Strauss v. Commissioner Social Security Administration

Filing 19

Opinion and Order. The Court AFFIRMS the Commissioner's final decision of the Commissioner and DISMISSES this matter Signed on 04/17/2017 by Judge Anna J. Brown. See attached 18 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ROBERT W. STRAUSS,
Plaintiff,

3:16-CV-00852-BR
OPINION AND ORDER

v.
NANCY A. BERRYHILL,1
Acting Commissioner, Social
Security Administration,
Defendant.

LISA R. J. PORTER
JP Law P.C.
5200 S.W. Meadows Rd
Suite 150
Lake Oswego, OR 97035
[phone]
Attorney for Plaintiff

1

On January 23, 2017, Nancy A. Berryhill was appointed
Acting Commissioner of the Social Security Administration and
pursuant to Federal Rule of Civil Procedure 25(d) is substituted
as Plaintiff in this action.
1 - OPINION AND ORDER

BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
MARTHA A. BODEN
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/A 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Judge.
Plaintiff Robert W. Strauss seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act.

This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
Plaintiff filed an application for DIB on May 23, 2012,

2 - OPINION AND ORDER

alleging a disability onset date of August 31, 2010.

Tr. 179.2

The application was denied initially and on reconsideration.

An

Administrative Law Judge (ALJ) held a hearing on October 6, 2014.
Tr. 36-65.

Plaintiff was represented at the hearing.

Plaintiff

and a vocational expert (VE) testified.
The ALJ issued a decision on November 10, 2014, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 19-35.

Pursuant to 20 C.F.R. § 404.984(d),

that decision became the final decision of the Commissioner on
March 29, 2016, when the Appeals Council denied Plaintiff's
request for review.

Tr. 1-4.

See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).

BACKGROUND
Plaintiff was born on January 26, 1957, and was 57 years old
at the time of the hearing.

Tr. 135.

school and has “some college.”

Plaintiff completed high

Tr. 53.

Plaintiff has past

relevant work experience as a branch manager, computer salesman,
sales manager, chief executive officer, and recruiter.

Tr. 30.

Plaintiff alleges disability due to chronic, severe pain in
his left leg; memory problems; and right-foot arthritis.
Tr. 183.

2

Citations to the official transcript of record filed by
the Commissioner on September 23, 2016, are referred to as "Tr."
3 - OPINION AND ORDER

Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 22-23, 26-29.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate his

inability "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."
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).

42

See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

“relevant evidence that a reasonable mind might accept as
4 - OPINION AND ORDER

adequate to support a conclusion.”

Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).

"It is more than a mere scintilla [of

evidence] but less than a preponderance."

Id. (citing Valentine,

574 F.3d at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the
meaning of the Act.
5 - OPINION AND ORDER

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

2007).

See also 20 C.F.R. § 404.1520.

Each step is potentially

dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. § 404.1520(a)(4)(I).

See also Keyser v.

Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii).

20 C.F.R. §§ 404.1509,

See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 404.1520(a)(4)(iii).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

The

criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§ 404.1520(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

6 - OPINION AND ORDER

“A

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.

20 C.F.R. § 404.1520(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.

20 C.F.R. § 404.1520(a)(4)(v).

Keyser, 648 F.3d at 724-25.

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.

Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.

If the Commissioner meets this burden, the claimant

is not disabled.

20 C.F.R. § 404.1520(g)(1).

7 - OPINION AND ORDER

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff had not engaged in
substantial gainful activity from his August 31, 2010, alleged
onset date through May 24, 2013, but Plaintiff has engaged in
substantial gainful activity since May 24, 2013.

Tr. 21.

Accordingly, the ALJ evaluated only a closed period of alleged
disability from August 31, 2010, through May 24, 2013.

Tr. 22.

At Step Two the ALJ found Plaintiff had the severe
impairments of reflex-sympathetic dystrophy syndrome (RSD) of the
left leg and osteoporosis during the relevant period.

Tr. 22.

The ALJ found Plaintiff’s “hand conditions,” kidney stones, a
renal cyst, hypertension, diabetes, depression, and anxiety were
nonsevere.

Tr. 23-24.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments during the relevant period did not meet
or medically equal one of the listed impairments in 20 C.F.R.
part 404, subpart P, appendix 1.

Tr. 25.

The ALJ found during

the relevant period Plaintiff had the RFC to perform “light work
. . . with exceptions” and that Plaintiff could frequently lift
10 pounds; could stand and walk “15 minutes maximum at a time for
a total of two hours in an eight-hour workday”; could sit “30
minutes at a time with no limitation overall”; and could
occasionally climb, balance, stoop, kneel, crawl, and crouch.
Tr. 54.

8 - OPINION AND ORDER

At Step Four the ALJ found during the relevant period
Plaintiff could perform his past relevant work.

Tr. 30.

At Step Five the ALJ found, in the alternative, that during
the relevant period Plaintiff could have performed jobs that
existed in significant numbers in the national economy.

Tr. 30.

Accordingly, the ALJ found Plaintiff was not disabled from
August 31, 2010, through May 24, 2013.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) partially
rejected Plaintiff’s testimony; (2) gave “limited weight” to the
testimony of Plaintiff’s daughter, Nicole Strauss; (3) gave
“little weight” to the opinion of Plaintiff’s treating physician,
Gregg Coodley, M.D.; and (4) failed to incorporate all of
Plaintiff’s limitations into his evaluation of Plaintiff’s RFC.
I.

The ALJ did not err when he partially rejected Plaintiff’s
testimony.
Plaintiff alleges the ALJ erred when he failed to provide

clear and convincing reasons for partially rejecting Plaintiff's
testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments, and he must show the impairment
or combination of impairments could reasonably be expected to
9 - OPINION AND ORDER

produce some degree of symptom.

Cotton, 799 F.2d 1403 (9th Cir.

1986), aff'd in Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.
1991).

The claimant, however, need not produce objective medical

evidence of the actual symptoms or their severity.

Smolen, 80

F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and
convincing reasons for doing so.

Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)).

General assertions that the claimant's testimony is

not credible are insufficient.

Id.

The ALJ must identify "what

testimony is not credible and what evidence undermines the
claimant's complaints."

Id. (quoting Lester, 81 F.3d at 834).

At the October 2014 hearing Plaintiff testified he has been
working since May 2013 for four or five hours per day, four days
per week at a Samsung Experience shop inside a Best Buy.
45.

Tr. 44-

Plaintiff stated he stands behind a desk, greets customers,

informs customers about new products, and troubleshoots.
Plaintiff, however, stated he “forget[]s more than he remember[s]
on this stuff.”

Tr. 45.

Plaintiff stated he stands for his

entire work shift if he is working alone, but he sits down as
often as he can.

Plaintiff also testified he developed arthritis

in his hands after 2010.
10 - OPINION AND ORDER

Plaintiff had surgery on his left hand

in 2009 and his right hand in 2013.

The pain in his left hand

has subsided, but his right hand is not as strong as it was
before the surgery.

Plaintiff stated he also has had worsening

problems with kidney stones since 2010.

Plaintiff was put on

medication for his kidney problems, but was taken off the
medication “a few months back” and those issues seem to have
resolved themselves.

Plaintiff noted, however, he still has

issues with “urgency” that cause him to have to leave his work
booth suddenly two or three times per week.

Plaintiff testified

his leg pain has also increased since 2010. Plaintiff stated “all
day long I feel like my leg is on fire. . . .

By standing on my

leg . . . all day long now - as soon as I get home the only thing
I . . . can do is lay down and put my leg up.”

Tr. 58.

Plaintiff stated he can stand for approximately an hour before
his leg starts to swell and becomes painful.

Plaintiff noted the

medication he takes for his leg pain causes him to have problems
with his memory and attention span.
The ALJ found Plaintiff’s “medically determinable
impairments could reasonably have been expected to cause the
alleged symptoms” during the relevant period, but Plaintiff’s
“statements concerning the intensity, persistence and limiting
effects of [his] symptoms are not credible.”

Tr. 26.

The ALJ

noted throughout the relevant period, including December 2010 and
February, March, April, and May 2011, Dr. Coodley reported

11 - OPINION AND ORDER

Plaintiff was doing well overall and his leg pain was stable.

In

January 2012 Plaintiff stated he was able to decrease his
methadone by one pill per day.

Tr 546.

Although Plaintiff

reported his leg pain was worse with the cold weather in February
2012, Dr. Coodley noted Plaintiff was on a stable regimen for his
leg pain.

Tr. 554. In December 2012 Plaintiff reported having

stable leg pain exacerbated only by the weather.

The ALJ also

noted Plaintiff reported an increase in his symptoms after the
relevant period even though Plaintiff has been able to work at an
SGA level for more than a year.

In May 2013 Plaintiff reported

he was having breakthrough leg pain after standing for eight to
nine hours.

In July 2013 Plaintiff was working nine hours a day

and standing on his feet for much of that time.
The record reflects Kim Webster, M.D., conducted a
comprehensive musculoskeletal evaluation of Plaintiff in December
2012.

Dr. Webster noted Plaintiff had a “hyper-exaggerated limp

using a cane.
Tr. 279.

He has constant pain behavior with poor effort.”

Although Dr. Webster noted Plaintiff could not balance

on his left leg, she stated “this seemed to be very exaggerated.”
Tr. 280.

Dr. Webster reported Plaintiff had a “very odd stiff-

legged, very laborious walk that really made no sense in terms of
having one leg hurting.”

Tr. 280.

Dr. Webster diagnosed

Plaintiff with left-leg pain “with an examination that suggests
that the pain is highly exaggerated.”

12 - OPINION AND ORDER

Tr. 282.

Dr. Webster

found there was not any objective evidence to limit Plaintiff
from standing or walking, but she limited him to standing and
walking for two hours due to his various surgeries.
On this record the Court finds the ALJ did not err when he
partially rejected Plaintiff's testimony because the ALJ provided
clear and convincing reasons supported by substantial evidence in
the record for doing so.
II.

The ALJ did not err when he gave limited weight to the laywitness statement of Nicole Strauss.
Plaintiff asserts the ALJ erred when he gave limited weight

to the lay-witness statement of Plaintiff’s daughter, Nicole
Strauss.
Lay testimony regarding a claimant's symptoms is competent
evidence that the ALJ must consider unless he "expressly
determines to disregard such testimony and gives reasons germane
to each witness for doing so."
(9th Cir. 2001).

Lewis v. Apfel, 236 F.3d 503, 511

See also Merrill ex rel. Merrill v. Apfel, 224

F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a
claimant's disability, must give full consideration to the
testimony of friends and family members.").

The ALJ's reasons

for rejecting lay-witness testimony must also be "specific."
Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006).

When "the

ALJ's error lies in a failure to properly discuss competent lay
testimony favorable to the claimant, a reviewing court cannot
consider the error harmless unless it can confidently conclude
13 - OPINION AND ORDER

that no reasonable ALJ, when fully crediting the testimony, could
have reached a different disability determination."

Stout, 454

F.3d at 1056.
On August 31, 2014, Nicole Strauss completed a letter in
which she noted Plaintiff has been disabled for his “whole life.”
Tr. 233.

Nicole Strauss stated she “always [had] to be aware of

[Plaintiff’s] physical limitations,” and his inability to stand
or to walk for long periods.

Nicole Strauss also stated

Plaintiff’s pain caused his memory to become “spotty,” and she
has to remind him about things “that he should have remembered.”
Tr. 233.
The ALJ gave limited weight to Nicole Strauss’s statement.
Although Nicole Strauss stated Plaintiff has always been
disabled, the ALJ noted the record reflects Plaintiff worked in
the past at a substantial gainful level and has been working
since May 2013 at a substantial gainful level.
On this record the Court concludes the ALJ did not err when
he gave limited weight to Nicole Strauss’s letter because the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
III. The ALJ did not err when he gave little weight to
Dr. Coodley’s opinions.
Plaintiff asserts the ALJ erred when he gave little weight
to Dr. Coodley’s May 2012 chart note and September 2014
questionnaire.
14 - OPINION AND ORDER

An ALJ may reject a treating physician's opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes "findings setting forth specific,
legitimate reasons for doing so that are based on substantial
evidence in the record."

Thomas v. Barnhart, 278 F.3d 947, 957

(9th Cir. 2002)(quoting Magallanes v. Bowen, 881 F.2d 747, 751
(9th Cir. 1989)).

When the medical opinion of a treating

physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.

Thomas, 278 F.3d at

See also Lester v. Chater, 81 F.3d 821, 830-32 (9th Cir.

957.
1996).

On May 25, 2012, Dr. Cooley reported in his chart notes that
Plaintiff’s RSD “makes it impossible for him to stand for
extended intervals” and Plaintiff’s pain medication “ma[y] have a
negative impact on his ability to concentrate and persist in any
work.”

Tr. 415.

On September 9, 2014, Dr. Coodley completed a questionnaire
in which he noted Plaintiff suffered from RSD.

Dr. Coodley

stated it “is reasonable to expect that [Plaintiff] would
experience substantial difficulty with stamina [and] pain or
fatigue if . . . he worked . . . eight hours a day at a sedentary
or light level of exertion.”

Tr. 655.

Dr. Coodley also opined

Plaintiff would need “to work at a reduced work pace if [he was]
employed . . . eight hours a day at a light or sedentary level.”

15 - OPINION AND ORDER

Tr. 655.

Dr. Coodley noted Plaintiff suffered from anxiety and

depression that would frequently interfere with his attention and
concentration, but he concluded Plaintiff could handle “moderate
work stress.”

Tr. 656.

Dr. Coodley opined Plaintiff could stand

and walk less than two hours in an eight-hour work day and sit
for less than two hours in an eight-hour work day.

Tr. 657.

Finally, Dr. Coodley noted Plaintiff would likely be absent from
work four or more times per month.

Tr. 659.

The ALJ found Dr. Coodley’s opinions as to Plaintiff’s
ability to stand and to walk were “adequately represented in the
[RFC].”

The ALJ, however, found Dr. Coodley’s opinion regarding

Plaintiff’s other limitations are inconsistent with his own
treatment records, Dr. Webster’s consultative examination, and
Plaintiff’s activities of daily living.

As noted, Plaintiff was

able to work at substantial gainful levels at the time that
Dr. Coodley issued his September 2014 opinion, and Plaintiff did
not miss four or more days of work per month at that time.
Plaintiff was also able to stand for more than two hours at a
time in an eight-hour work day, and he did not experience serious
problems with concentration or attention.

In addition,

Dr. Webster found Plaintiff’s pain to be highly exaggerated.
Although Dr. Webster opined there was not any objective evidence
of limitations in Plaintiff’s ability to stand or to walk, he,
nevertheless, limited Plaintiff to standing and/or walking for

16 - OPINION AND ORDER

two hours in an eight-hour work day.

Dr. Webster did not find

any limitations on Plaintiff’s ability to sit in an eight-hour
work day.
The Court concludes on this record that the ALJ did not err
when he gave little weight to the opinions of Dr. Coodley because
he provided clear and convincing reasons supported by substantial
evidence in the record for doing so.
IV.

The ALJ did not err in his assessment of Plaintiff’s RFC.
Plaintiff asserts the ALJ erred when he failed to include

all of the limitations identified by Plaintiff, Nicole Strauss,
and Dr. Coodley in Plaintiff’s RFC.
The Court has already concluded the ALJ did not err when he
rejected portions of Plaintiff’s alleged limitations asserted by
Plaintiff, Nicole Strauss, and Dr. Coodley.

On this record,

therefore, the Court also concludes ALJ did not err when he
failed to include those limitations in Plaintiff’s RFC.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the

17 - OPINION AND ORDER

Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 17th day of April, 2017.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

18 - OPINION AND ORDER