Green v. Commissioner Social Security Administration
Opinion and Order. The Commissioner's decision is AFFIRMED. Signed on 3/8/17 by Judge Robert E. Jones. (see 10 page opinion and order for further details) (cib)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LACEY ANN GREEN,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Case No. 3:15-cv-02316-JO
OPINION AND ORDER
Plaintiff Lacey Green appeals the final decision of the Commissioner of the Social
Security Administration denying her applications for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act.
Because the Commissioner's decision is supported by substantial evidence, the decision is
Plaintiff filed concunent applications for SSI and DIB alleging disability as of November
15, 2010 due to fibromyalgia, anx:iety \Vithpanic attacks, major depressive disorder, and
degenerative disc disease. Admin. R. 12, 14, 231.
The ALJ performed the sequential analysis described in 20 C.F.R sections 404.1520 and
416.920. He found plaintiffs ability to perform basic work activities limited by fibromyalgia,
degenerative disc disease, major depressive disorder, and generalized anxiety disorder with panic
attacks. Admin. R. 14. The ALJ found that, despite these impairments, plaintiff retained the
residual functional capacity (RFC) to perform a range of light, simple, and routine work
involving limited climbing and crawling, in a work setting that does not require frequent or close
contact with co-workers, teamwork, or collaboration with others. Admin. R. 16.
The ALJ elicited testimony from a vocational expert (VE), who said that a person with
plaintiffs RFC and vocational factors could perform light, unskilled occupations such as
mailroom clerk and small product assembler, representing several hundred thousand jobs in the
national economy. Admin. R. 23, 64-65. The ALJ therefore concluded plaintiff was not
disabled within the meaning of the Social Security Act. Admin. R. 23-24.
STANDARD OF REVIEW
The district comt must affirm the Commissioner's decision ifit 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). It means "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Id.
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Where the evidence is susceptible to more than one rational interpretation, the
Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant ifthe Commissioner's
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir. 2004).
"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). The reviewing court, however, may not affirm the Commissioner on a
ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.
Claims of Error
Plaintiff argues the Commissioner erred by (1) improperly evaluating the medical opinion
of treating physician William Barth, M.D.; (2) rejecting her subjective symptom testimony; (3)
rejecting the lay witness testimony; and (4) improperly relying on the VE testimony at step five.
Medical Opinion Evidence
Dr. Barth was plaintiffs treating physician. In 2012, he opined that plaintiff was limited
by pain to one hour or less of sitting, standing, and walking. Admin. R. 330-31. Dr. Barth also
stated that plaintiff could not lift or carry over 20 pounds and that her ability to travel was limited
by pain. Dr. Baiih attributed these limitations to plaintiffs degenerative disc disease with
peripheral neuropathy, and chronic depression. Admin. R. 21, 330, 331. The ALJ discounted
Dr. Barth's opinion regarding plaintiffs limitations in sitting, standing and walking. Admin. R.
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The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians' opinions. Carmickle v. Comm 'r, 533 F.3d 1155, 1164 (9th Cir. 2008). The
Ninth Circuit distinguishes between the opinions oftln·ee types of physicians: treating
physicians, examining physicians, and non-examining physicians. The opinions of treating
physicians are generally accorded greater weight than the opinions of non-treating physicians.
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating doctor's opinion that is not
contradicted by the opinion of another physician can be rejected only for "clear and convincing"
reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If a treating or examining
doctor's opinion is contradicted by another doctor's opinion, it may be rejected for specific and
legitimate reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
Here, Dr. Baiih's opinion was contradicted by the opinions of the state agency medical
expe1is, who reviewed the objective medical evidence and the record as a whole and concluded
that plaintiff was capable of perfonning a range of light work with some limitations. Admin. R.
70-82. The ALJ was therefore required to provide specific, legitimate reasons for rejecting Dr.
Barth's controverted opinion. Bayliss, 427 F.3d at 1216.
The ALJ found Dr. Ba1ih's limitations on standing, walking, and sitting inconsistent with
the objective medical record on the whole. Admin. R. 21. This conclusion was reasonable based
on the opinions of the state agency reviewing physicians and the mild objective findings in the
record. The majority of objective findings in the record were mild and the ALJ reasonably
concluded that they were inconsistent with Dr. Barth's severe limitations on walking, sitting, and
standing. Admin. R. 21. Plaintiff testified that her chronic back pain began with a motor vehicle
accident in 2006 and worsened until she could no longer work in November 2010. Admin. R.
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38. In July 2009, however, Todd Devere, M.D., found that plaintiff had nonnal strength, n01mal
gait and ability to walk, and no clear objective abnormalities. Admin. R. 304-306. Plaintiffs
brain and spinal MRI scans were "entirely normal." Admin. R. 308-12, 314. In 2010, plaintiff
continued to show full strength in her lower extremities, mild tenderness and mildly limited
range of motion. Admin. R. 463. These findings suggest that plaintiff was less limited in her
ability to stand and walk than Dr. Barth indicated, and the ALJ was entitled to resolve this
conflict in the medical record by rejecting Dr. Barth's opinion. See Carmickle, 533 F.3d at 1164
(the ALJ is responsible for resolving conflicts in the medical record). In the absence of
suppo1ting objective medical findings, the ALJ rationally discounted Dr. Barth's opinion because
it was brief and unsupported by specific objective findings or by the medical record as a whole.
In the Ninth Circuit, the ALJ may reject a treating physician's opinion that is brief, conclusory,
or unsupp01ted by the record. Batson, 359 F.3d at 1195.
Plaintiff argues that Dr. Baith's opinion is supp01ted by findings on multiple
examinations and by lumbar MRI findings showing degenerative changes. Admin. R. 342, 365,
377, 382. However, even ifthe evidence could be interpreted in a manner more favorable to
plaintiff, the ALJ' s evaluation of Dr. Barth's opinion was reasonable and must be upheld.
Burch, 400 F.3d at 679 (when the evidence is susceptible to more than one rational
interpretation, the Commissioner's conclusion must be upheld).
The ALJ also found that Dr. Barth based his conclusions on plaintiffs subjective
complaints. An ALJ may reject a physician's rep01t premised lai·gely on a claimant's properly
discounted subjective complaints. Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989). Here, Dr.
Barth's progress notes reflect that he relied primarily on plaintiffs subjective statements. Admin.
R. 330, 331, 341, 346, 350, 355, 358, 368, 371, 373-75, 383. His clinical findings were limited
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to plaintiffs subjective indications of tenderness and pain in the paralumbar area. Admin. R
335, 339, 341. In the absence of notes reflecting objective findings, it was rational for the ALJ to
find that Dr. Barth relied on plaintiffs subjective complaints in formulating his opinion. As
explained below, the ALJ properly discounted the credibility of plaintiffs testimony about the
limiting effects of her symptoms. Dr. Bmih's reliance on plaintiffs discredited complaints
therefore provides additional support to the ALJ's evaluation of the medical evidence. Fair, 885
F.2d at 605. In sum, the ALJ's evaluation of Dr. Bmih's opinion was suppo1ied by legally
sufficient reasons and will not be distmbed.
Plaintiff argues that the ALJ ened by rejecting her subjective symptom testimony. The
Ninth Circuit established two requirements for a claimant to present credible symptom
testimony: the claimatlt must produce objective medical evidence of an impairment or
impaiiments; and she must show the impairment or combination of impairments could
reasonably be expected to produce some degree of symptom. Cotton v. Bowen, 799 F.2d 1403,
1407 (9th Cir. 1986). The claimatlt, however, need not produce objective medical evidence of the
actual symptoms or their severity. Smolen v. Chafer, 80 F.3d 1273, 1284 (9th Cir. 1996).
If the claimant satisfies the above test and there is not any affirmative evidence of
malingering, the ALJ can reject the claimant's testimony only ifthe ALJ provides clear and
convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). General
asse1iions that the claimant's testimony is not credible are insufficient. Id. The ALJ must
identify "what testimony is not credible and what evidence unde1mines the claimant's
complaints." Id. (quoting Lester, 81 F.3d at 834.
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At the hearing, plaintiff testified that she stopped working in November of2010 due to
pain, depression, and anxiety. Admin. R. 38. She stated that she had difficulty concentrating
and that her medications made her tired. Admin. R. 42. She suffered from increased anxiety and
depression following her car accident, and had a hard time getting out of bed. Admin. R. 44.
Plaintiff testified that she did not use a computer and needed help caring for her children and
performing basic daily activities. Admin. R. 48. She stated that she could sit for up to 30
minutes at a time before she needed to move around. She said she could not lift a gallon of milk.
Admin. R. 48-49.
The ALJ believed plaintiff had impairments that adversely affected her ability to work, as
reflected by the significant limitations in his assessment of her RFC. He rejected plaintiffs
testimony only to the extent that she claimed limitations in excess of the RFC assessment and
asse1ied she could not engage in work of any kind. Admin. R. 17-20. The ALJ noted that the
medical evidence conflicted with plaintiffs testimony regarding her symptoms and limitations.
An ALJ may reject testimony that is inconsistent with the medical evidence. Carmickle, 533
F.3d at 1161. Here, plaintiff testified that back pain and depression were her biggest
impediments to working, and that she had difficulties with nearly every area of functioning.
Admin. R. 46, 255. On examination in July, 2009, however, Todd Devere, M.D., found that
plaintiff had nonnal strength, normal gait and ability to walk, and no clear objective
abnmmalities. Admin. R. 304-06. Dr. Devere noted that plaintiffs brain and spinal MRI scans
were "entirely normal." Admin. R. 308-12, 314. Similarly, in 2010, plaintiff showed full
strength in her lower extremities, mild tenderness and mildly limited range of motion. Admin.
R. 463. In 2011, plaintiff reported no depression symptoms and had a normal gait. Admin. R.
317. These findings contradict plaintiffs complaints of debilitating back pain and depression,
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and the ALJ reasonably cited them in his rejection of plaintiffs testimony. Carmickle, 533 F.3d
The ALJ found plaintiffs testimony was not credible because she sought only
conservative treatment. Admin. R. 18-20. When a claimant alleges debilitating symptoms but
pursues only conservative treatment, it suppo1is an inference that her symptoms are not as severe
as she claims. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008), Parra v. Astrue, 481
F.3d 742, 750-51 (9th Cir. 2007). Here, the ALJ noted that plaintiff sought minimal physical
therapy and was treated primarily with medication and pain patches; spinal surgery was not
recommended. Admin. R. 18. This evidence suppo1is the ALJ's finding that plaintiff was not as
limited as alleged in her testimony, because she sought relatively conservative treatment for her
symptoms. Tommasetti, 533 F.3d at 1040. In addition, the ALJ noted that plaintiff failed to
follow treatment recommendations. For example, although she was given a home exercise
program and plan of care in January, 2011, there is no indication that she followed up or returned
for fmiher treatment. Admin. R. 18. When a claimant alleges disabling symptoms, but fails to
follow prescribed or recommended treatments, an ALJ may reasonably find the subjective
statements unjustified or exaggerated. Orn v. Astrue, 495 F.3d at 638; Tonapetyan v. Halter, 242
F.3d 1144, 1147-48 (9th Cir. 2001).
Finally, the ALJ found that plaintiff left her job for reasons other than her alleged
impairments. The fact that a claimant left work for reasons other than her impaiiments is a
sufficient basis for rejecting the claimant's testimony. Bruton v. 1\Iassanari, 268 F.3d 824, 828
(9th Cir. 2001 ). Here, plaintiff left her job due to pregnancy and the birth of her second child.
Admin. R. 20. Plaintiff did not return to her work as a customer service representative after the
bi1ih of her child, and eventually lost her job. Admin. R. 354. On this record, the ALJ properly
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found that plaintiff was less than fully credible because she stopped working for reasons other
than her alleged impairments. Bruton, 268 F.3d at 828. In sum, the ALJ provided legally
sufficient reasons supported by substantial evidence in the record for his credibility finding.
Plaintiff next argues that the ALJ improperly rejected the lay witness testimony of her
Virginia Lee Green. The ALJ is required to provide germane reasons for rejecting a lay
witness's opinion. }vfolina v Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Ms. Green appeared
at the administrative hearing and testified that plaintiff missed a lot of work due to stress and
pain. Ms. Green also opined that plaintiff suffered from post-partum depression. Admin. R. 5561. The ALJ rejected Ms. Green's testimony, noting that medical evidence in the record
contradicted her opinion that plaintiff suffered from post-partum depression. Admin. R. 21, 317
(treatment note from David Sibell, M.D., dated 2012, indicating "No post-partum depression").
Further, to the extent that Ms. Green's testimony mirrored plaintiffs testimony regarding her
symptoms and limitations, the ALJ provided legally sufficient reasons for rejecting it, as
discussed above. In sum, the ALJ provided sufficient germane reasons for rejecting Ms. Green's
testimony. 1Vfolina, 674 F.3d at 1111.
Step Five Findings and Reliance on VE Testimony
Plaintiff lastly argues that the ALJ improperly relied on the VE testimony because he
failed to resolve a conflict between the VE testimony and the DOT. The Commissioner
concedes that the VE's testimony that a claimant with plaintiffs RFC could perfonn the job of
mail clerk conflicts with the DOT definition of the position, which requires a reasoning level of
3. I accept the Commissioner's concession, but find the enor hannless. The ALJ also found,
based on the VE testimony, that plaintiff could perform the job of small product assembler,
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which exists in significant numbers in the national economy and is consistent with plaintiffs
RFC. See Beltran v. Astrue, 700 F.3d 386, 389-90 (9th Cir. 2012) (if a court finds that a
claimant can perform a job that exists in significant numbers in the national economy, it must
uphold the ALJ's decision). While plaintiff also argues that the small product assembler job is
inconsistent with plaintiff's RFC, which requires that she work in a setting that does not require
"frequent" or "close" contact with co-workers, the DOT indicates that the small product
assembler job does not significantly require interaction with others. See Dictionmy of
Occupational Titles (DOT) 706.684-022, available at 1991WL679050. The e!1'or alleged by
plaintiff at step five, therefore, was harmless.
For the foregoing reasons, the Commissioner's decision is AFFIRMED.
op.e , Senior Judge
United States District Comt
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