Sievers v. Commissioner Social Security Administration

Filing 17

Order. The ALJ's finding that plaintiff was not disabled under the Act is suppo1ied by substantial evidence in the record. Accordingly, the decision of the Commissioner is AFFIRMED. See, formal Opinion. Signed on 1/11/2017 by Judge Ann L. Aiken. (rdr)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

ADAM JOSEPH SIEVERS,
Plaintiff,

v.
CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.·

Tim Wilborn
Wilborn Law Office, P.C.
P.O Box 370578
Las Vegas, NV 89137
Attorney for Plaintiff
Billy J. Williams
United States Attorney
Janice E. Hebert
Assistant United States Attorney
1000 S. W. Third A venue, Suite 600
Portland, OR 97204-2902

1 - OPINION AND ORDER

Case No. 3: 15-cv-02185-AA
OPINION AND ORDER

Gerald J. Hill
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, !vUS 221A
Seattle, WA 98104-707 5
Attorneys for Defendant
AIKEN, Judge:
Plaintiff filed suit pursuant to the Social Security Act (the Act), 42 U.S.C. § 405(g), to
obtain judicial review of the Commissioner's denial of his application for disability insurance
benefits (DIB) and Supplemental Security Income (SSI) disability benefits. Plaintiff argues that
the case should be remanded for an award of benefits, or, alternatively, for fmiher proceedings.
After review

of the record and the paiiies' submissions, the decision of the Commissioner is

affirmed.
BACKGROUND
On January, 2010, plaintiff protectively filed applications for DIB and SSI, alleging
disability as of April 1, 2009. Tr. 19. His application was denied initially and on reconsideration.
On December 12, 2011, plaintiff and a vocational expe1i (VE) appeared and testified before an
Administrative Law Judge (ALJ). Tr. 19. On February 9, 2012, the ALJ issued a decision finding
plaintiff not disabled within the meaning of the Act. Tr. 19. The Appeals Council granted review
and and remanded the case for further proceedings. On April 24, 2014, the ALJ plaintiff and a
VE again appeared and testified, and on June 20, 2014, the ALJ again issued a decision finding
plaintiff not disabled under the Act. Tr. 19-28. The Appeals Council denied review, rendering the
ALJ's decision as the final decision of the Commissioner. Tr. 1-7, Plaintiff now seeks judicial
review.

2 - OPINION AND ORDER

Born in 1977, plaintiff was thirty-one years old as of the alleged onset date of disability,
with a high school education and past relevant work as a telephone operator, customer service
representative and supervisor, employment assistant, and technical support person. Tr. 27. He
alleges disability since April 1, 2009 due to gastro esophageal reflux disorder, de Quervain
tenosynovitis and resulting hand pain, and a back injmy. Tr. 253, 257, 323.
STANDARD OF REVIEW
The court must affam the Commissioner's decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Hammock v.

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations
omitted). The court must weigh "both the evidence that supports and detracts from the
[Commissioner's] conclusions." J'vfartinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
Variable interpretations .of the evidence are insignificant if the Commissioner's interpretation is
rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
COMMISSIONER'S DECISION
The Commissioner evaluated plaintiffs allegation of disability pursuant to the relevant
five-step evaluation process. See 20 C.F.R. §§ 404.1520(a)-(g), 416.920(a)-(g).
At step one, the ALJ found that plaintiff had engaged in "substantial gainful activity"
from April l, 2009 through December 23, 2009 but not after that time. Tr. 21; 20 C.F.R. §§
404.l 520(b), 4 l 6.920(b).

3 - OPINION AND ORDER

At steps two and three, the ALJ found that plaintiff had severe impairments of tendonitis,
regional pain syndrome and asthma, but that plaintiffs impaitments did not meet or equal the
severity of a listed impaitment which is "considered severe enough to prevent a person from
doing any gainful activity." Tr. 22-23; 20 C.F.R. §§ 404.1525(a), 416.925(a); id §§
404.1520( c),( d), 416.920(c ),(d).
The ALJ then assessed plaintiffs residual functional capacity (RFC) and found that
plaintiff could perform light work with occasional fine manipulation and occasional
keyboarding, frequent reaching with the upper extremities, and certain enviromnental limitations.
Tr. 23; 20 C.F.R. §§ 404.1520(e), 416.920(e). Based on these findings, the ALJ found that
plaintiff could not perform his past relevant work at step four. Tr. 27; 20 C.F.R. §§ 404.1520(f),
416.920(f).
The ALJ proceeded to step five, where the burden of proof shifts to the Commissioner to
demonstrate that the claimant is able to perform work that exists in the national economy, after
taking into consideration the claimant's RFC, age, education, and work experience. 20 C.F.R. §§
404. l 520(g), 4 l 6.920(g). Relying on the testimony of the VE, the ALJ found that plaintiff could
perform other work as a tanning salon attendant, laundry so1ier, and dealer account clerk. Tr. 28.
Accordingly, the ALJ found plaintiff not disabled under the Act.
DISCUSSION
Plaintiff argues that the ALJ e!Ted by failing to adopt limitations found by treating
physicians, finding plaintiffs allegations not credible, discrediting lay witness statements, and
committing e!Tor at step five. As a result, plaintiff maintains that the ALJ' s RFC assessment and

4 - OPINION AND ORDER

findings are invalid, and that plaintiff should be deemed disabled under the Act. Alternatively,
plaintiff argues that the case should be remanded for further proceedings.
Plaintiff contends that the ALJ improperly rejected the opinions of Drs. Moore and Faber,
both treating physicians. Dr. Faber diagnosed plaintiff with chronic arm pain of "unknown
etiology," and surmised that plaintiff possibly suffered from chronic regional pain syndrome
caused by past keyboard use and repetitive hand movements. Dr. Faber opined that plaintiff
could not work at any jobs involving typing, faxing, filing, scanning or copying. Tr. 984. The
ALJ gave little weight to Dr. Faber's opinion, finding it unsuppo1ied by testimony or objective
medical evidence. Tr. 25. The ALJ further found that plaintiffs daily activities contradicted Dr.
Faber's opinion that plaintiff could not perfo1m any job that required use of his hands. Finally,
the ALJ found that Dr. Faber relied on plaintiffs subjective complaints, which the ALJ found
not credible. Tr. 25.
I find that the ALJ provided legally sufficient reasons to reject Dr. Faber's opinion. Orn

v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (an ALJ must provide either clear and convincing or
specific and legitimate reasons to reject the opinion of a treating physician). The record supports
the ALJ's finding that Dr. Faber relied primarily on plaintiffs subjective complaints, and as
explained below, the ALJ did not en· in finding plaintiffs complaints not credible. ivforgan v.
Comm 'r of Soc. Sec., 169 F.3d 595, 602 (9th Cir. 1999). Fmiher, an ALJ may reject the opinion

of a treating physician if not suppmied by clinical findings. Bayliss v. Barnhart, 427 F.3d 1211,
1216 (9th Cir. 2005). Dr. Faber stated that plaintiffs symptoms were not supported by medical
etiology, and the ALJ noted that the medical evidence revealed umemarkable findings. Tr. 24,
984. Moreover, the ALJ did not err in finding that plaintiffs daily activities of preparing meals,

5 - OPINION AND ORDER

washing dishes, dusting, doing laundry, driving a car, and socializing inconsistent with Dr.
Faber's restrictions.
On February 3, 2010, Dr. Moore completed a statement and indicated that plaintiff could
not use a keyboard for more than fifteen minutes without experiencing pain. Tr. 631. On
December 19, 2011, Dr. Moore wrote a letter and opined that routine daily activities caused
significant pain in plaintiffs hands and anns for hours. Tr. 996. Dr. Moore also stated that
plaintiff could not work at any job requiring significant use of his hands without pain, and that
plaintiff had attempted numerous treatment methods. The ALJ gave limited weight to Dr.
Moore's opinion, finding that Dr. Moore's statements were vague and "unsupported by any
medical etiology." Tr. 25-26. Plaintiff maintains that Dr. Moore's statements were neither vague
nor unsupp01ied by the records, citing a bone scan and treatment records. Pl.'s Brief at 10; Tr.
625-26, 630-31, 996.
While I find that the ALJ could have discussed Dr. Moore's opinion more thoroughly, the
record supports the ALJ's findings. As noted by the ALJ, the physicians of record indicated that
no medical etiology supp01ied plaintiffs complaints, and the ALJ reasonably found Dr. Moore's
2011 restriction against work requiring "significant" use of hands as "vague." Tr. 594-95, 628,
630-31, 984, 996. To the extent plaintiff relies on Dr. Moore's 2010 statement, I do not find the
ALJ's RFC limitation of occasional keyboarding inconsistent with Dr. Moore's opinion that
plaintiff cannot keyboard more than 15 minutes at a time. See Tommasetti v. Astrue, 533 F.3d
1035, 1041 (9th Cir. 2008) (the ALJ has the duty and the authority to interpret the medical·
evidence).

6 - OPINION AND ORDER

Plaintiff next assetts that the ALJ etTed by rejecting his testimony and subjective
complaints. The ALJ found that plaintiffs allegations of disability were not suppotted by the
medical evidence and contradicted by his daily activities of grooming, preparing simple meals,
housework, driving a car, shopping, paying bills, reading, socializing on the phone, and attending
medical appointments. Tr.. 26, 368. The ALJ's findings are valid reasons to support his
credibility assessment. While a plaintiff need not be incapacitated, plaintiffs allegations of
complete disability are inconsistent with his daily activities. lvlolina v. Astrue, 674 F.3d 1104,
1112-13 (9th Cir. 2012).
Next, plaintiff argues that the ALJ improperly rejected the lay witness statement of a
plaintiffs sister, who reported that plaintiff had significant pain in his arms and hands and must
rest frequently. Tr. 994. The ALJ considered this statement but found that plaintiffs sister was
likely influenced by her close relationship with plaintiff and her desire to help him. Tr. 26. Given
the letter written by plaintiffs sister, the ALJ' s finding is not arbitrary and is a germane reason to
give the letter little weight. Tr. 994; Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006); see
also Lewis v. Apfel, 236 F3d 503, 511 (9th Cir. 2001) (the ALJ must consider lay witness
statements and give germane reasons to reject them). Apparently, the ALJ also attributed to
plaintiffs sisters the statement of plaintiffs mother. I find this hmmless, as the findings made by
the ALJ with respect to plaintiff's testimony and the statements of his sister are equally
applicable to those of his mother. lvlolina, 674 F.3d at 1118-19, 1123.
Finally, plaintiff also contends that the step five findings were etToneous, because the job
equivalent of "tanning salon attendant" identified by the ALJ include duties beyond his
functional capabilities. Even if the identification of this job was etToneous, the ALJ found two

7 - OPINION AND ORDER

other jobs that plaintiff could perform. Tr. 23, 73-74. With respect to those jobs, plaintiff
contends that the ALJ erred by failing to include all of his limitations in the hypothetical
presented to the VE. This argument is premised on the arguments rejected above, and I find no
elTor.
CONCLUSION
The ALJ's finding that plaintiff was not disabled under the Act is suppo1ied by substantial
evidence in the record. Accordingly, the decision of the Commissioner is AFFIRlvIED.
IT IS SO ORDERED.
DATEDthis

//~ofJanuary,2017.

a4~LQL

AnnAiken
United States District Judge

8 - OPINION AND ORDER