
chronic residual headaches; degenerative disc disease of the cervical spine; and alcohol abuse
disorder.” Tr. 572. At step three, the ALJ found Burns’s impairments did not meet or equal the
requirements of a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 572.
Next, the ALJ found that, from February 19, 2007, through December 31, 2010, Burns had the
following RFC:
[C]laimant had the residual functional capacity to perform light work as defined
in 20 CFR 404.7567(b) and 416.967(b) except: lift twenty pounds occasionally
and ten pounds frequently; stand and walk six hours total of an eight-hour day; no
sitting limitations; occasionally climb ramps and stairs, but no other climbing;
avoid concentrated exposure to hazards such as heights and dangerous machinery;
occasionally crawl and crouch; remember and carry out simple, one to two step
demands, but would have difficulty with more detailed tasks; might have
difficulty maintaining concentration for extended periods, but able to sustain over
an eight-hour workday if given breaks every couple hours; occasional public
contact; and routine, casual interactions with co-workers and supervisors.
Tr. 575. At step four, the ALJ found that Burns could not perform any past relevant work since
February 19, 2007, the date Burns suffered his traumatic brain injury. Tr. 576, 580. Prior to
January 1, 2011, the ALJ found that Burns could work as a room cleaner, laundry worker, and
small products assembler. Tr. 581. After January 1, 2011, however, the ALJ found that Burns
had greater limitations. Tr. 582. The ALJ’s new RFC included the same pre-2011 limitations and
a new limitation that Burns “would on an occasional basis suffer marked deficits in concentration
and attention.” Tr. 582. The eroding of Burns’s skills led the ALJ to find him disabled as of
January 1, 2011, and Burns was thus entitled to SSI benefits beginning on that date. Tr. 584.
Burns was not entitled, however, to disability benefits because he was not disabled between his
filing date of March 20, 2007, and March 31, 2009, the date he was last insured. Tr. 584.
5 - OPINION & ORDER
STANDARD OF REVIEW
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 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “Substantial
evidence means 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.” Id. The court
must weigh all of the evidence, whether it supports or detracts from the Commissioner's
decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). If the evidence is susceptible to
more than one reasonable interpretation, the court must uphold the decision. Andrews, 53 F.3d at
1039–40. A reviewing court must consider the entire record as a whole and cannot affirm the
Commissioner by simply isolating a specific quantum of supporting evidence. Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation omitted).
DISCUSSION
Burns contends the ALJ erred by 1) improperly rejecting the opinion of Dr. Kimberly
Goslin, Burns’s treating neurologist, 2) improperly rejecting Burns’s testimony about his
symptoms, 3) improperly rejecting lay witness statements, 4) failing to support with substantial
evidence his pre-2011 step five finding that Burns could perform certain occupations, and 5)
failing to support with substantial evidence the conclusion that Burns became disabled after
January 1, 2011.
1. Dr. Goslin’s Opinions
Burns first argues that the ALJ erred by improperly discounting several opinions from Dr.
Goslin in which she stated Burns suffered from a “severe, debilitating headache disorder” and
cognitive impairment caused by the traumatic head injury he suffered in 2007, and as a result he
6 - OPINION & ORDER
was unable to sustain any work. Tr. 1063–69. The ALJ gave “little weight” to Dr. Goslin’s
2009 and 2011 opinions based on their inconsistencies with objective testing performed by
consulting psychologists Drs. Donna Wicher and Marc Stuckey, consulting neurologist Dr.
Tatsuro Ogisu, and the opinion of non-examining psychiatrist Dr. Robert McDevitt. Tr. 577–78.
There are three sources of medical opinion evidence in Social Security cases: treating
physicians, examining physicians, and non-examining physicians. Valentine, 574 F.3d at 692
(citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). The ALJ can reject the
uncontroverted opinion of a treating or examining physician only for “clear and convincing
reasons” supported with substantial evidence in the record. Orn v. Astrue, 495 F.3d 625, 632 (9th
Cir. 2007) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Even if a treating or
examining doctor’s opinion is contradicted by another doctor, the ALJ can reject it only by
providing “specific and legitimate reasons” that are supported by substantial evidence. Id.
Dr. Wicher performed a consulting psychological examination of Burns in August of
2007. Tr. 577, 924–30. Dr. Wicher diagnosed cognitive disorder, dysthymic disorder, and
alcohol abuse in remission. Tr. 929. Burns scored a borderline 78 on an IQ test, but scored at or
above that level on memory tests, and significantly higher on the “Trail Making test.” Tr. 927–
29. Dr. Wicher noted several times that it appeared Burns may have been giving less than full
effort. Tr. 929–30. Dr. Wicher listed “moderate deficits in his ability to perform activities of
daily living, mild deficits in social functioning, and moderate limitations in concentration,
persistence, and pace.” Tr. 930.
Dr. Stuckey performed a similar exam in April of 2008. Burns reported “routine contact
with friends,” using public transportation, test driving a car, building models, playing video
games, and watching “quite a bit” of television. Tr. 377, 381. Dr. Stuckey noted that Burns
7 - OPINION & ORDER
scored below average on some memory tests, but all of his other scores were in the average
range. Tr. 381. Burns told Dr. Stuckey that he had regular headaches that ranged from a five to
six on most days and increased with physical activity such as “bending over.” Tr. 379. Dr.
Stuckey noted that Burns seemed to exaggerate or misreport his symptoms: “[Mr. Burns’s]
current presentation . . . appeared less severe that his stated self report.” Tr. 381. Dr. Stuckey also
wrote that Burns “appeared to endorse symptomatology automatically when asked without
providing sufficient examples[.]” Tr. 379.
Dr. Ogisu conducted a consulting neurological examination in September of 2007. Tr.
332. Burns reported his headache problems, and said he was treating them with Tylenol. Tr.
332–33. Dr. Ogisu noted that Burns moved without difficulty, that his range of motion was good,
and that there was no sign of fatigue during the exam. Tr. 333–34. Burns had some difficulty
completing some arithmetic tasks, but Dr. Ogisu observed that he was “attentive,” “follow[ed]
simple commands well,” appeared to have appropriate judgment, and was not “disinhibited,
irritable, or labile.” Tr. 333. “Except for mild cognitive deficits,” Dr. Ogisu explained, Burns’s
“neurologic exam [did] not reveal significant abnormalities.” Tr. 334. Dr. Ogisu concluded that
Burns was limited to lifting thirty-five pounds occasionally and twenty pounds frequently, and
that he could stand and walk a total of six hours in an eight-hour day. Tr. 335.
The ALJ also relied on testimony from Dr. Robert McDevitt, a non-examining medical
expert with a specialty in traumatic brain injury and cognitive therapy. Tr. 618, 800. Dr.
McDevitt stated that Burns did have some brain damage, but did not have any evidence of
serious damage in the form of frontal lobe release phenomenon, which is when a patient exhibits
primitive reflexes in response to certain stimuli. Tr. 623–24. Dr. McDevitt opined that Burns’s
chronic headache pain was a result of inactivity and Burns’s sedentary lifestyle. Tr. 624. The
8 - OPINION & ORDER
“most important” part of rehabilitation from traumatic brain injury, Dr. McDevitt explained, is
“early rehabilitation and return to some kind of productive activity.” Tr. 620. But Burns “wasn’t
doing very much before he got injured,” and was doing “much less since his injury.” Tr. 620. He
explained that head pain can often be the result of preoccupation: if all Burns does is “lay
around,” with nothing else to do other than think about his injury, his scar, and the pain, he can
actually make his pain worse. Tr. 624. McDevitt stated that individuals with chronic head pain
can often benefit from increased activity. Tr. 631. Although the activity might cause physical
pain at first, the increased movement can benefit the pain symptoms long term because it lessens
the patient’s preoccupation. Tr. 631. Dr. McDevitt noted that Burns’s symptoms showed
“considerable improvement” after a few visits with a physical therapist in 2010. Tr. 622.
He also stated that there were “credibility issues” with Burns’s reported headache pain
“all over his head.” Tr. 622. Most diagnosed headaches such as migraines or tension headaches,
he explained, have “clear symptoms” and “signature pain.” Tr. 629. “All over” headache pain,
however, is often a “somatic expression” of mental health issues such as depression or anxiety.
Chronic pain from a traumatic brain injury “usually last[s] six months to a year after [the injury],
and after the first year if they still have chronic pain, then it’s often felt to be due to depression or
other issues that need to be addressed by a mental health person.” Tr. 622.
The ALJ gave Dr. McDevitt’s testimony “significant weight,” because it was “based on a
complete review of the evidence, and it is a detailed explanation of apparent inconsistencies in
the record.” Tr. 574. The ALJ further reasoned that “Dr. McDevitt is the only medical
professional who has reviewed all of the evidence and testimony and testified to experience with
traumatic brain injury patients.” Tr. 574.
9 - OPINION & ORDER
Finally, the ALJ gave little weight to Dr. Goslin’s 2013 opinion, in which her answers to
a questionnaire indicated that Burns was incapable of sustaining any work. Tr. 1067. The ALJ
explained that there were no treatment records from Dr. Goslin after 2010, and that the other
medical evidence in the record did not support Dr. Goslin’s severe restrictions on Burns’s ability
to lift, stand, walk, or sit. Tr. 583.
In sum, the medical evidence in the record about the severity of Burns’s symptoms was
conflicting and ambiguous. The ALJ discounted Dr. Goslin’s opinions that Burns’s debilitating
headaches prevented him from performing any work because those opinions conflicted with
other medical evidence in the record that suggested otherwise. Tr. 578.The ALJ explained how
testing from consulting doctors before 2011 showed Burns’s symptoms were less severe than he
reported, and those doctors concluded that Burns was only mildly limited in his functioning. Tr.
577. The ALJ noted medical evidence that showed Burns’s headaches significantly improved
when he underwent therapy in 2010, which conflicts with Dr. Goslin’s opinion that Burns’s
headaches required him to “spend most of the day in bed” and essentially prevented him from
engaging in even sedentary work. Tr. 578, 1063–69.
An ALJ faced with conflicting medical evidence can meet his burden to provide “specific
and legitimate” reasons for rejecting a treating physician’s opinion by “setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating [his] interpretation
thereof, and making findings.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)
(quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The ALJ in this case met that
standard, and the Court defers to his interpretation of evidence because the ALJ is the “final
arbiter with respect to resolving ambiguities in the medical evidence.” Id.
10 - OPINION & ORDER
2. Burns’s Testimony
In formulating Burns’s RFC, the ALJ discounted his testimony about the intensity,
persistence, and limiting effects of his symptoms as “not entirely credible.” Tr. 576. Burns
argues that the ALJ erred because he did not give clear and convincing reasons to support his
adverse credibility finding.
In determining a claimant’s RFC, the ALJ must consider all relevant evidence in the
record, including medical records, lay testimony, and the “effects of symptoms, including pain,
that are reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883
(quoting SSR 96–8p, 1996 WL 374184, at *5); see also 20 C.F.R. §§ 404.1529(a), 404.1545(a),
416.929(a), 416.945(a) (explaining that, in determining whether a claimant is disabled, the Social
Security Administration considers “all . . . symptoms, including pain, and the extent to which
[those] symptoms can reasonably be accepted as consistent with the objective medical evidence
and other evidence.”)
An ALJ analyzes the credibility of a claimant's testimony regarding his subjective pain
and other symptoms in two steps. Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir.
2007). “First, the ALJ must determine whether the claimant has presented objective medical
evidence of an underlying impairment which could reasonably be expected to produce the pain
or other symptoms alleged.” Id. at 1036 (citation and internal quotation omitted). “The claimant,
however, need not show that [his] impairment could reasonably be expected to cause the severity
of the symptom [he] has alleged; [he] need only show that it could reasonably have caused some
degree of the symptom.” Id. (citation and internal quotation omitted). If the claimant meets the
first test, and there is no evidence of malingering, the ALJ can reject his testimony about the
11 - OPINION & ORDER
severity of his symptoms only by offering specific, clear and convincing reasons for doing so. Id.
(citation and internal quotation omitted).
In evaluating a claimant's testimony, the ALJ may rely on “ordinary techniques of
credibility evaluation.” Molina v. Astrue, 674 F.3d 1104, 1112 (citation omitted). “For instance,
the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony
and the claimant's conduct, unexplained or inadequately explained failure to seek treatment or to
follow a prescribed course of treatment, and whether the claimant engages in daily activities
inconsistent with the alleged symptoms.” Id. (internal citations and quotation marks omitted).
At step one, the ALJ found that Burns’s medically determinable impairments could
reasonably be expected to cause some of his alleged symptoms. Tr. 576. At the hearing, Burns
testified about his headaches and their limiting effects on his daily life and ability to work. He
stated that his headaches severely limit his sleep to only two hours a night. Tr. 575. He claimed
to be able to sit for about twenty to thirty minutes at a time before having to get up and walk, and
he was only able to walk a short time before feeling dizzy. Tr. 575. Burns testified that “the
pounding never stops but the severity of it is depending on how long I do something.” Tr. 612.
He said that he could lift only about ten pounds, and only occasionally. Tr. 575, 613. He
admitted to performing some small chores, including folding laundry, doing the dishes, and
mowing the small lawn at the mobile home park where he lives, but he also testified that these
activities caused his headaches to increase. Tr. 611–14.
The ALJ provided several reasons for discounting Burns’s testimony, any one of which is
sufficient to uphold the conclusion that Burns was less than credible. See Carmickle v. Comm’r,
Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (explaining that an error in one reason for
12 - OPINION & ORDER
discounting credibility is harmless where an ALJ’s “remaining reasoning and ultimate credibility
determination were adequately supported by substantial evidence in the record.”)
The ALJ referenced two instances where Burns’s physicians suggested that he might be
malingering. The ALJ wrote that Dr. Wicher noted that during her psychological evaluation of
Burns in August of 2007, it appeared that he “may have given less than full effort.” Tr. 577. The
ALJ also noted that the Dr. Stuckey’s psychological evaluation report from April of 2008 stated
that Dr. Stuckey believed Burns’s “symptoms were less severe than the claimant reported.” Tr.
577. The ALJ concluded that this “finding of poor effort also suggests [Burns] had fewer
limitations than alleged.” Tr. 577. The ALJ’s reliance on the opinions of two consulting
physicians that Burns might have exaggerated symptoms is a sufficient reason for discounting
his testimony. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004)
(explaining that ALJ’s reliance on a physician’s stated skepticism about the claimant’s “graphic
and expansive” pain symptoms was a specific and legitimate reason to discount claimant’s pain
testimony).
The ALJ also discounted Burns’s testimony about his debilitating pain because “medical
records show minimal treatment following [Burns’s] hospital stay. Between 2007 and 2009, most
of the record involved a series of consulting physical and psychological examinations.” Tr. 576.
After his discharge from the hospital following his assault, Burns visited his doctors about every
two weeks through May of 2007. Tr. 240, 316–320. In June of 2007, he still reported headache
pain, but he visited his doctor only once a month, despite reporting headaches that were a
constant “6-7 [with] 10 being the worst.” Tr. 315, Tr. 472–77. Some were so painful, he claimed,
he was forced to sit in a dark room. Tr. 477. Burns still reported “constant and throbbing”
headaches in April of 2008, but it had been three months since he had visited a doctor. Tr. 469–
13 - OPINION & ORDER
70. Another three months later, Burns reported “severe” headaches that were increasing in
severity. Tr. 468. He did not see another doctor about his headaches until he started treatment at
the Virginia Garcia Medical Center in December of 2008. Tr. 432. The ALJ properly relied on
the discrepancy between Burns’s alleged debilitating headache pain and significant gaps in
seeking treatment. Molina, 674 F.3d at 1114–15 (explaining that the Ninth Circuit has “long held
that, in assessing a claimant’s credibility, the ALJ may properly rely on unexplained or
inadequately explained failure to seek treatment or to follow a prescribed course of treatment.”)
(citation and internal quotation omitted).
The ALJ also discredited Burns’s testimony because his “daily activities show fewer
limitations than alleged.” Tr. 576. The ALJ explained that Burns “used a computer for a job
search . . . test drove a car . . . could vacuum, watch television, play video games, build models,
and microwave food.” Tr. 576. The ALJ also stated that Burns could “do the dishes, do the
laundry, and mow the lawn, though he does these activities quickly (before the headache pain
increases).” And finally, the ALJ noted that Burns testified that he could “cook, clean, and
maintain hygiene.” Tr. 576.
Engaging in daily activities that are inconsistent with the severity of symptoms can
support an adverse credibility finding. Winn v. Colvin, No. 6:14-CV-00564-HZ, 2015 WL
1809012, at *5 (D. Or. Apr. 21, 2015) (citing Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir.
2014)). Burns’s stated daily activities are not necessarily inconsistent with his pain allegations.
However, because the ALJ gave other legitimate and legally sufficient reasons for discounting
Burns’s testimony, any legal error the ALJ committed in analyzing Burns’s daily activities is
harmless. Carmickle, 533 F.3d at 1162.
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3. Lay Witness Testimony
Burns also contends that the ALJ failed to give a germane reason to reject the lay
testimony of his mother, Ms. Sutton. Lay testimony regarding a claimant's symptoms of how an
impairment affects the claimant’s ability to work is competent evidence that an ALJ must take
into account. Molina, 674 F.3d at 1114 (citation omitted). The ALJ must provide “reasons
germane to each witness” in order to reject such testimony. Id. (citation and internal quotation
omitted).
Ms. Sutton’s written testimony stated that Burns’s headache pain was a 5.5 or six out of
ten, twenty-four hours a day, and that a variety of physical and mental activities such as personal
hygiene, cooking, bending, concentrating, and most postural movement or physical exertion
caused his headaches to rise to eight or ten out of ten. Tr. 214–16. She also testified to his limited
social interactions, inability to do chores, trouble sleeping, and short-term memory problems. Tr.
218–20.
The ALJ gave “little weight” to Ms. Sutton’s pre-2011 testimony because “[t]he medical
evidence does not support the allegation that nearly any mental or physical exertion caused the
claimant’s pain to reach ten of ten.” Tr. 579–80. “[I]nconsistency with or lack of corroboration
by the medical record is [alone] a germane reason to discredit third-party statements.” Brown v.
Colvin, No. 3:13-CV-01832-HZ, 2014 WL 6388540, at *7 (D. Or. Nov. 13, 2014) (citing
Griffith v. Colvin, 2014 WL 1303102, *3 (D. Or. Mar. 30, 2014); see also Lewis v. Apfel, 236
F.3d 503, 511 (9th Cir. 2001) (“[o]ne reason for which an ALJ may discount lay testimony is that
it conflicts with medical evidence”). As explained above, there is evidence that during visits with
physicians, Burns moved “without difficulty” and with “no sign of fatigue,” despite engaging in
various range of motion, gain, and reflex tests. Tr. 333–34. Moreover, none of the consulting
15 - OPINION & ORDER
physicians noted any increase in Burns’s headache pain despite subjecting him to an array of
mental assessments. E.g., Tr. 379–81. These reports conflict with Ms. Sutton’s testimony that
suggest nearly any physical or mental exertion, such as “shaving” or “concentrating,” would
cause Burns’s headaches to reach, at times, the highest level of pain that a human can
experience, i.e. a “ten-plus” out of ten. Tr. 221.
Although the ALJ did not specifically refer to these findings in discounting Ms. Sutton’s
testimony, his reasoning is supported by substantial evidence which the ALJ thoroughly
explained throughout his decision. Therefore, the ALJ did not err in failing to fully credit Ms.
Sutton’s testimony. Lewis, 236 F.3d at 512 (upholding ALJ’s finding regarding lay witness
testimony as supported by substantial evidence even though the ALJ “did not clearly link his
determination to those reasons.”); Glover v. Astrue, 835 F. Supp. 2d 1003, 1014 (D. Or. 2011)
(affirming ALJ’s discounting of lay testimony because it was “inconsistent with . . . and not fully
supported by the medical record” despite the ALJ’s failure to specifically reference the
conflicting evidence). Given this legally sufficient reason for discounting Ms. Sutton’s
testimony, any other error Burns attributes to the ALJ’s treatment of her pre-2011 testimony is
harmless. See Carmickle, 533 F.3d at 1162 (explaining that an error in one reason for
discounting credibility is harmless error where ALJ’s “remaining reasoning and ultimate
credibility determination were adequately supported by substantial evidence in the record.”)
4. Pre-2011 Step Five Finding
At step five, the ALJ found that, prior to January 1, 2011, Burns would have been able to
work as a room cleaner, laundry worker, and small product assembler. Tr. 581. Burns argues that
the ALJ’s hypothetical question posed to the vocational expert did not set out all of his
restrictions, because it did not include Burns’s “credible allegations, those of the lay witness, and
16 - OPINION & ORDER
the limitations described by Dr. Goslin.” Pl. Brief at 20. He also asserts that two of the three
jobs, laundry worker and small products assembler, “are inconsistent with the ALJ’s own RFC
finding,” which limited Burns “to work involving one- to two-step commands but not more
detailed tasks.” Pl. Brief at 20.
The ALJ’s finding at step five was not in error. The ALJ’s hypothetical to the vocational
expert was “proper because it included all of the functional limitations the ALJ found were
supported by substantial evidence.” Gray v. Comm'r of Soc. Sec. Admin., 365 F. App'x 60, 63
(9th Cir. 2010); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175–76 (9th Cir. 2008) (rejecting
argument that ALJ’s hypothetical was incomplete because it failed to include limitations the ALJ
properly found were not supported by substantial evidence). As explained above, the ALJ did not
err in discounting Burn’s credibility, the lay witness testimony, and Dr. Goslin’s opinions.
Therefore, his hypothetical to the vocational expert did not have to account for those claimed
limitations.
Secondly, even if the two jobs Burns identifies as problematic were removed, Burns fails
to demonstrate that the remaining job, room cleaner, with 1,000 jobs in Oregon and 100,000
nationwide, would not satisfy the ALJ’s burden at step five. Gray, 365 F. App’x at 63 (finding
that vocational expert’s testimony that 980 jobs in Oregon and 59,000 national jobs constituted a
“significant number of jobs” sufficient to find claimant not disabled) (citing Meanel v. Apfel,
172 F.3d 1111, 1115 (9th Cir. 1999) (between 1,000 and 1,500 jobs in local area is a “significant
number”); Barker v. Sec'y of HHS, 882 F.2d 1474, 1478–79 (9th Cir. 1989) (1,266 jobs in local
economy is a “significant number”)). Burns does not dispute the ALJ’s finding that he could
have worked as a room cleaner before 2011. Since that job exists in significant numbers, the ALJ
correctly found that Burns was not disabled within the meaning of the Social Security Act.
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5. January 1, 2011 Onset Date
Finally, Burns contends that the ALJ erred in finding that he became disabled on January
1, 2011. His argument essentially mirrors others made throughout his brief, specifically that the
ALJ erroneously discounted Dr. Goslin’s opinions, gave too much weight to the opinion of
nonexamining medical expert Dr. McDevitt, and improperly discounted Burns’s own testimony
and lay testimony from his mother. As explained above, the ALJ’s weighing of the medical
evidence, Burns’s credibility, and Ms. Sutton’s testimony are supported by legally sufficient
reasoning.
Burns also argues generally that the January 1, 2011 onset date is not supported by
substantial evidence. Pl. Reply at 2. The Court disagrees. The ALJ fully explained the relevant
medical evidence, found that Burns’s condition worsened after he stopped rehabilitation in late
2010, and concluded that Burns subsequently became disabled. Tr. 582–84. Burns essentially
disagrees with the ALJ’s weighing of the medical evidence and asks the Court to adopt his
interpretation of the record. While the evidence may be amenable to more than one rational
interpretation, the Court cannot substitute its own judgment for that of the Commissioner. Parra
v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); see also Andrews, 53 F.3d at 1039–40 (explaining
that the court must uphold the ALJ’s decision “where the evidence is susceptible to more than
one rational interpretation.”) (citation omitted). The ALJ correctly applied the law and supported
his findings with substantial evidence and sufficient reasoning. Accordingly, the Court must
uphold the ALJ’s decision. Tommasetti, 533 F.3d at 1038 (citing Batson, 359 F.3d at 1193)
(additional citation omitted)).
After finding that before 2011, Burns could work as a room cleaner, among others, the
ALJ found that “[t]he evidence supports finding greater limitations as of January 1, 2011.” Tr.
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582. In support of his conclusion, the ALJ explained in detail Burns’s visits with Dr. Stuckey and
Dr. Ogisu in 2012; Dr. Ogisu previously examined Burns in 2007, and Dr. Stuckey previously
examined him in 2008. Tr. 332–35; 377–81.
The ALJ explained that Dr. Stuckey’s reports showed Burns’s memory scores had fallen
from average or low average in 2008 to low average or deficient in 2012. Tr. 582. Dr. Stuckey
noted that Burns struggled with arithmetic, and found that Burns had marked limitations in
handling simple instructions, using judgment, interacting with the public, and dealing with work
situations. Tr. 1048–49. The ALJ gave Dr. Stuckey’s opinion “significant weight” because it was
“based on objective testing and a thorough examination.” Tr. 582.
Dr. Ogisu’s report noted that Burns had “significant cognitive impairment,” that many of
his responses to Dr. Ogisu’s questions “missed the mark,” that he struggled with concentration,
and that Burns likely “lack[ed] full insight into his own deficits.” Tr. 1056. Dr. Ogisu also
performed a physical examination, and found that Burns moved around without much difficulty,
had a full range of motion, mostly 5/5 strength, good dexterity, and no problems reaching,
bending, or walking. Tr. 1055. Dr. Ogisu specifically noted that Burns’s “performance during the
exam [was] not impeded by pain.” Tr. 1054.
Dr. Ogisu limited Burns to lifting twenty pounds continuously, fifty occasionally, and a
hundred pounds minimally. Dr. Ogisu did not state any limits on sitting or standing, but did limit
Burns to walking for one hour and six out of eight totally because of some dizziness and his
headaches. Tr. 1057–58. The ALJ gave Dr. Ogisu’s opinion some weight—he found that the
doctor’s prescribed “sitting, standing, walking limits” were consistent with Burns’s post-2011
RFC, but that other evidence supported greater limits on lifting.” Tr. 582–83.
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At the 2013 hearing, the ALJ noted that Burns’s visits with doctors in 2012 suggested
that his symptoms had become more severe since 2008. Tr. 619. He relied on Dr. McDevitt’s
expertise in traumatic brain injuries to help explain the doctors reports, the memory scores, the
decline in Burn’s condition, and to provide background information about traumatic brain injury.
See Tr. 618–21, 625–26. Of particular importance was Dr. McDevitt’s testimony that Burn’s
“function had decreased” because he “had not undergone consistent cognitive rehabilitation and
physical therapy.” Tr. 582.
As mentioned above, the ALJ gave limited weight to a 2013 questionnaire from Dr.
Goslin because there were no treatment records from her office after 2010. Tr. 583. He analyzed
new written testimony Ms. Sutton submitted in February of 2011 and found the limitations
described therein were consistent with the decline in Burns’s condition. Tr. 583.
The ALJ considered all this evidence and concluded that in 2011, after Burns had stopped
rehabilitation and therapy in late 2010, his functioning had decreased to the point of disability.
Tr. 582–83. The Court finds that this conclusion is supported by substantial evidence in the
record and legally sufficient reasoning, and thus the ALJ’s decision must be upheld. Tommasetti,
533 F.3d at 1038 (citing Batson, 359 F.3d at 1193) (additional citation omitted)).
CONCLUSION
For the reasons stated, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
Dated this _________ day of _________________, 2015.
____________________________________
MARCO A. HERNÁNDEZ
United States District Judge
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