Bade v. Commissioner Social Security Administration

Filing 25

OPINION AND ORDER: For the foregoing reasons, I find the ALJ provided substantial reasons rooted in evidence for discounting Ms. Bade's anxiety testimony and rejecting the testimony of Dr. Walters. If the ALJ's interpretation of the VE 9;s testimony is correct, I affirm the ALJ's finding that if Ms. Bade discontinued substance use her anxiety would improve to the point of nondisability. However, I remand so the ALJ can clarify the VE's testimony and, if necessary, provide step five analysis. Signed on 5/24/16 by Chief Judge Michael W. Mosman. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JANE BADE,
No. 3:15-cv-00839-MO

Plaintiff,
v.

OPINION AND ORDER

CAROLYN W. COLVIN, Commissioner
Social Security Administration
Defendant.
MOSMAN, J.,
Jane Bade challenges the Commissioner’s decision denying her claim for Supplemental
Security Income (“SSI”). I have jurisdiction under 42 U.S.C. § 405(g) and now remand to the
administrative law judge (“ALJ”) to clarify the vocational expert (“VE”) testimony and provide,
if necessary, a step five analysis.
PROCEDURAL BACKGROUND
Ms. Bade filed her application for SSI to the Commissioner on March 3, 2011. The claim
was initially denied on November 8, 2011, and again upon reconsideration on March 16, 2012.
Ms. Bade then filed a timely request for a hearing to review the Commissioner’s decision on
April 3, 2012. An ALJ held a hearing on July 16, 2013, and subsequently issued a decision on
August 14, 2013, denying Ms. Bade’s claim for SSI.
THE ALJ’S FINDINGS
The ALJ made her decision based upon the five-step sequential process established by
the Secretary of Health and Human Services. See Bowen v. Yuckert, 482 U.S. 137, 140-42
(1987); 20 C.F.R. § 416.920 (establishing the five-step evaluative process for SSI claims). The
1-OPINION AND ORDER

ALJ determined although Ms. Bade was disabled, substance use was a contributing factor
material to the disability. (ALJ Hr’g Decision [10-3] at 32.) Based on testimony of the VE, the
ALJ concluded if Ms. Bade discontinued substance use, she would be able to perform her past
relevant work. (Id. at 49.) Supplementing this conclusion, the ALJ determined Ms. Bade’s
anxiety testimony was not credible and discounted the opinion of Dr. Lee Walters, the treating
physician. (Id. at 45, 49.)
STANDARD OF REVIEW
I review the ALJ’s decision to ensure the ALJ applied proper legal standards and the
ALJ’s findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Bray v.
Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). “‘Substantial evidence’ means
more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a
reasonable person might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504
F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.
2006)). The Commissioner’s decision must be upheld if it is a rational interpretation of the
evidence, even if there are other possible rational interpretations. Magallanes v. Bowen, 881 F.2d
747, 750 (9th Cir. 1989). The reviewing court may not substitute its judgment for that of the
Commissioner. Robbins, 466 F.3d at 882.
DISCUSSION
Ms. Bade presents five issues on appeal (Pl.’s Opening Br. [11] at 7; Pl.’s Reply Br. [24]
at 5):
1. Whether the ALJ’s finding of non-disability is supported by the VE’s testimony;

2-OPINION AND ORDER

2. Whether the VE’s testimony supports the conclusion that Ms. Bade is capable of
performing her past relevant work as actually performed and as generally
performed;
3. Whether the ALJ provided clear and convincing reasons rooted in substantial
evidence to support the adverse credibility finding with respect to Ms. Bade’s
anxiety disorder testimony;
4. Whether the evidence shows Ms. Bade’s anxiety disorder would improve to the
point of nondisability absent substance abuse; and
5. Whether the ALJ properly rejected the medical testimony of the treating doctor,
Lee Walters.
I address each issue below.
I.

The VE’s testimony does not clearly support the ALJ’s finding of non-disability.
Ms. Bade argues the VE’s testimony supports a finding of disability. (Pl.’s Opening

Br. [11] at 8-9.) I disagree. However, because the VE’s testimony is inconclusive, I remand for
the purpose of clarifying the testimony.
The ALJ presented the VE with a hypothetical concerning a person with a residual
functional capacity (“RFC”) identical to Ms. Bade’s and asked whether such a person could
perform Ms. Bade’s past work. (Tr. of Oral Hr’g [10-3] at 89-90.) In response, the VE testified,
“Yes, that wouldn’t allow for the performance of the past light, unskilled work.” (Id. at 90
(emphasis added).) The parties disagree as to whether the VE’s answer was transcribed
appropriately. The Commissioner argues the VE’s use of the word “wouldn’t” appears to be a
transcription error in light of his affirmative response. (Def.’s Br. [20] at 5.) Ms. Bade argues the

3-OPINION AND ORDER

VE testified her past relevant work would not fit the public contact limitations presented in the
hypothetical. (Pl.’s Opening Br. [11] at 8-9.)
The Commissioner would have this Court look past any potential ambiguity because Ms.
Bade still possesses the ability to perform a significant number of jobs in the national or regional
economies. See Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008). However, this Court
is “constrained to review the reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 874
(9th Cir. 2003). Although the VE did testify Ms. Bade could perform—absent substance use—
other jobs significant in number in the national economy, (Tr. of Oral Hr’g [10-3] at 90-91), the
ALJ did not consider whether Ms. Bade “can make an adjustment to other work.” 20 C.F.R. §
416.920(a)(4)(v) (discussing step five analysis). Absent such step five analysis, I cannot
overlook the ambiguity in the VE’s testimony.
In light of the transcript’s conflicting language and without an explanation from the ALJ
justifying her interpretation of the VE’s testimony, I remand for clarification of the VE’s
response and, if necessary, for the ALJ to provide step five analysis.
II.

Assuming the VE’s testimony supports a finding of nondisability, the ALJ did not
err by concluding Ms. Bade can perform her past relevant work as generally
performed.
As part of the step four analysis, the ALJ is to determine whether the claimant can

perform “[t]he actual functional demands and job duties of a particular past relevant job” or “[t]he
functional demands and job duties of the occupation as generally required by employers
throughout the national economy.” Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). If the
claimant is able to perform past relevant work as actually performed or as generally performed,
the claimant does not qualify for SSI. See id. “When a job is a ‘composite’—that is, it has
significant elements of two or more occupations and therefore has no counterpart in the

4-OPINION AND ORDER

[Dictionary of Occupational Titles]—the ALJ considers only whether the claimant can perform
the work as actually performed.” Cook v. Colvin, 2015 WL 162953, at *7 (C.D. Cal. Jan. 13,
2015).
Ms. Bade argues the ALJ erred by concluding Ms. Bade could perform her past relevant
work as actually performed and as generally performed. (Pl.’s Reply Br. [24] at 4.) The
Commissioner acknowledges the ALJ erred when concluding Ms. Bade could perform her past
relevant work as actually performed. (Def.’s Br. [20] at 5.) However, the Commissioner contends
this error is harmless because the ALJ provided substantial evidence that Ms. Bade can perform
her past relevant work as generally performed. (Def.’s Br. [20] at 5 n.3.) Ms. Bade replies by
raising the first issue already addressed, see supra Part I, and by arguing that because her past
relevant work is a composite job, the Commissioner cannot make a nondisability finding at step
four based on work as generally performed. This second argument reveals a misunderstanding of
the law.
The ALJ has discretion in defining past relevant work, and I cannot overturn her decision
if it is supported by substantial evidence. See Lingenfelter, 504 F.3d at 1035 (9th Cir. 2007). The
ALJ relied on Bade’s characterization of her own past work (Tr. of Oral Hr’g [10-3] at 67-69)
and the VE’s testimony (Tr. of Oral Hr’g [10-3] at 89) to find Ms. Bade’s sole, past relevant
work was that of a house cleaner. Because this determination was founded on clear and
convincing testimony, I affirm the ALJ’s finding. When the claimant’s past relevant work is a
non-composite job, the ALJ may consider work as generally performed. See, e.g., Pinto, 249
F.3d at 845. Therefore, assuming the VE’s testimony supports a finding of nondisability, the ALJ
did not err by concluding Ms. Bade can perform her past relevant work as generally performed.

5-OPINION AND ORDER

III.

The ALJ provided clear and convincing reasons rooted in substantial evidence to
support the adverse credibility finding with respect to Ms. Bade’s anxiety disorder
testimony.
The ALJ may “reject the claimant’s testimony about the severity of her symptoms only

by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273,
1281 (9th Cir. 1996). “[T]he ALJ must identify what testimony is not credible and what evidence
undermines the claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). If the
ALJ’s credibility finding is supported by substantial evidence in the record, I may not engage in
second-guessing of that finding. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600
(9th Cir. 1999).
Ms. Bade argues the ALJ failed to consider her anxiety testimony and provide specific,
clear, and convincing reasons for discounting her testimony. (Pl.’s Opening Br. [11] at 13.) I
disagree. First, the ALJ did consider Ms. Bade’s anxiety testimony. (ALJ’s Hr’g Decision [10-3]
at 44.) The ALJ then determined, based on medical evidence and testimony, “the claimant’s
statements concerning the intensity, persistence and limiting effects of these symptoms are not
credible.” (Id. at 45.) In support of this conclusion, the ALJ identified numerous pieces of
medical evidence. I examine each piece of evidence below in support of my conclusion that the
ALJ did offer specific, clear, and convincing evidence discounting Ms. Bade’s testimony.
A. July 2011 DePaul Report
A progress report for Ms. Bade during her time at DePaul reveals that after a period of
sobriety, Ms. Bade “appear[ed] anxious but was able to sit quietly during [a] session.” (Medical
R. Part 2 [10-9] at 31.) She was able to maintain good eye contact and was fully alert and
oriented. (Id.) These results stand in stark contrast to her “chronic anxiety” diagnosis made prior
to her period of sobriety, (Medical R. Part 1 [10-8] at 58), and support the ALJ’s conclusion.

6-OPINION AND ORDER

B. Dr. Dieter’s Examination
Dr. Dieter’s examination was made after Ms. Bade had been sober for more than four
months. (Medical R. Part 2 [10-9] at 79.) Contrary to Ms. Bade’s testimony that she suffers from
debilitating anxiety, Dr. Dieter wrote Ms. Bade seemed only “somewhat . . . anxious,” and her
“attitude and behavior was pretty pleasant and cooperative.” (Id.at 78.) Dr. Dieter’s testimony
serves as substantial medical evidence contradicting Ms. Bade’s testimony.
C. Dr. Walter’s Opinion
Ms. Bade’s treating doctor, Lee Walters, noted during an examination that Ms. Bade’s
mental status was normal. (Medical R. Part 3 [10-10] at 13.) He further commented that although
Ms. Bade had a history of anxiety, her anxiety was “controlled.” (Id. at 15.) This conclusion was
drawn approximately seven months after sobriety. (Id. at 14.) Though Dr. Walter’s conclusions
from other examinations are inconsistent with these findings, the evidence in this particular
examination does support the ALJ’s conclusion. See also infra Part V (explaining why Dr.
Walters’ other findings were rejected).
D. Opinions of Bill Hennings and Joshua Boyd
Bill Hennings and Joshua Boyd both reached the conclusion that Ms. Bade’s statements
were only partially credible, undermining her claim of debilitating anxiety. (Payment Docs. and
Decisions [10-4] at 12, 25.) Both Dr. Hennings and Dr. Boyd concluded Ms. Bade is only
moderately limited in her ability to interact appropriately with the general public, and she is not
significantly limited in her ability to accept instructions, respond appropriately to criticism, and
get along with coworkers or peers. (Id. at 14, 27-28.)

7-OPINION AND ORDER

All together, the evidence is substantial and clear enough to convince a reasonable person
that the claimant’s testimony should be rejected. See Lingenfelter, 504 F.3d at 1035. Thus, I
affirm the ALJ’s rejecting of Ms. Bade’s anxiety testimony.
IV.

Assuming the ALJ’s interpretation of the VE’s testimony is correct, the evidence
shows Ms. Bade’s anxiety disorder would improve to the point of nondisability
absent the substance abuse.
The ALJ has the responsibility of determining whether a claimant’s drug addiction or

alcoholism is a contributing factor material to the disability. If it is, the claimant will not be
deemed disabled for the purpose of determining SSI. 20 C.F.R. § 404.1535. The key factor the
ALJ examines in determining if drug addiction or alcoholism contributes to disability is whether
the claimant would still be disabled if she stopped using drugs or alcohol. Id. Ms. Bade asserts
there is no evidence in the record showing her anxiety improves with sobriety. (Pl.’s Opening Br.
[11] at 13.) However, as noted previously, the ALJ provided specific, clear, and substantial
evidence that Ms. Bade’s anxiety does improve when she is sober. See supra Part II. I therefore
affirm the ALJ’s conclusion that absent substance use—and assuming the ALJ’s interpretation of
the VE’s testimony is correct—Ms. Bade’s anxiety disorder would improve to the point of
nondisability.
V.

The ALJ properly rejected the medical testimony of the treating doctor, Lee
Walters.
When an examining doctor’s opinion is contradicted by other medical opinions, “an ALJ

may only reject it by providing specific and legitimate reasons that are supported by substantial
evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When more than one
rational interpretation can be drawn from the evidence, the Court must uphold the ALJ’s
conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

8-OPINION AND ORDER

The ALJ concluded Dr. Walters’s testimony was inconsistent with the record as a whole.
(ALJ Hr’g Decision [10-3] at 49.) The ALJ then provided specific and legitimate reasons,
supported by substantial evidence, for rejecting Dr. Walters’s testimony. For example, Dr.
Walters opined Ms. Bade has restricted lifting, sitting, and standing capabilities. (Medical R. Part
13 [10-20] at 60-61.) However, examination reports show Ms. Bade has normal muscle bulk and
intact motor strength. (Medical R. Part 11 [10-18] at 7.) He opined Ms. Bade’s anxiety
symptoms interfere with her ability to perform simple tasks. (Medical R. Part 13 [10-20] at 60.)
But examination reports show Ms. Bade, when sober, has controlled anxiety and is able to
perform simple tasks. See supra Part II. In fact, Dr. Walters himself previously opined Ms. Bade,
after a period of sobriety, had controlled anxiety and listed her mental status at an appointment as
normal. (Medical R. Part 3 [10-10] at 13.) While the parties disagree whether the ALJ’s
interpretation of the medical evidence was correct, it does seem reasonable and thus is upheld.
See Lingenfelter, 504 F.3d at 1035. Because the ALJ provided specific and legitimate reasons,
supported by substantial evidence, for rejecting Dr. Walters’ statements, I affirm the ALJ’s
decision discounting Dr. Walters’ testimony.
//
//
//
//
//
//
//

9-OPINION AND ORDER

CONCLUSION
For the foregoing reasons, I find the ALJ provided substantial reasons rooted in evidence
for discounting Ms. Bade’s anxiety testimony and rejecting the testimony of Dr. Walters. If the
ALJ’s interpretation of the VE’s testimony is correct, I affirm the ALJ’s finding that if Ms. Bade
discontinued substance use her anxiety would improve to the point of nondisability. However, I
remand so the ALJ can clarify the VE’s testimony and, if necessary, provide step five analysis.

IT IS SO ORDERED.
DATED this

24th

day of May, 2016.
/s/ Michael W. Mosman
MICHAEL S. MOSMAN
Chief United States District Judge

10-OPINION AND ORDER