Holford v. Commissioner Social Security Administration

Filing 18

OPINION AND ORDER: The Commissioner's decision is AFFIRMED. Accordingly, this case is DISMISSED. Signed on 10/10/2018 by Judge Ann L. Aiken. (ck)

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

MARQUEA H., 1

Case No. 3:17-cv-01163-AA
OPINION AND ORDER

Plaintiff,

v.
COMMISSIONER OF SOCIAL SECURITY, 2
Defendant.

AIKEN, Judge:
Plaintiff Marquea H. 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 denied plaintiffs applications for Disability

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 paiiies in this case. Where applicable, this opinion uses
the same designation for a non-governmental party's immediate family member.
2

Nancy A. Berryhill's term as the Acting Connnissioner 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. 17(d). This Comi, therefore,
refers to defendant only as Commissioner of Social Security.
Page 1 - OPINION AND ORDER

Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). For the reasons set fo1th
below, the Commissioner's decision is affirmed.
BACKGROUND

Plaintiff applied for DIB on August 6, 2013, and she filed for SSI on March 2, 2015.
She alleged disability beginning June 8, 2011 3 due to degenerative disc disease, torn labrum,
paitially torn rotator cuff, unaligned rib cage, medication limitations and requirements, chronic
neck pain, mthritis, left ulnar neuropathy, migraines, and endometriosis.
Plaintiffs applications were denied initially and upon reconsideration. On December 1,
2015, plaintiff appeared at a hearing before an Administrative Law Judge ("ALJ"). Plaintiff
testified at the hearing, and was represented by counsel. A Vocational Expert (VE) also testified.
The ALJ found plaintiff not disabled in a written decision issued Januaiy 22, 2016. After the
Appeals Council denied review, plaintiff filed the present complaint in this Comt.
STANDARD OF REVIEW

The district court must affom 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); Beny 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 suppo1t a conclusion." Gutierrez v. Comm 'r Soc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The cou1t must weigh "both the
evidence that suppo1ts and the evidence that detracts from the ALJ' s conclusion." lvfayes v.

1vfassanari, 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 affomed,
3

Plaintiffs DIB and SSI applications list an alleged onset date of September 11, 2008 but
this was amended at the hearing upon the advice of counsel.
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because "the court may not substitute its judgment for that of the Commissioner." Edlund v.
lvfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
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 the alleged disability onset date. Tr. 27; 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, arthritis, left ulnar neuropathy, migraines, and endometriosis; 20
C.F.R. §§ 404.1520(c); id. §§ 416.920(c)." Tr. 27. At step three, the ALJ determined plaintiffs
impairments, whether considered singly or in combination, did not meet or equal "one of the
listed impairments" that the Commissioner acknowledges are so severe as to preclude substantial
gainful activity. Tr. 28; 20 C.F.R. §§ 404.1520(a)(4)(iii), (d); id §§ 416.920(a)(4)(iii), (d).
The ALJ then assessed plaintiffs 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 that plaintiff had:
[t]he residual functional capacity to perform less than the full range of sedentary
work as defined in 20 CFR 404.1567(a) and 416.967(a). She can lift and cany a
maximum of 10 pounds. She can push and pull within those weight limits. She
can stand and walk for two hours in an eight-hour workday. She can sit for six
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hours in an eight-hour workday. She requires the opportunity to shift from sitting
to standing at will. She should have no exposure to extreme heat, extreme cold,
humidity, and pulmonary irritants. She should have no exposure to unprotected
heights and moving mechanical parts. She can occasionally climb ramps and
stairs. She can occasionally climb ladders and scaffolds. She can occasionally
stoop, kneel, crouch, and crawl. She can occasionally reach overhead with both
arms. She can frequently balance. She can frequently handle, finger, and feel
with her non-dominant hand. She can frequently use foot controls with both feet.
Tr. 28-9.
At step four, the ALJ concluded plaintiff could perf01m her past relevant work as
a receptionist. Tr. 38; 20 C.F.R. §§ 404.1520(a)(4)(iv), (f). The ALJ continued to step
five and found that plaintiff could perform work existing in the national economy;
specifically, plaintiff could work as an appointment clerk, and/or call out operator. Tr.
38; C.F.R. §§ 404.1520(a)(4)(v), (g)(l).

Accordingly, the ALJ found plaintiff not

disabled, and denied her applications for benefits.
DISCUSSION

Plaintiff contends the ALJ committed at least four harmful errors. First, plaintiff argues
the ALJ did not provide clear and convincing reasons for not crediting plaintiff subjective
symptoms. Secondly, plaintiff argues that the ALJ failed to correctly assess the lay witness
testimony of her neighbor. Plaintiffs contends that the ALJ erred in evaluating the medical
opinions of sports medicine specialist, Dr. Charles Webb, and treating physician Dr. Holly
Hofkamp. Additionally, plaintiff avers the ALJ failed to incorporate all medical findings into her
RFC. Finally, plaintiff argues that the ALJ has a duty to develop the record further on the
question of plaintiffs anxiety. I address each argument in turn.
I.

Plaintiff's Subjective Symptom Statements

I begin with plaintiffs argument that the ALJ failed to provide legally sufficient reasons
to reject her testimony about the extent of her symptoms and functional limitations. When a

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claimant's medically documented impairments reasonably could be expected to produce some
degree of the symptoms complained of, and the record contains no affirmative evidence of
malingering, "the ALJ can reject the claimant's testimony about the severity of ... symptoms
only by offering specific, clear and convincing reasons for doing so." Smolen v. Chafer, 80 F.3d
1273, 1281 (9th Cir. 1996). A general assertion that the claimant is not credible is insufficient;
the ALJ must "state which . . . testimony is not credible and what evidence suggests the
complaints are not credible." Dodrill v. Shala/a, 12 F.3d 915, 918 (9th Cir. 1993). The reasons
proffered must be "sufficiently specific to permit the reviewing coutt to conclude that the ALJ
did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th
Cir. 1995). If the "ALJ's credibility finding is supported by substantial evidence in the record,
[the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th
Cir. 2002).
The ALJ discussed several reasons that she found the plaintiff to be only partially
credible concerning the intensity, persistence, and limiting effects of her symptoms.

These

reasons include the fact that plaintiff traveled internationally (to Mexico, Yemen, and Brazil)
during the period of alleged disability, and inconsistent testimony regarding issues such as her
ability to drive, shop, and work. At the hearing, the ALJ asked plaintiff how often she drove,
and she answered, "Two, three times a week." Tr. 50. The ALJ asked plaintiff about shopping
and meal preparation, and the plaintiff said that "I can run to Freddy's [i.e. Fred Meyer] ... I'll try
to cook a big pot of something ... and then make it stretch." Tr. 67. Regarding work, the plaintiff
performed work-like activity in 2012 as the caregiver for her mother and stepfather. She also
worked as a tax consultant in 2013. These facts create inconsistencies in plaintiffs testimony
regarding her limitations and her inability to work. See Ghanim v. Colvin, 763 F.3d 1154, 1163

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(9th Cir. 2014) (holding that an ALJ may consider prior inconsistent statements concerning
symptoms in weighing subjective symptom testimony).
Regarding the inconsistency of plaintiffs states with evidence in the medical record, the
ALJ noted that in 2014, plaintiff was going to the gym daily, lifting weights, walking, and doing
stomach crunches. In 2015, plaintiff was managing her pain after knee surgery, and walking
"three miles a day;" she had also ended use of narcotic pain mediation and begun riding her bike.
Tr. 34-35. The ALJ's account of the record as a whole demonstrated that the medical evidence
did not suppo1t the level of limitation that the plaintiff alleged. This, too, is a clear, convincing
reason to doubt plaintiffs symptom allegations. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.
2007) (stating that "daily activities may be grounds" to question a plaintiffs testimony about
symptom severity when those activities "contradict [the plaintiffs] other testimony").
The ALJ did venture into less ce1tain territory when she noted plaintiffs "use of
marijuana and tobacco raises the question of whether she is motivated to improve her fi.mctional
ability." Tr. 36. But in view of the rest of the ALJ's reasoning, any error committed here was
harmless. See Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
In sum, the ALJ supported her decision to give limited weight to plaintiffs symptom
testimony with clear, convincing reasons supported by substantial evidence. Moreover, to the
extent that plaintiffs testimony was consistent with the record as a whole, and with objective
medical evidence, the ALJ adequately accounted for that testimony by including limitations in
the RFC.
II.

Treatment ofJ\1edical Opinions

Plaintiff challenges the ALJ's weighing of the opinions of Dr. Webb and Dr. Hofkamp.
Specifically, plaintiff argues that the ALJ should have assigned foll weight to the disabling

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limitations in Dr. Webb's opinion and rejected Dr. Hofkamp's opinion that "working would
actually likely be good for [plaintiff!." Tr. 671.
The ALJ must explicitly reject medical opinions, or set forth specific, legitimate reasons
for crediting one medical opinion over another. Nguyen v. Chafer, 100 F.3d 1462, 1464 (9th Cir.
1996). An ALJ errs by rejecting or assigning minimal weight to a medical opinion "while doing
nothing more than ignoring it, asserting without explanation that another medical opinion is more
persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis" for
the ALJ's conclusion. Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014).
"An ALJ can satisfy the 'substantial evidence' requirement by 'setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his [or her]
interpretation thereof, and making findings."' Garrison, 759 F.3d at 1012 (quoting Reddick, 157
F.3d at 725). In other words, "[t]he ALJ must do more than offer his conclusions. [She] must
set forth [her] own interpretations and explain why they, rather than the doctors,' are correct."
Reddick, 157 F.3d at 725 (citing Embrey v Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).

"Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's
conclusion that must be upheld." See A1organ v. Comm'r ofSoc. Sec. Admin., 169 F.3d 595, 599
(9th Cir. 1999). "[T]he consistency of the medical opinion with the record as a whole" is a
relevant consideration in weighing competing evidence. Orn, 495 F.3d at 631.
Plaintiff argues more weight should have been afforded to the physical health RFC
questionnaire completed by sports medicine specialist, Dr. Webb. The ALJ assigned partial
weight to this opinion because, while it has some support in the record, the disabling restrictions
noted by Dr. Webb were not fully supported. Specifically, the ALJ noted that "only six months
previously, the claimant's treating doctor stated her conditions were somatic." Tr. 37. The use

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of "somatic" by the ALJ here is unclear, but the treatment notes to support this conclusion
indicate that Dr. Hoftkamp told plaintiff that she "doubted she would qualify for disability/SS!,"
that "working would actually likely be good for her," and that there were "no abnonnalities" in
the lab repo1is or physical examination.

Tr. 671.

(Dr. Hoftkamp also noted that she was

"suspicious for fibromyalgia" and discussed this with plaintiff, but this diagnosis was never
made, or alleged by plaintiff in this proceeding.)
The ALJ reasoned that the limitations Dr. Webb indicated on the RFC checklist, along
with the notation of "anxiety," were inconsistent with daily living activities that were also in the
record, such as: swimming, international travel, walking, and shopping in stores. These
inconsistencies are acceptable considerations for affording pmiial, rather than full, weight to Dr.
Webb's assessment.
Dr. Webb's responses were also not persuasive to the ALJ because they indicated that
while plaintiff has physical limitations, there was no substantiating detail on the medical findings
to support those limitations. To support the findings, Dr. Webb merely wrote "[s]ee progress
notes."

Tr. 700.

However, the progress notes as a whole indicate that plaintiff showed

improvement over the course of treatment. For example, in May 2014, the last time Dr. Webb
treated plaintiff, he noted she had a normal gait, a normal range of motion in her spine, and was
"healthy, alert, and cooperative." Tr. 674. Additionally, the questionnaire asked: "[a]re your
patient's impairments and illnesses consistent with causing the types of limitations she
experiences?" Tr. 699. Dr. Webb declined to answer that question, and noted it should be
directed to plaintiffs primary care physician. The ALJ reasonably found that Dr. Webb's nonresponses to these questions undermined the persuasiveness of his opinion, wananting partial
rather than full weight. I find no error there.

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Plaintiff also contends that the ALJ should have discounted treating physician Dr.
Hoftkamp's notation that working would benefit plaintiff. There is no legal error in the ALJ's
partial weighting of Dr. Hoftkamp's treatment notes, most clearly because, as plaintiffs treating
doctor, she has "an advantageous position from which to assess residual functional capacity." Tr.
36. The ALJ did not assign full weight because Hoftkamp's opinion did not contain specific
functional restrictions that were indicated by other evidence in the record.
Thus, the ALJ provided specific, legitimate reasons to support her decisions to give
partial weight to the opinions of both Dr. Webb and Dr. Hoftkamp. Accordingly, I will not
disturb these findings.
III.

Lay Witness Statement

Plaintiff argues the ALJ erred in partially weighting the statements of plaintiffs
neighbor, Ms. Suad Elmi. In general, "lay witness testimony as to a claimant's symptoms or
how an impainnent affects ability to work is competent evidence ... and therefore cannot be
disregarded without comment." Nguyen, 100 F.3d at 1467 (emphasis omitted). This is because
"[a]n eyewitness can often tell whether someone is suffering or merely malingering," particularly
ifthe witness "view[s] the claimant on a daily basis[.]" Dodrill, 12 F.3d at 919. An ALJ may
discount lay witness testimony only by providing reasons that are "germane" to each witness. Id.
Elmi provided a written statement that included her observations of plaintiff experiencing
extreme pain when she performed household chores, such as laundry or washing dishes, and
when she typed on the computer. The ALJ provided germane reasons to only partially weight
this testimony, namely that the symptoms described (severe migraines, and dizzy spells when
using aims) were not supported by the record as a whole.

Specifically, the ALJ discussed

evidence that, during the period of alleged disability, plaintiff was swimming daily, which would

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indicate that she used her arms, and commented: "It would be odd if the claimant swam daily
when it caused migraines and dizziness." Tr. 38. Still, the ALJ used Elmi's statement to inform
plaintiffs RFC finding that she had functional limitations and could only preform a less-than-afull-range of sedentary work. Those limitations are adequately accounted for by the restrictions
in the RFC. I find no legal error in the ALJ' s approach here.

IV.

Residual Functional Capacity Finding

Plaintiff contends that the ALJ failed to incorporate medical findings into her RFC,
causing legal et1'or. A claimant does not establish eimr by simply restating her arguments that
the ALJ improperly discounted certain evidence when the record instead demonstrates that the
ALJ properly weighted the evidence. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th
Cir. 2008). I have found no error in the ALJ' s review of the record as a whole and the resulting
partial weight given to medical opinions and lay witness testimony.

V.

Duty to Develop the Record Regarding Plaintiff's Anxiety

Finally, plaintiff argues that the ALJ erred when she neglected to develop the record
further

regarding

plaintiffs

alleged

mental

impairments

namely,

anxiety.

In Social Security cases, the ALJ has a special duty to develop the record fully and fairly and to
ensure that the claimant's interests are considered, even when the claimant is represented by
counsel. Tonapetyan v. Halte1; 242 F.3d 1144, 1150 (9th Cir. 2001); Brown v. Heckle1; 713 F.2d
441, 443 (9th Cir. 1983). The ALJ's duty to develop the record "is triggered only when there is
ambiguous evidence or when the record is inadequate to allow for proper evaluation of the
evidence." 1vfcLeod v. Astrue, 640 F.3d 881, 885 (9th Cir.2011). Plaintiff contends that the ALJ
should have further developed the record, apparently to dete1mine that plaintiff suffers from an
arndety disorder that contributes to her disability.

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While anxiety is mentioned in several notations in the medical record, the plaintiff was
not under the care of a treating psychiatrist, psychologist, counselor, or other mental health
provider during the period of disability, nor were refet1'als for such treatment ever made by her
medical physicians. The record also does not indicate that she sought such treatment. The
record before the ALJ was neither inadequate or ambiguous.

Ultimately, it was

plaintiffs' duty to prove that she was disabled. See 42 U.S.C. § 423(d)(5) (Supp.2001); Jllfayes v.
lvfassanari, 276 F.3d 453, 459 (9th Cir. 2001). A few passing mentions of anxiety did not trigger

a duty on the pmi of the ALJ to further develop the record where plaintiff did not allege anxiety
as part of her disability, or previously seek treatment for an anxiety disorder. Accordingly, there
is no enor here.
CONCLUSION

The Commissioner's decision is AFFIRMED. Accordingly, this case is DISMISSED.
IT IS SO ORDERED.
Dated this

_JQ_~ofOctober 2018.

Ann Aiken
United States District Judge

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~OPINION

AND ORDER