McLemore v. Commissioner Social Security Administration
Filing
14
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter with prejudice. Signed on 04/21/2016 by Judge Anna J. Brown. See attached 17 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
AMOS L. MCLEMORE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
TIM WILBORN
Wilborn Law Office, P.C.
P.O. Box 370578
Las Vegas, NV 89137
(702) 240-0184
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
DAVID MORADO
Regional Chief Counsel
LISA GOLDOFTAS
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900
Seattle, WA 98104
(206) 615-3858
Attorneys for Defendant
1 - OPINION AND ORDER
3:15-cv-00743-BR
OPINION AND ORDER
BROWN, Judge.
Plaintiff Amos L. McLemore seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff’s application
for Supplemental Security Income (SSI) under Title XVI 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 with prejudice.
ADMINISTRATIVE HISTORY
Plaintiff filed an application for SSI on September 1, 2011,
and alleged a disability onset date of January 1, 2008.
208.1
Tr. 23,
His application was denied initially and on reconsider-
ation.
An Administrative Law Judge (ALJ) held a hearing on
November 4, 2013.
Tr. 31.
At the hearing Plaintiff and a
vocational expert (VE) testified.
Plaintiff was represented by
an attorney.
On November 18, 2013, the ALJ issued an opinion in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Tr. 23-32.
On February 25, 2015, that decision
became the final decision of the Commissioner when the Appeals
1
Citations to the official transcript of record filed by
the Commissioner on July 21, 2015, are referred to as “Tr."”
2 - OPINION AND ORDER
Council denied Plaintiff’s request for review.
Tr. 1-4.
See
Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
BACKGROUND
Plaintiff was born on December 23, 1970.
Tr. 44, 165.
Plaintiff was 42 years old at the time of the hearing.
has a high-school equivalency degree.
Tr. 44, 223.
has not performed past relevant work.
Plaintiff
Plaintiff
Tr. 30, 65.
Plaintiff alleges disability due to his “c-spine surgery,”
sciatic nerve pain, and a “slipped” disc in his lower back.
Tr. 222.
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. 27-30.
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 his
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.”
3 - OPINION AND ORDER
42 U.S.C.
§ 423(d)(1)(A).
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner’s decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
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.
Id. (citing Valentine, 574 F.3d
at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner’s decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
4 - OPINION AND ORDER
if they are supported by inferences reasonably drawn from the
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. § 416.920(a)(4)(I).
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
impairments or combination of impairments.
§ 416.920(a)(4)(ii).
20 C.F.R.
See also Keyser, 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.
§ 416.920(a)(4)(iii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
The
criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
5 - OPINION AND ORDER
assess the claimant’s residual functional capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§ 416.920(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
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.
20 C.F.R. § 416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 416.920(a)(4)(v).
Keyser, 648 F.3d at 724-25.
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
6 - OPINION AND ORDER
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), 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since his September 1, 2011,
application date.
Tr. 25.
At Step Two the ALJ found Plaintiff has the severe
impairments of degenerative disc disease with fusion, anxietyrelated disorder, below-average intellectual functioning, and
attention-deficit hyperactivity disorder.
Tr. 25-26.
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. 26-27.
In her assessment of Plaintiff’s RFC, the ALJ found
Plaintiff can perform light work as defined in 20 C.F.R.
§ 416.967(b).
The ALJ specified Plaintiff can stand and walk for
six hours in an eight-hour workday, sit for six hours in an
eight-hour workday.
The ALJ found Plaintiff can frequently climb
ramps and stairs and can occasionally climb ladders and
scaffolds, stoop, kneel, crouch, and crawl.
The ALJ concluded
Plaintiff can understand, remember, and carry out unskilled,
7 - OPINION AND ORDER
routine and repetitive work that requires only occasional
interaction with supervisors and that does not require a team or
cooperative effort with coworkers.
The ALJ also found Plaintiff
cannot perform work that requires “interaction with the general
public as an essential element of the job, but other contact with
the general public is not precluded.”
Tr. 27-30.
At Step Four the ALJ concluded Plaintiff does not have any
past relevant work.
Tr. 30.
At Step Five the ALJ concluded Plaintiff is capable of
performing other jobs existing in the national economy as a
housekeeper, electronic assembler, laundry folder, and cannery
worker.
Tr. 31-32.
Accordingly, the ALJ found Plaintiff is not
disabled.
DISCUSSION
Plaintiff contends the ALJ erred when she (1) discredited
Plaintiff’s testimony without providing legally sufficient
reasons for doing so; (2) discredited the opinion of Keli J.
Dean, Psy.D., without providing legally sufficient reasons for
doing so; (3) failed to find that Plaintiff is disabled at Step
Three based on his intellectual impairments; and (4) concluded
Plaintiff is not disabled based on an assessment of Plaintiff’s
RFC that did not fully account for the limitations identified by
Plaintiff and Dr. Dean.
8 - OPINION AND ORDER
I.
Plaintiff’s Testimony
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
See also Spelatz v. Astrue, 321 F. App’x 689, 692
(9th Cir. 2009).
The claimant, however, need not produce
objective medical evidence of the actual symptoms or their
severity.
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
See also Delgado v. Commissioner of Social Sec. Admin., 500 F.
App’x 570, 570 (9th Cir. 2012).
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant’s pain testimony only if she provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995)).
General assertions that the claimant’s
testimony is not credible are insufficient.
Id.
The ALJ must
identify “what testimony is not credible and what evidence
undermines the claimant’s complaints.”
Id. (quoting Lester, 81
F.3d at 834).
At the hearing Plaintiff testified he takes care of his
9 - OPINION AND ORDER
daughter by cooking simple meals and helping her with homework.
Tr. 52.
Plaintiff stated he began to suffer depression and
anxiety while he was incarcerated, and he has had difficulty
being around large groups of people since that time.
62.
Tr. 53-54,
Plaintiff reported he cannot stand for extended periods of
time and has difficulty carrying his grandchildren due to his
back pain.
Tr. 54.
In an Adult Function Report dated November 4, 2011,
Plaintiff reported he is limited because of his leg and back
pain.
Tr. 244.
Plaintiff stated his depression causes sleep
disturbance, and he experiences paranoia and difficulty leaving
the house.
Tr. 244, 246, 249.
Plaintiff reported on some days
he cannot bend over because of his back and leg pain, which makes
it difficult for him to stand up from a seated position.
walks with a cane.
He also
Tr. 245, 249.
In an undated “Disability Report-Appeal” Plaintiff reported
he is “progressively getting worse” and is in “constant pain
daily.”
Tr. 252.
In addition, Plaintiff stated:
“On 12/6/11 my
surgeon Dr. Darrell C. Brett, M.D., P.C., deemed me as permanent
[sic] disabled due to my lumbar spine surgery not working.”
Tr. 255.
The ALJ discredited Plaintiff’s testimony because Plaintiff
has a poor work history, Plaintiff’s allegations are inconsistent
with his activities of daily living, and records from Dr. Brett
10 - OPINION AND ORDER
contradicted Plaintiff’s allegations.
The ALJ is correct that records from Dr. Brett supported the
ALJ’s conclusion that Plaintiff is capable of light work.
Contrary to Plaintiff’s report that Dr. Brett stated on December
6, 2011, that Plaintiff was “permanent[ly] disabled”, Dr. Brett
noted on that date that Plaintiff “has no objective neurologic
deficit”; “is medically stationary”; and “will have a moderate
permanent partial disability in that he should not lift or carry
more than 25 lbs., perform any repetitive lifting, bending or
stooping, or sit or stand in a stationary position for more than
two consecutive hours.”
Tr. 504.
Accordingly, on December 6,
2011, Dr. Brett released Plaintiff to perform work consistent
with those limitations.
Tr. 502.
Moreover, the ALJ reasonably concluded Plaintiff’s reported
activities (including caring for his daughter, helping with
homework, and successfully taking classes to obtain his GED) were
inconsistent with Plaintiff’s allegations that he had disabling
intellectual impairments and ADHD.
Finally, the ALJ reasonably
found Plaintiff’s lack of work history over an extended period of
time suggested “reasons other than medical conditions explain why
the claimant is not working.”
Tr. 28, 186.
Accordingly, on this record the Court concludes the ALJ did
not err when she discredited Plaintiff’s testimony because the
ALJ provided legally sufficient reasons for doing so.
11 - OPINION AND ORDER
II.
Dr. Dean’s Opinion
An ALJ may reject an examining or treating physician’s
opinion when it is inconsistent with the opinions of other
treating or examining physicians if the ALJ makes findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record.
Taylor v. Comm'r of
Soc. Sec., 659 F.3d 1228, 1232 (9th Cir. 2011).
When the medical
opinion of an examining or treating physician is uncontroverted,
however, the ALJ must give “clear and convincing reasons” for
rejecting it.
Turner v. Comm'r of Soc. Sec., 613 F.3d 821, 830-
31 (9th Cir. 2010)(quoting Lester v. Chater, 81 F.3d 821, 830-31
(9th Cir. 1995)).
The opinion of a treating physician is “given
greater weight than the opinions of other physicians.”
Kelly v.
Astrue, 471 F. App'x 674, 676 (9th Cir. 2012)(quoting Smolen v.
Chater, 80 F.3d 1273, 1285 (9th Cir. 1996)).
A nonexamining physician is one who neither examines nor
treats the claimant.
Lester, 81 F.3d at 830.
v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).
See also Garrison
“The opinion of a
nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician.”
at 1233 (quoting Lester, 81 F.3d at 831).
Taylor, 659 F.3d
When a nonexamining
physician's opinion contradicts an examining physician's opinion
and the ALJ gives greater weight to the nonexamining physician's
12 - OPINION AND ORDER
opinion, the ALJ must articulate her reasons for doing so with
specific and legitimate reasons supported by substantial
evidence.
See, e.g., Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,
1198 (9th Cir. 2008).
“An ALJ may reject a . . . Physician's
opinion if it is based to a large extent on a claimant's selfreports that have been properly discounted as incredible.”
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)
(internal quotation marks omitted)(citing Morgan v. Comm'r of
Soc. Sec., 169 F.3d 595, 602 (9th Cir. 1995)).
See also Andrews
v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)(“[A]n opinion of
disability premised to a large extent upon the claimant's own
accounts of his symptoms and limitations may be disregarded, once
those complaints have themselves been properly discounted.”).
Dr. Dean conducted a “cognitive and psychological
evaluation” on February 19, 2013, in which she administered
several tests and conducted an interview, but she did not have
Plaintiff’s medical records to review.
Tr. 528.
Although
Dr. Dean noted in several instances that Plaintiff’s responses
were unusual and that Plaintiff “may not have answered in a
completely forthright manner” during some tests, Dr. Dean found
Plaintiff had a “low level of cognitive functioning” and that
Plaintiff’s “verbal comprehension abilities, working memory
issues, and impaired processing speed all suggest Amos likely has
difficulty learning new job tasks, following multistep
13 - OPINION AND ORDER
instructions, and with working at a speed commensurate of that of
his peers.”
Tr. 531-41.
Dr. Dean also noted Plaintiff’s
“intellectual scores falls [sic] in the range which would qualify
him for a diagnosis of borderline intellectual functioning.
His
low intellectual functioning will be a significant barrier to
future training and employment.”
Tr. 540.
In a Mental Residual Functional Capacity Report Dr. Dean
opined Plaintiff would be markedly limited in his abilities to
understand and to remember detailed instructions, to carry out
detailed instructions, and to maintain attention and
concentration for extended periods.
Tr. 545-46.
Dr. Dean also
noted, however, that Plaintiff was not significantly limited in
his abilities to understand, to remember, and to carry out short
and simple instructions; to sustain an ordinary routine without
special supervision; to make simple work-related decisions; and
to interact appropriately with the general public.
Tr. 545-46.
Dr. Dean’s opinion was contradicted by the reviewing
opinion of Joshua J. Boyd, Psy.D.
Tr. 87-89.
Accordingly, the
ALJ was required to provide specific and legitimate reasons for
discrediting Dr. Dean’s opinion.
See Taylor, 659 F.3d at 1232.
The ALJ gave Dr. Dean’s opinion “limited weight” because her
opinion was inconsistent with the record as to Plaintiff’s
activities of daily living, was inconsistent with Plaintiff’s
past educational and occupational activities, and was based on
14 - OPINION AND ORDER
Plaintiff’s subjective self-reporting.
Tr. 30.
The ALJ noted,
however, that Dr. Dean’s assessment was “taken into account in
the RFC, where the claimant is limited to unskilled, routine and
repetitive work and occasional social interactions.”
Tr. 30.
The ALJ reasonably rejected the full extent of the mental
limitations outlined in Dr. Dean’s opinion on the basis that her
conclusions as to Plaintiff’s significant intellectual deficits
were inconsistent with Plaintiff’s history of performing
landscaping work during his time in prison, completing his GED,
and maintaining independent activities of daily living.
Moreover, the record reflects the ALJ correctly found Dr. Dean
relied on Plaintiff’s self-reporting both in an interview and
during some of the testing.
Because, as noted, the ALJ provided
legally sufficient reasons for discrediting Plaintiff’s
testimony, the ALJ could also discredit Dr. Dean’s testimony on
this basis.
Accordingly, on this record the Court concludes the ALJ did
not err when she partially discredited Dr. Dean’s opinion because
the ALJ provided legally sufficient reasons for doing so.
III. Step Three
At Step Three the Commissioner must determine whether a
claimant’s impairments meet or equal one of the listed
impairments and are so severe that they preclude substantial
gainful activity.
The claimant is disabled if the Commissioner
15 - OPINION AND ORDER
determines the claimant’s impairments meet or equal one of these
requirements.
20 C.F.R. § 416.920(a)(4)(iii).
See also Keyser
v. Comm’r of Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011).
The criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
SSR 96-6p provides in pertinent part:
[L]ongstanding policy requires that the judgment of a
physician (or psychologist) designated by the
Commissioner on the issue of equivalence on the
evidence before the administrative law judge or the
Appeals Council must be received into the record as
expert opinion evidence and given appropriate weight.
In addition, the Ninth Circuit has held generalized
assertions of functional problems are insufficient to establish
that a claimant meets or equals a Listing at Step Three.
See,
e.g., Reed-Goss v. Astrue, 291 F. App’x 100, 101 (9th Cir.
2008)(“‘To meet a listed impairment, a claimant must establish
that he or she meets each characteristic of a listed impairment
relevant to his or her claim.’” (quoting Tackett v. Apfel, 180
F.3d 1094, 1099 (9th Cir. 1999)).
Plaintiff contends Dr. Dean’s assessment of Plaintiff’s
intellectual functioning demonstrates Plaintiff meets or equals
the criteria of Listing 12.05C.
As noted, however, the ALJ
appropriately discredited Dr. Dean’s findings regarding
Plaintiff’s intellectual functioning.
Dr. Dean’s opinion,
therefore, could not provide the basis for a Step Three finding
that Plaintiff is disabled.
16 - OPINION AND ORDER
Accordingly, on this record the Court concludes the ALJ did
not err at Step Three.
IV.
RFC Error
Finally, Plaintiff contends the ALJ erred in her evaluation
of Plaintiff’s RFC because the ALJ failed to account for all of
the limitations contained in Plaintiff’s testimony and the
opinion of Dr. Dean.
Because the Court concludes the ALJ did not
err when she discredited the testimony of Plaintiff and Dr. Dean,
however, the ALJ did not err when she formulated her evaluation
of Plaintiff’s RFC without including the full extent of
limitations that were part of that testimony.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 21st day of April, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
17 - OPINION AND ORDER
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