Dutton v. Commissioner Social Security Administration
Filing
17
OPINION AND ORDER; Based on the foregoing, the Commissioner's decision denying Plaintiffs application for DIB and SSI is affirmed, and this case dismissed. Signed on 9/27/2016 by Magistrate Judge Mark D. Clarke. (jkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TERESA LYNN DUTTON,
Plaintiff,
v.
CAROLYNW. COLVIN,
Commissioner of Social Security
Administration,
Defendant.
GEORGE J. WALL
1336 E. Burnside St. Suite 130
Portland, Oregon 97214
Of Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
District of Oregon
1000 SW Third Ave., Suite 600
Portland, OR 97204-1011
CATHERINE ESCOBAR
Special Assistant United States Attorney
Office of the General Counsel
701 Fifth Ave., Suite 2900 MIS 221A
Seattle, WA 98104-707 5
Of Attorneys for Defendant
1 OPINION AND ORDER
Case No. 3:15-cv-2164-PA
OPINION AND ORDER
P ANNER, District Judge:
Teresa L. Dutton ("Plaintiff') seeks judicial review of the final decision by the Social
Security Commissioner ("Commissioner") denying her application for Disability Insurance
Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the
Social Security Act ("SSA"). This Court has jurisdiction to review the Commissioner's decision
pursuant to 42 U.S.C. § 405(g).
Administrative History
On March 25, 2011, Plaintiff applied for DIB and SSL Tr. 17. Plaintiff alleged disability
beginning on August 15, 2003. Id. Plaintiffs application was denied initially and on
reconsideration. Id. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"),
which took place on May 19, 2014 before ALJ Tom Morris. Tr. 38-92. Plaintiff was represented
by counsel and testified, as did a vocational expert ("VE"). Id. On July 1, 2014, ALJ Morris
issued a decision finding Plaintiff not disabled. Tr. 30. Plaintiff requested review from the
Appeals Council, which was declined on September 22, 2015 and this action followed. Tr. 1.
Background
Born in 1968, Plaintiff was 35 years old on the alleged disability onset date. Tr. 207.
Plaintiff is insured for benefits through September 30, 2011. Tr. 17, 19. Plaintiff alleges
disability due to foot bone spurs, Graves' disease, knee problems, bipolar disorder, depression,
and post traumatic stress disorder ("PTSD"). Tr. 242. Plaintiff has a GED and has worked as a
carnival game attendant, shelf stocker, bell ringer for the Salvation Army, and a sample table
attendant. Tr. 28.
Disability Analysis
A claimant is disabled if he or she is unable to "engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which ... has lasted or
2 OPINION AND ORDER
can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. §
423(d)(l)(A). "Social Security Regulations set out a five-step sequential process for determining
whether an applicant is disabled within the meaning of the Social Security Act." Keyser v.
Comm'r, 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially dispositive. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of
questions:
1. Is the claimant performing "substantial gainful activity?" 20 C.F.R. §§ 404.1520(a)(4)(i);
416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or
intended to be done for pay or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is
performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§
404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity,
the analysis proceeds to step two.
2. Is the claimant's impairment "severe" under the Commissioner's regulations? 20 C.F.R. §§
404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless expected to result in death, an impairment is
"severe" if it significantly limits the claimant's physical or mental ability to do basic work
activities. 20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or must be
expected to last for a continuous period of at least 12 months. 20 C.F .R. §§ 404.1509; 416.909. If
the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§
404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis
proceeds to step three.
3. Does the claimant's severe impairment "meet or equal" one or more of the impairments listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds beyond step three. At that point, the ALJ must
3 OPINION AND ORDER
evaluate medical and other relevant evidence to assess and determine the claimant's "residual
functional capacity" ("RFC"). This is an assessment of work-related activities that the claimant
may still perform on a regular and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e); 416.945(b)-(c). After the
ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her "past relevant work" with this RFC assessment? If so, then
the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant
cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to
make an adjustment to other work that exists in significant numbers in the national economy? If
so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v);
404.1560(c); 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953. The
Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, "taking into consideration the claimant's residual functional
capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national
economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is
able to perform other work existing in significant numbers in the national economy, the claimant
is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.
4 OPINION AND ORDER
The ALJ's Findings
At step one of the sequential evaluation process outlined above, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since the alleged onset date, August 15,
2003. Tr. 19.
At step two, the ALJ determined Plaintiff has the following severe impairments: left knee
ligament tear, left heel bone spur, and personality disorder. Id. The ALJ identified other injuries
and mental conditions that did not rise to the level of severe impairment. Tr. 19-21.
At step three, the ALJ found that Plaintiffs impairments, either singly or in combination,
did not meet or equal the requirements of a listed impairment. Tr. 23. Because Plaintiff did not
establish disability at step three, the ALJ continued to evaluate how Plaintiffs impairments
affected her ability to work during the relevant period. The ALJ found that Plaintiff had the
residual functional capacity ("RFC") to perform medium work and:
[t]he claimant can occasionally lift or carry 50 pounds and frequently lift or carry
25 pounds. She can stand and/or walk (with normal breaks) for a total of about six
hours in an eight-hour workday. She can sit (with normal breaks) for a total of
about six hours in an eight-hour workday. The claimant can frequently climb
ramps and stairs. She can occasionally climb ladders, ropes, or scaffolds, kneel,
crouch, and crawl. The claimant can tolerate occasional contact with the public
and co-workers for work tasks. There should be no production rate pace work
(i.e., assembly line work) but rather oriented work (such as office cleaner). The
claimant needs one additional break of customary duration.
Tr. 23.
At step four, the ALJ found that Plaintiff had no past relevant work, as the jobs she held
did not rise to the level of substantial gainful activity. Tr. 28.
At step five, the ALJ found Plaintiff could perform jobs with significant numbers in the
national economy, including janitor, hospital cleaner, and agricultural sorter. Tr. 29. As such, the
ALJ found Plaintiff not disabled. Id.
5 OPINION AND ORDER
Standard of Review
The reviewing court must affirm the Commissioner's decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F .2d 498, 501 (9th Cir. 1989). "Substantial evidence" means
"more than a mere scintilla, but less than a preponderance." Bray v. Comm'r, 554 F.3d 1219,
1222 (9th Cir. 2009) (quoting Andrews v. Shala/a, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means
"such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Id. Where the evidence is susceptible to more than one rational interpretation, the.
Commissioner's conclusion must be upheld. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.
1982). Variable interpretations of the evidence are insignificant if the Commissioner's
interpretation is a rational reading of the record, and this court may not substitute its judgment
for that of the Commissioner. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "However, a
reviewing court must consider the entire record as a whole and may not affirm simply by
isolating a 'specific quantum of supporting evidence.' "Orn v. Astrue, 495 F.3d 625, 630 (9th
Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).
Even where findings are supported by substantial evidence, "the decision should be set
aside if the proper legal standards were not applied in weighing the evidence and making the
decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42
U.S.C. § 405(g), the court has the power to enter, upon the pleadings and transcript record, a
judgment affirming, modifying, or reversing the decision of the Commissioner, with or without
remanding the case for a rehearing.
6 OPINION AND ORDER
Discussion
Plaintiff alleges the ALJ erred by improperly assessing: (1) the opinion of Plaintiffs
treating nurse practitioner Kristin Cummings; and (2) the lay witness testimony of Danny
Williams.
I.
Nurse Practitioner's Opinion
Plaintiff argues the ALJ erred by giving little weight to the opinion of Kristin Cummings,
Plaintiffs treating nurse practitioner. To reject the testimony of a medically acceptable treating
source, the ALJ must give specific, legitimate reasons based on substantial evidence in the
record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). However, a nurse practitioner is
not a medically acceptable source, but instead is an "other source." § 404.1513(d)(l). To reject
the opinion of an "other source" the ALJ need only give "reasons germane to each witness for
doing so." Turner v. Comm 'r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010).
Nurse Cummings treated Plaintiff from 2011 until 2014 and completed a check-the-box
mental residual functional capacity assessment of Plaintiff in 2014. Tr. 806-08. She stated,
among other limitations, that Plaintiff had moderately severe impairments in interacting with the
general public, getting along with coworkers, and accepting criticism from superiors. Tr. 807.
She also assessed Plaintiff with moderately severe limitations in concentration, persistence, and
pace, as well as social interactions. Tr. 806-08. The assessment defined "moderately severe"
impairments as limiting the affected person to only occasionally performing the activity. Tr. 806.
The ALJ gave Nurse Cummings' opinion little weight because she is an "other source" and her
findings contradicted Plaintiffs own reports, Dr. Sacks' findings, and Plaintiffs own abilities.
Tr. 27.
Plaintiff argues the ALJ erred by giving little weight to Nurse Cummings' assessment of
Plaintiffs difficulties with her coworkers, supervisors, and the general public. Instead, the ALJ
7 OPINION AND ORDER
granted great weight to the assessments of Dr. Gary Sacks, the examining psychologist, as well
as the non-examining Drs. Joshua Boyd and Paul Rethlinger, all of whom opined that Plaintiff
would have only moderate difficulties interacting with the general public and coworkers. Tr. 27.
It was not error for the ALJ to accord more weight to Drs. Sacks, Boyd, and Rethlinger because
they are acceptable medical sources, and as a nurse practitioner, Ms. Cummings' opinion is not
owed the same deference as acceptable medical sources. Molina, 674 F.3d at 1111. Moreover,
the ALJ accounted for Plaintiffs moderate difficulties in the RFC by limiting the Plaintiff to
only "occasional contact with the public and co-workers for work tasks." Tr. 23.
Plaintiff argues the ALJ further erred by failing to credit Nurse Cummings' opinion that
Plaintiff had moderate limitations in concentration, persistence, and pace. Dr. Sacks conducted a
mental status examination of Plaintiff; he opined that she was, at worst, "mildly impaired" in the
areas of concentration, persistence, and pace. Tr. 552. The regulations allow an ALJ to give
deference to a specialist's opinion concerning matters related to his specialty over that of
nonspecialists. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). Thus, the ALJ did
not err by relying on the opinion of an acceptable medical specialist over Nurse Cummings.
Finally, Plaintiff argues the ALJ erred by failing to credit Nurse Cummings' opinion that
Plaintiff had moderate limitations in social interactions. However, as the ALJ noted, Plaintiff
described herself as a good salesperson in her part-time work, which involves selling bracelets
and frequently interacting with customers, including door-to-door sales. Tr. 594, 625. She also
frequently uses public transportation and goes out on a daily basis. Thus, the record contains
evidence of daily activities that tend to contradict "other source" testimony, which is a germane
reason for rejecting an "other source" opinion. Carmickle v. Comm 'r Soc. Sec. Admin., 533 F.3d
1155, 1164 (9th Cir. 2008). Furthermore, Drs. Sacks, Boyd, and Rethlinger all assessed moderate
social difficulty, which the ALJ adopted in his opinion. The ALJ did not err.
8 OPINION AND ORDER
Plaintiff essentially argues for a different interpretation of the record, but the ALJ' s
interpretation is rational and supported by substantial evidence. See Batson v. Comm 'r of Soc.
Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (The Commissioner's findings are upheld if
supported by inferences reasonably drawn from the record; if evidence exists to support more
than one rational interpretation, the court must defer to the Commissioner's decision).
II.
Lay Witness Testimony
Plaintiff argues the ALJ erred by failing to discuss the lay witness testimony of her
friend, Danny Neal Williams. Lay testimony regarding a claimant's symptoms or how an
impairment affects the claimant's ability to work is competent evidence the ALJ must take into
account. Stout v. Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006). The ALJ may reject lay
testimony if he provides "arguably germane reasons" supported by substantial evidence, even if
those reasons are not clearly linked to the ALJ's determination. Lewis v. Apfel, 236 F.3d 503, 512
(9th Cir. 2001).
Mr. Williams completed a third party function report on behalf of Plaintiff. Tr. 250-60.
He stated he has known Plaintiff for 20 years and sees her every day because she takes care of
him. 1 Tr. 250. Mr. Williams is described in different sections of the record as either her husband
or friend. Tr. 250, 301, 374. Mr. Williams stated Plaintiffs bone spurs make it difficult for her to
stay on her feet, her Bipolar Disorder keeps her isolated from people and affects her ability to
stay employed, and her knees hinder her ability to walk. Tr. 250. He also stated Plaintiff is
troubled by Carpal Tunnel Syndrome, asthma, and "tailbone" problems. Tr. 250-60. Mr.
Williams further stated that Plaintiff cooks, cleans, shops, and uses public transportation daily.
Tr. 252-53. He stated that Plaintiff has difficulty interacting with other people, including
1
Mr. Williams is disabled and receives benefits for his condition.
9 OPINION AND ORDER
coworkers, and her personality disorder "has cost her jobs." Tr. 255. The ALJ failed to mention
Mr. Williams' testimony.
The Commissioner concedes the ALJ erred by failing to discuss Mr. Williams' testimony.
However, the Commissioner contends the error was harmless because the ALJ rejected
Plaintiffs subjective symptom testimony, and the ALJ's reasons for rejecting Plaintiffs
testimony apply equally to Mr. Williams' testimony.
An ALJ' s error is harmless when it is "inconsequential to the ultimate non-disability
determination." Molina, 674 F.3d at 1115. An ALJ's failure to comment on lay witness
testimony is harmless where the same reasons the ALJ used to reject the plaintiffs testimony
also favor rejecting the lay witness' claims. Id at 1122.
In this case, the ALJ rejected Plaintiff testimony in part because it was inconsistent with
the medical record, a rationale that applies with equal force to Mr. Williams' testimony. Mr.
Williams stated Plaintiff cannot stay on her feet for long periods of time or walk more than five
to six blocks without resting because of her "bad knees." Tr. 250. The ALJ noted, however, that
Plaintiff showed normal range of motion in her extremities in a 2007 exam, her knee displayed
full range of motion in a January 2009 exam, and an X-ray of her knees in 2011 displayed
normal results. Tr. 24. Additionally, although Mr. Williams reported that Plaintiff suffers from
asthma "that makes her breathing not good," the ALJ noted that X-rays show Plaintiff had clear
lungs and the record showed no objective evidence of any functional impairments caused by
asthma. Tr. 21. Mr. Williams also reported that Plaintiff needed help to stand up when she bent
down, she could not walk far, and needed help climbing stairs. Tr. 257. Plaintiffs allegations are
undercut by her own report that she moved some of her belongings to a storage unit in 2009, and
did a great deal of heavy lifting by moving her friend's furniture later that year. Tr. 25-26.
10 OPINION AND ORDER
Plaintiff argues that Mr. Williams' report showed Plaintiff had difficulty cooperating with
her supervisors, which should have been considered by the ALJ. However, the record shows the
ALJ was aware of Plaintiffs difficulty in cooperating with her coworkers, as the ALJ gave great
weight to Dr. Sacks, who opined Plaintiff had moderate interpersonal difficulties. Tr. 27. The
ALJ also gave great weight to Drs. Boyd and Rethlinger, who opined Plaintiff had moderate
difficulties interacting with the general public and should be limited to occasional public and
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coworker contact. Id. Thus, the ALJ considered Plaintiffs social limitations, his interpretation of
the record is reasonable, and therefore the Court may not disturb it.
Accordingly, the court concludes that the ALJ's failure to expressly address Mr.
Williams' testimony was inconsequential to the ultimate determination of non-disability. Molina,
674 F.3d at 1115. Any error was harmless.
Conclusion
Based on the foregoing, the Commissioner's decision denying Plaintiffs application for
DIB and SSI is affirmed, and this case dismissed.
IT IS SO ORDERED.
DATED this .zt'day of September, 2016.
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United States District Judge
11 OPINION AND ORDER
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