Trueblood v. Commissioner Social Security Administration
Filing
15
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 08/03/2015 by Judge Anna J. Brown. See attached 15 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KELLE KAE TRUEBLOOD,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
MEGAN E. GLOR
621 S.W. Morrison
Suite 900
Portland, OR 97205
(503) 223-7400
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) 727-1003
1 - OPINION AND ORDER
3:14-CV-01350-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
DIANA SWISHER ANDSAGER
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900
Seattle, WA 98104
(206) 615-3708
Attorneys for Defendant
BROWN, Judge.
Plaintiff Kelle Kae Trueblood 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
Social Security Act.
This Court has jurisdiction to review the
Commissioner's final decision pursuant to 42 U.S.C.
§
405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.
ADMINISTRATIVE HISTORY
Plaintiff filed an application for DIB on December 22, 2010,
alleging a disability onset date of September 25, 2008.
Tr. 68. 1
The application was denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on November 29, 2012. ·Tr. 30-57.
1
At the hearing
Citations to the official transcript of record filed by
the Commissioner on January 2, 2015, are referred to as "Tr."
2 - OPINION AND ORDER
Plaintiff was represented by an attorney.
Plaintiff and a
vocational expert (VE) testified at the hearing.
The ALJ issued a decision on December 26, 2012, in which he
found Plaintiff was not disabled, and, therefore, was not
entitled to DIB.
Tr. 10-29.
Pursuant to 20 C.F.R.
§
404.984(d),
that decision became the final decision of the Commissioner when
the Appeals Council denied Plaintiff's request for review.
Tr. 1-5.
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
BACKGROUND
Plaintiff was born March 12, 1978 and was 34 years old at
the time of the hearing.
college education.
Tr. 58.
Tr. 322.
Plaintiff has three years of
Plaintiff has past relevant work
experience as an emergency medical technician (EMT), ranger aide,
and sales attendant.
Tr. 22.
Plaintiff alleges disability due to lumbar instability, "si
joint instability," fibromyalgia, back injury, carpal tunnel
syndrome, tendonitis of right forearm, trochanteric bursitis of
the right hip, and "IT band syndrome."
Tr. 58.
Except when 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
medical evidence.
See Tr.
3 - OPINION AND ORDER
17-21.
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 (9t" 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.
U.S.C. § 405(g).
42
See also Brewes v. Comm'r of Soc. Sec. Admin.,
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)).
"It is more than a mere scintilla [of
evidence] but less than a preponderance."
574 F.3d at 690).
4 - OPINION AND ORDER
Id.
(citing Valentine,
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
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
record.
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
I.
The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
See also 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
activity.
20 C.F.R. § 404.1520(a) (4) (I).
5 - OPINION AND ORDER
See also Keyser v.
Comm' r of Soc. Sec.,
648 F. 3d 721, 724
(9th Cir. 2011).
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.
404 .1520 (a) (4) (ii).
See also Keyser,
20 C.F.R. §§ 404.1509,
648 F. 3d at 724.
At Step Three 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).
See also Keyser,
20 C.F.R.
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 his limitations.
§
404 .1520 (e).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
"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
6 - OPINION AND ORDER
F.2d 597,
603 (9'" Cir. 1989)).
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.
See also Keyser,
20 C.F.R. § 404.1520(a) (4) (iv).
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 (9'" Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
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 her September 25, 2008,
alleged onset date.
Tr. 15.
At Step Two the ALJ found Plaintiff has the severe
impairments of lumbar strain, obesity, depression, and anxiety.
7 - OPINION AND ORDER
Tr. 15.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P, appendix
1.
Tr. 15-16.
light work.
The ALJ found Plaintiff has the RFC to perform
Tr. 16.
The ALJ found Plaintiff can stand and walk
for 30 minutes at a time.
Tr. 17.
The ALJ also found Plaintiff
can engage in "occasional postural activities."
Tr. 17.
The ALJ
found Plaintiff can frequently grip with the right hand and
occasionally bend forward at the waist, but can never climb
ladders, ropes, or scaffolds.
Tr. 17.
The ALJ found Plaintiff
"must have the ability to alternate between sitting and standing
every 30 minutes with no significant interference with the work
process."
Tr. 17.
routine tasks.
The ALJ also limited Plaintiff to simple,
Tr. 17.
At Step Four the ALJ concluded Plaintiff cannot perform her
past relevant work.
Tr. 22.
At Step Five the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy.
Tr. 22.
Accordingly, the ALJ found Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when he improperly
(1) rejected Plaintiff's testimony and (2) gave "little weight"
8 - OPINION AND ORDER
'
'
'
to the opinion of Rodney Jackson, D.C., treating chiropractor. 2
I.
The ALJ gave clear and convincing reasons for partially
rejecting Plaintiff's testimony.
Plaintiff alleges the ALJ erred when he failed to give clear
and convincing reasons for partially rejecting Plaintiff's
testimony at the November 2012 hearing.
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 he 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
The claimant, however, need not produce objective
medical evidence of the actual symptoms or their severity.
Smolen,
80 F.3d at 1284.
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 he provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007) (citing Lester v. Chater,
2
81 F.3d 821, 834
(9th
In her Opening Brief Plaintiff states in a header that the
ALJ erred in his analysis of the opinion of Jackson, but the body
of Plaintiff's argument refers to Raymond Larsen, M.D., treating
physician.
Dr. Larsen repeatedly opined Plaintiff had functional
limitations that are consistent with the ALJ's RFC finding.
The
Court, therefore, finds Plaintiff intended to challenge the ALJ's
rejection of Jackson's opinion.
9 - OPINION AND ORDER
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 hearing Plaintiff testified she works part time at a
community college teaching paramedic classes.
Tr. 34.
Plaintiff
stated the biggest obstacle to her working more often than her
part-time job is an increase in her back pain and "generalized
pain."
Tr. 36.
Plaintiff testified sitting and standing
increases the pain in her back and she suffers fatigue and
migraines one to three times per week.
Tr. 36.
Plaintiff also
testified she has tendinitis in her right wrist and thumb.
41.
Tr.
Plaintiff testified mental-health issues are not the main
reason she cannot work.
Tr. 37.
Norco, Flexeril, and Cymbalta.
Plaintiff takes Dilaudid,
Tr. 37.
Plaintiff noted she has
attempted physical therapy, use of a TENS unit, chiropractic
treatment, massage, Pilates, pool therapy, and a work-hardening
program to improve her symptoms, but nothing has relieved her
pain.
Tr. 42-43.
Plaintiff goes to the grocery store with her
mother but mainly stays at home.
Tr. 37.
The ALJ found Plaintiff's "medically determinable
impairments could reasonably be expected to cause some of
[Plaintiff's) alleged symptoms; however,
[Plaintiff's] statements
concerning the intensity, persistence and limiting effects of
10 - OPINION AND ORDER
these symptoms are not fully credible" because they are not
supported by the medical record.
Tr. 17.
In particular the ALJ
noted the record supports a finding that Plaintiff has
limitations due to back pain, but the record does not support the
extremity of Plaintiff's allegations of debilitating symptoms.
The record reflects Plaintiff suffered lumbar strain in February
2008 when she lifted a patient at work.
light duty work in April 2008.
working in September 2008.
Plaintiff returned to
Plaintiff, however, stopped
On September 25, 2008, Plaintiff's
treating physician, Dr. Larsen, opined Plaintiff could return to
work with the following restrictions:
not to lift more than 25
pounds, not to bend more than three times per hour, to alternate
sitting and standing, and not to do any repetitive wrist motion.
Tr. 390.
In October 2008, examining physicians Anthony Woodward
and Earl Duncan opined Plaintiff had chronic back pain, but she
did not have any limitation on her ability to work.
January 16, 2009,
Tr. 327.
On
Plaintiff was discharged from a work-hardening
program for inability to progress.
Tr. 385.
The discharging
doctor noted Plaintiff had "demonstrated the abilities .
. . to
perform in the light/medium category of work" and recommended
Plaintiff be released to work full time in the light/medium
category.
Tr. 385.
In June 2009 Dr. Larsen released Plaintiff
to work as a legal assistant eight hours per day with the
limitation that she be able to change positions.
11 - OPINION AND ORDER
Tr. 277-78.
In
May 2010 Dr. Larsen opined Plaintiff was capable of performing
sedentary work.
Tr. 828.
The ALJ also noted Plaintiff was a caregiver for her ill
father until October 2012 and continued to work part time as an
EMT instructor.
The Court finds the ALJ provided clear and convincing
reasons supported by substantial evidence in the record for
finding Plaintiff's testimony was only partially credible.
The
Court, therefore, concludes the ALJ did not err when he partially
rejected Plaintiff's testimony.
III. The ALJ did not err when he gave little weight to the
opinion of treating chiropractor Rodney Jackson.
On April 19, 2011, Jackson completed a report regarding
Plaintiff's functional limitations in which he stated Plaintiff
required additional education and training before she would be
eligible for sedentary occupations.
Plaintiff
~cannot
Tr. 832.
Jackson also noted
tolerate full time activity even with an
accommodation to sit and stand at will."
Tr. 832.
In September 2011 Jackson completed a Functional Capacity
Assessment of Plaintiff in which he stated Plaintiff could walk,
stand, and sit for less than 30 minutes.
Tr. 640.
Jackson
stated Plaintiff could walk and stand in combination for 10-20
minutes and stand and sit in combination for no more than three
hours.
Tr. 640.
Jackson noted Plaintiff could occasionally lift
and carry up to 20 pounds and intermittently kneel, crawl,
12 - OPINION AND ORDER
handle, and finger or pinch.
Tr. 640-41.
Jackson stated
Plaintiff would need to rest 2-3 hours in an eight-hour work day
and would have "deficits sustaining concentration, attention,
focus, persistence, and pace" 21-25% of the time in an eight-hour
work day.
Tr. 644.
Medical sources are divided into two categories:
''acceptable'' and ''not acceptable.''
20 C.F.R.
§
416.902.
Acceptable medical sources include licensed physicians and
psychologists.
20 C.F.R.
§
416.902.
Medical sources classified
as ''not acceptable'' include chiropractors.
SSR 06-03p, at *2.
The ALJ may assign a not-acceptable medical source either greater
or lesser weight than that of an acceptable medical source.
06-03p, at *5-6.
SSR
The ALJ, however, must explain the weight
assigned to such sources to the extent that a claimant or
subsequent reviewer may follow the ALJ's reasoning.
SSR 06-03p,
at *6.
The ALJ gave "little weight" to Jackson's opinions noting
Jackson had not seen Plaintiff in over a year at the time he
offered his September 2011 opinion and Jackson did not point to
specific findings to support Plaintiff's limitations.
In
addition, the ALJ noted Jackson's opinion was contradicted by the
opinions of Plaintiff's various treating and examining
physicians.
For example, as noted, Dr. Larsen opined in
September 2008 that Plaintiff could return to work with the
13 - OPINION AND ORDER
restriction not to lift more than 25 pounds, not to bend more
than three times per hour, to alternate sitting and standing, and
not to do any repetitive wrist motion.
Tr. 390.
In October 2008
Ors. Woodward and Duncan opined Plaintiff had chronic back pain,
but she did not have any limitation on her work abilities.
Tr. 327.
In January 2009 the doctor discharging Plaintiff from
the work-hardening program noted Plaintiff had
abilities . .
~demonstrated
the
. to perform in the light/medium category of work"
and recommended Plaintiff be released to work full time in the
light/medium category.
Tr. 385.
In June 2009 Dr. Larsen
released Plaintiff to work as a legal assistant eight hours per
day with the limitation that she be able to change positions.
Tr. 277-78.
In May 2010 Dr. Larsen opined Plaintiff was capable
of performing sedentary work.
Tr. 828.
The ALJ also noted Plaintiff was a caregiver for her ill
father until October 2012 and continued to work part time as an
EMT instructor.
On this record the Court concludes the ALJ did not err when
he gave little weight to the opinion of Jackson because the ALJ
supported his decision by reference to specific, substantial
evidence in the record.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
14 - OPINION AND ORDER
' '
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this
3rct
day of August, 2015.
ANN~
United States District Judge
15 - OPINION AND ORDER
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