Farrester v. Commissioner Social Security Administration

Filing 23

OPINION AND ORDER: The Commissioner's decision is AFFIRMED. Signed on 3/13/2018 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

REGINA DEBRA FARRESTER

Case No. 3:17-cv-00251-AA
OPINION AND ORDER

Plaintiff,

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

AIKEN, District Judge:
Plaintiff Regina Debra Farrester brings this action pursuant to the Social Security Act
("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Acting
Commissioner of Social Security ("Commissioner"). The Commissioner found plaintiff not
disabled under the Act and denied her application for Disability Insurance Benefits ("DIB"). For
the reasons set fmih below, the Commissioner's decision is affirmed.

1 - OPINION AND ORDER

BACKGROUND
Plaintiff applied for disability insurance benefits in July 2011, alleging disability since
September 2010 due to tumors, high blood pressure, fatigue, cysts, migraines, vision impairment,
depression, and anxiety. She suffers from ongoing pain from lipomas and lipoma 1 removal. She
has reported problems with labile blood pressure, experiencing blood pressure spikes and drops
with "multiple episodes of passing out." Tr. 1290. There is no diagnosed cause of the blood
pressure problems, but doctors have suggested it is possibly stress and anxiety related and is
"also probably complicated by her alcohol use." Tr. 1369. After an unfavorable first decision by
the ALJ and remand by the Appeals Council, plaintiff appeals another unfavorable decision. The
Appeals Council denied review of the present decision.
STANDARDS OF REVIE\V
"An ALJ's disability determination should be upheld unless it contains [harmful] legal
e1rnr or is not supported by substantial evidence." Garrison v. Colvin, 759 F.3d 995, 1009 (9th
Cir. 2014).

"Substantial evidence means more than a mere scintilla, but less than a

preponderance; it is such relevant evidence as a reasonable person might accept as adequate to
support a conclusion." Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007))
(internal quotation marks omitted). The record must be evaluated as a whole, and the court must
weigh "both the evidence that supports and the evidence that detracts from the Commissioner's
conclusion[.]"

Id

The comi "may not affirm simply by isolating a specific quantum of

suppo1iing evidence." Id. If the evidence is subject to more than one interpretation but the
Commissioner's decision is rational, the Commissioner must be affomed, because "the court
1

A lipoma is a bundle a fatty tissue "most often situated between your skin and the
underlying muscle layer."
Lipoma, Mayo Clinic, https://www.mayoclinic.org/diseasesconditions/lipoma/symptoms-causes/syc-20374470 (last visited Feb. 27, 2018). They are
generally benign but may be removed if they cause discomfort or pain. Id
2 - OPINION AND ORDER

may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION

The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986).

To meet this burden, plaintiff must demonstrate an

"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not
less than 12 months[.]" 42 U.S.C. § 423(d)(l)(A).
"The Secretary has established a five-step sequential evaluation process for detcnnining
whether a person is disabled." Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (citing 20 C.F.R. §§
404.1520, 416.920). At step one, the ALJ found plaintiff has not engaged in "substantial gainful
activity" since the alleged disability onset date of September 1, 2010. Tr. 14; 20 C.F.R. §§
404.1520(a)(4)(i), (b).

At step two, the ALJ found that plaintiff had "the following severe

impairments: history of lipomas with residual pain, reactive hypertension, anxiety disorder NOS,
and alcohol use disorder[.]" Tr. 14; see also 20 C.F.R. § 404.1520(a)(4)(ii). At step three, the
ALJ detem1ined plaintiffs impairments, whether considered singly or in combination, did not
meet or equal "one of the listed impairments" that the Commissioner acknowledges are so severe
as to preclude substantial gainful activity. Tr. 14; see also 20 C.F.R. § 404.1520(a)(4)(iii).
The ALJ found that
including the substance abuse disorder, the claimant has the residual functional
capacity [("RFC")] to perfo1m a range of light work as defined in 20 C[.F.R. §]
404.1567(b) except she can perform tasks involving no more than 6 hours of
standing/walking, and no more than 6 hours of standing/walking, and no more
than 6 hours of sitting in an 8-hour workday (with normal breaks). She can
occasionally climb stairs or ramps, but she must avoid climbing ladders, ropes, or
scaffolds. She can occasionally balance, stoop, kneel, crouch, or crawl. She is
limited to low-stress jobs that avoid assembly line pace. Such jobs may involve

3 - OPINION AND ORDER

few, if any, workplace changes. She can be expected to engage in little, if any,
independent decision making in her work duties. She must not be responsible for
the safety of others. She must avoid driving. She must avoid even moderate
exposure to workplace hazards, such as unprotected heights and moving
machinery. She is limited to simple routine work tasks that do not exceed a
specific vocational preparation (SVP) level of 2, or a GED reasoning level of 2.
Due to the effects of mixed medication and alcohol, the claimant would likely be
off-task in even simple work tasks more than 10% of the workday, and will likely
miss work several days each month.
Tr. 16 (emphasis added). At step four, the ALJ found that plaintiff could not "perform any past
relevant work." Tr. 20; see also 20 C.F.R. § 404.1520(a)(4)(iv). At step five, the ALJ concluded
that there were no jobs in the national economy that plaintiff could perfonn and subsequently
found plaintiff disabled. Id. at 20-21; see also 20 C.F.R. § 404. l 520(a)(4)(v).
The ALJ then reevaluated plaintiffs RFC to determine whether plaintiffs drug or alcohol
abuse ("DAA'') was material to the disability determination. The ALJ decided that, ifDAA were
not an issue, plaintiffs residual functional capacity ("RFC") would remain the same except that
she would no longer miss several days of work each month or be off-task more than ten percent
of time. Tr. 21. With those limitations eliminated, the ALJ found that "there would be a
significant number of jobs in the national economy that the claimant could perform[,]" including
soft goods sorter, clerical checker, and folder. Tr. 23. Finally, the ALJ concluded that, because
DAA "is a contributing factor material to the determination of disability[,]" plaintiff is not
disabled. Id.
DISCUSSION

On appeal, plaintiff raises two arguments: (1) the ALJ improperly weighed the evidence
from Dr. Delamater, plaintiffs primary care physician, and (2) there is insufficient evidence in
the record to deem alcohol use a material factor in the disability determination.

4 - OPINION AND ORDER

I.

Dr. Delamarter

The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians' opinions. Carmickle v. Comm'r, Social Sec. Admin., 533 F.3d 1155, 1164
(9th Cir. 2008). To reject the uncontroverted opinion of a treating or examining physician, the
ALJ must present clear and convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th
Cir. 2005). If a treating or examining doctor's opinion is contradicted by another doctor's
opinion, it may be rejected for specific and legitimate reasons. Garrison, 759 F.3d at 1012.
"The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation thereof, and making findings."
}vfagallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).

Dr. Delamarter has been plaintiffs primary care provider since February 2014.

In

December 2015, at the request of plaintiffs counsel, Dr. Delamarter completed a questionnaire
in which she described plaintiffs limitations and symptoms ("December 2015 Assessment").
Dr. Delamarter noted that plaintiff suffers from "anxiety, labile hypertension, [and] vasovagal
syncope." Tr. 1416. Plaintiffs primary symptoms are "passing out, palpitations, [and] panic
attacks." Id. In Dr. Delamarter's opinion, plaintiff is limited to lifting a maximum of 10 pounds
occasionally, lifting no weight frequently, standing or walking for 20 minutes at one time,
standing or walking for one hour in an eight hour workday, sitting for 20 minutes at one time,
and sitting for one hour in an eight hour workday. Tr. 1417. Dr. Delamarter tied her opinion
regarding plaintiffs limited ability to sit, stand or walk to "frequent passing out, and labile
hypertension[.]" Id. Further, because plaintiff "has more passing out when she exerts herself &
blood pressure becomes dangerously high," she can climb, balance, stoop/bend, kneel, crouch,
crawl, reach, handle, use fine manipulation, and feel no more than occasionally. Id. When asked

5 - OPINION AND ORDER

to "comment on plaintiffs ability to handle workplace stress[,]" Dr. Delamarter responded that
plaintiff "has severe anxiety, stress causes panic attacks, elevated blood pressure & syncope[.]"
Tr. 1418. Because plaintiffs hypettensive and syncopal episodes "can happen at rest[,]" Dr.
Delamarter expects even simple work-related tasks to increase plaintiffs symptoms. Id. Lastly,
Dr. Delammter expected plaintiff to be off task twenty percent of a standard workweek and to
miss at least sixteen hours of work per month because her "symptoms are very frequent." Id.
The ALJ gave Dr. Delamatter's opinion "little weight" for three reasons: (1) The
December 2015 Assessment is inconsistent with Dr. Delamarter's treatment notes, (2) the
December 2015 Assessment is inconsistent with the record as a whole, and (3) Dr. Delamarter
conspicuously omitted any discussion of plaintiffs DAA. Tr. 19. Because Dr. Delamarter's
opinion conflicts with the opinions of other physicians in the record, the question is whether
those reasons are specific, legitimate and supported by substantial evidence. Garrison, 759 F.3d
at 1012.
In his decision, the ALJ noted inconsistencies between Dr. Delamarter's treatment notes
and her December 2015 Assessment. First, the ALJ cited a patient note from June 2014 where
Dr. Delammter noted that plaintiffs heart rate had been normal "every time she has been here[.]"
Tr. 1332. The ALJ also noted that, according to Dr. Delamarter, plaintiff did not qualify for a
disabled parking pass and that plaintiff could "walk well." Id. The ALJ found those treatment
notes inconsistent with the December 2015 Assessment, in which Dr. Delamatter "reported ...
that the claimant's symptoms of passing out, palpitation, and panic attacks would prevent her
from lifting/carrying 10-pound items, or from sitting, standing, or walking for more than 2 hours
in an 8-hour workday." Tr. 19 (internal quotation marks omitted). The ALJ's conclusion that
the December 2015 Assessment is inconsistent with the cited treatment notes mentioned is

6 - OPINION AND ORDER

rational. Although the medical records document several instances of high blood pressure, none
of those instances are from Dr. Delamarter's treatment notes. In fact, plaintiffs blood pressure
results appear to have been within the normal range during almost every visit to Dr. Delamarter.
In the December 2015 Assessment, Dr. Delamatier suggested plaintiff could only walk twenty
minutes at a time, and walk for a total of one hour in an eight hour workday. Tr. 1417. That
clearly differs from Dr. Delamarter's treatment note from 2014, in which Dr. Delamatier says
plaintiff "request[ed] a disabled parking permit ... even though she is able to walk well." Tr.
1332. If a person can "walk well," they can arguably walk more than twenty minutes at a time.
Moreover, Dr. Delamarter doesn't explain why her opinion changed between the times of the
treatment notes and the December 2015 Assessment.
The ALJ also found other portions of the medical record inconsistent with the December
2015 Assessment.

The ALJ noted records from January 2016 documenting that plaintiff

"presented with normal breath sounds, along with regular heart rate and rhythm [and] exhibited
full range of motion in all extremities, with not deficits in motor strength." Tr. 19 (citing Tr.
1480). In that same record, "medical imaging of the claimant's chest revealed no sign of active

cardiopulmonary disease." Id. A treatment note by Aaron Lee, P.A.-C, described, "EKG is
reviewed by myself and Dr. Delamarter. Rate is 61 beats per minute, normal sinus rhythm,
normal intervals, normal axis, and normal R-wave progression.

No ST-segment changes.

Computer repo1i states non-specific T-wave abnormality. Dr. Delamarter and I do not agree with
that reading." Tr. 1335. It was rational for the ALJ to find those notes inconsistent with the
December 2015 Assessment. While it is possible that plaintiff may be suffering from symptoms
without an identifiable source, "an ALJ may discredit treating physicians' opinions that are
conclusory, brief, and unsupp01ied ... by objective medical findings." Batson v. Comm 'r a/Soc.

7 - OPINION AND ORDER

Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). The December 2015 Assessment denoted
substantial hype1iensive and syncopal symptoms accompanied by very limited physical abilities.
Tr. 1416-1418. That differs from a treatment summary in January 2016, which states that
plaintiff presented no cardiovascular inegularities and a full range of motion in her extremities.
Tr. 1480-82. Those reports are very close in time but present very different symptoms. Futiher,
a February 2015 CT scan of plaintiffs chest returned "essentially negative." Tr. 1298. The ALJ
reasonably found the above records inconsistent with Dr. Delamarter's debilitating December
2015 Assessment.
Lastly, the ALJ found Dr. Delammier's omission of any mention of plaintiffs
polysubstance use concerning. See Tr. 19. ("It is also apparent that Dr. Delamarter ignored
evidence of the claimant's history of polysubstance abuse."). Indeed, none of Dr. Delamatier's
treatment notes or the December 2015 Assessment make mention of alcohol or substance use.
Plaintiff argues that "the ... rational explanation [for that omission] is that Dr. Delamarter did
not find alcohol abuse to be a significant factor in rendering her opinion." Pl.' s Opening Br. 7.
While that favorable inte1pretation may be rational, for the reasons below the ALJ' s
interpretation is also rational. Alcohol abuse is mentioned repeatedly throughout the record.
Further, on at least three instances, doctors suggested a link between the alcohol use and
plaintiffs symptoms.

With all of this mention of alcohol, it is cetiainly unusual for Dr.

Delammier, plaintiffs primary care physician, not to mention it when it appeared to be relevant
enough for other doctors to repeatedly include it in the medical record.
In sum, the ALJ noted specific and legitimate reasons for giving Dr. Delamarter's
opinion little weight by pointing to inconsistencies between Dr. Delamatier' s treatment notes and
the December 2015 Assessment, citing legitimate conflicts with other documents in the medical

8 - OPINION AND ORDER

record, and reasonably questioning the validity of an assessment that completely ignored
plaintiffs substance abuse disorder. Accordingly, I affirm the ALJ's decision on this issue.

II.

Materiality ofDrug and Alcohol Use

"A finding of 'disabled' under the five-step inquiry does not automatically qualify a
claimant for disability benefits." Bustamante v. Afassanari, 262 F.3d 949, 954 (9th Cir. 2001).
"[A] claimant cannot receive disability benefits 'if alcoholism or drng addiction would ... be a
contributing factor material to the Commissioner's detennination that the individual is
disabled."'

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (quoting 42 U.S.C. §

423(d)(2)(C)). The ALJ must conduct a DAA analysis to determine which of the claimant's
disabling limitations would remain if the claimant stopped using drugs or alcohol. Id at 747
(citing 20 C.F.R. § 404.1535(b)). If a claimant's remaining limitations are still disabling, the
claimant's DAA is not a contributing factor material to her disability. Id Conversely, if the
claimant's remaining limitations are not disabling, the claimant's DAA is material and benefits
must be denied. Id. It is plaintiffs burden to establish that she is still disabled without the DAA.
Id. at 748.

While the second RFC calculation was largely similar to the original, the ALJ found that,
without DAA, plaintiff would no longer be off-task 10% of time and would be less likely to miss
work. Id It was that finding that changed the ruling on plaintiffs disability status as there were
now jobs in the national economy that she could perform.
The question is whether substantial evidence supports a finding that DAA materially
affected the calculation of plaintiffs residual functional capacity.

Plaintiff asserts that her

symptoms became disabling on September 1, 2010. Plaintiff went to the emergency room within
one month of that date, on September 30, 2010. She had been atTested, was "quite intoxicated,"

9 - OPINION AND ORDER

and sought help with a "panic attack" and "documentation of all her old bruises and scratches
and abrasions." Tr. 488. The ALJ highlighted these two dates, explaining "the alleged onset
date in this matter approximately coincides with complaints of anxiety and shminess of breath
accompanied by obvious alcohol intoxication." Tr. 17. A 2014 hospital visit documented
"problems with labile blood pressure, cln·onic pain, and anxiety - but noted that [plaintiffs]
primary diagnosis was altered mental status secondary to combining benzodiazepines, opiates,
and alcohol." Tr. 18 (citing Tr. 1286). Fu1ther, a hospital visit in 2016 showed cardiovascular
normality, but revealed that plaintiff was confused and demanded medication. Id. (citing Tr.
1450). When she was refused due to alcohol use, she left the facility "against medical advice as

soon as she was able to walk independently." Id That same treatment note reports that plaintiff
has "drug seeking behavior" and leaves against medical advice "frequently."

Tr. 1450.

Additionally, a physician also noted "I suspect that her low blood pressure likely worsened from
polypharmacy alcohol use." Tr. 1471. In shmi, the record amply supports a link between
plaintiffs blood pressure problems (and attendant symptoms) and her DAA.

The ALJ

reasonably concluded that, without DAA, plaintiffs symptoms would improve and she would be
less likely to miss work or be off task. Because substantial evidence supports the finding that
DAA materially affected the calculation of the differentiated RFC, the decision is affirmed.
Plaintiff submits that "there are also more occurrences of [plaintiffs] dramatic blood
pressure variations in which no alcohol is noted." Pl.'s Opening Br. 8. It is true that some
medical records document blood pressure problems without mentioning DAA, but there is
nonetheless substantial evidence in the record to support the ALJ's conclusion. As explained
above, medical records repeatedly posit a link between plaintiffs alcohol use and her blood
pressure complaints. Therefore, it was permissible for the ALJ to find DAA was material to

10 - OPINION AND ORDER

plaintiffs disability. See Morgan v. Comm 'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.
1999) ("Where the evidence is susceptible to more than one rational interpretation, it is the ALJ' s
conclusion that must be upheld.).
CONCLUSION

The Commissioner's decision is AFFIRMED.
IT IS SO ORDERED.
7f-'l(l
Dated this
aay of March 2018.

J2

a1.A.L£21;,~~·
Aiken

Ann
United States District Judge

11 - OPINION AND ORDER