Long, Sr. v. Commissioner Social Security Administration

Filing 15

Opinion and Order. The decision of the Commissioner is AFFIRMED. See, formal Order. Signed on 3/30/2019 by Judge Ann L. Aiken. (rdr)

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

CLARENCE L., 1

Case No. 3:l 7-cv-00741-AA
OPINION AND ORDER

Plaintiff,
V.

COMMISSIONER OF SOCIAL SECURITY,2
Defendant.

AIKEN, Judge:
Plaintiff Clarence L. 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 Commissioner of Social
Security ("Commissioner"). The Commissioner previously denied plaintiff's applications for

1

In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party or patiies in this case. Where applicable, this opinion uses
the same designation for a non-governmental patiy's immediate family member.
2

Nancy A. Berryhill's term as the Acting Commissioner of the Social Security
Administration (SSA) ended on November 17, 2017, and a new Commissioner has not been
appointed. The official title of the head of the SSA is the "Commissioner of Social Security."
42 U.S.C. § 902(a)(l). A "public officer who sues or is sued in an official capacity may be
designated by official title rather than by name." Fed. R. Civ. P. l 7(d). This Court, therefore,
refers to defendant only as Commissioner of Social Security.
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Disability Insurance Benefits ("DIB") and Snpplemental Security Income ("SSI").

For the

reasons set forth below, the Commissioner's decision is affirmed.
BACKGROUND

On May 7, 2013, plaintiff applied for DIB and SSI, alleging disability beginning
February 5, 2013, due to a shattered femur in the left leg caused by a gunshot wound, anxiety,
and nerve pain. His claims were denied initially on September 23, 2013, and on reconsideration
on April 30, 2014. Plaintiff then requested a hearing before an Administrative Law Judge
("ALJ").

An administrative hearing was held on September 30, 2015, where plaintiff was

represented by counsel. Plaintiff and a Vocational Expert ("VE") testified at the hearing. The
ALJ found plaintiff not disabled under the Act in a written decision issued November 02, 2015.
After the Appeals Council denied review, plaintiff filed the present complaint in this Court.
STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if it is based upon proper
legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. §
405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than
a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to supp01t a conclusion." Gutierrez v. Comm 'r Soc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The court must weigh "both the
evidence that supports and the evidence that detracts from the ALJ' s conclusion." Mayes v.
Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one

interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed,
because "the court may not substitute its judgment for that of the Commissioner." Edlund v.
Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

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COMMISSIONER'S DECISION

The initial burden of proof rests upon the plaintiff to establish disability. Howard v.

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986).

To meet this burden, the 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 Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4);
id. § 416.920(a)(4). At step one, the ALJ found plaintiff had not engaged in "substantial gainful

activity" since February 5, 2013, the alleged disability onset date.

Tr. 24; 20 C.F.R. §§

404.1520(a)(4)(i), (b); id. §§ 416.920(a)(4)(i), (b). At step two, the ALJ found plaintiff had the
following severe impairments: "degenerative disc disease, right knee osteoarthritis and meniscal
tear, left femur fracture status post reconstructive surgery, affective disorder, anxiety disorder,
and alcohol abuse." Tr. 24; 20 C.F.R. §§ 404.1520(a)(4)(ii), (c); id. §§ 416.920(a)(4)(ii), (c). At
step three, the ALJ determined plaintiff's impairments, whether considered singly or collectively,
did not meet or equal "one of the listed impairments" that the Commissioner acknowledges are
so severe as to preclude substantial gainful activity. Tr. 24-25; 20 C.F.R. §§ 404.1520(a)(4)(iii),
(d); id. §§ 416.920(a)(4)(iii), (d).
The ALJ then assessed plaintiff's residual functional capacity ("RFC"). 20 C.F.R. §
404.1520(e); id. § 416.920(e). In addition to other limitations not relevant to this appeal, the
ALJ found plaintiff was able to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he
can frequently push, pull, and operate foot control with his left lower extremity.
He can frequently crawl, crouch, stoop, balance, and climb ramps and stairs ...
occasionally climb ladders, ropes, and scaffolds ... [but] is limited to performing
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simple, routine tasks and making simple work-related decisions. He is limited to
frequent interactions with supervisors, coworkers, and the public
Tr. 26. At step four, the ALJ concluded plaintiff could not perform any of his past relevant
work. Tr. 33; 20 C.F.R. §§ 404.1520(a)(4)(iv), (f). At step five, however, the ALJ found that
plaintiff could perfo1m work existing in the national economy; specifically, plaintiff could work
as a mail room sorter, routing clerk, or agricultural produce sorter. Tr. 34; 20 C.F.R. §§
404.1520(a)(4)(v), (g)(l). Accordingly, the ALJ found plaintiff not disabled and denied his
applications for benefits.
DISCUSSION

Plaintiff contends in this Court that the ALJ committed harmful en-or in failing to further
develop the record and obtain new expert opinions regarding plaintiffs physical and mental
limitations and in the RFC assessment.
I begin with plaintiffs argument that the ALJ failed to fully and fairly develop the record
by obtaining an updated opinion of hls physical and mental functioning. "The ALJ in a social
security case has an independent 'duty to fully and fairly develop the record and to assure that
the claimant's interests are considered."' Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.
2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)). The ALJ's duty to
develop the record applies whether or not a plaintiff was represented by counsel. Tonapetyan,
424 F.3d at 1150. The ALJ's duty to develop the record is triggered when there is ambiguous
evidence or when the record is inadequate to allow for proper evaluation of the evidence. Mayes

v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)).

The ALJ may discharge this duty in

several ways, including: subpoenaing the claimant's physicians, submitting questions to the
claimant's physicians, continuing the hearing, or keeping the record open after the hearing to
allow supplementation of the record. Tonapetyan, 424 F.3d at 1150
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Regarding plaintiffs physical limitations, plaintiff complains that while ALJ accorded
significant weight to the state agency medical consultants, these were performed prior to the
medical record being supplemented with information regarding plaintiffs degenerative disc
disease and osteoarthritis of the knee with meniscal tear, both of which the ALJ found to be
severe. Plaintiff contends that the ALJ should have ordered a consultative examination or asked
a medical expert to testify at the hearing to fully develop the record.
Plaintiff points out that he was not diagnosed with osteoarthritis and meniscal tear until
late 2014, and he underwent surgery in December of 2014. Further, MRls of hiss lumbar,
cervical, and thoracic spines were dated April and May of 2015. While these events occmTed
after the agency reports, the record reveals that the ALJ discussed numerous treatment records
and reports, including those from the alleged onset of date of disability in February 2012 to
within one month of the of the her October 2015 decision. These included the records that were
not examined by the state agency medical consultants. The Commissioner rightly points out that
the ALJ is "responsible for translating and inc01porating clinical findings into a succinct RFC."
Rounds v. Comm 'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) Here it is clear that the

ALJ examined these medical records and considered them in plaintiffs disability determination.
Indeed, it is not uncommon that there will be some time lapse between the agency consultants'
report and the ALJ' s hearing and decision. "The Social Security regulations impose no limit on
how much time pass between a report and the ALJ's decision in reliance on it." Chandler v.
Comm 'r ofSoc. Sec., 667 FJd 356,361 (3rd Cir. 2011).

The ALJ found that plaintiffs impainnents were severe "because they cause more than
minimal vocational limitations for the claimant." Tr. 24. The ALJ further cited other symptoms
in plaintiffs medical treatment records, including a right-hand fracture. Id. However, the ALJ

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asserted that there was "nothing to show that these non-severe impairments are of such severity
as to cause more than minimal vocational limitations." Id
The ALJ cited several specific examples of plaintiff impairments. Tr. 25. First, the ALJ
noted that plaintiff had mild restrictions limiting his physical capabilities.

Id

The ALJ

acknowledged plaintiffs statements that he has difficulty in social functioning. Id The ALJ
specifically noted plaintiffs anxiety and anger issues that make it "not good" for plaintiff to be
around other people.

Id

The ALJ further noted plaintiffs moderate difficulties regarding

concentration, persistence, and pace. Id Specifically, the ALJ pointed to reports of plaintiffs
sedation from medications, complaints of anxiety, and hypervigilance. Id
The ALJ did find that plaintiffs medically determinable impairments "could reasonably
be expected to cause" his alleged symptoms, but plaintiffs testimony concerning the intensity,
persistence, and limiting effects of those impairments was not credible. Tr. 27. The ALJ pointed
to plaintiffs work history in making that determination. Id Specifically, the ALJ concluded
that plaintiff stopped working for reasons other than his allegedly disabling impailments. Id
Plaintiff has not posted any income since 2009. Id. Additionally, in a written statement, plaintiff
reported that he stopped working on July 1, 2009, which is approximately four and a half years
prior to his alleged onset date. Id The ALJ observed that although Plaintiff alleges that they
have been unable to work since February 22, 2013, he continued to act as a caregiver for his
parents-which is "strong persuasive evidence that [he] is not as limited as he alleges to be." Id
Next, the ALJ acknowledged the severity of plaintiffs gunshot wound. Id. The ALJ
referred to evidence that following subsequent surgeries, plaintiffs health significantly
improved. Id For example, two months after the gunshot-wound surgery, in April 2013, X-ray
images showed plaintiffs fixation plate and alignment were unchanged, providing evidence of

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early new bone formation.

Id.

Additionally, four months after the surgery, in June 2013,

plaintiff reported that he had been doing some weight bearing on his left leg and "was
occasionally riding a stationary bike." Id.
The ALJ referred to evidence contained m current examinations where the doctor
observed that plaintiff had knee motion between O and 130 degrees. Tr. 27. The ALJ also cited
cmTent medical observations that plaintiffs wounds were "well healed," with updated X-ray
images showing plaintiffs left femur to be "uniting with abundant callus formation, intact
hardware, and maintained alignment." Id. The ALJ gave additional weight to the examining
doctor's assessment that plaintiff was "doing well" and that he wanted plaintiff to "start weaning
off crutches, and to work hard on strengthening." Id.
The ALJ referred to follow-up medical examinations that occurred in June 2014, sixteen
months after plaintiffs gunshot injury. Id. Those examinations revealed that plaintiff ambulated
with a cane although no treatment provider "prescribed an assistive device for ambulation." Tr.
28. The ALJ also gave deference to the examining doctor's observations on plaintiffs physical
condition. Id. Specifically, that plaintiff "transferred on and off the examination table without
difficulty;" and showed "no signs" of ataxia. Id. Further, the ALJ cited the examining doctor's
observations that Plaintiff: exhibited normal range of motion; had negative spurling and dural
root tension tests; exhibited full 5/5 strength and range of motion in both lower extremities;
showed no enlargement, tenderness, or laxity in his bilateral knee joints; had normal
coordination; and displayed full and equal reflexes. Id. Finally, the ALJ noted the examining
doctor's observations that plaintiffs memory appeared in tact, and he showed no signs of
depression, anxiety, or agitation. Id.

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The ALJ examined the medications prescribed to plaintiff to treat his pain. Tr. 28.
Specifically, the ALJ noted that for treatment, plaintiff was transitioned from Oxycodone to
Methadone, had his Neurotin dose increased, was given a prescription for Liboderm ointment,
and was ordered to follow up with an orthopedic specialist. Id. Additionally, the ALJ noted that
plaintiff recently went to his doctor with multiple complaints including left elbow pain, pain in
the groin, testicles, left knee, and lower left extremity. Id.

The ALJ noted that plaintiffs

examination revealed tenderness in the "lateral epicondyle region of the left elbow," a swollen
left elbow, decreased range of motion in the hip, and that Plaintiff walked with an antalgic gait.
Id. However, the ALJ also observed that subsequent X-rays revealed "no acute abnormalities."

Tr. 29.
The ALJ further observed that from August 2014 to August 2015, plaintiff received many
additional X-ray and MRI scans in conjuncture with new complaints of ongoing pain. Id.

For

example, the ALJ referred to a note from plaintiffs doctor dated in May 2015 where plaintiff
reported ongoing pain in his lower back and legs. Id. An additional examination revealed a
spasm and tenderness in his lumbar spine. Id.
Thus, the ALJ adequately discussed treatment records spannmg the entire time of
plaintiffs claim of disability. Having examined the record, this Court finds that the record was
not inadequate to allow for proper evaluation of the evidence regarding plaintiffs physical
conditions.
Plaintiff also contends that the ALJ failed to properly develop the record regarding his
mental health impairments because there is no opinion evidence in the record regarding his
limitations. However, the record does not support this claim, as the ALJ explored treatment
records pertaining to plaintiffs mental health. For example, the ALJ examined medical records

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from February 2013, in which Lydia C. Warner ("Ms. Warner"), FNP, refened plaintiff to
behavioral health after plaintiff reported having depression and anxiety." Tr. 30. The ALI also
examined Ms. Warner's notes in which plaintiff "admitted a history of heavy alcohol
consumption." Tr. 30. The ALI observed that one month later, in March 2013, plaintiffrepmted
that his anxiety had improved with medication. Id The ALI further observed that one year after
his surgery, in February of 2014, plaintiff underwent alcohol and drug assessments at Clatsop
Behavior Healthcare ("CBH") after being anested for Driving Under the Influence of Intoxicants
("DUII"). Tr. 31.
Additionally, the ALI observed that, in March of 2014, plaintiff underwent another
assessment at CBH, in which a social worker assessed him with "alcohol abuse in remission,
anxiety, posttraumatic stress disorder, and depressive disorder."

Tr. 31.

The ALI fmther

observed that in October of 2014, plaintiff met with Robert A. Speny ("Mr. Speny"), NP. Id. In
plaintiff, Mr. Speny endorsed hypervigilance, startle response, panic, nightmares related to being
shot by his brother, stress related to caretaking for his mother. Id The ALI noted Mr. Sperry's
objective observations that Plaintiff "showed a depressed mood and anxious affect," but that his
thoughts were "logical and goal-oriented." Id The ALI also observed that in November 2014,
plaintiff told Mr. Speny that "he feels violence is impending as he and his brother have nearly
come to blows on several occasions." Id. In April 2015, over two years after the gun shot,
plaintiff reported to Mr. Speny that felt improved and was "trying to stay positive." Id. Though
she gave them limited weight, the ALI also considered psychological assessments submitted on
behalf of DDS from Arthur Lewy, Ph.D., and Bill Hennings, Ph.D, both of whom opined that
plaintiffs impairments were non-severe. Tr. 33.

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This accounting is not exhaustive, and the ALJ noted many other details relating to
plaintiffs mental health.

Having examined the record, the Court finds that the record was not

inadequate to allow for proper evaluation of the evidence regarding plaintiff's mental health
conditions, and the ALJ' s determinations were supported by substantial evidence. Absent
conflict or ambiguity, the ALJ's duty to develop the record was not triggered, and the ALJ did
not fail to meet his burden. See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002).
In sum, the ALJ address adequately addressed Plaintiff physical and mental limitations
detailed in various documents provided by physical health and mental health professionals. Here,
the record is neither so ambiguous nor inadequate as to have necessitated a consultative
examination. The record was sufficient to allow for the ALJ' s evaluation, and she considered
numerous medical records from several sources, incorporating many of them into her decision.
Thus, the ALJ did not commit harmful error by failing to fully develop the record.
Further, the ALJ's decision is supported by substantial evidence from the record and is affirmed.
CONCLUSION

The Commissioner's decision is AFFIRMED and this case is DISMISSED.
IT IS SO ORDERED.
Dated this 30th day of March 2019.

Ann Aiken
United States District Judge

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