Messina-Morris v. Commissioner Social Security Administration

Filing 18

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. IT IS SO ORDERED. Signed on 9/4/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DONNA MARIE M.,1
Plaintiff,

3:17-cv-01540-BR
OPINION AND ORDER

v.
Commissioner, Social
Security Administration,
Defendant.
MERRILL SCHNEIDER
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, OR 97293
[phone]
Attorneys 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
[phone]
MICHAEL W. PILE
Acting Regional Chief Counsel
HEATHER L. GRIFFITH
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Donna Marie M. 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.

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 AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
Plaintiff filed an application for DIB on November 22, 2013,

2 - OPINION AND ORDER

alleging a disability onset date of October 18, 2013.

Tr. 144.1

The application was denied initially and on reconsideration.

An

Administrative Law Judge (ALJ) held a hearing on April 19, 2016.
Tr. 36-52.

Plaintiff was represented at the hearing.

Plaintiff

and a vocational expert (VE) testified.
The ALJ issued a decision on May 20, 2016, in which he found
Plaintiff is not disabled and, therefore, is not entitled to
benefits.

Tr. 18-35.

Pursuant to 20 C.F.R. § 404.984(d), that

decision became the final decision of the Commissioner on
July 29, 2017, when the Appeals Council denied Plaintiff's
request for review.

Tr. 1-7.

See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).

BACKGROUND
Plaintiff was born on April 9, 1962, and was 54 years old at
the time of the hearing.
degrees.

Tr. 41.

Tr. 144.

Plaintiff has two associate’s

Plaintiff has past relevant work experience as

a flagger, bartender, bus driver, security guard, and
environmental-cleanup worker.

Tr. 49.

Plaintiff alleges disability due to melanoma cancer, back
injury, neck injury, and depression.

Tr. 54.

Except when noted, Plaintiff does not challenge the ALJ’s

1

Citations to the official transcript of record filed by
the Commissioner on November 15, 2017, are referred to as "Tr."
3 - OPINION AND ORDER

summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 27-29.

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 her

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
453, 459–60 (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.
U.S.C. § 405(g).

42

See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
4 - OPINION AND ORDER

Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).

"It is more than a mere scintilla [of

evidence] but less than a preponderance."

Id. (citing Valentine,

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.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (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).

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.

5 - OPINION AND ORDER

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).

See also Keyser v.

Comm’r of Soc. Sec., 648 F.3d 721, 724 (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).

20 C.F.R. §§ 404.1509,

See also Keyser, 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
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 her limitations.
§ 404.1520(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

“A

'regular and continuing basis' means 8 hours a day, for 5 days a

6 - OPINION AND ORDER

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.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.

20 C.F.R. § 404.1520(a)(4)(iv).

See also Keyser, 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.

20 C.F.R. § 404.1520(a)(4)(v).

Keyser, 648 F.3d at 724-25.

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.

Lockwood v.

Comm’r Soc. 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
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
7 - OPINION AND ORDER

substantial gainful activity after her October 18, 2013, alleged
onset date.

Tr. 23.

At Step Two the ALJ found Plaintiff has the severe
impairments of “status post amputation of tip of right thumb,”
obesity, and depression.

Tr. 23.

The ALJ found Plaintiff’s

impairments of neck and shoulder pain, left-leg deep vein
thrombosis (DVT), hypertension, and “decreased aeration at the
bilateral bases of her lungs” are not severe.

Tr. 24.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P, appendix
1.

Tr. 24.

The ALJ found Plaintiff has the RFC to perform

medium work with the following limitations:

Plaintiff can

frequently “perform fine fingering/feeling with the dominant
right hand,” can occasionally “perform postural activities,” can
perform work “with a specific vocational preparation (SVP) of 2
or lower,” and “should avoid extremes of temperature and
pulmonary irritants.”

Tr. 26.

At Step Four the ALJ found Plaintiff can perform her past
relevant work as a flagger.

Tr. 29.

At Step Five the ALJ found, in the alternative, that
Plaintiff can perform the jobs of laundry worker and rack loader
that exist in significant numbers in the national economy.
Tr. 30.

Accordingly, the ALJ found Plaintiff is not disabled

8 - OPINION AND ORDER

DISCUSSION
Plaintiff contends the ALJ erred when he (1) gave “little
weight” to part of the opinion of examining physician Scott
Thomas, D.O., and (2) found Plaintiff could perform her past
relevant work as a flagger and/or found Plaintiff could perform
the jobs of laundry worker and rack loader.
I.

The ALJ did not err when he gave “little weight” to
portions of Dr. Thomas’s opinion.
Plaintiff asserts the ALJ erred when he gave little weight

to those portions of the April 2014 opinion of Dr. Thomas
relating to Plaintiff’s limitations in handling, fingering, and
feeling with her left and right hands.
An ALJ may reject an examining 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."

Thomas v. Barnhart, 278 F.3d 947, 957

(9th Cir. 2002)(quoting Magallanes v. Bowen, 881 F.2d 747, 751
(9th Cir. 1989)).

When the medical opinion of an examining

physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.

Thomas, 278 F.3d at

See also Lester v. Chater, 81 F.3d 821, 830-32 (9th Cir.

957.
1996).

On April 12, 2014, Dr. Thomas examined Plaintiff and

9 - OPINION AND ORDER

completed a medical-source statement.

Dr. Thomas opined

Plaintiff can walk and/or stand for six hours in an eight-hour
workday; can sit for six hours for in an eight-hour workday; can
occasionally lift and/or carry 50 pounds and frequently lift
and/or carry 25 pounds; can frequently kneel, crawl, and reach;
can handle, finger, and feel with her upper left extremity; can
occasionally climb steps, stairs, ladders, scaffolds, and ropes;
can occasionally stoop, crawl, and handle, finger, and feel with
her right upper extremity “based on her partially amputated right
thumb”; and should avoid “extremes of temperatures and chemicals”
as well as dust, fumes, gases, and pulmonary irritants.

Tr. 258-

59.
The ALJ gave great weight to Dr. Thomas’s opinion as to
Plaintiff’s ability to sit, to stand, to lift, to carry, to
climb, and to stoop.

The ALJ gave less weight to Dr. Thomas’s

opinion as to Plaintiff’s ability to kneel and to crawl.
Specifically, the ALJ noted “in light of [Plaintiff’s] obesity, I
find that a limitation to occasional kneeling and crawling better
reflects [Plaintiff’s RFC].”

Tr. 28.

The ALJ gave “little weight” to Dr. Thomas’s opinion that
Plaintiff could frequently handle, finger, and feel with her left
upper extremity and could occasionally handle, finger, and feel
with her right upper extremity.

The ALJ noted Plaintiff

testified at the April 19, 2016, hearing that she did not have

10 - OPINION AND ORDER

any problems with her left hand and that the record did not
reflect any such complaints.

The ALJ gave “more weight to

[Plaintiff’s] testimony tha[n] Dr. Thomas’ [sic] opinion
regarding her left hand functioning.”

Tr. 29.

The ALJ found Plaintiff could frequently handle, finger, and
feel with her right hand.

The ALJ noted Dr. Thomas reported

during his examination that Plaintiff’s thumb “function[ed] with
normal opposition.”

Tr. 257.

Dr. Thomas did not find any

“evidence of localized tenderness, erythema, . . . effusion
[. . . ,] diminution of function with repetition[, or . . .]
spasticity or ataxia.”

Tr. 257.

Dr. Thomas noted Plaintiff had

“slightly decreased” sensation to touch in her right thumb, but
her right-hand grip strength was “5-/5.”

Tr. 257-58.

The ALJ

also noted Plaintiff’s treating surgeon, William Wood, M.D.,
reported on August 5, 2013, three weeks after Plaintiff’s rightthumb surgery, that her progress was “excellent” and that
Plaintiff reported she was “happy with the way her treatment has
gone.”

Tr. 278.

In addition, the ALJ noted Plaintiff attended

three physical-therapy sessions after surgery, but she cancelled
her remaining appointments and did not reschedule.

Finally, the

ALJ noted Plaintiff received “fairly regular” medical treatment,
but her records from September 2014 to January 2016 do not
contain any mention of hand or thumb problems.
On this record the Court concludes the ALJ did not err when

11 - OPINION AND ORDER

he gave little weight to that portion of Dr. Thomas’s opinion as
to Plaintiff’s ability to handle, to finger, and to feel with her
left and right hands because the ALJ provided clear and
convincing reasons for doing so based on substantial evidence in
the record.
II.

Steps Four and Five.
As noted, Plaintiff alleges the ALJ erred at Step Four when

he found Plaintiff could perform her past relevant work as a
flagger or, in the alternative, erred at Step Five when he found
Plaintiff could perform other jobs as a laundry worker or rack
loader.
A.

Step Four.
At Step Four the ALJ found Plaintiff could perform her

past relevant work as a flagger.
At Step Four the burden remains on Plaintiff to
establish that she does not retain the RFC to perform work she
has done in the past.

20 C.F.R. § 404.1520(a)(4)(iv).

See also

Keyser, 648 F.3d at 724.
At the April 19, 2016, hearing the ALJ asked the VE to
consider a claimant who can do work at the medium exertional
level with occasional “postural activities” and “limited to fine
fingering and feeling with her right hand . . . frequently; who

12 - OPINION AND ORDER

should avoid extremes of temperature and pulmonary irritations;
[and] who is limited to unskilled work consistent with SVP 2 or
lower.”

Tr. 49.

The VE testified such an individual could

perform Plaintiff’s past relevant work as a flagger.
stated his testimony was consistent with the DOT.

The VE

The ALJ relied

on the VE’s testimony and found Plaintiff can perform her past
relevant work as a flagger.
Plaintiff contends the ALJ erred when he reached his
conclusion because a flagger “[c]ontrols movement of vehicular
traffic through construction projects[,] . . . [d]irects movement
of traffic through site, using sign, hand, and flag signals[,]
. . . [and w]arns construction workers when [an] approaching
vehicle fails to heed signals to prevent accident and injury to
workers.”

U.S. Dep’t of Labor, Dictionary of Occupational Titles

372.667-022 (4th ed. 1991).

According to Plaintiff, therefore,

pursuant to the DOT a flagger is necessarily exposed to dust,
fumes, and other pulmonary irritants generated by construction
and traffic.

To support her assertion Plaintiff notes the United

States Department of Labor publication Selected Characteristics
of Occupations Defined in the Revised Dictionary of Occupational
Titles (SCO) reflects flaggers are constantly exposed to “outside
atmospheric conditions” and loud noise and frequently exposed to

13 - OPINION AND ORDER

“other environmental conditions.”2

DOT, App’x D and 05.12.20.

The ALJ found Plaintiff must avoid pulmonary irritants, and,
according to Plaintiff, the VE’s testimony, therefore, “appears
to conflict with the DOT description of the occupation.”

The

ALJ, however, did not identify or resolve this conflict.
When determining whether a claimant can perform her
past relevant work, “the ALJ may rely on an impartial vocational
expert to provide testimony.”

Gutierrez v. Colvin, 844 F. 3d

804, 807 (9th Cir. 2016)(citing Hill v. Astrue, 698 F.3d 1153,
1161 (9th Cir. 2012)).
The [DOT], a resource compiled by the Department
of Labor that details the specific requirements
for different occupations, guides the analysis.
If the expert's opinion that the applicant is able
to work conflicts with, or seems to conflict with,
the requirements listed in the [DOT], then the ALJ
must ask the expert to reconcile the conflict
before relying on the expert to decide if the
claimant is disabled.
Id. at 808 (citation omitted).

“[N]ot all potential conflicts

between [a VE’s] job suitability recommendation and the [DOT’s]
listing . . . for an occupation will be apparent or obvious.”

2

The SCO defines other environmental conditions: “These
may include, but are not limited to, such settings as demolishing
parts of buildings to reach and combat fires and rescue persons
endangered by fire and smoke; mining ore or coal underground;
patrolling assigned beat to prevent crime or disturbance of peace
and being subjected to bodily injury or death from law violators;
diving in ocean and being subjected to bends and other conditions
associated with high water pressure and oxygen deprivation;
patrolling ski slopes prior to allowing public use and being
exposed to danger of avalanches.” U.S. Dep’t of Labor,
Dictionary of Occupational Titles, App’x D at ¶ 14.
14 - OPINION AND ORDER

Id.

“For a difference between an expert's testimony and the

[DOT’s] listings to be fairly characterized as a conflict, it
must be obvious or apparent.

This means . . . the testimony must

be at odds with the [DOT’s] listing of job requirements that are
essential, integral, or expected.”

Id.

Although Plaintiff asserts the VE’s testimony appears
to be in conflict with the DOT, the Court concludes such
conflict, if any, is not obvious or apparent.

The DOT listing

for flagger specifically states the occupation of flagger does
not include exposure to extreme heat or cold, toxic caustic
chemicals, or atmospheric conditions.

In addition, the DOT does

not include a characterization of the level of pulmonary
irritants in individual jobs.
On this record the Court concludes Plaintiff has not
established any apparent or obvious conflict between the VE’s
testimony and the DOT.

Accordingly, the Court concludes the ALJ

did not err when he relied on the VE’s testimony and found
Plaintiff can perform her past relevant work as a flagger.
B.

The ALJ erred in part at Step Five.
The ALJ made an alternative finding at Step Five that

Plaintiff can also perform the jobs of laundry worker and rack
loader.
1.

Laundry Worker
At the hearing the VE testified a claimant with

15 - OPINION AND ORDER

Plaintiff’s RFC could perform the job of laundry worker (DOT Code
361.685-018).

DOT 361.685-018 defines the job of laundry worker

as follows:
Tends laundering machines to clean articles, such
as rags, wiping cloths, filter cloths, bags,
sacks, and work clothes: Loads articles into
washer and adds specified amount of detergent,
soap, or other cleaning agent. Turns valve to
fill washer with water. Starts machine that
automatically washes and rinses articles. Lifts
clean, wet articles from washer and places them
successively into wringers and driers for measured
time cycles. Sorts dried articles according to
identification numbers or type. Folds and places
item in appropriate storage bin. Lubricates
machines, using grease gun and oil can. May
dissolve soap granules in hot water and steam to
make liquid soap. May mend torn articles, using
needle and thread. May sort and count articles to
verify quantities on laundry lists. May soak
contaminated articles in neutralizer solution in
vat to precondition articles for washing. May mix
dyes and bleaches according to formula, and dye
and bleach specified articles.
The SCO provides the job of laundry worker requires frequent
exposure to extreme heat.

DOT, App’x D 06.04.35.

Plaintiff,

however, points out that the hypothetical the ALJ gave to the VE
included “should avoid extremes of temperature.”

Tr. 49.

The

VE’s testimony, therefore, appears to conflict with the DOT and
the SCO.

The ALJ did not identify or explain this conflict.
Defendant does not address Plaintiff’s argument

regarding the ALJ’s finding that Plaintiff could perform the job
of laundry worker, and the record does not support such a
finding.

Accordingly, the Court concludes the ALJ erred at Step

16 - OPINION AND ORDER

Five when he found Plaintiff could perform the job of laundry
worker.

As noted, however, this finding was in the alternative

to the ALJ’s finding at Step Four, which the Court has concluded
was not in error.

The Court, therefore, concludes the ALJ’s

finding regarding Plaintiff’s ability to perform work as a
laundry worker is harmless error.
2.

Rack Loader
At the hearing the VE testified a claimant with

Plaintiff’s RFC could perform the job of rack loader “DOT Code
590.287-018.”

Plaintiff, however, points out that the DOT does

not contain any occupation with DOT Code 590.287-018.
identifies two occupations as rack loader:

The DOT

The first is rack

loader I, DOT Code 529.686-074, which is a heavy occupation in
the tobacco industry, and the second is rack loader
(fabrication), DOT Code 590.687-018, which is a medium occupation
in the fabrication industry that loads felt-base floor coverings
onto oven racks for drying.

According to Plaintiff, the ALJ

erred when he failed to identify or to resolve the erroneous DOT
code provided by the VE, and, “[w]ithout some reassurance that
the VE’s job numbers were based on [the rack loader
(fabrication)] occupation, the ALJ was not justified in relying
on the VE’s testimony . . . that this occupation includes a
significant number of jobs.”

Pl.’s Brief at 11.

Defendant concedes the VE incorrectly identified

17 - OPINION AND ORDER

the DOT code for rack loader as 590.287-018 rather than 590.687018, but Defendant asserts the error was a harmless scrivener’s
error.

Specifically, Defendant points out that it is apparent

from the context of the VE’s testimony that the VE was testifying
about the medium-level rack-loader job and merely misspoke (or
perhaps the court reporter misheard).

The VE testified about the

hypothetical claimant’s ability to do the rack-loader job, its
SVP, and its level (medium rather than heavy).
On this record the Court concludes the misidentification of the rack-loader occupation by the VE as DOT
Code 590.287-018 was, at most, harmless error.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of
the Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 4th day of September, 2018.
Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

18 - OPINION AND ORDER