Thomas v. Commissioner Social Security Administration

Filing 15

OPINION AND ORDER: The Commissioner's decision is affirmed. Signed on 3/21/2017 by Judge Marco A. Hernandez. (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
FLORENCE MARIE THOMAS,

No. 3:16-cv-00800-HZ

Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

George J. Wall
1336 E. Burnside Street, Suite 130
Portland, Oregon 97214
Attorney for Plaintiff
Billy J. Williams
UNITED STATES ATTORNEY
District of Oregon
Janice E. Hebert
ASSISTANT UNITED STATES ATTORNEY
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
1 - OPINION & ORDER

OPINION & ORDER

Erin F. Highland
SPECIAL ASSISTANT UNITED STATES ATTORNEY
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Florence Thomas brings this action seeking judicial review of the
Commissioner's final decision to deny disability insurance benefits (DIB) and supplemental
security income (SSI). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated
by 42 U.S.C. § 1383(c)(3)). I affirm the Commissioner's decision.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB and SSI on December 5, 2011, alleging an onset date of June 15,
2006. Tr. 220-29. Her applications were denied initially and on reconsideration. Tr. 61, 63-73
(DIB, initial); Tr. 62, 74-84, 122-25 (SSI, initial); Tr. 85, 87-100, 129-33 (DIB, reconsideration);
Tr. 86, 101-14, 134-39 (SSI, reconsideration). On December 12, 2013, Plaintiff appeared, with
counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 37-58. On January 9,
2014, the ALJ found Plaintiff not disabled. Tr. 16-36. The Appeals Council denied review. Tr.
5-9.
FACTUAL BACKGROUND
Plaintiff alleges disability based on having fibromyalgia, arthritis, and bilateral
neuropathy. Tr. 280. At the time of the hearing, she was fifty-three years old. Tr. 41. She
completed two years of college and one year of vocational school. Id. She has past relevant

2 - OPINION & ORDER

work experience as a pharmacy technician, fast food supervisor/assistant manager, cashier
checker, sales clerk, and nursing assistant. Tr. 54.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if unable to "engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can be
expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. §§
423(d)(1)(A), 1382c(3)(a).
Disability claims are evaluated according to a five-step procedure. See Valentine v.
Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the ultimate burden of proving disability.
Id.
In the first step, the Commissioner determines whether a claimant is engaged in
"substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S.
137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner
determines whether the claimant has a "medically severe impairment or combination of
impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the
claimant is not disabled.
In step three, the Commissioner determines whether plaintiff's impairments, singly or in
combination, meet or equal "one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at
141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed
disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
3 - OPINION & ORDER

In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the
claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five,
the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at
141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden
and proves that the claimant is able to perform other work which exists in the national economy,
the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since her alleged onset date. Tr. 21. Next, at steps two and three, the ALJ determined
that Plaintiff has severe impairments of fibromyalgia and osteoarthritis, but that these
impairments do not meet or equal, either singly or in combination, a listed impairment. Tr. 2123.
At step four, the ALJ concluded that Plaintiff has the RFC to perform light work as
defined in 20 C.F.R. §§ 404.1567(b), § 416.967(b), except during an eight-hour workday she can
stand and walk approximately six hours. Tr. 23. She has no limitation in her ability to sit. Id.
She should not be required to climb, other than stairs and ramps. Id. She is capable of frequent,
but not constant, fine manipulation. Id. She should avoid concentrated exposure to workplace
hazards, such as heights and moving machinery. Id.
With this RFC, the ALJ determined that Plaintiff is able to perform her past relevant
work of pharmacy technician, fast food supervisor/assistant manager, and sales clerk. Tr. 29.
4 - OPINION & ORDER

Thus, the ALJ determined that Plaintiff is not disabled. Tr. 30.
STANDARD OF REVIEW
A court may set aside the Commissioner's denial of benefits only when the
Commissioner's findings are based on legal error or are not supported by substantial evidence in
the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). "Substantial
evidence means more than a mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal
quotation marks omitted). The court considers the record as a whole, including both the
evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v.
Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than
one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591
(internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149,
1152 (9th Cir. 2007) ("Where the evidence as a whole can support either a grant or a denial, [the
court] may not substitute [its] judgment for the ALJ's") (internal quotation marks omitted).
DISCUSSION
Plaintiff argues that the ALJ erred by finding her subjective limitations testimony not
entirely credible. She contends further that when her improperly rejected testimony is credited as
true, she is disabled and entitled to benefits.
The ALJ is responsible for determining credibility. Vasquez, 572 F.3d at 591. Once a
claimant shows an underlying impairment and a causal relationship between the impairment and
some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony
if there is no evidence of malingering. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir.
5 - OPINION & ORDER

2008) (absent affirmative evidence that the plaintiff is malingering, "where the record includes
objective medical evidence establishing that the claimant suffers from an impairment that could
reasonably produce the symptoms of which he complains, an adverse credibility finding must be
based on 'clear and convincing reasons'"); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th
Cir. 2012) (ALJ engages in two-step analysis to determine credibility: First, the ALJ determines
whether there is "objective medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms alleged"; and second, if the
claimant has presented such evidence, and there is no evidence of malingering, then the ALJ
must give "specific, clear and convincing reasons in order to reject the claimant's testimony about
the severity of the symptoms.") (internal quotation marks omitted).
When determining the credibility of a plaintiff's complaints of pain or other limitations,
the ALJ may properly consider several factors, including the plaintiff's daily activities,
inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and
relevant character evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may
also consider the ability to perform household chores, the lack of any side effects from prescribed
medications, and the unexplained absence of treatment for excessive pain. Id.; see also
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) ("The ALJ may consider many
factors in weighing a claimant's credibility, including (1) ordinary techniques of credibility
evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning
the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained
or inadequately explained failure to seek treatment or to follow a prescribed course of treatment;
and (3) the claimant's daily activities.") (internal quotation marks omitted).
6 - OPINION & ORDER

As the Ninth Circuit explained in Molina;
In evaluating the claimant's testimony, the ALJ may use ordinary techniques of
credibility evaluation. For instance, the ALJ may consider inconsistencies either
in the claimant's testimony or between the testimony and the claimant's conduct,
unexplained or inadequately explained failure to seek treatment or to follow a
prescribed course of treatment, and whether the claimant engages in daily
activities inconsistent with the alleged symptoms[.] While a claimant need not
vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit
a claimant's testimony when the claimant reports participation in everyday
activities indicating capacities that are transferable to a work setting[.] Even
where those activities suggest some difficulty functioning, they may be grounds
for discrediting the claimant's testimony to the extent that they contradict claims
of a totally debilitating impairment.
Molina, 674 F.3d at 1112-13 (citations and internal quotation marks omitted).
Plaintiff does not dispute that the ALJ appropriately engaged in the two-step credibility
analysis. Plaintiff's objection is that the reasons the ALJ offered in support of his credibility
determination are not convincing.
The ALJ found that Plaintiff's work history, particularly that the record showed her
stopping work for reasons unrelated to her impairments, undermined her allegations of disability.
Tr. 24. Next, the ALJ found that the treatment notes did not support her allegations. Id. The
ALJ also found that when viewed longitudinally, Plaintiff's treatment appears to have been
sporadic, routine, conservative, and not indicative of total disability. Tr. 26. The ALJ also found
that Plaintiff's having been off of any medication for two years was strong persuasive evidence
that her impairments were not as limiting as she alleged them to be. Tr. 25. Finally, the ALJ
noted his own observations that Plaintiff appeared at the hearing with no assistive devices such
as a walker or a cane. Tr. 29. She also appeared to walk without difficulty with a normal gait
and no discernable limp. Id.

7 - OPINION & ORDER

I agree with Plaintiff that the ALJ erred by relying on Plaintiff's having taken no
medication for a period of time. Gaps in medical treatment can support an adverse credibility
determination but not if the failure to obtain treatment is due to the claimant's lack of funds or
another "good reason[]." Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007); see also Soc. Sec.
Ruling (SSR) 16-3p (available at 2016 WL 1119029, at *8-9) (Commissioner will not find an
individual's symptoms inconsistent with a lack of treatment without considering possible reasons,
including the inability to pay for treatment). The record here suggests that Plaintiff was without
medical insurance at times. Tr. 319, 497. Without exploring the reasons why Plaintiff stopped
taking medication for a time, the ALJ cannot rely on the absence of medication to find Plaintiff
not credible.
However, the other reasons provided by the ALJ are clear and convincing and are based
on substantial evidence in the record. Plaintiff argues that she left her previous employment
because of problems with her hands as well as her desire to stay home to take care of her young
son and to avoid a long commute after her move from Oregon to Washington. Plaintiff cites to
her hearing testimony to support her assertion that problems with her hands were one of several
reasons for her decision to stop working in 2005. But, it is exactly that hearing testimony that the
ALJ found was unsupported by the record. Plaintiff cites to no other evidence in the
administrative record supporting her contention that a problem with her hands was one of several
reasons for quitting her job.
As the ALJ noted, the record contains several references to Plaintiff having stopped
working to become a full-time mother or because of her move from Oregon to Washington. Tr.
24 (citing Tr. 558 (Oct. 2013 report to David Morgan, Ph.D. that Plaintiff stopped working as a
8 - OPINION & ORDER

pharmacy technician to be a "full-time mom"); Tr. 497 (Apr. 2012 report to Jamie Carter, Ph.D.
that her pharmacy technician job ended when she moved to Washington); Tr. 280 (Pl.'s Dec.
2011 Adult Disability Report stating that she stopped working in 2005 when she "moved from
Tigard OR to Vancouver WA and I did not want to commute")).
In evaluating a claimant's credibility, an ALJ may properly rely on a claimant's having
stopped work for reasons other than disability. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.
2001). The record supports the ALJ's finding that Plaintiff''s hearing testimony, in which she
indicated she stopped working because of problems with her hands, is not credible. The ALJ did
not err.
Next, as to the ALJ's finding that treatment notes do not support Plaintiff's alleged
limitations, Plaintiff argues that ALJ's reasoning "fails" because the ALJ himself found that
Plaintiff's severe impairments cause her symptoms. Plaintiff's argument is unconvincing. The
ALJ found that Plaintiff has severe impairments which "could reasonably be expected to cause
the alleged symptoms[.]" Tr. 24. But, the ALJ explained, Plaintiff's statements concerning the
intensity, persistence, and limiting effects of the symptoms are not entirely credible for the
reasons provided. Id. The ALJ did not, in fact, find that Plaintiff's impairments cause her
symptoms. Instead, he found that the impairments could cause her symptoms but for the reasons
explained, they did not, at least to the extent Plaintiff alleges.
Plaintiff also suggests that her severe impairments do not necessarily cause positive test
results, reduced strength, or reduced range of motion and thus, the ALJ's citation to these records
does not support his finding that the treatment records are inconsistent with Plaintiff's subjective
limitations testimony. But, the ALJ pointed to several entries in treatment notes, not just to test
9 - OPINION & ORDER

results. For example, he noted that in 2008, Plaintiff complained of knee pain and joint stiffness
but upon examination, her knees were non-tender and no swelling was appreciable. Tr. 24 (citing
Tr. 402-03); see also id. (citing Tr. 402-03 (physician recommended Plaintiff become more active
and "consider employment" to which Plaintiff responded she "would like to get a job")). The
ALJ cited to a September 2010 treatment note in which Plaintiff reported that she had moved
mostly by herself and was looking for a job. Tr. 25 (citing Tr. 490-91); see also id. (physician's
note states that Plaintiff looked "well"). The ALJ also cited to x-rays showing that Plaintiff's
right hip osteoarthritis was mild. Id. (citing Tr. 494).
Other medical evidence in the record and discussed by the ALJ includes the April 2012
assessment by examining physician Dr. Heather Mikes, D.O., who observed Plaintiff walk into
the exam room without assistance, climb on and off the examination table "with ease," and walk
with a steady and stable gait. Tr. 26-27 (citing Tr. 500-05). Dr. Mikes saw "no signs of
instability." Tr. 502; see also Tr. 595 (Mar. 2013 treatment note by Dr. Jason Etzer, M.D. stating
that Plaintiff ambulated with a normal gait and had no tenderness in her lower extremities).
Even assuming, as Plaintiff asserts, that her impairments do not necessarily cause positive
test results or reduced strength or range of motion, the ALJ did not err in finding that treatment
notes do not support Plaintiff's limitations. The ALJ cited to several treatment notes in the record
which are inconsistent with Plaintiff's allegations.
Plaintiff next argues that the ALJ's finding that her treatment has been sporadic, routine,
and conservative is not supported and is based on flawed reasoning. After discussing much of
the medical evidence, the ALJ wrote that "longitudinally, the claimant's treatment appears to
have been sporadic, routine, conservative, and not indicative of total disability." Tr. 26. The
10 - OPINION & ORDER

ALJ then explained that "[r]ather, the use or prescription of neoprene braces, muscle relaxers,
NSAIDs, and antidepressants is actually persuasive evidence that the claimant is capable of
performing modified light exertion work consistent with the [RFC] found in this decision." Id.
Plaintiff contends that the finding is flawed because she is not asserting "total disability"
but is claiming limitations in repetitive use of her hands and in standing and walking during the
workday. She also argues that the treatment modalities cited by the ALJ actually support her
testimony.
While Plaintiff may not be articulating the phrase "total disability," by virtue of her
application for DIB and SSI she contends she is unable to "engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which . . . has
lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C.
§§ 423(d)(1)(A), 1382c(3)(a). At the hearing, Plaintiff testified that she is having "a lot of
mobility problems" with her legs, Tr. 43, and suffers from shooting pains and spasms in her left
leg. Tr. 44. She stated that she sometimes cannot control which direction her leg wants to walk.
Id. She described problems with her hands, which she testified were worse in the right hand. Id.
She explained she could not put on her pants, could not grip, could not hold a cup of coffee with
one hand, and could type with only one finger. Tr. 44-45. She described being unable to sleep,
making her exhausted and requiring that she take naps during the day. Tr. 46. She testified she
can sit only twenty minutes before needing to change positions, can stand for five to ten minutes
before needing to lay down and rest, and spends her day alternating between positions and
napping. Tr. 46-48. The ALJ's reference to "total disability" is best understood as a way of
capturing the cumulative effect of all of the limitations Plaintiff described. It does not expose
11 - OPINION & ORDER

any "flawed" reasoning.
Additionally, conservative treatment is "sufficient to discount a claimant's testimony
regarding severity of an impairment." Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007).
Although Plaintiff argues that the treatment measures noted by the ALJ support her testimony,
she does not explain how or challenge their description by the ALJ as "conservative" or
"routine." Even if she did, the ALJ's interpretation of the longitudinal record showing treatment
of disabling pain allegations with braces and NSAIDs was not an irrational interpretation of the
medical evidence. When the ALJ's interpretation is rational, it must be upheld. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ("Where evidence is susceptible to more than one
rational interpretation, it is the ALJ's conclusion that must be upheld."); Batson v. Comm'r, 359
F.3d 1190, 1193, 1196 (9th Cir. 2004) (court may not substitute its judgment for that of the
Commissioner if the Commissioner's interpretation is a rational reading of the record).
Finally, the ALJ relied on his own observations of Plaintiff at the hearing, noting that she
appeared with no assistance devices, walked without difficulty, and had a normal gait with no
limp. As long s the ALJ's observations are not the sole basis for discrediting a claimant's
credibility, they may be considered. SSR 16-3p (available at 2016 WL 119029, at *7) ("The
adjudicator will consider any personal observations of the individual in terms of how consistent
those observations are with the individual's statements about his or her symptoms as well as with
all of the evidence in the file"); Orn, 495 F.3d at 639 (while ALJ's observations of claimant's
functioning may not form the sole basis for discrediting claimant's testimony, they may be used
in the "overall evaluation of the credibility of the individual's statements") (internal quotation
marks omitted).
12 - OPINION & ORDER

The ALJ supported his credibility determination with several reasons. Even though the
ALJ erred in relying on the two-year absence of medication, the error is harmless in the presence
of others reasons which are supported by substantial evidence in the record. See Batson, 359
F.3d at 1197. Thus, the ALJ's credibility determination is supported by substantial evidence.
CONCLUSION
The Commissioner's decision is affirmed.
IT IS SO ORDERED.

Dated this

day of

Marco A. Hernandez
United States District Judge

13 - OPINION & ORDER

, 2017