Khal v. Commissioner Social Security Administration
Filing
17
OPINION AND ORDER. The Commissioner's decision is AFFIRMED and this case is DISMISSED. See formal OPINION AND ORDER. Signed on 8/27/2015 by Chief Judge Ann L. Aiken. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID H. KHAL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
Tim D. Wilborn
Wilborn Law Office, P.C.
P.O. Box 370578
Las Vegas, Nevada 89137
Attorney for plaintiff
Billy Williams
Janice E. Hebert
United States Attorneys Office
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97201
Jeffrey E. Staples
Office of General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900
Seattle, Washington 98104
Attorneys for defendant
Page 1 - OPINION AND ORDER
Case No. 3:14-cv-01361-AA
OPINION AND ORDER
AIKEN, Chief Judge:
Plaintiff David Khal brings this action pursuant to the Social
Security Act ("Act") to obtain judicial review of a final decision
of
the
Commissioner
of
Social
Security
("Commissioner").
The
Commissioner denied plaintiff's application for Title II disability
insurance benefits
("DIB").
For the reasons set forth below, the
Commissioner's decision is affirmed and this case is dismissed.
PROCEDURAL BACKGROUND
This case has a long and complicated procedural history. 1 On
March 9,
2004,
application
was
plaintiff applied for DIB.
denied
initially
and
Tr.
upon
58-60.
After his
reconsideration,
hearing was held before an Administrative Law Judge
("ALJ");
a
on
October 11, 2006, the ALJ issued a decision finding plaintiff not
disabled within the meaning of the Act. Tr.
1073-80. On May 15,
2009, the Appeals Council remanded the matter for reconsideration
of whether plaintiff engaged in substantial gainful activity after
the alleged onset date. Tr. 1115-18. Another administrative hearing
was held on March 11, 2010, at which plaintiff was represented by
counsel
and
testified,
as
did
a
vocational
expert
( "VE")
and
plaintiff's wife, Alyce Khal. Tr. 1198-1227. On March 24, 2010, the
ALJ determined that plaintiff was not disabled. Tr.
13-27. After
the Appeals Council denied his request for review, plaintiff filed
a complaint in this Court. Tr. 6-8.
1
The record before the Court constitutes over 1400 pages,
but with multiple incidences of duplication. Where evidence
occurs in the record more than once, the Court will generally
cite to the transcript pages on which that information first
appears.
Page 2 - OPINION AND ORDER
On March 6, 2013, this Court found that the ALJ did not err in
assessing the statements of plaintiff or Mrs. Khal. Tr. 1249-70.
Nevertheless,
in light of the ALJ's failure to provide a legally
sufficient reason to reject the medical opinion of Paul Puziss,
M.D., the Court remanded the matter for further proceedings. Id.
On March 11, 2014, a third administrative hearing took place,
wherein plaintiff was again represented by counsel and testified,
as did Mrs. Khal. Tr. 1370-1414. On May 1, 2014, the ALJ issued a
third decision finding plaintiff not disabled under the Act. Tr.
1231-46. Plaintiff subsequently commenced this lawsuit.
STATEMENT OF THE FACTS
Born on February 18, 1949, plaintiff was 55 years old on the
alleged onset of disability and 65 years old at the time of the
third
hearing.
highschool
Tr.
58,
1231,
and chiropractic
1392.
school,
Plaintiff
and was
15
graduated
credits
from
shy of
obtaining an undergraduate degree in biology. Tr. 122-27, 1205. He
worked as a chiropractor for more than 25 years, during which time
he owned and managed his own practice. Tr. 260. Plaintiff sustained
an
on-the-job
injury
in May
2013
that
rendered him unable
to
continue his previous work. Tr. 441-42. He alleges disability as of
February 1, 2004, due to degenerative disc disease of the spine,
diabetes, and hypertension, as well as issues with both shoulders
and knees. Tr. 259; Pl.'s Opening Br. 2.
STANDARD OF REVIEW
The court must affirm the Commissioner's decision if it is
based on proper legal standards and the findings are supported by
Page 3 - OPINION AND ORDER
substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498,
501
(9th Cir.
scintilla.
1989).
Substantial evidence is "more than a mere
It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971)
(citation and internal quotations
omitted) . The court must weigh "both the evidence that supports and
detracts
from
Heckler,
the
807
[Commissioner's]
F. 2d
interpretations
of
772
771,
the
conclusions."
(9th
evidence
1986) .
Cir.
are
Martinez
v.
Variable
insignificant
if
the
Commissioner's interpretation is rational. Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005).
The
initial
burden
of
proof
rests
upon
the
claimant
to
establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th
Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected .
. to last for a continuous period of not less
than 12 months." 42 U.S.C.
The
process
Commissioner
has
§
423(d) (1) (A).
established
a
five-step
sequential
for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
Commissioner
determines
whether
a
§
Bowen v.
404.1502. First, the
claimant
is
engaged
in
"substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R.
§
404.1520(b). If so, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant
has a "medically severe impairment or combination of impairments."
Page 4 - OPINION AND ORDER
Yuckert,
482
U.S.
at
140-41;
20
C.F.R.
§
404.1520(c).
If
the
claimant does not have a severe impairment, he is not disabled.
At
step
three,
the
Commissioner
determines
whether
the
claimant's impairments, either singly or in combination, meet or
equal
"one
of
[Commissioner]
a
number
of
acknowledges
listed
are
so
impairments
severe
substantial gainful activity." Yuckert,
C.F.R.
404.1520(d).
§
If
so,
the
as
4 82 U.S.
claimant
is
that
to
at
the
preclude
14 0-41;
20
presumptively
disabled; if not, the Commissioner proceeds to step four. Yuckert,
482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant
can still perform "past relevant work." 20 C.F.R.
the claimant can work,
he is not disabled;
§
404.1520(f). If
if he cannot perform
past relevant work, the burden shifts to the Commissioner. At step
five, the Commissioner must establish that the claimant can perform
other work existing in significant numbers in the national or local
economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R.
§
404.1520(g). If
the Commissioner meets this burden, the claimant is not disabled.
20 C.F.R.
§
404.1566.
THE ALJ'S FINDINGS
At step one of the five-step process outlined above, the ALJ
found
that
plaintiff
had
"not
engaged
in
substantial
gainful
activity during the period from his alleged onset date of February
1, 2004 through his date last insured of December 31, 2008." Tr.
1234. At step two,
the ALJ determined plaintiff's "degenerative
disc disease of the lumbar and cervical spine, rotator cuff tear of
Page 5 - OPINION AND ORDER
the left shoulder, small tear with free margin of the right medial
meniscus,
meniscus,
a
small tear of the
bilateral
shoulder
free margin of the
impingement,
and
left lateral
chronic
left
acromioclavicular strain aggravating arthritis" were medicallydeterminable and severe. Tr. 1234-35. At step three, the ALJ found
that plaintiff's impairments, either singly or in combination, did
not meet or equal the requirements of a
listed impairment.
Tr.
1235.
Because he did not establish presumptive disability at step
three, the ALJ continued to evaluate how plaintiff's impairments
affected his
ability to work.
possessed the
residual
The ALJ resolved that plaintiff
functional
capacity
( "RFC")
to
"perform
sedentary work" except that he must "avoid concentrated exposure to
vibration and the use of ladders, ropes, and scaffolds," and "could
occasionally climb ramps and stairs, stoop, kneel, crouch, crawl,
and perform overhead reaching." Tr. 1236.
At step four, the ALJ determined plaintiff could not perform
his past relevant work. Tr. 1243. At step five, the ALJ found that
plaintiff acquired transferrable skills from his past relevant work
which enabled him to perform the sedentary, semi-skilled position
of information clerk. Tr. 1244. Accordingly, the ALJ concluded that
plaintiff was not disabled within the meaning of the Act prior to
the date last insured. Tr. 1245.
DISCUSSION
Plaintiff argues that the ALJ erred by:
fully credible;
( 1)
finding him not
(2) improperly assessing the third-party testimony
Page 6 - OPINION AND ORDER
of Mrs. Khal;
(3) rejecting medical opinion evidence furnished by
Dr. Puziss; and (4) rendering an invalid step five finding.
I.
Plaintiff's Credibility
Plaintiff asserts that the ALJ failed to provide a clear and
convincing reason, supported by substantial evidence, for rejecting
his subjective symptom testimony concerning the severity of his
impairments. When a claimant has medically documented impairments
that could reasonably be expected to produce some degree of the
symptoms complained of,
evidence
of
and the record contains no affirmative
malingering,
"the
ALJ
can
testimony about the severity of
specific,
reject
the
claimant's
symptoms only by offering
clear and convincing reasons for doing so." Smolen v.
Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)
A general assertion that
the
(citation omitted).
claimant is
insufficient;
the ALJ must "state which .
credible
what
and
evidence
suggests
the
credible." Dodrill v. Shalala, 12 F.3d 915,
not
credible is
testimony is not
complaints
918
are
not
(9th Cir. 1993).
The reasons proffered must be "sufficiently specific to permit the
reviewing
court
to
conclude
that
the
ALJ did
discredit the claimant's testimony." Orteza v.
748, 750 (9th Cir. 1995)
not
arbitrarily
Shalala,
50 F.3d
(internal citation omitted). If the "ALJ's
credibility finding is supported by substantial evidence in the
record,
[the court] may not engage in second-guessing." Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)
(citation omitted).
Initially, this Court previously considered and affirmed the
ALJ's adverse credibility finding. Tr. 1254-60. On remand, the ALJ
Page 7 - OPINION AND ORDER
relied on many of the same legally valid reasons to find plaintiff
not
fully
credible.
Tr.
1236-43.
Plaintiff
now
attacks
those
reasons on the same bases he did in his prior appeal, such that he
presented no justification for this Court to diverge from its prior
ruling. See Thomas v. Bible,
denied, 508 U.S. 951 (1993)
983 F.2d 152, 154
(9th Cir.), cert.
("a court is generally precluded from
reconsidering an issue that has already been decided by the same
court")
882,
(citation omitted); see also Moisa v. Barnhart,
887
appeal,
(9th Cir.
should not
claimant]
2004)
("[t]he Commissioner,
having lost this
have another opportunity to
is not credible any more than
367 F.3d
show that
[the claimant],
[the
had he
lost, should have an opportunity for remand and further proceedings
to establish his credibility")
Regardless,
erroneous.
After
determined
that
the ALJ' s
May 2014
summarizing
plaintiff's
( citation omitted) .
his
credibility finding is not
hearing
medically
testimony,
determinable
the
ALJ
impairments
could reasonably be expected to produce some degree of symptoms,
but his statements regarding the extent of those symptoms were not
fully credible due to his inconsistent physical activities, failure
to report pain symptoms or follow the prescribed treatment plan,
and lack of interest in seeking other suitable employment, as well
as because he was "seeking benefits from the very program, Social
Security, that he apparently evaded funding [via taxes] during his
[lucrative]
working years by paying himself through shareholder
distributions rather than compensation." Tr. 1236-45.
Page 8 - OPINION AND ORDER
Notably, the ALJ found that plaintiff's hearing statements specifically, that he has "no physical
[or] mental activity [or]
recreation" and could only sit for up to 30 minutes at one time were
undermined
by
his
ability
to
travel
and
the
independent
observations of his providers. Tr. 1195, 1241-42, 1381. Activities
may
be
used
to
discredit
a
claimant
where
they
either
"are
transferable to a work setting" or "contradict claims of a totally
debilitating impairment." Molina v. Astrue, 674 F.3d 1104, 1112-13
(9th Cir.
2012). The record demonstrates that plaintiff traveled
extensively after the alleged onset date,
both domestically and
internationally, for business and recreation. See, e.g., Tr. 309,
899,
939,
1038,
Tommasetti v.
1043-44,
Astrue,
1047,
1355,
533 F. 3d 1035,
13 9 8 - 0 5 ,
1040
14 1 0 -13 ; .:::s..:::::e'-"e'---'a=l=s=o
(9th Cir.
2008)
(ALJ
properly inferred that the claimant was not as physically limited
as alleged due to his ability to travel to Venezuela).
Further,
plaintiff's vocational counselor observed that he "sat for a very
lengthy
intake
interview
quite
comfortably,"
despite
reporting "that if he
sits
for more than one-half hour he has
pain."
also
Tr.
Tr.
125;
see
1343-52
(plaintiff
repeatedly
communicating to his doctor in the months leading up to the third
administrative hearing that he was "feeling well"); 1359 (plaintiff
recounting in March 2012 that "he is feeling relatively well" but
recently "played golf for 8 hours with a friend," which caused some
leg
swelling).
Although
plaintiff
offers
a
more
favorable
interpretation of this evidence, the ALJ's reading was nonetheless
rational such that it must be upheld. Batson v. Comm'r of Soc. Sec.
Page 9 - OPINION AND ORDER
Admin., 359 F.3d 1190, 1198 (9th Cir. 2004).
The
sought
ALJ
also
discounted
plaintiff's
little medical treatment
for
his
testimony
because
he
allegedly debilitating
impairments during the relevant time period and consistently failed
to
report
any
pain
symptoms
or
limitations
to
his
treating
providers. Tr. 1239-42. An ALJ may consider a claimant's failure to
report symptoms in making an adverse credibility finding. Greger v.
Barnhart,
464
F.3d
968,
972
testimony reflected that,
primary
treatment
for
(9th Cir.
after
his
2006,
2006).
Dr.
pain-inducing
Plaintiff's
2014
Puziss
provided the
physical
impairments;
Fayyaz Mahmood, M.D., managed the majority of his other conditions.
Tr. 1378-81. Yet there are no chart notes from Dr. Puziss between
November 2006 and July 2009,
when plaintiff presented after the
date last insured with pain in his right wrist; despite seeing Dr.
Puziss somewhat regularly thereafter, plaintiff did not complain of
any back or shoulder pain until May 2013.
Moreover,
plaintiff
Tr.
reported virtually no pain,
987-90,
1311-20.
discomfort,
or
functional limitations to Dr. Mahmood, his treating provider since
2001. See, e.g., Tr. 334-47, 479-518, 1038-45.
Additionally, the ALJ found plaintiff's non-compliance with
Dr.
Mahmood's prescribed treatments belied his credibility.
Tr.
1242. An ALJ may discredit a claimant due to an "unexplained or
inadequately explained failure to follow a prescribed course of
treatment.n Tommasetti, 553 F.3d at 1039; SSR 96-7p, available at
Page 10 - OPINION AND ORDER
1996 WL 374186. 2 Plaintiff frequently adjusted his medications or
failed to comply with his doctors'
recommendations,
despite the
fact that Dr. Mahmood repeatedly counseled against such practices.
Tr. 334, 480-81, 483, 899, 1038, 1041, 1045.
Thus, the ALJ provided several specific, clear and convincing
reasons,
supported
by
substantial
evidence,
for
rejecting
plaintiff's subjective symptom statements. As a result, this Court
need not discuss all of the reasons provided by the ALJ because at
least one legally sufficient reason exists. Carmickle v. Comm'r,
Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). The ALJ's
credibility finding is affirmed. 3
2
The administrative record does not contain any explanation
for plaintiff's failure to follow the recommendations of his
medical providers, including any limitation in financial
resources. In fact, plaintiff has various real estate holdings
from which he derives significant income and also receives $5000
per month in long-term disability benefits; while not
dispositive, any benefits granted under the Act would not be
pocketed by plaintiff but instead would go to his insurer and
attorney. Tr. 1182-85, 1375. Furthermore, plaintiff's counsel's
speculation - i.e. "it may be (and probably is) that [he]
believed he was qualified to make adjustments to his own dosage"
because he "ran a successful medical practice for many years" is unavailing. Pl.'s Opening Br. 14. Plaintiff was not a medical
doctor and therefore did not have the ability to prescribe or
adjust medications.
3
Alternatively, plaintiff contends that the ALJ should have
developed the record in regard to his credibility because
"perhaps there is a reasonable explanation" for his missed
appointments with his vocational counselor and lack of medical
compliance. Pl.'s Opening Br. 14. The claimant bears the burden
of proving the existence or extent of an impairment, such that
the ALJ's limited "duty to develop the record further is
triggered only when there is ambiguous evidence or when the
record is inadequate to allow for proper evaluation of the
evidence." Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir.
2001) (citation omitted). Neither the ALJ nor any medical source
found the record to be ambiguous or insufficient for proper
evaluation; plus, this case has been ongoing for more than ten
Page 11 - OPINION AND ORDER
II.
Lay-Witness Testimony
Plaintiff next asserts that the ALJ neglected to provide a
germane reason to reject the testimony of Mrs. Khal. Lay testimony
regarding a claimant's symptoms or how an impairment affects the
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.
Mrs.
March
(citation and internal quotation omitted).
Khal completed a third-party adult function report in
2004,
as
administrative
well
as
hearings.
testified
Tr.
at
275-83,
the
second
1214-18,
and
1396-1411.
third
Her
statements generally reflect that plaintiff did not engage in any
daily activities beyond going to doctors'
appointments, watching
television, paying bills, performing home exercises, visiting with
friends and family, traveling, and occasional grocery shopping. Id.
She remarked further that he needed to change position frequently
and lay down for several hours per day. Id.
The ALJ afforded "little weight" to Mrs. Khal's opinion "for
the
reasons
little weight
is
given
to
[plaintiff's]
testimony
regarding the extent and severity of his limitations; [plaintiff's]
inconsistent physical activities,
limitations,
his inconsistent reporting of
and his failure to follow the prescribed treatment
plan." Tr. 1242-43. An ALJ may reject lay testimony on same basis
as
the claimant's discredited subjective
reports.
Valentine v.
years and the date last insured lapsed in 2008. The ALJ's duty to
more fully develop the record was not triggered.
Page 12 - OPINION AND ORDER
Comm'r Soc. Sec. Admin.,
also Molina,
574 F.3d 685,
674 F.3d at 1114
694
(9th Cir.
2009);
see
("if the ALJ gives germane reasons
for rejecting testimony by one witness, the ALJ need only point to
those
reasons
witness")
when
rejecting
(citations omitted).
similar
testimony by a
Likewise,
different
inconsistency with the
evidence of record is a germane reason to reject a third-party's
statements.
Bayliss v.
Barnhart,
427
F.3d 1211,
1218
(9th Cir.
2005).
An independent review of the record reveals that Mrs. Khal's
testimony concerning plaintiff's functional limitations is nearly
identical
provided
to
plaintiff's.
specific,
clear
As
and
addressed
in
convincing
section
reasons,
I,
the
ALJ
supported by
substantial evidence, to find plaintiff less than fully credible,
and these reasons are equally applicable to Mrs. Khal's testimony.
The ALJ's evaluation of the lay witness testimony is upheld.
III. Medical Opinion Evidence
Plaintiff argues that the ALJ erred by failing to provide a
legally sufficient reason, supported by substantial evidence, for
discrediting the medical opinion of Dr.
Puziss.
There are three
types of medical opinions in Social Security cases:
those from
treating, examining, and non-examining doctors. Lester v. Chater,
81 F.3d 821,
830
(9th Cir.
1995).
To reject the uncontroverted
opinion of a treating or examining doctor,
the ALJ must present
clear and convincing reasons. Bayliss, 427 F.3d at 1216 (citation
omitted).
If
a
treating
Page 13 - OPINION AND ORDER
or
examining
doctor's
opinion
is
contradicted by another doctor's opinion,
it may be rejected by
specific and legitimate reasons. Id.
In December 2004, Dr. Puziss examined plaintiff for the first
time
post-injury
and
diagnosed
him
with
"[d]egenerative
spondylosis, mainly L4-5 with mild foraminal stenosis bilaterally
L4-5 and a small disc protrusion, probably not symptomatic L5-S1,
small annular tear L4-5"; "[s]mall tear free margin right medical
meniscus"; "[s]mall tear free margin left lateral meniscus"; and
"[b]ilateral
small
full
thickness
supraspinatus
rotator
cuff
tears." Tr. 473. Dr. Puziss noted that plaintiff "remains disabled
from his work as a chiropractor, probably permanently." Tr.
473.
Dr. Puziss similarly opined, in January 2005 and March 2005, that
plaintiff was unable to perform chiropractic work. Tr. 459, 462. In
July 2005, Dr. Puziss stated that plaintiff "remains in disability
privately
and
is
likely permanently
and
totally disabled
from
returning to work as a chiropractor [and] probably incapable of any
kind of work given his age, education, and skill." Tr. 455-56. In
April 2006, Dr. Puziss prepared a "Physical Capacities Evaluation,"
on which he wrote plaintiff "is permanently and totally disabled
realistically." Tr. 516.
In March 2010,
Dr.
Puziss completed a medical questionnaire
prepared by plaintiff's attorney. Tr.
1063-66. Dr.
that plaintiff could occasionally/frequently lift
pounds,
Puziss opined
less
than 10
stand or walk for less than two hours in an eight hour
workday, and sit for three hours in eight hour workday. Tr. 1063.
He also checked boxes reflecting that plaintiff must be able shift
Page 14 - OPINION AND ORDER
positions at will and lie down at unpredictable intervals.
1064.
Dr.
stoop,
Tr.
Puziss rated plaintiff as never being able to twist,
or crouch,
but occasionally be able to climb stairs and
ladders. Tr. 1065. Lastly, Dr. Puziss circled the option indicating
that plaintiff's impairments would cause him to be absent from work
more than three times per month. Tr. 1066.
The ALJ thoroughly analyzed the medical
Puziss and gave
weight to
~great
evidence from Dr.
[his opinions]
that during the
relevant time period [plaintiff] was precluded from returning to
his past work as a chiropractor." Tr. 1238-40. The ALJ observed,
however, that the doctor's July 2005 statement of total disability
was
~equivocal."
Tr. 1240-41. The ALJ rejected Dr.
2006 opinion because it was
[plaintiff]
work,
~unclear
or from any work," and not as well explained as the VE's
1040.
The ALJ afforded
( 1) offered well after the date last insured and did not
relate back;
trigger
Tr.
. weight to Dr. Puziss' opinion from 2010" because
~some
it was:
( 2)
finger,
~in
part based on a diagnosis, right ring finger
that
did
not
appear
in
the
whatsoever during the relevant time period"; (3)
the
he intended that
was permanently and totally disabled from his past
finding of transferable work skills.
only
[whether]
Puziss' April
other
information
in
the
record,"
medical
record
~inconsistent
including
with
plaintiff's
extensive travel and the independent observations of his other
providers;
and
(4)
did
not
objective findings. Tr. 1241.
Page 15 - OPINION AND ORDER
link
specific
limitations
to
any
An ALJ is not
required to incorporate limitations phrased
equivocally into the RFC. Valentine, 574 F. 3d at 691-92. An ALJ may
also
reject
"check-off
reports
that
[do]
not
contain
any
explanation of the bases of their conclusions" or medical opinions
that are inconsistent with the claimant's daily activities. Crane
v. Shalala, 76 F. 3d 251, 253 (9th Cir. 1996); Morgan v. Cornrn'r of
Soc.
Sec.
Admin.,
169 F.3d 595,
601
(9th Cir.
1999).
"[I]t
well-established that an ALJ may reject a medical opinion,
that
of a
treating doctor,
where
it was
is
even
completed years after
claimant's date last insured and was not offered as retrospective
analysis." Morgan v. Colvin, 2013 WL 6074119, *10 (D.Or. Nov. 13,
2013)
(citations and internal quotations and ellipses omitted) .
Substantial evidence supports
the ALJ' s
assessment
of the
medical evidence in the case at bar. By prefacing it with the term
"probably," Dr. Puziss' July 2005 remark was phrased equivocally.
As the ALJ reasonably determined, the inclusion of such speculative
language demonstrates a "lack of confidence" in this vocational
conclusion. Tr.
("Dr.
Puziss' s
455-56,
516, 1241; see also Pl.'s Opening Br. 12
statements about Plaintiff's age,
education,
and
work skills might have gone beyond his area of expertise"); Morgan,
169 F. 3d at 600
("the opinion of the treating physician is not
necessarily conclusive as to either the physical condition or the
ultimate issue of disability")
(citation omitted). Concerning his
April 2006 opinion, there is no reference to any objective medical
findings,
which,
as
the ALJ' s
summary of the medical
evidence
indicated, were mild to moderate and did not require surgery per
Dr. Puziss' reports. Tr. 1238-39. Given Dr. Puziss' four previous
Page 16 - OPINION AND ORDER
opinions, all of which predominately related to plaintiff's prior
chiropractic work, the meaning of the doctor's April 2006 comment
was ambiguous.
Finally, as discussed in section I, plaintiff's demonstrated
physical activities are inconsistent with several of Dr.
functional restrictions.
In any event,
Puziss'
plaintiff did not resume
treatment with Dr. Puziss until the adjudication period expired; he
did not
report
significant
disruption
from
any
condition
that
predated the date last insured until more than three years after
Dr. Puziss issued his March 2010 evaluation. Moreover, Dr. Puziss'
March 2010 opinion did not relate plaintiff's current symptoms or
limitations back to the relevant time frame. The ALJ's evaluation
of Dr. Puziss' opinions is affirmed.
IV.
Step Five Finding
Plaintiff
asserts
that
the
ALJ's
step
five
finding
is
erroneous because it did not account for all of the limitations set
forth in his testimony, Mrs. Khal's third-party statements, and the
opinions
finding
of Dr.
Puziss.
Plaintiff also
contends
the
step
is deficient because the ALJ relied on "one
five
sedentary
occupation, information clerk," in contravention of Lounsburry v.
Barnhart,
483 F. 3d 111
have
[transferable]
any
(9th Cir.
skills
2006),
and plaintiff "does not
related to
directing people
to
various parts of the hospital." Pl.'s Opening Br. 16-18.
A.
Failure to Account for Limitations
The
RFC
is
the
limitations. 20 C.F.R.
must
consider
maximum
§
a
claimant
can
do
despite
his
404.1545. In determining the RFC, the ALJ
limitations
imposed
by
all
of
a
claimant's
impairments, even those that are not severe, and evaluate "all of
Page 17 -OPINION AND ORDER
the relevant medical and other evidence," including the claimant's
testimony. SSR 96-8p, available at 1996 WL 374184. Only limitations
supported by substantial evidence must be incorporated into the RFC
and, by extension, the dispositive hypothetical question posed to
the VE. Osenbrock v. Apfel, 240 F3d 1157, 1163-65 (9th Cir. 2001).
As addressed herein, the ALJ properly discredited plaintiff,
Mrs. Khal, and Dr. Puziss, and there is no indication, outside of
this evidence, that plaintiff suffered from functional limitations
beyond those outlined in the RFC during the relevant time period.
As such, plaintiff's argument, which is contingent upon a finding
of harmful error in regard to the aforementioned issues, is without
merit. Bayliss, 427 F3d at 1217-18; Stubbs-Danielson v. Astrue, 539
F3d 1169, 1175-76 (9th Cir. 2008). The ALJ's step five finding is
upheld in this regard.
B.
Transferable Work Skill to a Single Occupation
Claimants who are age 55 or older and limited to sedentary
work are considered disabled unless their past relevant work was
skilled or semiskilled and those skills are transferable to other
skilled or semiskilled work with very little, if any, vocational
adjustment. Tommasetti, 533 F. 3d at 1042-43 (citations omitted); 20
C. F. R.
Pt.
C.F.R.
§
4 0 4,
Subpt.
P, App.
2,
§§
2 01. 0 0,
2 01. 0 6,
2 01. 0 7;
404.1568(d). Claimants who fall into this category
cannot be expected to make a vocational adjustment to
substantial changes in work simply because skilled or
semiskilled jobs can be identified which have some degree
of skill similarity with their PRW. In order to establish
transferability of skills for such individuals, the
semiskilled or skilled job duties of their past work must
be so closely related to other jobs which they can
perform that they could be expected to perform these
other identified jobs at a high degree of proficiency
with a minimal amount of job orientation. [W] here job
Page 18 - OPINION AND ORDER
20
skills have universal applicability across industry
lines, e.g., clerical, professional, administrative, or
managerial types of jobs, transferability of skills to
industries differing from past work experience can
usually be accomplished with very little, if any,
vocational adjustment.
SSR 82-41, available at 1982 WL 31389.
At the hearing,
the VE testified that plaintiff's previous
work as a chiropractor was "medium [exertion] with [a] SVP: 8." Tr.
1218.
In
response
to
the
ALJ's
recounting
of
plaintiff's
dispositive functional limitations, the VE explained: "I researched
what I thought would be [the] most physically, you know, sedentary
job that I though he would have transferability of skills to, and
with such a high level of education and experience, what I came up
with was information clerk, especially in a hospital setting." Tr.
1219-20. The position of information clerk is a "SVP: 4 job." Tr.
1222-23, 1226. The VE described this type work as follows:
"when
you go into a hospital, somebody assists you, maybe helps you, lets
you know where the- where the particular doctor's office is, may
look something up on the computer, may escort you to that office."
Tr. 1222.
She reported there was "a very large labor market" for the
representative occupation of information clerk, with approximately
1,100 jobs in the regional economy and 77,000 jobs in the national
economy. Tr. 1220. A "high percentage of th[ose] numbers [are] in
the medical profession," such that "a conservative estimate would
be at least 50 percent"- i.e. 550 positions regionally and 38,500
positions nationally. Tr.
1221-22. The VE identified plaintiff's
transferable skills as "imparting information," "deal [ing]
with
patients," "run[ning] his own clinic," "knowledge of the medical
Page 19 - OPINION AND ORDER
field," and basic customer service and computer skills. Tr. 1222,
1225. She concluded that
~most
employers who would be looking for
an information clerk at - in a healthcare type environment would be
thrilled to have someone [like plaintiff] who [has] even more than
. entry level skills." Tr. 1225.
The ALJ accurately recounted the VE's testimony and found that
plaintiff
a
~basic
~acquired
work skills from his past relevant work" - i.e.
background work in the health care industry,"
deal of experience imparting information," and
service
skills,"
clinic" - that
accumulated
~were
from
~a
customer
~extensive
~run[ning]
his
great
own
medical
transferable to others occupations with jobs
that existed in significant numbers in the national economy." 4 Tr.
1245.
Accordingly,
the
ALJ
determined
that,
under
~Medical-
Vocational Rule 201.07, section 201.00(f) of the Medical-Vocational
Guidelines, and 20 CFR 404.1568(d) ,"a
~finding
of 'not disabled'
is appropriate." Id.
The Court finds the ALJ properly evaluated transferability
pursuant to SSR 82-41 in order to resolve that plaintiff's highly
skilled
past
relevant
work
provided
skills
that
would
lend
themselves to the semi-skilled position of information clerk. SSR
82-41, available at 1982 WL 31389; 20 C.F.R.
available at
2000 WL 1898704;
404.1568; SSR 00-4p,
see also Salazar v.
F.Supp.2d 1202, 1221-22 (D.Or. 2012)
4
§
Astrue,
(rejecting a nearly identical
Although plaintiff does not explicitly challenge the
incidence of jobs identified by the ALJ, they are nonetheless
sufficient. Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519,
528-29 (9th Cir. 2014).
Page 20 - OPINION AND ORDER
859
argument to hold that similar qualities constituted transferable
skills)
( citations omitted) .
Plaintiff's remaining contention regarding Lounsburry has been
expressly rejected by the Ninth Circuit. Tommasetti,
533 F.3d at
1043-44. In other words, the Medical-Vocational Guidelines relating
to light work, which were the subject of Lounsburry and on which
plaintiff relies,
are not pertinent here.
Soc.
357 Fed.App.
Sec. Admin.,
LaBlue v.
Colvin,
36,
2013 WL 5431490,
37
Earnshaw v.
(9th Cir.
*3-5
(D.Or.
2009);
Sept.
Comm'r of
see also
26,
2013)
(affirming the ALJ's decision under analogous circumstances).
CONCLUSION
For the reasons set forth above, the Commissioner's decision
is AFFIRMED and this case is DISMISSED.
IT IS SO ORDERED.
Dated this
;t'"l
day of August 2015.
Ann Aiken
United States District Judge
Page 21 - OPINION AND ORDER
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