Boyd v. Commissioner Social Security Administration

Filing 51

Opinion and Order. Signed on 10/30/2017 by Judge Malcolm F. Marsh. (ma2)

:1

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KAREN MARIE BOYD,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
KAREN MARIE BOYD
11913 SE Schiller St.
P01iland, OR 97266
Pro Se
BILLY J. WILLIAL\1S
United States Attomey
District of Oregon
JANICE E. HEBERT
Assistant United States Attomey
1000 S.W. Third Ave., Suite 600
Potiland, OR 97204-2902
LARS J. NELSON
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900
Seattle, WA 98104
Attomeys for Defendant
I - OPINION AND ORDER

Case No. 3:15-cv-01640-MA
OPINION AND ORDER

MARSH, Judge
Plaintiff Karen Marie Boyd seeks judicial review of the final decision of the Commissioner
of Social Security denying her application for a period of disability and disability insurance benefits
("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403, and application for
Supplemental Security Income ("SSI") disability benefits under Title XVI ofthe Social Security Act,
42 U.S.C. §§ 1381-1383f. This Comt has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). For the reasons that follow, the Court affirms the Commissioner's decision.

PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffprotectively filed her DIB and SSI applications on March 2, 2011, alleging disability
beginning September 5, 2008, due to intestinal, back and leg problems; headaches; nausea; and
dizziness. Tr. Soc. Sec. Admin. R. ("Tr.") 19, 61, ECF No. 21. Plaintiffs claims were denied
initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law
judge ("ALJ"). The ALJ held a hearing on July 25, 2013, at which Plaintiff appeared with her
attorney and testified. 1 A vocational expert, Gaiy R. Jesky, also appeared atthe hearing and testified.
On August 5, 2013, the ALJ issued an unfavorable decision. The Appeals Council denied Plaintiffs
request for review, and therefore, the ALJ' s decisions became the final decisions of the
Commissioner for purposes of review.
Plaintiff was born in 1964, and was 44 years old on the alleged onset of disability date, and
49 yeai·s old at the time of the ALJ's decision. Plaintiff completed ninth grade, did not obtain a
GED, has no vocational training, but can read, write, add, and subtract. Tr. 36. Plaintiff has worked
1

Plaintiff was represented by counsel at the hearing. Tr. 32-33. Plaintiffs counsel
withdrew as representative for her appeal at the Appeals Council. Tr. 12.

2 - OPINION AND ORDER

as a supply clerk and delivery driver.

Tr. 68, 291, 306. Plaintiff meets the insured status

requirements through December 31, 2013.
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, 416.920.
Each step is potentially dispositive. The claimant bears the burden of proof at steps one through
four. See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett

v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner
to show that the claimant can do other work that exists in the national economy. Hill v. Astrue, 698
F.3d 1153, 1161 (9th Cir. 2012).
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since
September 5, 2008. The ALJ resolved the sequential evaluation at step two, finding that there are
no medical signs or laboratory findings to substantiate the existence of a severe medically
determinable impairment. Thus, the ALJ concluded that Plaintiff has not been under a disability
from September 5, 2008 tln·ough the date of the decision.
ISSUES ON REVIEW

Plaintiff, who is proceedingpro se, contends the ALJ erred in finding that she has no severe
medically determinable impairments at step two an_d erred in evaluating treatment notes from
Mummadi Rajasekhara, M.D.; Latha Radhakrishnan, M.D.; Kevin P. Jones, D.O.; and Alan Savoy,
M.D. 2 The Commissioner argues that the ALJ's decision is supported by substantial evidence and
2

To the extent that Plaintiff contends her attorney rendered ineffective assistance at the
hearing before the ALJ or the Appeals Council her claim is without merit. Howes v. Berryhill,
676 F. App'x 644, 645 (9th Cir. 2017) (noting the right to effective assistance of counsel does
3 - OPINION AND ORDER

is free oflegal error. Altematively, the Commissioner contends that even ifthe ALJ erred, Plaintiff
has not demonstrated hatmful error.

STANDARD OF REVIEW
The district comt must affirm the Commissioner's decision if the Commissioner applied
proper legal standards and the findings are suppo1ted 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 suppmt a conclusion." Hill, 698 F.3d at 1159 (intemal quotations
omitted); Valentine, 574 F.3d at 690. The comt must weigh all the evidence, whether it suppmts or
detracts from the Commissioner's decision. Garrisonv. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014);

};fartinez v. 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). If the evidence supports the
Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its
judgment for that of the Commissioner." Edlundv. l'vfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001 );

Garrison, 759 F.3d at 1010.

I.

The ALJ Did Not Err at Step Two
A.

Standards

not apply in appeals from ALJ decisions); accord Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th
Cir. 1985) (noting generally a Plaintiff has no right to effective assistance of counsel in a civil
case).

4 - OPINION AND ORDER

At step two of the sequential process, the ALJ must dete1mine whether the claimant suffers
from a "severe" impahment, i.e., one that significantly limits his or her physical or mental ability to
do basic work activities. Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). To
show a severe medically determinable impairment, the claimant must first prove the existence of a
physical or mental impairment by providing medical evidence consisting of signs, symptoms, and
laborato1y findings; the claimant's own statement of symptoms alone will not suffice. 20 C.F .R. §§
404.1508, 416.908. A medically determinable impahment is an impahment that results from
anatomical, physiological, or psychological abnormalities which are demonstrable by medically
acceptable clinical and laborat01y diagnostic techniques.

42 U.S.C. § 423(d); 20 C.F.R. §§

404.1521, 404.921. "Signs, symptoms and laborat01y findings" are defined as:
(a) Symptoms are your own description ofyour physical or mental impairment. Your
statements alone are not enough to establish that there is a physical or mental
impahment.
(b) Signs are anatomical, physiological, or psychological abnormalities which can be
observed, apait from your statements (symptoms). Signs must be shown by medically
acceptable clinical diagnostic techniques .....
(c) Laboratory findings are anatomical, physiological, or psychological phenomena
which can be shown by the use of a medically acceptable laboratory diagnostic
techniques. Some of these diagnostic techniques include chemical tests,
electrophysiological studies (electrocardiogram, electroencephalogram, etc.),
roentgenological studies (X-rays), and psychological tests.
20 C.F.R. §§ 404.1528, 416.928.
Step two has been characterized as "a threshold dete1mination meant to screen out weak
claims." Buckv. Beriyhill, 869 F.3d 1040, 1048 (9th Cir. 2017); Smolen v. Chater, 80 F.3d 1273,
1290 (9th Cir. 1996). Further, "[a]n impairment or combination of impairments may be found 'not
severe only if the evidence establishes a slight abnormality that has no more than a minimal effect

5 - OPINION AND ORDER

on an individual's ability to work."' Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005)
(quoting Smolen, 80 F.3d at 1290). An ALJ may find that a claimant lacks a medically severe
impairment or combination of impainnents only when his conclusion is "clearly established by
medical evidence." Id at 687 (quotation omitted). Moreover, '"under no circumstances may the
existence of an impairment be established on the basis of symptoms alone."' Ukolov v. Barnhart,
420 F.3d 1002, 1005 (9th Cir. 2005) (quoting Social Security Ruling ("SSR") 96-4p, available at
1996 WL 374187 *1)). The ALJ's role at step two is futiher explained in SSR 85-28:
A determination that an impairment( s) is not severe requires a careful evaluation of
the medical findings which describe the impairment( s) and an informed judgment
about its (their) limiting effects on the individual's physical and mental ability(ies)
to perform basic work activities; thus, an assessment of function is inherent in the
medical evaluation process itself. At the second step of sequential evaluation, then,
medical evidence alone is evaluated in order to assess the effects ofthe impairment( s)
on ability to do basic work activities.
SSR 85-28, available at 1985 WL 56856.

B.

Analysis

Plaintiff argues that the ALJ erred in resolving her claim at step two. Plaintiff contends that
the ALJ erroneously interpreted several treatment notes, and that her diagnosis of"severe abdominal
distention" is a severe impairment. The Cami disagrees.
In this case, the ALJ concluded there are "no medical signs or laboratory findings to
substantiate the existence of a medically determinable impaitment." Tr. 18. The ALJ detailed that
Plaintiff alleges disability due to intestinal, back, and leg problems, headaches, nausea, and
dizziness. The ALJ noted that Plaintiff complained of back pain under her shoulder blades, swollen
bowels and abdominal pressure, heaviness in her legs, daily migraine headaches, pressure behind her
eyes, constant nausea, difficulty eating, and weight gain of 50 pounds over the previous three years.

6 - OPINION AND ORDER

Tr. 20-21. Contrary to plaintiffs contention, the ALJ thoroughly discussed plaintiffs medical
records, and the lack of objective findings substantiating plaintiffs subjective symptoms.
For example, the ALJ discussed that an October 2008 CT scan of plaintiffs abdomen and
pelvis showed uterine fibroids, and that Plaintiff underwent an elective hysterectomy. Tr. 20, 277.
Following that surge1y, Plaintiff complained of post-operative bloating, gas, and vomiting,
underwent an extensive gastrointestinal workup, and tried gluten-free and daily-free diets without
improvement. Tr. 21, 274. As the ALJ discussed, plaintiffs GI workup was umemarkable, with a
n01mal upper and lower endoscopy, with biopsies and celiac sprue serology all unrevealing. Tr. 21,
275-77. In July 2009, Plaintiff underwent an elective laparoscopic removal of her ovaries for

unexplained abdominal pain and bloating. Tr. 20, 274. Plaintiffs ovaries were normal on
pathological examination. Tr. 20, 321.
In August 2009, Plaintiff was seen by an allergist for a rash, who prescribed corticosteroids.
Tr. 268-70, 321. As the ALJ discussed, plaintiffs symptoms of pain and swelling dramatically
improved on prednisone, but her doctors advised against long-term steroid use due to side effects.
Tr. 270, 272. Plaintiffs CT of the pelvis and abdomen in 2009 were umemarkable. Tr. 21, 272.
In August 2009, Plaintiff was refe1Ted to rheumatology for continued complaints of
abdominal pain and swelling. Vandana Khurma, M.D., was unsure of the cause of plaintiffs
abdominal pain, lower extremity pain, and swelling, but was uncomfortable continuing to prescribe
prednisone. Dr. Khmma ordered a complete rheumatological workup - the results of which were
negative. Tr. 269-73.
As the ALJ discussed, in April 2010, Plaintiff underwent a neurological consultation with
Cathleen Miller, M.D. Tr. 21, 261. Dr. Miller's treatment notes reflect that Plaintiff complained of
7 - OPINION AND ORDER

an "odd array of symptoms," including light sensitivity, edema, abdominal bloating, and headaches
with vision changes. Tr. 21, 261. As the ALJ correctly noted, Plaintiff informed Dr. Miller that her
prior consultations with allergy, gastroenterology, optomelly, and rheumatology were all negative.
Tr. 21. On examination, Dr. Miller indicated Plaintiff had reduced range of motion due to pain,
negative Romberg testing, nonnal tandem walking, and she could rise from sitting without push off,
and that her reflexes and sensation in all extremities were intact. Tr. 263. The ALJ discussed that
the MRI of plaintiffs brain was normal for her age, her thoracic spine MRI was umemarkable, her
cervical spine MRI showed no significant spinal canal or neuroforaminal stenosis, and her lumbar
MRI revealed minimal central canal narrowing with no findings to explain Plaintiffs symptoms.
Tr. 259-60, 306-310.
In August 2010, Plaintiff continued to complain of abdominal bloating, and Susan Johnson,

M.D., recommended a repeat endoscopy to rule out a bowel obstruction. Tr. 256. As the ALJ
discussed, extensive testing in September 2010 showed no evidence of bowel obstruction. Tr. 21,
255. Plaintiff again complained of abdominal bloating in November 2010. Dr. Johnson noted that
she did not believe GI was the source of her symptoms, but ordered a repeat EGD and colonoscopy
with biopsies to check for vasculitis. Tr. 24 7. As the ALJ correctly indicated, the GI workup was
again negative. Tr. 248, 294-95, 302 (X-ray, CT scan of abdomen and thorax umemarkable).
In November 2010, Plaintiff also underwent a repeat rheumatology consultation with Joji
Kappes, M.D. Tr. 245. Plaintiff complained of abdominal distention, bloating, with a rash on her
thighs and beet red eyes in the morning. Tr. 22, 245, 288 (repeat). When Dr. Kappes suggested that
Plaintiff take a photo to document her rash and eye symptoms, as the ALJ noted, Plaintiff demurred
contending the flash on the camera washes out the redness. Tr. 22, 245. In December 2010, Dr.

8 - OPINION AND ORDER

Kappes conducted noninvasive lower and upper extremity examinations with vascular testing. Tr.
243. The results were entirely normal. Tr. 243. As the ALJ correctly indicated, in Janumy 2011,
Dr. Kappes diagnosed "ill defined condition," and opined that Plaintiff has no systemic disease that
is rheumatologic. Tr. 22, 242.
The ALJ discussed that in Februmy 2011, Plaintiff was refe1Ted to OHSU physician
Mummadi Rajasekhara, M.D. Tr. 22, 229. Dr. Rajasekhara's treatment notes reflect that Plaintiff
complained of a range of symptoms including, abdominal pain, bloating, chills, fever, congestion,
nausea, dizziness, tingling, weakness, and insomnia. Tr. 229-30. On examination, Dr. Rajasekhara
noted no abdominal distention, but had tendemess, with a normal musculoskeletal examination and
nonnal gait. Tr. 230. Dr. Rajasekhara noted Plaintiff has multiple complaints, and insists upon a
unifying diagnosis, and suspected a functional overlay to her symptoms. Tr. 230. Dr. Rajasekhara
recommended a Hydrogen breath test to check for bacteria (if not already completed). Tr. 230. As
the ALJ accurately indicated, Dr. Rajasekhara described Plaintiff as a "poor historian," and ended
the encounter after meeting with Plaintiff for more than two hours. Tr. 22, 230.
In March 2011, Plaintiff complained to Ruth Te-Yu Chang, M.D., that she still was

experiencing abdominal pain and bloating, and headaches with stabbing pain, photosensitivity, and
nausea. Tr. 22, 239. Plaintiff also reported neck swelling on the right side. Dr. Chang noted an
August 2010 CT scan of that area was normal. Tr. 239-40. As the ALJ correctly indicated, at
plaintiffs insistence, Dr. Chang referred Plaintiffto endocrinology because Plaintiff feels something
is wrong with her adrenal glands. Tr. 22, 318.
As the ALJ detailed, Plaintiff was referred to Latha Radhakrishnan, M.D., for an
endocrinology consultation on May 2, 2011. Dr. Radhakrishna!l diagnosed thyroid nodule. Tr. 22,

9 - OPINION AND ORDER

321. Dr. Radhakrishnan took an extensive medical history from plaintiff, and upon questioning,
Plaintiff admitted to eating an unhealthy diet and unintentionally gaining more than 35 pounds since
the onset of her symptoms, and more than 17 pounds in the previous year alone. Tr. 322. Dr.
Radhakrishnan's treatment notes reflect that on examination, plaintiffs abdomen was obese,
protruding, non-tender, and non-distended and that Plaintiff had full strength in all extremeties with
good reflexes. Tr. 324. As the ALJ cotTectly summarized, Dr. Radhakrishnan felt plaintiffs thyroid
nodules were unlikely the cause of any of plaintiffs symptoms and did not meet the criteria for
biopsies, and her supraclavicular swelling was likely due to steroid use. Tr. 22-23, Tr. 325. Dr.
Radhakrishnan also attributed plaintiffs weight gain to her previous use of steroids combined with
decreased mobility. Tr. 22, 325.
In August 2011, Plaintiff was refened to an otology clinic for ongoing bilateral ear pressure
and sinus issues. Frank M. Wanen, M.D., conducted an examination (nasophatyngoscopy/flexible
la1yngoscopy) which revealed normal bilateral nasal cavities, back of the throat, and voice box. Tr.
330. Dr. Warren indicated "[t]here does not seem to be a unifying diagnosis.'' Tr. 331.
In September 2011, Plaintiff was refened for a third gastroenterology consultation with
Kevin P. Jones, D.O. Tr. 334. Plaintiff complained of chronic abdominal pain and bloating. As the
ALJ indicated, Dr. Jones described Plaintiff as a "rambling historian" and included other past and
present medical issues. Tr. 23, 335. Dr. Jones recommended repeat laborato1y testing and
abdominal films, and a trial of neostigmine, and to follow up in one month. Tr. 338. It is unclear
whether Plaintiff followed up, as there are no other treatment notes from Dr. Jones in the record
before the Court.

10- OPINION AND ORDER

In September 2011, Plaintiff was seen by Trisha Copeland, M.D., for hearing sensitivity and
hearing loss. Dr. Copeland's examination showed clear ear canals and Plaintiffs hearing sensitivity
to 2000 Hz is within no1mal limits, dropping to mild to moderate sensorineural hearing loss with
excellent word recognition ability in the right ear. Tr. 333. Plaintiff also has high frequency mild
to moderate sensoineural hearing loss with excellent word recognition in the left ear, and her
"tymps" were within n01mal limits. Tr. 333.
The ALJ thoroughly detailed a July 15, 2013 treatment note from Alan Savoy, M.D., who
provided another gastroenterology consultation. Tr. 357. Dr. Savoy indicated Plaintiff has a "very
complicated history and is a very difficult historian" as the ALJ indicated. Tr. 23, 357. Plaintiff
relayed her medical histo1y, and described to Dr. Savoy that she has had exhaustive workups with
multiple EGDs, colonoscopies, capsule endoscopies, CT scans, ultrasounds, and MRis. Tr. 23, 357.
The ALJ noted that Plaintiff informed Dr. Savoy that she was experiencing increased gas, severe
abdominal distention, and severe abdominal and intestinal pain. Tr. 24, 357.

On examination,

plaintiffs abdomen was soft and nontender, distended and firm, with normal bowel sounds;
plaintiffs extremities were without edema, defo1mity, or clubbing. Tr. 3 59. In her briefing, Plaintiff
argues that Dr. Savoy diagnosed "severe abdominal distention" and she suggests that this confirms
her ongoing medical complaint. The Court disagrees.
Contrary to plaintiffs contention, Dr. Savoy did not offer a diagnosis of"severe abdominal
distention." Tr. 359. Rather, Dr. Savoy noted his impression was "severe abdominal distention"
and, as the ALJ acurately noted, her prior exhaustive GI workups have been negative. Tr. 24, 359.
Dr. Savoy wanted to obtain and review plaintiffs GI records from Kaiser and OHSU prior to making
a specific treatment recommendation. Tr. 359. Furthe1more, Dr. Savoy's treatment notes do not

11 - OPINION AND ORDER

reveal any specific functional limitations that would prevent Plaintiff from engaging in substantial
gainful activity. Thus, on the record before the Comi, Dr. Savoy's impression of"severe abdominal
distention" without more, is insufficient to establish a severe impahment. See 20 C.F .R. § 404.1528;

Ukolov, 420 F.3d at 1004-06 (holding that records without reference to results from medically
acceptable diagnostic techniques cannot support a finding of impairment). Therefore, the ALJ
reasonably could find that Dr. Savoy's treatment notes do not establish a severe medially
determinable impairment. The ALJ' s finding is fully supported by substantial evidence in the record,
and will not be disturbed. 1'1folina v. Astrue, 674 F.3d at 1111 (9th Cir. 2012) (holding that rational
inferences drawn from the record must be upheld).
Finally, the ALJ discussed thatnonexamining agency physician Martin B. Lahr, M.D ., opined
that Plaintiff did not suffer from any medically determinable impairment. Tr. 24, 64-65. Agency
nonexamining physician Linda L. Jensen, M.D ., affamed Dr. Lahr' s assessment on reconsideration.
Tr. 24, 81-82. The ALJ gave these opinions great weight, finding them consistent with the medical
record as whole. Tr. 24. Although not challenged by plaintiff, the Court concludes the ALJ's
determination to give them great weight is fully backed by substantial evidence and without en-or.
In summaty, the ALJ exhaustively examined the medical record and found there was
insufficient evidence that any of plaintiffs symptoms or combination of symptoms constitute a
medically dete1minable impahment. The ALJ' s findings are wholly supported by substantial
evidence. Plaintiff has had numerous, repeated consultations with asso1ied specialists in multiple
disciplines with umemarkable, normal, or negative findings and test results. 3 Based on the lack of
3

Indeed, the record reveals additional benign test results. Plaintiffs test for lupus was
negative (Tr. 233); a spinal tap was negative (Tr. 304); a CT scan of her temporal bones was
umemarkable (Tr. 300); and an MRI of her auditory canals was grossly umemarkable (Tr. 301).
12 - OPINION AND ORDER

medical signs and laborato1y findings from any provider, the ALJ could reasonably conclude that
Plaintiff does not have a medically determinable impairment.
Plaintiff complains that the ALJ enoneously evaluated the medical evidence from Drs.
Rajasekhana, Radhakrishnan, Jones and Savoy. Plaintiff complains that the ALJ ened in giving
weight to their comments that Plaintiff was a "poor" or "difficult historian." Contra1y to plaintiffs
contention, the ALJ's findings are fully supported by substantial evidence. Indeed, Plaintiff does
not point to any test result, medical sign, or other objective finding by Drs. Rajasekhana,
Radhakrishnan, Jones, or Savoy that the ALJ failed to consider. Likewise, the Court's careful review
of the medical record simHarly fails to reveal any objective medical evidence the ALJ failed to
analyze that would support Plaintiffs claim. As discussed at length above, the ALJ' s interpretation
of the medical record is supported by inferences reasonably drawn from the record. See }.;Jolina, 674
F.3d at 1111. Accordingly, the Court concludes that the ALJ's step two finding is supported by
substantial evidence, and is free oflegal enor. Ukolov, 420 F.3d at 1006.

CONCLUSION
For the reasons set forth above, the Commissioner's final decision denying benefits to
Plaintiff is AFFIRMED.
IT IS SO ORDERED.
DATED this _3_aday of OCTOBER, 2017.

M~?-h?~

Malcolm F. Marsh
United States District Judge

13 - OPINION AND ORDER