Harner v. Commissioner Social Security Administration
OPINION and ORDER - The Commissioner's decision denying Plaintiffs applications forDIB and SSI is AFFIRMED. DATED this 26th day of November, 2018, by United States Magistrate Judge John V. Acosta. (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
WILLIAM H. 1,
Case No. 3:17-cv-1019-AC
OPINION AND ORDER
COMMISSIONER, SOCIAL SECURITY
PO Box 421
West Linn, OR 97068
Of Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
Assistant United States Attorney
District of Oregon
1000 SW Third Ave., Suite 600
Portland, OR 97204-1011
In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the non-governmental paiiy in this case. Where applicable, this opinion uses the same
designation for a non-governmental party's immediate family member.
1 - OPINION AND ORDER
Special Assistant United States Attorney
· Office of the General Counsel
701 Fifth Ave., Suite 2900 MIS 221A
Seattle, WA 98104-7075
Of Attorneys for Defendant
Opinion and Order
ACOSTA, Magistrate Judge:
William H. ("Plaintiff') seeks judicial review of the final decision by the Social Security
Commissioner ("Commissioner") denying his applications for Disability Insurance Benefits
("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social
Security Act ("SSA").
This Comi has jurisdiction to review the Commissioner's decision
pursuant to 42 U.S.C. § 405(g). Based on a careful review of the record, the Commissioner's
decision is AFFIRMED.
Plaintiff filed for DIB and SSI on June 8, 2012, alleging disability as of December 4,
2009, due to hypertension; degenerative disc disease of the lumbar spine; arthritis of the back
and knees; post-surgical right knee meniscus tear; and depression. (Tr. 287.) His applications
were denied initially and upon reconsideration. (Tr. 19.) Following an administrative hearing,
the ALJ issued a decision finding Plaintiff not disabled.
(Tr. 121.) However, the Appeals
Council vacated the decision and remanded the case for further consideration. (Tr. 137.) A
hearing was held on November 4, 2016, before an Administrative Law Judge ("ALJ"); Plaintiff
was represented by a non-attorney representative and testified, as did a vocational expert ("VE").
(Tr. 57-73.) On January 27, 2017, ALJ Paul Robeck issued a decision finding Plaintiff not
disabled. (Tr. 15-30.) Plaintiff requested timely review of the ALJ's decision and, after the
Appeals Council denied his request for review, filed a complaint in this Court. (Tr. 1-3.)
2- OPINION AND ORDER
Born in 1969, Plaintiff was 40 years old on his alleged disability onset date. (Tr. 28.)
Plaintiff completed high school and previously worked as a maintenance worker, warehouse
worker, and production worker. (Tr. 289.)
Standard of Review
The court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings are supp01ied by substantial evidence in the record. Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations
The court must weigh "both the evidence that supports and detracts from the
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is
rational. Burch v. Barnhart, 400 F.3d 676,679 (9th Cir. 2005).
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986).
To meet this burden, the claimant 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. §§ 404.1502 and
First, the Commissioner considers whether a claimant is engaged in "substantial
gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b). If so, the claimant is not
3- OPINION AND ORDER
At step two, the Commissioner evaluates whether the claimant has a "medically severe
. impairment or combination of impairments."
Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§
404.1520(c), 416.920(a)(4)(ii). If the claimant does not have a severe impairment, he is not
At step three, the Commissioner determines whether the claimant's impairments, either
singly or in combination, meet or equal "one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert,
· 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii).
If so, the claimant is
presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at
At step four, the Commissioner resolves whether the claimant can still perform "past
relevant work." 20 C.F.R. §§ 404.1520(±) and 404.920(±), 416.920(a)(4)(iv). If the claimant can
work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the
At step five, the Commissioner must demonstrate that the claimant can perform other
work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 14142; 20 C.F.R. §§ 404.1520(g), 416.960(c). If the Commissioner meets this burden, the claimant
is not disabled. 20 C.F.R. §§ 404.1566, 416.920(a)(4)(v).
The ALJ's Findings
At step one of the sequential evaluation process outlined above, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date.
At step two, the ALJ determined Plaintiff had the following severe impairments: bilateral
degenerative joint disease of the knee, status post right knee meniscus repair surgery; lumbar
4- OPINION AND ORDER
· spondylosis; degenerative disc disease with mild endplate compression; anxiety; and depression.
(Tr. 18.) The ALJ found Plaintiffs hypertension and hernia were non-severe impairments. (Tr.
At step three, the ALJ found that Plaintiffs impairments, either singly or in combination,
did not meet or equal the requirements of a listed impairment. (Tr. 19-21.) Because Plaintiff did
not establish disability at step three, the ALJ continued to evaluate how Plaintiff's impairments
affected his ability to work during the relevant period. The ALJ found Plaintiff had the residual
functional capacity ("RFC") to perform modified light work as defined by 20 C.F.R. §§
404.1567(b), 416.967(b), except that:
he can stand and/or walk a total of two hours out of an eight hour day; postural
activities are limited to occasionally, but no climbing ladders, ropes, scaffolding;
he is limited to simple repetitive task type-work; should avoid concentrated
exposure to extremes of temperature, wetness, humidity, vibration, hazards.
At step four, the ALJ found that Plaintiff could not perform his past relevant work. (Tr.
At step five, the ALJ found Plaintiff could perform jobs existing in significant numbers in
the national economy, including small products assembler and laundry folder.
Accordingly, the ALJ concluded Plaintiff was not disabled. (Tr. 30.)
Plaintiff argues the ALJ en-ed by: (1) rejecting Plaintiff's subjective symptom testimony;
(2) giving some weight to the medical opinion of Dr. Jan Yomogida, Psy.D.; (3) failing to
formulate an RFC consistent with Plaintiff's limitations; and (4) failing to reconcile differences
between VE testimony and the Dictionary of Occupational Titles ("DOT").
\ \ \ \\
5- OPINION AND ORDER
Plaintiffs Subjective Symptom Testimony.
The Ninth Circuit relies on a two-step process for evaluating the credibility of a
claimant's testimony about the severity and limiting effect of the stated symptoms. Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 503 F.3d 1028, 1035-36
(9th Cir. 2007)). "First, the ALJ must determine whether the claimant has presented objective
medical evidence of an underlying impairment which could reasonably be expected to produce
the pain or other symptoms alleged." Lingenfelter, 503 F.3d at 1036 (citation and quotation
marks omitted). Second, absent evidence of malingering, "the ALJ can reject the claimant's
testimony about the severity of her symptoms only by offering specific, clear and convincing
reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Further, an ALJ
"may consider ... ordinary techniques of credibility evaluation, such as the claimant's reputation
for lying, prior inconsistent statements concerning the symptoms, . . . [or] other testimony that
appears less than candid." Id. at 1284. However, a negative credibility finding made solely
because the claimant's symptom testimony "is not substantiated affirmatively by objective
medical evidence" is legally insufficient. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006). Nevertheless, the ALJ's credibility finding may be upheld even if not all of the
ALJ's rationales for rejecting claimant testimony are upheld. See Batson, 359 F.3d at 1197.
Plaintiff completed an adult function report stating that his knee and back pain prevented
him from performing his past jobs as a manual laborer. (Tr. 323.) Plaintiff further stated that he
does not perform yard work often and required breaks while performing household chores. (Tr.
325.) Plaintiffs impairments affected his ability to lift, squat, bend, stand, walk, sit, kneel, and
climb stairs. (Tr. 328.) Plaintiff also stated that he followed written and spoken instructions
well, got along with authority figures, and could generally handle changes in routine. (Tr. 329.)
6- OPINION AND ORDER
The ALJ rejected Plaintiff's subjective testimony. First, the ALJ noted that Plaintiff
ceased working for reasons other than his impairments. See Bruton v. Massanari, 268 F.3d 824,
828 (9th Cir. 2001). Plaintiff alleged a disability onset date of December 2009, and ceased
working in December 2009 due to "interpersonal conflicts." (Tr. 288.) While Plaintiff alleged
mental impairments in addition to back and knee pain, he testified that his mental impairments
caused dizziness and mild confusion. However, mental symptoms such dizziness and mild
confusion are not relevant to allegations of interpersonal problems.
otherwise indicated he got along well with authority figures.
(Tr. 329.) As such, because
Plaintiff quit working for reasons other than his alleged impairments, the ALJ did not err in his
interpretation of the record.
Additionally, the ALJ noted that Plaintiff's alleged disability onset date was not
supported by the evidence of record. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)
(inconsistency between a plaintiff's subjective testimony and the medical record is a legally
sufficient reason to discredit such testimony).
Plaintiff did not seek treatment for his
impairments at any point near the December 2009 time period he allegedly became disabled.
Plaintiff sought treatment for a hernia in July 2009, but did not mention knee or back pain or
mental health issues. (Tr. 375.) While Plaintiff points to a 2011 examination showing knee pain
and a 2007 MRI of the lumbar spine demonstrating moderate degenerative disc disease, because
as the ALJ's reasoning was rational, it should not overturned. See (Tr. 374, 573); Burch, 400
F.3d at 679. The ALJ did not dispute that Plaintiff suffered from knee and back impairments, but
instead found an inherent conflict between allegedly disabling physical pain and Plaintiff's lack
of pain management treatment for more than one year before and after the alleged onset date.
Accordingly, the ALJ did not err.
7-OPINION AND ORDER
The ALJ also discredited Plaintiffs subjective testimony because his activities of daily
living conflicted with his alleged functional limitations. See Orn v. Astrue, 495 F.3d 625, 639
(9th Cir. 2007). Although Plaintiff testified that walking was difficult due to knee and back pain,
he also explained that walking was his primary method of transportation during at least a p01iion
• of the adjudicatory period. In September 2014, Plaintiffrep01ied that he walked 1.5 miles to and
from his psychologist twice per month; in August 2015, he was "eager to remain active as he
walks most everywhere;" and in January 2016, Plaintiff slipped and fell while walking to the
grocery store. (Tr. 604, 669, 686.) Furthermore, the ALJ noted that Plaintiff "tweaked" his knee
cutting blackberries in April 2015, and was working on repairing his home in May 2016. (Tr.
696, 722.) Both cutting blackberries and repairing a home exceeded Plaintiffs stated limitations
regarding lifting, bending, and walking and, as such, the ALJ did not e1T in using them to
discredit Plaintiffs testimony.
The ALJ rejected subjective testimony about the severity of Plaintiffs back and knee
pain because Plaintiff received relatively conservative treatment. See Tommasetti v. Astrue, 533
F.3d 1035, 1040 (9th Cir. 2008). For instance, in October 2013, Plaintiff reported that his knee
was in "extreme pain," yet he declined an injection to alleviate his symptoms in favor of
ibuprofen. (Tr. 552.) Additionally, Plaintiff stated that knee braces provided significant relief
and increased his functionality. (Tr. 601.) Plaintiffs disc disease was managed with similarly
conservative treatment: a back brace and a TENS unit reportedly provided relief, and Plaintiffs
treating provider recommended lifestyle modification and physical therapy in association with
ibuprofen and sh01i-term pain relievers. (Tr. 609, 783.) Plaintiff argues he took gabapentin,
Flexeril, and oxycodone, but the record shows that such medications were prescribed in small,
intermittent doses, and Plaintiff took them "as needed."
As such, the ALJ's reasonable
interpretation of the record must be upheld, even if other, equally rational, interpretations exist.
8- OPINION AND ORDER
The bulk of Plaintiffs arguments rest on the premise that the ALJ's rejection of his
subjective testimony was impermissibly vague because the reasons the ALJ provided were
insufficiently connected to the testimony they purported to discredit. However, even if the ALJ
explained his decision with "less than ideal clarity," he did not err so long as his logical path may
be reasonably discerned. See Alaska Dep 't. of Envtl. Conserv. v. EPA, 540 U.S. 461, 497 (2004)
("[e]ven when an agency explains its decision with 'less than ideal clarity,' a reviewing court
will not upset the decision on that account 'if the agency's path may reasonably be discerned"');
see also Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (same, citing Alaska Dep 't of
Envtl. Conserv.). Here, the ALJ's path could be clearly discerned, as the ALJ's presentation of
conflicting evidence squarely contradicted Plaintiffs claims of disabling back and knee pain.
Dr. Yomogida's Medical Opinion.
The ALJ must provide clear and convincing reasons for rejecting the uncontradicted
medical opinion of a treating or examining physician, or specific and legitimate reasons for
rejecting contradicted opinions, so long as they are supported by substantial evidence. Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Nonetheless, treating or examining physicians
are owed deference and will often be entitled to the greatest, if not controlling, weight. Orn, 495
F.3d at 633 (citation and internal quotation omitted).
An ALJ can satisfy the substantial
evidence requirement by setting out a detailed summary of the facts and conflicting evidence,
stating his interpretation, and making findings. Morgan v. Comm 'r Soc. Sec. Admin., 169 F.3d
595, 600-01 (9th Cir. 1999). However, "the ALJ must do more than offer his conclusions. He
must set forth his own interpretations and explain why they, rather than the doctors', are correct."
Reddick, 157 at 725 (citation omitted). Accordingly, the ALJ's reasons for rejecting the treating
and examining physicians must be specific and legitimate, and supported by substantial
evidence. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).
9- OPINION AND ORDER
In 2014, Dr. Yomogida completed a mental RFC assessment stating that Plaintiff was
markedly limited in his ability to understand and remember detailed instructions, carry out
detailed instructions, and complete a normal workday. (Tr. 593-94.) The doctor found that
Plaintiff was not limited in the area of social interaction, but was moderately limited in some
categories of understanding and memory, as well as the ability to travel and use public
transportation. (Tr. 595.) Dr. Yomogida believed that Plaintiffs mental health impairments
were secondary to his physical impairments. (Tr. 596.)
The ALJ gave "some" weight to Dr. Yomogida's opinion. Plaintiff argues, perfunctorily,
that the ALJ e1Ted by failing to give sufficiently specific reasons for granting only partial weight
to Dr. Yomogida' s opinion. Review of the decision, however, reflects that the ALJ discredited
the doctor's opinion in part because the doctor rendered her opinion less than one month after
beginning a treatment relationship with Plaintiff, leading the ALJ to believe that the doctor had a
"limited basis" for her findings. Because the length of a treatment relationship is a legally valid
basis to give less weight to a physician's opinion, the ALJ did not eIT.
20 C.F.R. §§
The ALJ also noted that Dr. Yomogida's opinion, drafted in 2014, conflicted with a 2012
Dr. Yomogida stated that Plaintiffs functioning in the areas of
adaptation, understanding and memory, and concentration and persistence, were limited
beginning on his alleged disability onset date in December 2009; yet, a 2012 workplace
assessment detailed no difficulties with any of those functional categories. (Tr. 510-14.) Indeed,
Plaintiff exhibited enthusiasm for his work, arrived on time, completed tasks as assigned,
adequately adapted to change, and paid attention to his tasks. (Tr. 511.) Therefore, the ALJ's
partial rejection of Dr. Yomogida's opinion was free from eITor.
10- OPINION AND ORDER
The RFC assessment represents the most activity in which a person can engage,
• considering his physical or mental impairments. See 20 C.F.R. § 404.1545. The RFC must
include all medically determinable impairments, even those considered non-severe. Id.; SSR 96. 8p, available at 1996 WL 374184.
Plaintiff argues that the ALJ e11'ed by "failing to include any mental impairments" in the
assessed RFC. However, Plaintiffs argument is inapposite, as the assessed RFC limited him to
"simple repetitive task type-work." (Tr. 21.) As such, Plaintiff fails to demonstrate how the ALJ
et1'ed in formulating the RFC with respect to his mental impairments.
VE Testimony at Step Five.
"While the claimant has the burden of proof at steps one through four, the burden of
proof shifts to the [Commissioner] at step five to show that the claimant can do other kinds of
work." Valentine v. Comm 'r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (citations
omitted). The Commissioner shows that a claimant is capable of working by determining the
claimant's RFC and posing hypothetical questions to a VE that incorporate the claimant's
limitations. Id. The VE lists jobs the hypothetical claimant is capable of performing, and the
ALJ determines, "given the claimant's RFC, age, education, and work experience," if there are
jobs in the national economy the claimant can perform. Id. The Commissioner must determine
"specific jobs existing in substantial numbers in the national economy that [a] claimant can
perform despite [his] limitations." Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995).
The ALJ assessed an RFC restricting Plaintiff to two hours of sitting or standing in an
eight-hour day. At the administrative hearing, the VE testified that a hypothetical plaintiff with a
two-hour sitting or standing restriction could perform the jobs of small products assembler or
11- OPINION AND ORDER
laundry folder. (Tr. 70.) The VE further testified that his testimony was consistent with the
Dictionary of Occupational Titles ("DOT"). (Tr. 70.)
Plaintiff argues that the two-hour sitting or standing restriction is inconsistent with the
jobs identified by the VE, because both are classified at the "light work" level. Indeed, the ALJ
found the VE's testimony inconsistent with the DOT because the "light exertional range of work
typically requires the ability to stand and walk for up to six hours a day;" and the ALJ attempted
to resolve the apparent discrepancy in the written decision. (Tr. 29.) However, both the ALJ and
Plaintiff erroneously manufactured the inconsistency, because jobs at the level oflight exertional
work do not necessarily require six hours of standing or walking.
The Code of Federal Regulations defines light work as:
lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or standing,
or when it involves sitting most of the time with some pushing and pulling of arm
or leg controls. To be considered capable of performing a full or wide range of
light work, you must have the ability to do substantially all of these activities.
20 C.F.R. § 404. 1567(b) (emphasis added). The DOT echoes the sentiment:
A job should be rated Light Work: (1) when it requires walking or standing to a
significant degree; or (2) when it requires sitting most of the time but entails
pushing and/or pulling of arm or leg controls; and/or (3) when the job requires
working at a production rate pace entailing the constant pushing and/or pulling of
materials even though the weight of those materials is negligible.
Dictionary of Occupational Titles, Appx. C, available at 1991 WL 688702 (4th ed. 1991)
Thus, a job classified at the light exertional level does not necessarily require a worker to
stand or walk for six hours. Instead, per the DOT' s definition, a worker could sit for most of the
day while using arm or leg controls. An examination of the small products assembler description
in the DOT demonstrates that the position is of the latter variety, performing "repetitive tasks on
12- OPINION AND ORDER
an assembly line to mass produce small products," frequently working at a bench as a member of
a team, and "assembling one or two specific parts and passing [it] to another worker;" fmiher,
the position generally requires frequent handling, reaching, and fingering. DOT 706.684-022,
1991 WL 679050. As defined, the small products assembler job is clearly one that involves
seated work with frequent use of the hands and arms, which is analogous to the pushing or
pulling of arm controls, as contemplated by the Regulations.
The court concludes that the small products assembler position could be performed while
sitting and, therefore, the VE's testimony did not necessarily conflict with the definition of light
work. See Moore v. Comm'r of Soc. Sec. Admin., 14-cv-354-AC, 2015 WL 1731400, *7-9 (D .
. Or. 2015) (no inherent conflict between the definition of light work and a two-hour standing or
Because there was no apparent conflict, the ALJ was not required to
investigate beyond asking the VE if his testimony was consistent with the DOT. See Gutierrez v.
Colvin, 844 F.3d 804, 808 (9th Cir. 2016) (to characterize a difference between VE testimony
and the DOT as a conflict, the difference must be at odds with the DOT's "listing of job
requirements that are essential, integral, or expected"). Furthermore, to the extent the ALJ ened
in attempting to resolve the purp01ied inconsistency between light work and a two-hour sitting or
standing restriction, any such enor was harmless because ultimately there was no inconsistency.
Plaintiff argues that the ALJ's purported error was not harmless. The court disagrees:
the principle of harmless error posits that if the ultimate disability decision would remain
unchanged after excising the offending section, the error is harmless. See Stout v. Comm 'r of
Soc. Sec. Admin., 454 F.3d 1040, 1054 (9th Cir. 2006). Here, because there was no actual
inconsistency between the VE's testimony and the definition of light work, the ALJ could arrive
at the same conclusion, absent the paragraph discussing the alleged inconsistency, and the final
13- OPINION AND ORDER
decision would remain legally sufficient. Accordingly, the ALJ's error was hannless because it
did not affect the non-disability decision.
Plaintiff also posits that the Commissioner cannot argue that the ALJ en-ed in making a
finding of inconsistency because the Commissioner is restricted to responding to issues raised by
Plaintiff. However, to the extent Plaintiff assigns en-or to the ALJ' s reasoning regarding the
alleged inconsistency, the haimless error rule is relevant, and its application appropriate on these
Based on the foregoing, the Commissioner's decision denying Plaintiffs applications for
DIB and SSI is AFFIRMED.
DATED t h ~ a y ofNovember, 2018.
JOHN V. ACOSTA
ited States Magistrate Judge
14- OPINION AND ORDER
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