Danh v. Commissioner Social Security Administration
Filing
24
Opinion and Order - The Commissioner's decision that Plaintiff was not disabled is AFFIRMED. Signed on 4/30/2018 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
QUY PHUOC DANH,
Plaintiff,
Case No. 3:17-cv-650-SI
OPINION AND ORDER
v.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.
Merrill Schneider, SCHNEIDER, KERR, & ROBICHAUX, P.O. Box 14490, Portland, OR 97293. Of
Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, 1000 SW Third Avenue, Suite 600, Portland, OR 97204;
Erin F. Highland, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL,
Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of
Attorneys for Defendant.
Michael H. Simon, District Judge.
Quy Phuoc Danh seeks judicial review of the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying Plaintiff’s application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to the Social
PAGE 1 – OPINION AND ORDER
Security Act. Because the Commissioner’s decision is based on the proper legal standards and
the findings are supported by substantial evidence, the decision is AFFIRMED.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it 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 of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
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 if the 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 of Soc. Sec. Admin., 359
F.3d 1190, 1193, 1196 (9th Cir. 2004). “[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) (quoting Robbins v. Soc. Sec. Admin., 466
F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A 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.
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BACKGROUND
A. Plaintiff’s Applications
Plaintiff was born in April 1960. AR 62. He was 49 years old as of the alleged disability
onset date, and turned 55 during the adjudication period. Plaintiff filed his first application for
DIB and SSI on February 16, 2011, alleging disability beginning on July 20, 2009. AR 84. In a
written opinion dated March 1, 2013, Administrative Law Judge (“ALJ”) Robinson denied the
Plaintiff’s first application after finding that Plaintiff was not disabled under the meaning of the
SSA. AR 81-97. Plaintiff did not appeal this decision so it became the final decision of the
Commissioner.
Plaintiff filed a second application for DIB and SSI on June 6, 2013, re-alleging disability
beginning July 20, 2009. AR 206, 210. Plaintiff alleges that he suffers from right-hand arthritis,
high blood pressure, hepatitis C, gastroesophageal reflux disease, post-right wrist injury, bursitis
in both shoulders, and post-right elbow dislocation. AR 231. He also alleges that he is unable to
speak and understand English. AR 230. Plaintiff contends that his illiteracy, age, and physical
limitations render him disabled within the meaning of the Social Security Act. The
Commissioner denied Plaintiff’s second application initially on August 14, 2013, and on
reconsideration on January 9, 2014. AR 152, 157, 163, 166.
On February 20, 2014, Plaintiff requested a hearing to review the denial of DIB and SSI.
AR 169. A hearing was held before ALJ Paul Robeck on June 23, 2015. AR 42. On
July 31, 2015, the ALJ issued an opinion finding Plaintiff not disabled. AR 37. On
February 16, 2017, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner. AR 1. Plaintiff seeks review of that decision.
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B. The Sequential Analysis
A claimant is disabled if he or 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). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1.
Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
3.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
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claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
4.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
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C. The ALJ’s Decision
The ALJ found that Plaintiff met the insured status requirements for DIB through
December 31, 2013. Applying the sequential analysis, at step one the ALJ did not make a
specific finding as to whether Plaintiff had engaged in substantial gainful activity because the
ALJ found that, even assuming no substantial gainful activity, there existed a valid basis for
denying Plaintiff’s application. AR 25. At step two, the ALJ determined that Plaintiff has the
following severe impairments: status post-right wrist injury, arthritis in the right fourth and fifth
digits of the right hand, status post-remote right elbow dislocation, bursitis of the right shoulder,
mild tendinopathy, bursitis, degenerative changes in the left shoulder, and rheumatoid arthritis in
the shoulder. AR 26. At step three, the ALJ concluded that Plaintiff does not have an impairment
or combination of impairments that meets one of the listed impairments. AR 27.
The ALJ next assessed Plaintiff’s RFC and found that Plaintiff can perform medium
work as defined in 20 C.F.R. §§ 404.1567(c) & 416.967(c), with occasional overhead reaching,
frequent handling, and frequent fingering with the bilateral upper extremities. AR 28. At step
four, the ALJ determined that Plaintiff could perform his past relevant work as an auto body
technician. AR 35. Alternatively, the ALJ found at step five that, based on the testimony of the
vocational expert (“VE”) from the earlier hearing, there are jobs that exist in significant numbers
in the national economy that Plaintiff can perform. AR 36. The ALJ identified four jobs, all with
light exertional requirements, that Plaintiff could perform. Thus, the ALJ held that Plaintiff “has
not been under a disability, as defined in the Social Security Act.” AR 37.
DISCUSSION
Plaintiff argues that the ALJ erred in determining that Plaintiff has the RFC to perform
medium work and in determining that Plaintiff has an educational level of “limited,” instead of
PAGE 6 – OPINION AND ORDER
“illiterate.” Because the Plaintiff’s first assignment of error is dispositive, the Court does not
reach Plaintiff’s second assignment of error.
In formulating Plaintiff’s RFC, the ALJ considered the opinions of State Agency Medical
Consultants Sharon Eder, M.D., and Martin Kehrli, M.D. (“Medical Consultants”). AR 32.
Drs. Eder and Kehrli had reviewed plaintiff’s medical records on August 14, 2013 and
January 8, 2014, respectively. AR 200-121, 124-147. Both Medical Consultants opined that
Plaintiff should be limited to light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b).
The ALJ reviewed the RFC determinations made by the Medical Consultants and concluded that
the Medical Consultants’ opinions deserved only partial weight. Plaintiff offers limited argument
that the ALJ erred by giving an improper reason for discrediting the Medical Consultants’
opinions and further argues that any reason given was not supported by substantial evidence.
The Ninth Circuit distinguishes between the opinions of three types of physicians:
treating physicians, examining physicians, and non-examining physicians. Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). A State Agency Medical Consultant’s opinion about
a claimant’s limitations is considered a non-examining medical opinion. 20 C.F.R.
§ 404.1527(a)(2) (defining “medical opinions” as statements from physicians that “reflect
judgments about the nature and severity of your impairment(s), including . . . your physical and
mental restrictions”); Social Security Rule (“SSR”) 96-6p, available at 1996 WL 374180, at *1
(July 2, 1996) (“Findings of fact made by State agency medical and psychological consultants
and other program physicians and psychologists regarding the nature and severity of an
individual’s impairment(s) must be treated as expert opinion evidence of non-examining sources
at the administrative law judge and Appeals Council levels of administrative review.”).
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The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians’ opinions. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th
Cir. 2008). Generally, “a treating physician’s opinion carries more weight than an examining
physician’s, and an examining physician’s opinion carries more weight than a reviewing
physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). An ALJ may discount
the opinion of a non-examining physician by reference to specific evidence in the medical
record. Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998); Miracle-Adams v.
Berryhill, 2018 WL 1710437, at *14 (D. Or. Apr. 9, 2018); Beam v. Colvin, 43 F.
Supp. 3d 1163, 1167, amended, 2014 WL 5111192 (W.D. Wash. Oct. 10, 2014); Chavez v.
Astrue, 699 F. Supp. 2d 1125, 1135 (C.D. Cal. 2009). The ALJ is “not bound by findings made
by State agency or other program physicians and psychologists, but [] may not ignore these
opinions and must explain the weight given to the opinions in [his or her] decision[].”
SSR 96-6p, 1996 WL 374180, at *2.
The ALJ gave only partial weight to the Medical Consultants because the medical record
contradicted their opinions as to the Plaintiff’s RFC. AR 32. Both Medical Consultants opined
that Plaintiff’s RFC should be reduced to light because of active rheumatoid arthritis in his
hands, evidenced by mild swelling, tenderness, and mild clubbing of the fingertips. AR 105, 130.
The ALJ noted that medical record after the last administrative hearing did not support reducing
Plaintiff’s exertional limitation from medium exertion to light exertion. Substantial evidence in
the record supports this conclusion.
Plaintiff first reported bilateral hand pain to Mary Meadows, M.D., in November of 2012.
AR 104. In December of 2012, Dr. Meadows reported that Plaintiff’s hands had mild swelling of
the metacarpophalangeal (“MCP”) joints and proximal interphalangeal (“PIP”) joints. AR 423. It
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was at this appointment that the record first shows a diagnosis of rheumatoid arthritis. Id.
Plaintiff had no hand pain but was referred to the Rheumatology Department. Id.
On February 11, 2013, Plaintiff began meeting with Suzanne DeLea, M.D., at Providence
Arthritis Center. AR 365-66. Dr. DeLea noted that even though Plaintiff’s fingers showed mild
clubbing and he reported numbness, he had “grossly normal [range of motion] in joints” and “no
joint tenderness or muscle weakness.” AR 365-66. At a follow-up appointment in March 2013,
Dr. DeLea opined that Plaintiff had signs of mild inflammatory arthritis and mild swelling in his
MCP joints, which were tender to palpitation. AR 359. Plaintiff also reported morning stiffness
lasting about 30 minutes. AR 358.
On July 9, 2013, Dr. DeLea again noted clubbing of Plaintiff’s fingertips as well as MCP
swelling and tenderness. AR 361. Plaintiff’s morning stiffness was in decline and he had no new
areas of inflammation. Id. On August 7, 2013, Plaintiff reported that his pain had “gone down
tremendously” and his morning stiffness had “gone down in duration.” AR 381. He had not
“flared” since his last visit. Id. He attributed his improvement to taking Plaquenil. Id. Because of
the improvement, Plaintiff canceled his scheduled cortisone injection. Id. Dr. DeLea noted
negative PIP symptomology and some mild symptoms relating to Plaintiff’s MCP joints. AR
381-82.
Plaintiff’s symptoms continued to improve. In September 2013, Dr. DeLea commented
that Plaintiff had no inflammatory arthritis symptoms. AR 385. Plaintiff again reported that he
was doing better in December 2013. AR 401. During that appointment, Dr. DeLea opined that
there was “no obvious evidence of rheumatoid arthritis.” AR 402. Although in February 2014,
Plaintiff told Dr. Meadows that he experienced an increase in bilateral hand pain (AR 430),
Dr. DeLea continued to see no evidence of rheumatoid arthritis. AR 405. At an appointment on
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July 21, 2014, Plaintiff indicated that his fingers and other joints were feeling better and were
less swollen. AR 408. After opining that Plaintiff did not have any signs of inflammatory
disease, Dr. DeLea recommended that Plaintiff return for a follow-up appointment in a year.
AR 409-10.
Plaintiff again reported hand pain at an appointment with Dr. Meadows in March 2015.
AR 432. By April 2015, however, Plaintiff’s pain had subsided. AR 433-35. Throughout 2015,
Dr. Meadows noted that Plaintiff had no finger clubbing. AR 432-40.
The ALJ discussed the medical record and concluded that the opinions of Drs. Eder
and Kehrli should be given partial weight because the medical evidence contradicted their
opinion that Plaintiff had active rheumatoid arthritis. Although Plaintiff has a history of
occasional bilateral pain in his hands and, for a time, doctors noted tenderness in his MCP joint,
the pain subsided with treatment. There is no evidence in the medical record that Plaintiff lost
full hand strength or full range of motion. The most recent medical records also show no
indications of rheumatoid arthritis. The ALJ’s finding that the medical record contradicted
Drs. Eder and Kehrli’s opinions as non-examining physicians was a valid reason, supported by
substantial evidence, for giving their opinions only partial weight.
Because the ALJ did not err in evaluating the medical opinions, the ALJ did not err in
concluding that Plaintiff had the RFC to perform medium work. Accordingly, the Court need not
address Plaintiff’s second allegation of error relating to Plaintiff’s alleged educational level.
With an RFC of medium work, Plaintiff can perform his past relevant work as an auto body
technician, which is a skilled position. Moreover, under the Medical-Vocational Guidelines, a
claimant with an RFC to perform medium work and a history of skilled or semi-skilled work is
PAGE 10 – OPINION AND ORDER
not disabled even if he or she is of advanced age and illiterate. Therefore, even if the ALJ erred
by not designating Plaintiff as illiterate, that error would be harmless.
CONCLUSION
The Commissioner’s decision that Plaintiff was not disabled is AFFIRMED.
IT IS SO ORDERED.
DATED this 30th day of April, 2018.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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