Lamear 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 8/8/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DARREN L. , 1
Plaintiff,
3:17-cv-00946-BR
OPINION AND ORDER
v.
Commissioner, Social
Security Administration,
Defendant.
BRUCE W. BREWER
P.O. Box 421
West Linn, OR 97068
(503) 621-6633
Attorney for Plaintiff
1
In the interest of privacy and pursuant to the
recommendation of the Judicial Conference of the United States,
this Opinion and Order uses only the first name and the initial
of the last name of the nongovernmental parties.
The same
designation will be used to identify nongovernmental family
members named in this case.
1 - OPINION AND ORDER
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1021
MICHAEL W. PILE
Acting Regional Chief Counsel
JORDAN D. GODDARD
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2733
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Darren Lamear 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.
Plaintiff also filed a Motion (#17)
for
Remand seeking an order remanding this matter under sentence six,
42 U.S.C.
§
405(g), for additional proceedings.
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 DENIES Plaintiff's
Motion for Remand, AFFIRMS the decision of the Commissioner, and
DISMISSES this matter.
2 - OPINION AND ORDER
ADMINISTRATIVE HISTORY
Plaintiff filed an application for DIB on August 5, 2013,
alleging a disability onset date of January 1, 2011.
Tr. 198. 1
The application was denied initially and on reconsideration.
An
Administrative Law Judge (ALJ) held a hearing on March 10, 2016.
Tr. 39-81.
At the hearing Plaintiff amended his disability onset
date to March 21, 2012.
the hearing.
Tr. 36.
Plaintiff was represented at
Plaintiff and a vocational expert (VE) testified.
The ALJ issued a decision on March 25, 2016, in which he
found Plaintiff was not disabled before his September 30, 2014,
date last insured and, therefore, is not entitled to benefits.
Tr. 27-39.
Pursuant to 20 C.F.R. § 404.984(d), that decision
became the final decision of the Commissioner on April 12, 2017,
when the Appeals Council denied Plaintiff's request for review.
Tr. 8-13.
See Sims v. Apfel, 530 U.S. 103, 106-07
(2000).
BACKGROUND
Plaintiff was born on November 9, 1964, and was 51 years old
at the time of the hearing.
Tr. 198.
school and two years of college.
Plaintiff completed high
Tr. 46.
Plaintiff has past
relevant work experience as a customer-service representative,
cashier, and stockbroker.
1
Tr. 65.
Citations to the official transcript of record filed by
the Commissioner on November 15, 2017, are referred to as "Tr."
3 - OPINION AND ORDER
Plaintiff alleges disability during the relevant period due
to "[f] ragmented disc, separated disc, bulging disc,
neuropathy."
[and]
Tr. 104.
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. 30-32.
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
4 5 3 , 4 5 9- 6 0 ( 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.
4 - OPINION AND ORDER
42
U.S.C. § 405(g).
See also Brewes v. Comm'r of Soc.
682 F.3d 1157, 1161 (9th Cir. 2012).
Sec. Admin.,
Substantial evidence is
"relevant evidence that a reasonable mind might accept as
adequate to support a conclusion."
(quoting Valentine v. Comm'r Soc.
(9th Cir. 2 00 9) ) .
11
Molina,
674 F.3d. at 1110-11
Sec. Admin., 574 F.3d 685,
690
It is more than a mere scintilla [of
evidence] but less than a preponderance.
11
Id.
(citing Valen tine,
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.
Comm'r of Soc. Sec., 528 F.3d 1194, 1198
Ryan v.
(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).
5 - OPINION AND ORDER
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.
2007).
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
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).
Comm'r of Soc. Sec., 648 F.3d 721, 724
See also Keyser v.
(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).
See also Keyser,
20 C.F.R.
§§
404.1509,
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
6 - OPINION AND ORDER
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).
See also Social Security Ruling (SSR)
20 C.F.R.
96-8p.
"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 . 2 d 5 9 7 , 6 0 3 ( 9th Cir . 19 8 9) ) .
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.
See also Keyser,
20 C.F.R. § 404.1520(a) (4) (iv).
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.
Keyser,
20 C.F.R.
648 F.3d at 724-25.
§
404.1520(a) (4) (v).
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.
Comm'r Soc.
Lockwood v.
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
7 - OPINION AND ORDER
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).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff did not engage in
substantial gainful activity from his March 21, 2012, alleged
onset date through his September 30, 2014, date last insured.
Tr. 28.
At Step Two the ALJ found Plaintiff had the severe
impairments of degenerative disc disease and neuropathy.
Tr. 28.
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. 28.
Specifically,
Plaintiff's degenerative disc disease "did not meet the criteria
of section 1.04."
Tr. 29.
The ALJ found during the relevant
period that Plaintiff had the RFC to perform less than a full
range of light work.
The ALJ also found Plaintiff could sit,
stand, and walk for six "hours each in an 8-hour workday"; could
occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, crawl, and lift and carry 20 pounds; could frequently
lift and carry 10 pounds; and could never climb ladders, ropes,
or scaffolds.
Tr. 29.
8 - OPINION AND ORDER
The ALJ stated Plaintiff "needed to avoid
concentrated exposure to hazards such as unprotected heights and
moving mechanical parts
extreme heat."
[as well as] to extreme cold and
Tr. 29.
At Step Four the ALJ found during the relevant period that
Plaintiff could perform his past relevant work as a stockbroker.
Tr. 32.
Accordingly, the ALJ concluded Plaintiff was not
disabled from March 21, 2012, through September 30, 2014.
PLAINTIFF'S MOTION (#17) FOR REMAND
I.
Lamear I Background
Plaintiff filed an application for DIB on May 18, 2010,
alleging a disability onset date of April 16, 2008.
The
application was denied initially and on reconsideration.
An
Administrative Law Judge (ALJ) held a hearing on March 6, 2012.
The ALJ issued a decision on March 20, 2012, in which he
found Plaintiff was not disabled and, therefore, was not entitled
to benefits.
Pursuant to 20 C.F.R. § 404.984(d), that decision
became the final decision of the Commissioner on May 29, 2013,
when the Appeals Council denied Plaintiff's request for review.
On July 31, 2013, Plaintiff filed a complaint in the United
States District Court for the District of Oregon (No. 13-cv01319-AC Lamear I) challenging the Commissioner's decision.
As noted, on August 5, 2013, Plaintiff filed a subsequent
claim for DIB benefits, and it is this subsequent claim that
9 - OPINION AND ORDER
Plaintiff now brings before this Court for review (Lamear II) .
Tr. 198.
On September 15, 2014, Magistrate Judge John V. Acosta
issued Findings and Recommendation in Lamear I in which he
recommended the Court affirm the Commissioner's decision to deny
Plaintiff's application for DIB benefits and dismiss the matter.
Judge Marco A. Hernandez adopted the Findings and Recommendation
on December 1, 2014.
On January 28, 2014, Plaintiff appealed to the Ninth Circuit
Court of Appeals Judge Hernandez's December 1, 2014, decision to
affirm and to dismiss the matter.
On August 1, 2017, the Ninth
Circuit reversed the December 1, 2014, Order and remanded the
matter to the Commissioner for further proceedings "so the ALJ
can ask the VE to reconcile [the jobs of office helper, mail
clerk, or parking attendant] with Lamear's left hand
limitations."
865 F.3d 1201, 1206
(9~
Cir. 2017).
Lamear I is
currently pending before the Commissioner.
In his Motion for Remand Plaintiff now asserts this Court
should enter an order in Lamear II vacating the ALJ's March 25,
2016, decision and remanding Lamear II for a hearing before the
ALJ "so that [Lamear II] can be consolidated" with Lamear I.
Defendant, however, opposes remand on the grounds that
(1) Plaintiff has not presented new evidence to the Court
requiring remand and (2) this matter is not ripe for remand.
10 - OPINION AND ORDER
II.
Analysis
Plaintiff moves to remand this matter pursuant to sentence
six, 42 U.S.C.
with Lamear I.
A.
§
405(g), so that this matter may be consolidated
As noted, Defendant objects to remand.
Plaintiff has not satisfied the criteria for a remand
pursuant to sentence six.
Sentence six, 42 U.S.C.
§
405(g), provides:
The court may .
. remand the case to the
Commissioner of Social Security for further action
by the Commissioner of Social Security .
. but
only upon a showing that there is new evidence
which is material and that there is good cause for
the failure to incorporate such evidence into the
record in a prior proceeding.
"New evidence is material when it 'bear[s] directly and
substantially on the matter in dispute,' and if there is a
'reasonabl[e] possibility that the new evidence would have
changed the outcome of the .
. determination.'"
Luna v.
Astrue, 623 F.3d 1032, 1034 (9th Cir. 2010) (quoting Bruton v.
Massanari,
268 F.3d 824, 827
(9th
Cir. 2001).
Plaintiff asserts the Ninth Circuit's decision in
Lamear I constitutes new material evidence that provides this
Court with the authority to remand Lamear II to the Commissioner.
As Defendant points out, however, a decision by the Ninth Circuit
to remand a different application involving alleged disability
for a different period is legal precedent rather than evidence.
See, e.g., Peterson v. Flagstar Bank FSB, No.: PWG- 16-2617,
11 - OPINION AND ORDER
No. 15- 27068, 2017 WL 1020821, at *3 (D. Md. Mar. 15, 2017) ("[A]
legal opinion is law, not evidence.").
In addition, although the
Ninth Circuit has held a final decision by the Commissioner on a
different application for benefits can constitute new evidence
under certain circumstances, courts have not extended that
principle to pending applications for benefits on which the
Commissioner has not yet reached a final decision.
Astrue, 623 F.3d at 1034.
See Luna v.
In fact, the Ninth Circuit has upheld
the district court's denial of remand for further proceedings
when the second application involved different medical evidence
and a different period.
See Bruton v. Massanari, 268 F.3d 824,
827 (9th Cir. 2001) .
B.
Plaintiff will have an avenue for review of this
Court's decision at the administrative level.
Plaintiff contends remand is necessary because "[i]f
the hearing that results from the remand [in Lamear I] results
favorably for Plaintiff, the only proper way for the cessation of
benefits to occur would be through the continuing disability
review process set forth by 20 C.F.R. § 404.1594."
for Remand at 3.
Pl.'s Mot.
As Defendant notes, however, Plaintiff's
argument is based on a hypothetical situation that may or may not
occur on remand of Lamear I, and such speculation is insufficient
to merit remand.
In addition, Defendant points out that if the
ALJ decides on remand of Lamear I that Plaintiff should be
awarded ongoing disability benefits in addition to benefits for
12 - OPINION AND ORDER
the closed period at issue in Lamear I, the regulations permit
the ALJ to reopen and to revise the decision before this Court in
Lamear II after this Court has entered a Judgment.
§§
404.987, 404.988, 404.989.
§§
404.987,
See 20 C.F.R.
In addition, pursuant to 20 C.F.R.
404.988, and 404.989 the Commissioner can exercise
jurisdiction over Lamear II only after this Court issues a
Judgment and cannot "reopen" Lamear II while it is pending before
this Court.
On this record the Court concludes Plaintiff has not
satisfied the criteria for a remand pursuant to sentence six,
asserts 42 U.S.C. § 405(g).
Accordingly, the Court DENIES
Plaintiff's Motion for Remand.
REVIEW OF THE CO:MMISSIONER'S DECISION IN LAMEAR I I
Plaintiff contends the ALJ erred when he (1) found at Step
Three that Plaintiff's spinal impairments did not meet or equal
the criteria of Listing 1.04 and (2) gave "less weight" to the
the opinion of opinion of Ruth Sanders, treating Nurse
Practitioner (NP), adopted by Amy Asher, M.D., treating
physician.
I.
The ALJ did not err when he found at Step Three that
Plaintiff's spinal impairments did not meet or equal the
criteria of Listing 1.04.
As noted, Plaintiff contends the ALJ erred when he found at
Step Three that Plaintiff's spinal impairments did not meet or
13 - OPINION AND ORDER
equal the criteria of Listing 1.04A.
To satisfy the criteria of Listing l.04A a claimant must
establish he has "herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture),
resulting in
compromise of a nerve root (including the cauda equina) or the
spinal cord" together with:
Evidence of nerve root compression characterized
by neuro-anatomic distribution of pain, limitation
of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness)
accompanied by sensory or ref lex loss and, if
there is involvement of the lower back, positive
straight-leg raising test (sitting and supine) .
20 C.F.R. Pt. 404, Subpt. P, App'x 1, § l.04A.
The ALJ found Plaintiff "did not exhibit motor loss with
sensory or reflex disturbances" during the relevant period and
"[n]o physician has opined [Plaintiff's] impairments are
medically equal to a listed impairment."
Tr. 29.
The ALJ noted
Kim Webster, M.D., conducted a consultative examination of
Plaintiff on March 27, 2014.
Dr. Webster noted Plaintiff
reported low-back pain "with asymmetry in the calves," which
Dr. Webster believed "suggest[ed]
. the disc fragment in the
lumbar spine that may be impinging a nerve root on the left side
actually has done so."
cautioned:
Tr.
464.
Dr. Webster, however,
"Based on [Plaintiff's] exaggeration of symptoms and
poor effort, it is difficult to say whether he actually has any
14 - OPINION AND ORDER
current problem in the lumbar spine."
Tr. 464.
noted Plaintiff had "[g]ood bulk, normal tone .
Dr. Webster
[and] 5/5
strength in the upper and lower extremities despite poor effort
in a variety of areas" and that her "impression was that
[Plaintiff] had 5/5 strength and was using very poor effort."
Tr. 463.
Dr. Webster concluded there was not any "objective
evidence to limit standing, walking or sitting" or "substantial
objective evidence to limit lifting or carrying."
Tr. 464.
Nevertheless, Dr. Webster noted it "would be reasonable and
prudent to limit lifting and carrying to 20 pounds occasionally
and 10 pounds frequently" because Plaintiff "has had a disc
fragment that was present on the left side of the lumbar spine
with possible to probable nerve root irritation."
Tr. 464.
Nevertheless, Plaintiff asserts his treatment records
reflect his muscle weakness notwithstanding Dr. Webster's
findings.
Plaintiff, however, relies in part on medical records
that are outside of the relevant period of March 21, 2012,
through September 30, 2014.
For example, Plaintiff cites a note
from treating physician Suzanne Gwilliam, M.D., in which she
states Plaintiff reported numbness and tingling in his hands and
which she opined "could be related to [Plaintiff's] back pain,
but I suspect not."
Tr. 363.
Dr. Gilliam's note, however, is
from September 2008, which is nearly four years before
Plaintiff's alleged onset date.
15 - OPINION AND ORDER
Plaintiff also relies on
treatment notes from March 2009 and August 2010, which predate
Plaintiff's onset date by 18-36 months.
In addition, Plaintiff relies on a a March 27, 2013,
treatment note by treating physician Thomas Starbard, D.O., in
which he reported Plaintiff had muscle strength in the left
ankle dorsiflexion and hip flexion of 4/5 but "5/5 otherwise."
Tr. 402.
Plaintiff, however, saw Dr. Starbard on March 27, 2013,
after Plaintiff was involved in a motor-vehicle accident on
March 26, 2013, which exacerbated Plaintiff's symptoms.
Tr. 401.
Plaintiff reported to Dr. Starbard that before the accident
Plaintiff "joined a community center
. and was working out at
there [sic] gym and swimming and was feeling some overall
improvement in his chronic pain."
Tr. 401.
At subsequent
treatment sessions, however, Plaintiff showed improvement, and by
July 2013 Dr. Starbard reported Plaintiff's "injuries related to
the motor vehicle accident have been resolved."
Tr. 419.
Plaintiff also relies on an October 13, 2014, treatment note
from Amy Asher, M.D., treating physician, in which she reported
Plaintiff had 3/5 muscle strength "diffusely of the left" lower
extremity, 5/5 on the right."
Tr. 473.
This treatment note,
however, is outside of the relevant period.
In addition,
Plaintiff saw Dr. Asher on October 13, 2014, after Plaintiff
suffered injury and exacerbation of his symptoms two days earlier
when he was "at the bar and two guys were wrestling and knocked
16 - OPINION AND ORDER
in to him which pushed him into the bar."
Tr. 472.
Moreover,
Plaintiff's weakness did not last for twelve months.
In July
2015 Jesse Lui, M.D., examining neurosurgeon, noted Plaintiff did
not have any lower extremity weakness.
Tr. 502.
On this record the Court concludes Plaintiff has not
established the ALJ erred when he found Plaintiff did not meet
the criteria for Listing 1.04A because the record does not
reflect Plaintiff suffered the required motor loss during the
relevant period.
Plaintiff also asserts the ALJ erred when he did not
adequately discuss whether Plaintiff equaled the Listing l.04A.
The record, however, reflects Plaintiff did not present a theory
of equivalence to the ALJ and did not establish equivalence
before the ALJ.
In addition, the record supports the ALJ's
finding that "[n]o physician has opined [Plaintiff's] impairments
are medically equal to a listed impairment."
Tr. 29.
Accordingly, on this record the Court concludes the ALJ did
not err when he found at Step Three that Plaintiff's spinal
impairments did not meet or equal the criteria of Listing 1.04A
during the relevant period.
II.
The ALJ did not err when he gave "less weight" to
NP Saunders's opinion adopted by Dr. Asher.
Plaintiff asserts the ALJ erred when he gave less weight to
the February 2016 opinion of NP Saunders, which was adopted by
Dr. Asher.
17 - OPINION AND ORDER
Medical sources are divided into two categories:
"acceptable" and "not acceptable."
20 C.F.R.
§
416.902.
Acceptable medical sources include licensed physicians.
20 C.F.R.
§
416.902.
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."
Barnhart, 278 F.3d 947,
Bowen, 881 F.2d 747, 751
Thomas v.
957 (9th Cir. 2002) (quoting Magallanes v.
(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 957.
See also Lester v. Chater, 81 F.3d 821,
830-32 (9th Cir. 1996) .
Medical sources classified as ''not acceptable" include, but
are not limited to, nurse practitioners.
SSR 06-03p, at *2.
Factors the ALJ should consider when determining the weight to
give an opinion from these sources include the length of time the
source has known the claimant and the number of times and
frequency that the source has seen the claimant and the
consistency of the source's opinion with other evidence in the
record.
SSR 06-03p, at *4.
On the basis of the particular facts
and the above factors, the ALJ may assign a not-acceptable
medical source either greater or lesser weight than that of an
18 - OPINION AND ORDER
acceptable medical source.
SSR 06-03p, at *5-6.
The ALJ,
however, must explain the weight assigned to such sources to the
extent that a claimant or subsequent reviewer may follow the
ALJ's reasoning.
SSR 06-03p, at *6.
On February 8, 2016, NP Saunders completed a Physical
Residual Functional Capacity Assessment Form in which she opined
Plaintiff could occasionally lift and carry 10 pounds and
frequently lift and carry less than 10 pounds; could stand and/or
walk for less than two hours in an eight-hour work day; could sit
for less than six hours in an eight-hour work day; required a
cane for ambulation; was limited in his ability to push and/or
pull in his upper and lower extremities; could occasionally
climb; could never balance, stoop, kneel, crouch, or crawl; and
could "less than occasionally" reach in all directions, handle,
finger, and feel.
Tr. 497-98.
NP Saunders noted she was "unable
to determine" the number of absences per month that Plaintiff
might experience if he returned to full-time work.
Finally, NP Saunders confirmed she "believ[ed]
Tr. 499.
[Plaintiff's]
residual capacities [set out in the evaluation] were in effect"
at the time of Plaintiff's March 21, 2012, onset date.
Tr. 499.
On February 10, 2016, Dr. Asher "agree[d] with [the
limitations set out by NP Saunders]."
Tr. 494.
The ALJ gave the Sanders/Asher opinion less weight on the
grounds that NP Saunders and Dr. Asher did not treat or examine
19 - OPINION AND ORDER
Plaintiff during the relevant period; the opinion of Plaintiff's
limitations was contradicted by Dr. Webster; and their opinion
was inconsistent with Plaintiff's activities of daily living,
which included travel, extensive walking, gardening, and
performing household chores.
The record reflects Dr. Asher did
not begin treating Plaintiff until October 2014, at which point
Plaintiff was seen by her because he had been injured in the bar
fight and exacerbated his symptoms.
NP Saunders did not begin
treating Plaintiff until August 2015, which was almost a year
after the end of the closed period.
Plaintiff, nevertheless,
asserts Dr. Asher and NP Saunders's lack of familiarity with
Plaintiff during the relevant period is not a legitimate reason
to discount their opinion because NP Saunders referenced
Plaintiff's MRis from 2010 and 2014 in her opinion.
The 2014
MRI, however, was performed in December 2014, which is two months
after the end of the closed period, and the findings were
essentially unchanged from those in Plaintiff's 2010 MRI.
Dr. Webster specifically noted her review of Plaintiff's 2010 MRI
in her consultative examination of Plaintiff and, nevertheless,
concluded "there is no consistent objective evidence to limit
standing, walking or sitting."
Tr. 464.
In addition, Dr. Webster conducted her examination of
Plaintiff during the relevant period and reached her opinion that
there was not any "objective evidence to limit standing, walking
20 - OPINION AND ORDER
or sitting" or "substantial objective evidence to limit lifting
or carrying."
Tr. 464.
Finally, the ALJ noted the Saunders/Asher opinion was
inconsistent with Plaintiff's reported activities during the
relevant period.
For example, Dr. Asher and NP Saunders opined
Plaintiff's cane was medically necessary for ambulation and had
been since 2012, but in January 2014 Plaintiff went to Hawaii for
seven days and reported he was able to walk fairly well without
his cane even on the beach.
Tr. 393.
Similarly, Dr. Asher and
NP Saunders opined during the relevant period that Plaintiff was
unable to stand or to walk for two hours in an eight-hour work
day, but in June 2013 Plaintiff reported walking around the zoo
"for several hours" and it did not exacerbate his back or neck
complaints.
Tr. 414.
Even after the relevant period in August
2015, Plaintiff reported he had "been doing a lot of walking
and has been very active."
Tr. 506.
Plaintiff also
reported in July 2013 that he had been doing gardening and
"tolerating it fairly well," but NP Saunders and Dr. Asher opined
Plaintiff could never perform activities such as stooping,
kneeling, crouching, or crawling and was limited to less than
occasional use of his hands.
Tr. 496.
On this record the Court concludes the ALJ did not err when
he gave less weight to the opinion of NP Saunders and Dr. Asher
because the ALJ provided specific and legitimate reasons for
21 - OPINION AND ORDER
doing so based on substantial evidence in the record.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of
the Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this
of August, 2018.
United States Senior District Judge
22 - OPINION AND ORDER
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