Brown v. Commissioner Social Security Administration

Filing 21

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. IT IS SO ORDERED. Signed on 2/20/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MITCHELL C. BROWN,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

MERRILL SCHNEIDER
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, OR 97293
[phone]
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
MICHAEL W. PILE
Acting 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
1 - OPINION AND ORDER

3:17-CV-00143-BR
OPINION AND ORDER

BROWN, Senior Judge.
Plaintiff Mitchell C. Brown seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which he denied Plaintiff's application
for Disability Insurance Benefits (DIB) under Title II and
Supplemental Security Income (SSI) under Title XVI 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 applications for DIB and SSI on January 9,
2013, alleging a disability onset date of December 31, 2011.
Tr. 69, 85, 199, 206.1

The applications were denied initially

and on reconsideration.

Tr. 69-132.

An Administrative Law Judge

(ALJ) held a hearing on April 29, 2016.
was represented at the hearing.

Tr. 34-68.

Plaintiff

Plaintiff and a vocational

expert (VE) testified.
The ALJ issued a decision on August 4, 2016, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 14-28.

1

Pursuant to 20 C.F.R. § 404.984(d),

Citations to the official transcript of record filed by
the Commissioner on June 13, 2017, are referred to as "Tr."
2 - OPINION AND ORDER

that decision became the final decision of the Commissioner on
December 5, 2016, when the Appeals Council denied Plaintiff's
request for review.

Tr. 1-4.

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

103, 106-07 (2000).

BACKGROUND
Plaintiff was born on December 31, 1960, and was 55 years
old at the time of the hearing.

Tr. 199.

high school and two years of college.

Plaintiff completed

Tr. 245.

Plaintiff has

past relevant work experience as a sales representative and an
"outside sales representative."

Tr. 27.

Plaintiff alleges disability due to chronic fatigue syndrome
(CFS), depression, shoulder injury, ankle injury, attentiondeficit hyperactive disorder (ADHD), and neuropathy of the right
foot.

Tr. 244.

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. 21-22, 24-27.

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

3 - OPINION AND ORDER

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
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

4 - OPINION AND ORDER

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
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).

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

See also 20 C.F.R. §§ 404.1520, 416.920 (2016).

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), 416.920(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.
5 - OPINION AND ORDER

20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii), 416.909, 416.920(a)(4)(ii).

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), 416.920(a)(4)(iii).
F.3d at 724.

20 C.F.R.

See also Keyser, 648

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, he 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), 416.920(e).
(SSR) 96-8p.

See also Social Security Ruling

“A 'regular and continuing basis' means 8 hours a

day, for 5 days a week, or an equivalent schedule."
at *1.

20 C.F.R.

SSR 96-8p,

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
6 - OPINION AND ORDER

work he has done in the past.
416.920(a)(4)(iv).

20 C.F.R. §§ 404.1520(a)(4)(iv),

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

If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a)(4)(v).

20 C.F.R. §§ 404.1520(a)(4)(v),

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

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 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), 416.920(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff had not engaged in
substantial gainful activity since December 31, 2011, the alleged
onset date.

Tr. 19.

At Step Two the ALJ found Plaintiff had the severe
impairments of left-shoulder rotator cuff tear status post
repair, status post right-ankle fracture, and neuropathy of the
right foot.

Tr. 19.

The ALJ found Plaintiff’s hemorrhoids,

status post-surgical repair; status post rectal fistula; acid

7 - OPINION AND ORDER

reflux; depressive disorder; ADHD; and CFS were nonsevere.
Tr. 20-21.
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. 23.

The ALJ then found

Plaintiff had the RFC to perform light work with the following
limitations:

Plaintiff can occasionally climb, kneel, crouch,

and crawl; frequently balance and stoop; and occasionally operate
foot controls with his right leg.

Tr. 23.

At Step Four the ALJ found Plaintiff can perform his past
relevant work.

Tr. 27.

Accordingly, the ALJ ended the

sequential analysis at Step Four and found Plaintiff is not
disabled.

Tr. 28.

DISCUSSION
Plaintiff contends the ALJ erred by (1) improperly rejecting
the opinion of examining physician Kim Webster, M.D., and
(2) failing to find CFS a severe impairment at Step Two.
I.

The ALJ did not err when he rejected Dr. Webster's opinion
as to Plaintiff's functional limitations.
Plaintiff alleges the ALJ erred by failing to provide

specific and legitimate reasons for giving little weight to
Plaintiff's standing and lifting limitations as assessed by
Dr. Webster.
8 - OPINION AND ORDER

An ALJ may reject an examining or 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.
1232.

Taylor, 659 F.3d at

When the medical opinion of an examining or treating

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

Turner v. Comm'r of

Soc. Sec., 613 F.3d 821, 830-31 (9th Cir. 2010)(quoting Lester v.
Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)).
A nonexamining physician is one who neither examines nor
treats the claimant.

Lester, 81 F.3d at 830.

See also Garrison

v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).

“The opinion of a

nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician.”
at 1233 (quoting Lester, 81 F.3d at 831).

Taylor, 659 F.3d

When a nonexamining

physician's opinion contradicts an examining physician's opinion
and the ALJ gives greater weight to the nonexamining physician's
opinion, the ALJ must articulate his reasons for doing so with
specific and legitimate reasons supported by substantial
evidence.

See, e.g., Ryan, 528 F.3d at 1198.

Here Dr. Webster conducted a “Comprehensive Musculoskeletal
Evaluation” of Plaintiff on July 1, 2013.
9 - OPINION AND ORDER

Tr. 400-06.

In her

report Dr. Webster assessed Plaintiff's functional limitations.
Tr. 405.

Specifically, Dr. Webster opined:

“Because of the

prior surgery on the distal tibia fibula that looked like it
abutted the ankle joint space on an x-ray [Plaintiff] brought
in, I would limit standing and walking to 2 hours.”
Dr. Webster also stated:

Tr. 405.

“Because of the history relating to the

surgery in the right ankle, as well as the prior surgery in the
left shoulder, I would limit lifting and carrying to 10 pounds
occasionally and 10 pounds frequently.”

Tr. 405.

As a preliminary matter Plaintiff asserts that none of the
reasons provided by the ALJ for disregarding Dr. Webster’s
opinion were specific and legitimate because “the ALJ failed to
cite any specific records or point to any inconsistent medical
evidence.”

Pl.’s Opening Br. at 3.

The ALJ, however, explicitly

cited to the medical evidence when he discussed Plaintiff's
medical record.

Tr. 21, 24-26.

The ALJ then provided several

reasons for giving “little weight” to Dr. Webster’s assessed
limitations.

Tr. 26.

The ALJ first found Dr. Webster’s standing limitation was
inconsistent with the fact that Plaintiff “could participate in
strenuous physical activity, such as bicycling 70 miles or more
weekly.”

Tr. 26, 256, 423.

Inconsistency between a physician’s

opinion and a claimant’s daily activities may constitute a
specific and legitimate reason to discount the physician's

10 - OPINION AND ORDER

opinion.

Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014).

Plaintiff argues the ALJ improperly ignored Plaintiff’s testimony
that riding his bike is therapeutic and helps reduce his ankle
pain.

Plaintiff also asserts “the ALJ did not have enough

information . . . to make findings in regards to his ability to
work” because “there is no indication of how fast he bikes, or
how rough of a path he takes.”

Pl.’s Opening Br. at 5.

The

Court, however, notes riding a mountain bike 70 miles or more per
week, often up to 20 to 30 miles at a time, is physically
demanding at any level of exertion and on any type of terrain.
Tr. 423.

As the ALJ observed, such extensive physical activity

is inconsistent with the standing limitation assessed by Dr.
Webster.

Tr. 26.

Plaintiff asserts “the ALJ could not reject

standing and walking limitations simply because a claimant
attended a gym on a daily basis.”

Pl.’s Reply Br. at 2.

strained analogy, however, is unpersuasive.

This

The mere fact that

an individual goes to a gym every day shows nothing more than the
individual visited a building whereas riding a bicycle clearly
requires extensive use of one’s lower extremities and, to some
extent, one’s upper extremities.

Thus, the Court concludes the

ALJ did not err when he discounted Dr. Webster’s assessment of
Plaintiff’s standing limitations on the basis of Plaintiff’s
considerable bike riding.
The ALJ then discounted Dr. Webster’s two-hour standing

11 - OPINION AND ORDER

restriction on the ground that Plaintiff’s “prior ankle surgery
was successful, [and he] was not required to manage his ankle
pain with medications.”

Tr. 26.

An ALJ may discredit a

physician’s opinion if it is “unsupported by the record as a
whole.”

Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190,

1195 (9th Cir. 2004).

Here the ALJ noted three months after

Plaintiff underwent surgery for a right-ankle fracture in April
2012, Plaintiff’s sensation was intact and x-ray imaging showed
the “hardware” was in excellent position and his fracture was
healing.

Tr. 24, 387.

In addition, the ALJ pointed out several

facts in the record that indicated Plaintiff’s surgery was
successful; for example,

Plaintiff did not attend his six-month

post-operation appointment, never sought further treatment for
his ankle, and did not require medication for ankle pain.
Tr. 24, 26, 387.

Because the ALJ cited to substantial evidence

in the record to support his finding, the Court concludes the ALJ
did not err when he determined Dr. Webster’s standing limitation
was unsupported by the record as a whole.
The weight the ALJ gave to Dr. Webster's opinion is also
supported by his additional findings.

For example, the ALJ found

Dr. Webster’s 10-pound lifting restriction inconsistent with the
fact that Plaintiff “himself admitted that he could lift 20
pounds.”

Tr. 26.

Inconsistency between a medical opinion and a

claimant’s own admissions is a specific and legitimate reason for

12 - OPINION AND ORDER

discounting that medical opinion.
1035, 1043 (9th Cir. 1995).

Andrews v. Shalala, 53 F.3d

The ALJ also found Plaintiff’s

demonstration of full strength in his upper and lower extremities
at Dr. Webster's examination was inconsistent with Dr. Webster's
assessment of Plaintiff.

Tr. 26, 405.

This inconsistency was

also a proper basis for the ALJ to give little weight to Dr.
Webster’s standing and lifting limitations.

See Bayliss v.

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)(Discrepancy between
a physician’s opinion and that physician’s own notes “is a clear
and convincing reason for not relying on the doctor’s opinion.”).
See also Ghanim, 763 F.3d at 1161.
The Court, however, notes the ALJ’s analysis was not
flawless.

The ALJ found Dr. Webster’s opinion was inconsistent

with her own notes because “Dr. Webster herself observed
[Plaintiff] changing positions without difficulty and moving
around easily.”

Tr. 26.

Plaintiff, nevertheless, asserts “the

ability to change positions and move around during a short
consultative examination is consistent with a limitation to
standing and walking 2 hours.”
Court agrees.

Pl.’s Opening Br. at 4.

The

Plaintiff’s ability to stand and to move with

relative ease during a brief examination sheds little light on
whether he can sustain that activity for an extended length of
time.

Thus, the Court concludes this finding by the ALJ was

erroneous.

13 - OPINION AND ORDER

Nevertheless, Plaintiff, in effect, requests the Court to
interpret the evidence in Plaintiff’s favor.

As noted, however,

the ALJ’s interpretation of the evidence is generally rational
and based on substantial evidence in the record.

Batson, 359

F.3d at 1193 (“[I]f evidence exists to support more than one
rational interpretation, [the Court] must defer to the
Commissioner’s decision.”)(citations omitted).

Thus, although

one of the ALJ's reasons for rejecting Dr. Webster's opinion may
not satisfy the "specific and legitimate" standard, the ALJ
provided other reasons supported by substantial evidence in the
record for discounting Dr. Webster’s opinion.

See Tommasetti v.

Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)(An error is harmless
when “it is clear from the record that the . . . error was
inconsequential to the ultimate nondisability determination.”).
On this record the Court concludes the ALJ did not err when
he gave limited weight to Dr. Webster’s opinion because the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
II.

The ALJ properly found Plaintiff’s Chronic Fatigue Syndrome
(CFS) is not severe at Step Two.
Plaintiff alleges the ALJ erred at Step Two by finding that

Plaintiff’s CFS is nonsevere.
A claimant is not disabled if the Commissioner determines
the claimant does not have any medically severe impairment or
combination of impairments at Step Two.
14 - OPINION AND ORDER

Stout, 454 F.3d at 1052.

See also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii), 416.909,
416.920(a)(4)(ii).

A severe impairment “significantly limits” a

claimant's “physical or mental ability to do basic work
activities.”

20 C.F.R. §§ 404.1521(a), 416.921(a).

Ukolov, 420 F.3d at 1003.

See also

The ability to do basic work

activities is defined as “the abilities and aptitudes necessary
to do most jobs.”

20 C.F.R. §§ 404.1521(b), 416.921(b).

Such

abilities and aptitudes include walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, handling, seeing,
hearing, speaking; understanding, carrying out, and remembering
simple instructions; using judgment; responding appropriately to
supervision, co-workers, and usual work situations; and dealing
with changes in a routine work setting.

Id.

The Step Two threshold is low:
[A]n impairment can be considered as not
severe only if it is a slight abnormality
which has such a minimal effect on the
individual that it would not be expected to
interfere with the individual's ability to
work . . . . [T]he severity regulation is to
do no more than allow the Secretary to deny
benefits summarily to those applicants with
impairments of a minimal nature which could
never prevent a person from working.
SSR 85-28, at *2 (internal quotations omitted).

The “step-two

inquiry is ‘a de minimis screening device to dispose of
groundless claims.’”

Edlund v. Massanari, 253 F.3d 1152, 1158

(9th Cir. 2001)(quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th
Cir. 1996)).
15 - OPINION AND ORDER

The Ninth Circuit has held when the ALJ has resolved Step
Two in a claimant's favor, any error in designating specific
impairments as severe at Step Two does not prejudice a claimant.
Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005)(any error in
omitting an impairment from the severe impairments identified at
Step Two was harmless when Step Two was resolved in claimant's
favor).
Here the ALJ gave two reasons for finding Plaintiff’s CFS is
nonsevere.

Tr. 21.

Plaintiff, however, challenges only one:

the ALJ’s finding that Plaintiff’s bike riding demonstrates “he
is much more active than alleged despite any such fatigue.”
Tr. 21.

Plaintiff contends bike riding is therapeutic and his

symptoms of fatigue return only half-an-hour after riding, which
“indicates that he suffers from severe chronic fatigue, not the
contrary.”

Pl.’s Opening Br. at 8.

The ALJ’s finding, however,

is “supported by inferences reasonably drawn from the record.”
Tommasetti, 533 F.3d at 1038 (citation omitted).

Indeed, such

extensive activity belies Plaintiff’s assertion that he sleeps 16
to 18 hours a day and becomes exhausted just by taking a shower
or sending a text message.

Tr. 21, 402, 412.

Thus, the Court

concludes the ALJ properly determined Plaintiff’s ability to
bicycle extensively demonstrates his fatigue is nonsevere.

See

Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005)(“An
impairment is not severe if it . . . has no more than a minimal

16 - OPINION AND ORDER

effect on the ability to do basic work activities.”)(quotation
marks and citation omitted).
The ALJ also found Plaintiff “had some periods of
substantial gainful activity, despite his reported long-term
fatigue.”

Tr. 21.

As noted, for an ALJ to find an impairment is

severe at Step Two, that impairment must substantially interfere
with the individual’s ability to work.

SSR 85-28, at *2.

Accordingly, Plaintiff’s demonstrated ability to work throughout
most of the period that he allegedly suffered from CFS was
another reasonable basis for the ALJ to find at Step Two that
Plaintiff’s CFS is not severe.

Tr. 21, 221.

On this record the Court concludes the ALJ did not err when
he found at Step Two that Plaintiff’s CFS is not severe because
the ALJ provided legally sufficient reasons supported by
substantial evidence in the record for doing so.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 20th day of February, 2018.

ANNA J. BROWN
United States Senior District Judge
17 - OPINION AND ORDER