Hemmer v. Commissioner Social Security Administration

Filing 22

OPINION AND ORDER. Signed on 02/29/2016 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JENABI T. HEMMER
Plaintiff,

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
JAMES S. COON
820 S.W. 2nd Avenue, Suite 200
Portland, OR 97204
Attorney for Plaintiff
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
JOHN C. LAMONT
Social Security Administration - Region X
Office of the General Counsel
701 Fifth Avenue, Suite 2900 MIS 221A
Seattle, WA 98104-7075
Attorneys for Defendant

1 - OPINION AND ORDER

Case No. 3:15-cv-00374-MA
OPINION AND ORDER

MARSH, Judge
Plaintiff Jenabi T. Hemmer seeks judicial review of the final decision of the Commissioner
of Social Security denying his application for Disability Insurance Benefits (DIB) under Title II of
the Social Security Act, 42 U.S.C. §§ 401-403. This Court has jurisdiction pursuant to 42 U.S.C. §
405(g). For the reasons that follow, I affirm the final decision of the Commissioner.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff protectively filed an application for a period of disability and disability insurance
benefits on November 3, 2010, alleging disability beginning December 23, 2005, due to injuries to
his left shoulder and low back resulting from an automobile accident. Plaintiffs claim was denied
initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law
judge ("ALJ"). An ALJ held a hearing on April 28, 2013, at which plaintiff appeared with his
representative and testified. A vocational expe1i, Nancy E. Bloom, also attended the hearing and
testified. On May 31, 2013, the ALJ issued an unfavorable decision. The Appeals Council denied
plaintiffs request for review, and therefore, the ALJ' s decision became the final decision of the
Commissioner for purposes of review.
Bom in 1976, plaintiff was 29 years old on his alleged disability onset date and 34 years old
on his date last insured. Plaintiff has a eleventh grade education and completed training as an auto
glass installer. Plaintiff has past relevant work as an automobile glass technician and a construction
laborer.

THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. Each step

2 - OPINION AND ORDER

is potentially dispositive. The claimant bears the burden of proof at steps one through four. '11!0/ina
v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Valentine v. Commissioner Soc. Sec. Admin., 574

F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner to show that the
claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153,
1161 (9th Cir. 2012).
Plaintiff meets insured status requirements for a DIB application through September 30,
2010. At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity from
his alleged onset date of December 23, 2005 through his date last insured of September 30, 2010.
At step two, the ALJ found that plaintiff had the following severe impairments: degenerative disc
disease with post laminectomy syndrome and epidural fibrosis, and left AC (acromioclavicular) joint
impingement with status post arthroscopic repair. At step three, the ALJ found that plaintiffs
impairment or combination of impairments, did not meet or medically equal a listed impairment.
The ALJ assessed plaintiff with a residual functional capacity ("RFC") to perform sedentary
work but with the following limitations:
no climbing of ladders, ropes, or scaffolds and avoiding even moderate exposure to
hazards; frequent balancing; occasional stooping, kneeling, crouching, crawling, and
climbing ramps and stairs; with the dominant right arm occasional overhead
reaching; with the non-dominant left arm no overhead reaching, and frequent
reaching in all other directions; and the use of cane at all times with standing or
walking.
Transcript of Record ("Tr."), ECF No. 11 at 21.
At step four, the ALJ found that plaintiff is unable to perform his past relevant work. At step
five, the ALJ concluded that considering plaintiffs age, education, work experience, and residual
functional capacity, jobs exist in significant numbers in the national economy that plaintiff can

3 - OPINION AND ORDER .

perform, such as charge account clerk, document preparer, and addresser. Accordingly, the ALJ
concluded that plaintiff has not been under a disability under the Social Security Act from December
23, 2005 through September 30, 2010, his date last insured.

ISSUES ON REVIEW
Plaintiff contends that the ALJ improperly evaluated the opinion of his treating physician
Christina Yun Lee, M.D., and elToneously omitted a limitation that plaintiff"must move periodically
to relieve some pain" from the RFC. The Commissioner argues that even if the ALJ elTed, plaintiff
has not demonstrated harmful enor because the jobs identified by Vocational Expert ("VE") can be
perfo1med with a "sit-stand option at the employee's choice."

STANDARD OF REVIEW
The district co mi must affirm the Commissioner's decision if the Commissioner applied the
proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C.

§ 405(g); Beny v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is 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." Hill, 698 F.3d at 1159 (internal quotations
omitted); Valentine, 574 F.3d at 690. The comi must weigh all the evidence, whether it supports or
detracts from the Commissioner's decision. lvlartinezv. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one
rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004 ). Ifthe evidence supports the Commissioner's conclusion, the Commissioner must be affirmed;
"the comi may not substitute its judgment for that of the Commissioner." Edlund v. 1\1assanari, 253
F.3d 1152, 1156 (9th Cir. 2001); Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).

4 - OPINION AND ORDER

I.

The ALJ Properly Evaluated Dr. Lee's Medical Source Statement
To reject the uncontrove1ted opinion of a treating or examining physician, the ALJ must

present clear and convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If
a treating or examining doctor's opinion is contradicted by another doctor's opinion, it may be
rejected by specific and legitimate reasons. Molina, 674 F.3d at 1111. When evaluating conflicting
opinions, an ALJ is not required to accept an opinion that is not supp01ted by clinical findings, or
is brief or conclusory. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). In addition, a doctor's
work restrictions based on a claimant's subjective statements about symptoms are reasonably
discounted when the ALJ finds the claimant less than fully credible. Bray v. Comm'r of Soc. Sec.
Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); Batson, 359 F.3d at 1195.
Plaintiff argues that the ALJ erred by failing to provide specific and legitimate reasons for
ignoring his treating physiatrist Christina Yun Lee's September 30, 2010 medical source statement
that plaintiff must "move periodically to relieve some pain." Plaintiff contends that the ALJ was
required to provide specific and legitimate reasons for rejecting that specific limitation, or
alternatively, incorporate the limitation into the RFC. According to plaintiff, because the ALJ failed
to do either, when Dr. Lee's periodic movement limitation is credited as a matter of law, the
descriptions for the sedentaty jobs identified by the VE make it clear that plaintiff is unable to
perform them, and consequently, he is disabled under the act. Plaintiffs arguments miss the mark.
On September 30, 2010, plaintiff was referred to Dr. Lee by his neurosurgeon Carrie
Schulman, M.D., for consideration of epidural steroid injections and evaluation of ongoing low back
pain and left lower extremity neuropathy following anL4-5 laminectomy with diskectomy perfonned

5 - OPINION AND ORDER

in April 2009. 1 Dr,. Lee reviewed plaintiffs June 19, 2010 lumbar spine MRI and noted that it
showed post-surgical changes and scarring, without evidence of a new disk protrusion or herniation.
Tr. 961. Dr. Lee's notes reflect that plaintiff reported constant pain in his low back and left lower
extremity down to his left foot that had been worsening over the previous two to three months. Tr.
961. Plaintiff reported increased pain with prolonged sitting, standing in one position, and walking,
and that lying down provides the greatest relief. As the ALJ noted, Dr. Lee observed that "[plairitiffl
must move periodically to relieve some pain," he could stand independently, and had an antalgic gait
on the lower left extremity with decreased weightbearing. Tr. 28, 961. Plaintiffinfo1med Dr. Lee that
he owns his own body shop, was then working, but was minimizing his work load. Tr. 961.
Dr. Lee's physical examination of plaintiff showed a decreased range of motion with reports
of pain in the low back, Spurling testing revealed pain extending to the left lower extremity, and
straight leg testing on the left demonstrated reduced range of motion with pain extending to the left
foot. Dr. Lee's notes also show plaintiff reported pain in the left buttock and left sacro-iliac join, but
that plaintiff had 5/5 muscle strength in the right, and 4+/5 muscle strength in the left, with sensation
subjectively limited in the left L5 and S 1 distribution. Tr. 962. Dr. Lee recommended a trial of
epidural steroid injections and prescribed baclofen, a muscle relaxer, for muscle spasms and
myofascial pain in plaintiffs low back and left buttock area. Tr. 962. Dr. Lee indicated that if the
injections are helpful, physical therapy may be warranted. Tr. 962.
1

Plaintiffwas examined by Dr. Lee on several occasions for assessment of whether
injections would relieve his ongoing complaints of pain in his low back, left lower extremity, and
left shoulder. Plaintiff met with Dr. Lee in December 2008, April 2009, December 2009, Januaiy
2010, September 2010, and October 2010. Tr. 883-86, 872-74, 960-62, 975-78, 980-81. It is
notewmihy that the record for this case spans over 1,200 pages, and that plaintiff challenges only
the ALJ' s failure to include a single statement from Dr. Lee.

6 - OPINION AND ORDER

Initially, I note that Dr. Lee did not conduct a physical capacity evaluation and her treatment
notes do not detail specific functional limitations. The purpose of plaintiffs September 30, 2010
consultation with Dr. Lee was to assess the efficacy of steroid injections. Indeed, aside from Dr.
Lee's observation that plaintiff moved periodically to relieve some pain, she did not provide an
opinion as to how long plaintiff is· capable of sitting, standing, needs breaks, or must change
positions.
Next, Dr. Lee's observation that plaintiff must move periodically to relieve some pain, even
if characterized as a limitation, is contradicted by the opinion of nonexamining agency physicians
Sharon Eder, M.D., andNealE. Bemer, M.D. OnFebruaiy22, 2011, Dr. Eder completed a Residual
Functional Capacity ("RFC") Assessment. Tr. 90-103. Dr. Eder indicated that plaintiff could
frequently or occasionally lift and cany 10 pounds, could stand or walk for two hours, sit for six
hours, could do unlimited pushing and pulling, and could occasionally climb ramps or stairs, stoop,
kneel, crawl or crouch, and frequently balance. Tr. 99. Dr. Eder determined that plaintiff could
perform limited overhead reaching bilaterally, and must avoid even moderate exposure to hazards.
Tr. 100. Dr. Eder did not opine that plaintiff was required to move periodically, needed to change
positions, or that he would require more than nonnal breaks. On November 15, 2011, Dr. Bemer
affirmed Dr. Eder's RFC. Because Dr. Lee's opinion was contradicted, the ALJ was required to
provide specific and legitimate reasons, supported by substantial evidence in the record, for
discounting it.
In the decision, the ALJ thoroughly discussed Dr. Lee's September 30, 2010 evaluation. The
ALJ found that Dr. Lee's detailed assessment did not "impos[e] any additional significant
limitations" beyond those described in. the RFC, which limited plaintiff to a reduced range of
7 - OPINION AND ORDER

sedentaiy work. Although the ALJ did not specifically discount Dr. Lee's alleged functional
limitation that plaintiff must periodically move to relieve some pain, the ALJ did discuss plaintiffs
pain allegations thoroughly when evaluating his credibility and his ongoing left shoulder and low
back pain complaints when evaluating the medical evidence. Notably, plaintiff does not challenge
the ALJ's negative credibility assessment or the ALJ's evaluation of the remaining voluminous
medical record.
The ALJ' s negative credibility detennination rested on plaintiffs symptom magnification
and lack of objective medical evidence. The lengthy record shows that plaintiff suffered on-the-job
il\iuries in a motor vehicle accident in December 2005. Tr. 25. Following surgical repair to his left
shoulder, surgical repair of a deviated septum, and physical therapy, plaintiff was released to return
to work in August 2007 with permanent restrictions to his left shoulder. Tr. 26. Because of these
restrictions, plaintiff was unable to return to his previous work as an auto glass installer. However,
plaintiff continued to have pain complaints concerning his low back and left lower extremity. In
April 2009, plaintiff underwent an L4-5 laminectomy with diskectomy. As the ALJ noted, plaintiff
had good results, with a gradual return of numbness and tingling. Tr. 27. As accurately noted by
the ALJ, plaintiff reported to Dr. Lee on September 30, 2010, that his increased pain had been
present for two to three months. Tr. 28.
As the ALJ thoroughly discussed, by 2010, plaintiffs physicians found scant objective
evidence for plaintiffs continued alleged pain, despite numerous testing, imaging, and consultations.
To be sure, as the ALJ stated, in October 2010, Dr. Lee performed electrodiagnostic nerve testing
and found no evidence of an active radiculopathy to explain plaintiffs pain, despite plaintiffs
complaint of a sudden onset of pain and numbness in the left foot. Tr. 29, 872. At that visit, Dr. Lee
8 - OPINION AND ORDER

observed that plaintiff was using a walker for ambulation and could not tolerate standing. Tr. 874.
Plaintiff was refe1Ted to neurologist Greg R. Zarelli, M.D ., who examined plaintiff on November 19,
2010. Dr. Zarelli noted that plaintiff complained about numbness in the left lower extremity,
progressing to his left mm, as well as his left eye. Tr. 866. Dr. Zarelli indicated that "a large portion
of [plaintiffs] exam does not make sense neurologically," and that plaintiffs sensory allegations
"are so profound they are not possibly neurologic." Tr. 869. As the ALJ co11'ectly described, Dr.
Zarelli indicated that plaintiffs "presentation is functional in nature, either secondmy to a conversion
disorder and/or malingering." Tr. 30, 868. And, as the ALJ fi.niher discussed, an examination by
Benjamin B. Brennan, M.D., demonstrated an umeliable motor exam with give-away weakness. Tr.
1056-59. The ALJ' s negative credibility findings ate wholly suppmied by substantial evidence in the
record and are unchallenged by plaintiff.
Therefore, having thoroughly reviewed all of Dr. Lee's treatment records and the record as
a whole, I conclude the ALJ rationally interpreted Dr. Lee's September 30, 2010 medical source
statement as not imposing additional significant limitations beyond those accounted for in the RFC.
Moreover, the ALJ appropriately accounted for plaintiffs pain complaints elsewhere in the decision,
and the ALJ' s findings are supported by substantial evidence in the record as a whole. Valentine, 57 4
F.3d at 691-93 (finding physician's observation about claimant's PTSD was not a diagnosis or
functional limitation that was required to be included in the RFC); see also Bayliss, 427 F.3d at 1217
(noting ALJ only is required to identify specific, credible limitations in the RFC; "[p]reparing a
function-by-function analysis for medical conditions or impairments that the ALJ found neither
credible nor supported by the record is unnecessary"). Based on the record before me, the ALJ
reasonably and rationally interpreted the evidence concerning plaintiffs pain complaints, and did

9 - OPINION AND ORDER

not err in assessing Dr. Lee's opinion. Jvfolina, 674 F.3d at 1111 (finding rational interpretations of
the evidence must be upheld if they are suppo1ied by substantial evidence). The ALJ' s decision is
suppmied by substantial evidence in the record as whole and free oflegal error, and accordingly, is
affirmed.
CONCLUSION

For the reasons set forth above, the Commissioner's final decision denying benefits to
plaintiff is AFFIRMED. This action is DISMISSED.
IT IS SO ORDERED.
DATED this ~ 9day of FEBRUARY, 2016.

Malcolm F. Marsh
United States District Judge

10- OPINION AND ORDER