Lebaron v. Commissioner Social Security Administration

Filing 21

ORDER: The final decision of the Commissioner that plaintiff is not disabled under Title II or XVI of the Social Security Act is affirmed. Signed on 2/24/2012 by Magistrate Judge Thomas M. Coffin. (plb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
11-3026-TC

VERNISE G. LEBARON,
Plaintiff,

v.

ORDER

MICHAEL J. ASTRUE, Commissioner Social
Security Administration,
Defendant.
COFFIN, Magistrate Judge:
Plaintiff seeks review of the Social Security Commissioner's final decision denying her
application for Disability Insurance Benefits (Dill) and Supplemental Security Income (SSI). Forthe
following reasons, 1 affirm the Commissioner's decision.

Background
Plaintiffwas fifty years old when the Commissioner denied her applications for benefits. She
has an eleventh grade education, and has past work experience as a telemarketer. She filed
applications for DIB and SSI on January 4,2007, alleging disability since December 11, 2004 due

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to back problems and chronic obstructive pulmonary disease (COPD). The agency denied plaintiff's
applications initially and upon reconsideration. Plaintiff requested a hearing. On April 7, 2009, an
Administrative Law Judge (ALJ) held a hearing. Plaintiff, who was represented by counsel, testified.
Witness Janet Myers and vocational expert Frances Summers also testified at the hearing.
On July 16, 2009, the ALJ issued a decision finding plaintiff not disabled within the meaning
of the Act. The Appeals Council denied plaintiff's request for review on January 20, 2011, making
the ALJ's decision the Commissioner's final decision. Plaintiff timely filed this action seeking
judicial review of the Commissioner's decision.

Disability Analysis
The Commissioner engages in a sequential process of between one and five steps in
determining whether an individual is disabled under the Act Bowen v. Yukert, 482 U.S. 137, 140
(1987). At step one, the ALJ determines if the claimant is performing any gainful activity. Ifhe or
she is, then the claimant is not disabled. 20 C.F.R. §§ 404.1 520(b), 416.920(b). Step two requires
a determination of whether the claimant has a "severe medically determinable physical and mental
impairment" that meets the twelve month duration requirement. Id. §§ 404.1 520(c), 416.920(c). If
the claimant does not have such an impairment, he or she is not disabled. At step three, the ALJ
assesses whether the severe impairment (or combination of impairments) found in step two meets
or equals a "listed" impairment in the regulations. !4,. §§ 404.1520(d), 416. 920(d). Ifthe impairment
or eombination of impairments equals a listed impairment, the claimant is disabled.
If the impainnent or combination ofimpairments does not equal a listed impairment, the ALJ
proceeds beyond step three. The ALJ must first evaluate medical and other relevant evidence in
assessing the claimant's residual functional capacity (RFC). The claimant's RFC is an assessment
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of work-related activities the claimant may still perform on a regular basis, despite the limitations
imposed by his or her impairments. Id. §§ 404.1520(a), 416.920(a). The ALJ uses the RFC to
determine ifthe claimant can perform past relevant work at step four. rd. §§ 404.1520( e), 416. 920(e).
If the claimant cannot perform his or her past relevant work, the ALI must determine if the claimant
can perform other work in the national economy at step five. rd. §§ 404. 1520(£), 416.920(£); Tackett
v. Apfel, 180 FJd 1094,1099 (9th Cir. 1999).
The claimant bears the initial burden of proof at the first four steps. Tackett, 180 F.3d at
1098. At the fifth step, the burden shifts to the Commissioner to show jobs within claimant's RFC
exist in the national economy. ld. If the Commissioner meets this burden, the claimant is not
disabled. 20 C.F.R. §§ 404.1520(g), 416.920(g).
The ALJ's Findin~s
At step one, the ALJ found that plaintiffhad not engaged in substantial gainful activity since
her alleged disability onset date. At step two, the ALJ found that plaintiff had a severe combination
of impairments: thoracic spine cord compression and disk herniation, cervical spine strain, chronic
obstructive pulmonary disease, depression and substance abuse disorder. Plaintiff disputes the
finding of a substance abuse disorder.
At step three, the ALI found that plaintiff s combination of impairments did not meet or
equal a listed impairment and assessed plaintiff s RFC as the ability to perform light work with an
inability to sustain work on a full time basis. The ALJ found that, without substance abuse, plaintiff
's RFC was a full range oflight work. Plaintiff disputes this finding, arguing that her pain complaints
render her unable to sustain work on a full time basis.
At step four, the ALJ found that, without substance abuse, plaintiff could return to her past
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work as a telemarketer. Plaintiff disputes this finding to the extent that it relies on the disputed RFC
finding. Because the ALJ found plaintiff not disabled at step four, the ALJ did not proceed to step
five.
Review Standard

This court's review is limited to whether the Commissioner's decision to deny benefits to
plaintiff is based on proper legal standards under 42 U.S.C. § 405(g) and supported by substantial
evidence on the record as a whole. Copeland v. Bowen, 861 F.2d 536,538 (9th Cir. 1988) (citing
Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988». Substantial
evidence means more than a mere scintilla of evidence, but less than a preponderance, Saelee v.
Chater, 94 F.3d 520, 521 (9th Cir. I 996)(citing Sorensen v. Weinberger, 514 F.2d 1112, 1119 n.lO
(9th Cir. 1975». "It means such evidence as a reasonable mind might accept as adequate to support
a conclusion." Richardson v. Perales, 402 U.S. 389, 402, 91 S. Ct. 1420 (1971) (quoting
Consolidated Edison Co. y. N.L.R.B., 305 U.S. 197,229,59 S. Ct. 206 (1938». The court must
consider both evidence that supports and evidence that detracts from the Commissioner's decision,
but the denial of benefits shall not be overturned even if there is enough evidence in the record to
support a contrary decision. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). If substantial
evidence supports the administrative findings, or ifthere is conflicting evidence supporting a finding
of either disability or nondisability, the ALJ' s finding is conclusive, see Sprague v. Bowen, 812 F.2d
1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied
in weighing the evidence. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
Analysis

As noted above, plaintiff disputes the ALJ's step two fmding that one of her combined
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impairments was substance abuse and the ALJ's findings-that she's able to perform a full range of
light work but for the substance abuse and can perform her past work as a telemarketer, that relied
on the substance abuse finding. Plaintiff specifically argues that the ALJ erred by: finding that she
had a substance abuse disorder; failing to properly consider statements from treating physician Karen
Sauer MD, failing to properly assess her credibility; failing to properly consider testimony from lay
witness Janet Myers; improperly considering her ability to perform daily activities; and improperly
basing the decision on the opinion of the vocational expert (VE).

1. Substance Abuse Disorder
Plaintiff contends that the ALJ erred by fmding that she had a substance abuse disorder based
"solely on [the ALJ' s] finding that plaintiff was' quite inebriated' and appeared confused and 'drunk'
at the time of an emergency room visit in August 2004." PI.' s Brief at 16. Plaintiff further argues that
"isolated incidents of drug use on two occasions ... are not evidence of drug addiction materially
contributing to her disability ... " Reply Brief at 2.
The ALJ based her finding of a substance abuse disorder on evidence in the record of alcohol
abuse, history of methamphetamine use, and apparent drug-seeking behavior. Tr. 16,19,20,23,27.
The ALJ found that absent the substance disorder, plaintiff would be able to perform the full range
oflight work described in 20 C.FR §§ 404.l567(b) and 416.967(b). Tr. 23. Moreover, the ALJ
found that even if plaintiff stopped abusing substances, the severity of her physical
impairments-singly or in combination- would still fail to meet any of the impairments in 20 C.F.R.
Part 404, SubpartP, Appendix 1 (20 C.F.R. §§ 404.1 520(d) and 416.920(d». Tr. 25. Only when the
substance disorder was accounted for did the ALJ fmd that plaintiff could not perform the full range
of light work on a full-time basis. Tr. 23-24. Thus, even if the ALJ erred in fmding that substance
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abuse was a severe impainnent, the error was hannless because the ALJ also found that absent the
substance abuse impainnent, plaintiff's physical and mental impainnents or combination thereof
would not render a finding of disabled. Tr. 24. Presumably, plaintiff's argument is an attempt to
challenge the ALJ's step four finding by contending that substance abuse was not a "contributing
factor material to the determination of disability," and absent substance abuse, she should have been
found disabled. Since the error at step two was hannless, however, the Court declines to pursue the
issue further.
2. Consideration of Statements by Dr. Sauer

Plaintiff argues that the ALJ failed to state clear and convincing or specific and legitimate
reasons for discrediting and/or discounting the medical opinion of Plaintiff's treating physician
regarding the medical severity of Plaintiff's impainnents. An ALJ considers all relevant medical
evidence and is responsible for resolving its ambiguities and conflicts. 20 C.F.R. §§ 404.1527,
415.927; Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). "Where the
treating doctor's opinion is not contradicted by another doctor, it may be rejected only for 'clear and
convincing' reasons supported by substantial evidence in the record ... [e ]ven ifthe treating doctor's
opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing
'specific and legitimate reasons' supported by substantial evidence in the record." Om v. Astrue, 495
F.3d 625, 632 (9th Cir. 2007) (quoting Murray v. Heckler, 722 F.2d 499, 501-02 (9th Cir.
1983». While an ALJ should generally give more weight to the opinion of a treating doctor rather
than that of an examining doctor, an ALJ may nevertheless reject a treating doctor's opinions "that
are conclusory, brief, and unsupported by the record as a whole ... or by objective medical findings.
Batson, 359 F.3d at 1195. Further, an ALJ need not completely reject the opinion of a treating
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doctor, but may assign less than controlling weight if that opinion is not well-supported by objective
medical evidence, or is inconsistent with other substantial evidence. rd.; 20 C.F.R. §§
404.1527( d)(2), 416.927(d)(2); Social Security Ruling 96-2p. If evidence exists to support more than
one rational interpretation, the reviewing court must defer to the Commissioner's decision. Batson,
359 F.3d at 1193.
In the instant case, the ALJ declined to give Dr. Sauer's opinion controlling weight because
she found that Dr. Sauer's opinion was not well supported by objective medical evidence and was
inconsistent with substantial evidence in the record. Tr. 29. Plaintiff argues that the ALJ wrongly
rejected Dr. Sauer's opinion because it was based too heavily on plaintiff's subjective pain
descriptions. See Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194 (9th Cir. 2008). However, the court
does not find that the ALJ rejected Dr. Sauer's opinion solely because of her reliance on plaintiff's
testimony, for the following reasons. First, the ALJ found that Dr. Sauer opined via two checklist
forms that plaintiff was not able to lift more than five pounds at a time, was not capable of repetitive
grasping or fine manipulation with her hands, and must lie down three times per day for one hour
at a time. Tr. 425, 555-56. On the same day, however, plaintiff had reported to Dr. Sauer that she had
taken a multi-day motorcycle trip from Oregon to Arizona in the previous month, and "feels overall
she did well" on the excursion. Tr. 29, 541. The ALJ found that plaintiff's ability to travel long
distances by motorcycle was inconsistent with Dr. Sauer's simultaneous opinion regarding plaintiff's
grasping limitations. Tr. 29, 425. The ALJ also found plaintiff's other reported activities, such as
cleaning house for ten people, driving herself to California, mowing the lawn, baking cakes for
fellow NA (Narcotics Anonymous) attendees, and attempting to use an exercise ball and a stationary
bike were inconsistent with Dr. Sauer's appraisal ofplaintiff's limitations. Tr. 27-29.
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Second, the ALI noted that plaintiff's examination history with Dr. Sauer showed normal
motor strength, sensation, and reflexes in the upper extremities through the course of plaintiff s
treatment, which were inconsistent with the conclusions reflected in the 2007 and 2009 checklist
forms regarding plaintiffs pain-induced work limitations. Tr. 17-18,29,381,383,425,506,555-56.
The ALI also noted that examining physician Dr. Chua found that plaintiff had full strength, normal
reflexes and gait, and no evidence of dermitomal or radicular deficits; findings consistent with Dr.
Sauer's examination history, but again, inconsistent with Dr. Sauer's conclusions. Tr. 26, 268-69.
Defendant argues that plaintiff's 2006 MRI results, which revealed "moderately severe spinal stenosis
and cord compression," and "minimal impingement on the ventral aspect ofthe cord at C3-4 and C4-5
represent objective medical evidence which provides a basis for Sauer's opinion. Tr. 18·19,555·557
However, while the court acknowledges that moderate spinal stenosis and minimal impingement of
the cord could reasonably cause pain, a review of Dr. Sauer's treatment records reveal that despite
the MRI results, plaintiff reported "good pain improvement" with low doses of methadone in January
2007, and other subsequent self-reports by plaintiff indicated that her pain was controlled and stable
Tr. 378, 381, 507, 519-520, 527-528, 530·531. These reports appear inconsistent with Dr. Sauer's
conclusions regarding the severity ofplaintiff's pain impairments. The ALJ further noted that despite
diagnosing plaintiff with chronic obstructive pulmonary disease (COPD), Dr. Sauer nonetheless
"specifically authorized [work] environments including dust, fumes, gases, etc." Tr. 20, 29, 425.
Additionally, when plaintiff presented to an emergency room in October 2006 complaining of back
pain and seeking medication, an examining clinician noted no acute evidence of spinal stenosis or
spinal cord impingement. Tr. 18,374. Finally, the ALJ noted that upon review of the record, state
agency medical consultant Dr. Sharon B. Eder found plaintiff had the capacity to perform medium
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work. Tr. 27.
In light of the apparent inconsistencies in the medical and testimonial evidence discussed
above, the court finds that the ALJ provided clear and convincing rationales, based on substantial
evidence in the record, for her interpretation that Dr. Sauer's conclusions were not well supported.
Assigning Dr. Sauer's opinion minimal weight, therefore, was not reversible error.
3. Plaintifrs Credibility Determination

Plaintiff alleges that the ALJ improperly rejected her subjective pain testimony without
making specific findings stating clear and convincing reasons for doing so, and further alleges that
the ALJ' s credibility determination was premised wholly on a lack of medical support for the severity
of plaintiff's pain. Generally, when the record establishes a medically determinable impairment that
could reasonably cause plaintiff's symptoms, an ALJ must evaluate the claimant's credibility. 20
C.F.R. §§ 404.1529, 416.929; Social Security Ruling (SSR) 96-7p. An ALJ must make "findings
sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit
claimant's testimony." Tomasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Further, while an
ALJ may find testimony not credible in part or in whole, it is legal error to make a negative credibility
finding based solely on finding symptom testimony not substantiated by objective medical evidence.
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (citing Light v. Soc. Sec. Admin.,
119 F.3d 789, 792 (9th Cir. 1997»); see also SSR 96-7p. Nonetheless, a court need not uphold all of
an ALJ' s reasons for discrediting a claimant, so long as the ALJ' s decision is supported by substantial
evidence. Batson, 359 F.3d at 1197.
In this case, the ALJ followed the proper procedure for determining plaintiff's credibility. An

ALJ may consider many factors in weighing a claimant's credibility, including ordinary techniques
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of credibility evaluation (including prior inconsistent statements regarding symptoms and testimony
that appears less than candid), unexplained or inadequately explained failure to seek treatment or
follow prescribed treatment, and claimant's daily activities. Tommasetti, 533 F.3d at 1039; see also
20 C.F.R. §§ 404.1529(c), 416.929(c). Here, the ALJ noted several inconsistencies in plaintiff's prior
statements to care providers regarding her symptoms.! While plaintiff testified that her arms would
"go numb" and cause her to drop things, both Dr. Chua and Dr. Sauer consistently observed intact
strength, sensations, and reflexes in her arms. Tr. 17-18,26,268,381,506,557. Plaintiff reported to
her treating physician in 2006 that she was doing "most of the housework" in a home where ten
people were living, however, she then stated to Dr. Sauer that "she was not able to hold a loaf of
bread in her left hand for the last year or so." Tr. 27, 273, 381. Plaintiff also reported driving alone
to California in March 2007, and then traveling by motorcycle to Arizona in June/July 2007. Tr. 27,
394, 541. As tor failure to seek treatment or follow prescribed treatment, the ALJ noted at least two
instances, including plaintiff's failure to complete pulmonary functioning tests, and her failure to
begin physical therapy to alleviate pain until plaintiff had finished a school semester. Tr. 26-27.
Finally, the ALJ noted that plaintiffperformed a number of activities, including using an exercise ball,
riding a stationary bicycle, and mowing the lawn, despite her allegations of debilitating pain. Tr. 27.
Plaintiff asserts that the ALI was "comparing apples and oranges" in noting that plaintiff

!The court recognizes that the ALJ used "disfavored" language in her analysis by
explaining that "claimant's statements concerning the intensity, persistence, and limiting effeets
of these symptoms are not credible to the extent they are inconsistent with the residual functional
capacity assessment for the reasons explained below." An ALI must consider a claimant's
credibility in the course of assessing a residual functional capacity (20 C.F.R. § 404.1 545(a)(3);
SSR 96-8p at *7 (available at 1996 WL 374184» rather than determining credibility based on the
extent which a claimant's testimony comports with the RFC finding. Despite the AU's phrasing,
however, the record reflects that the ALJ properly considered plaintiff's credibility in the course
of determining the RFC.
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doing "most of the housework" in a dwelling inhabited by at least nine other people was inconsistent
with her assertion that she was unable to hold a loaf of bread in her left hand during the same time
period. Pl.'s Reply Brief at 8. Plaintiff also argues that traveling by motorcycle from Oregon to
Arizona is not inconsistent with her reports of extreme, often debilitating pain in her upper
extremities. rd. This line of argument is unpersuasive. While plaintiff s credibility cannot be rejected
solely because the medical evidence does not support the alleged severity of her impairment, the ALI
properly rejected her testimony by using ordinary techniques of credibility evaluation, and providing
specific, clear and convincing reasons supported by the record that her testimony was not fully
credible. See Thomas y. Barnhart 278 F.3d 947, 960 (9th Cir. 2002). As mentioned above, the ALJ
identified specific contradictions between plaintiff s subjective pain testimony and the activities she
was able to perform. Furthermore, the ALJ noted that plaintiff was willing to defer treatment for her
pain, and also that plaintiffs allegations did not comport to the objective medical evidence. Because
the ALI's credibility finding was reasonable and supported by substantial evidence, the court declines
to engage in second-guessing of that determination. See Fair v. Bowen, 885 F.2d 597, 604 (9th Cir.
1989).
4. Testimony of Lay Witness Janet Myers
Plaintiff alleges that the ALJ erroneously discredited the testimony of Janet Myers, a lay
witness. While an ALJ must take into account lay witness testimony, an ALJ may discredit that
tcstimony by giving specific reasons germane to each witness. Greger v. Barnhart, 464 FJd 968, 972
(9th Cir. 2006)(quotingDodrill v. Shahala, 12 F.3d 915, 919 (9th Cir. 1993». TheALJ found that Ms.
Myers' testimony was internally inconsistent insofar as she observed that plaintiff "laying in her
recliner the majority of the time," Ms Myers also "attempted to get the claimant ajob" and stated that
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plaintiff "was highly involved in starting NA meetings" in her area up until a "three or four months"
before the hearing. Tr. 28, 62. Second, the ALJ found that there was no "clinical corollary to explain
a decline in function" reported by Ms. Myers. Id. These reasons are specific and germane to the
witness; thus, the ALJ did not commit reversible error in assessing the credibility of Ms. Myers'
testimony.
5. Consideration of Plaintiffs Ability to Perform Daily Activities

Plaintiff contends that the ALJ improperly penalized plaintiff for "attempting to lead a normal
life" by carrying out certain activities after her alleged onset date by considering those activities.
Plaintiff's Brief at 22. This line of argument is derivative of the plaintifl' credibility issue already set
forth. As above, the court finds that the ALJ appropriately considered plaintiff s ability to perform
daily activities in weighing the credibility ofher testimony. While the .court recognizes that a claimant
need not be "utterly incapacitated" in order to be disabled, the court does not find that the ALJ
penalized the plaintiff for attempting to lead a normal life. See Fair v. Bowen, 885 F.2d at 603.
Rather, to the extent that several of plaintiffs activities undercut the credibility of her testimony
regarding her subjective pain symptoms and her ability to carry out some level of substantial gainful
employment, the ALJ properly considered those activities. Tr. 26, 27, 29.
6. Opinion of the Vocational Expert

Finally, plaintiff argues that the ALJ erred in framing her hypothetical questions to the VE,
and therefore erred in basing her opinion on the VE's answer. Plaintiff's argument is essentially a
restatement of the earlier claim of error regarding crediting Dr. Sauer's opinions in the RFC analysis.
The hypothetical questions which plaintiff alleges were erroneous did not include the limitations set
forth in Dr. Sauer's checklist form. Tr. 28-29. As discussed above, the court does not find error in the
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ALJ's decision to assign the limitations set forth by Dr. Sauer minimal weight. Accordingly, as the
ALJ included all of the limitations that she found to exist in the hypothetical, and because her findings
were supported by substantial evidence, the ALl did not err in excluding the limitations that the ALJ
found plaintiff failed to prove. See Rollins v. Massanari, 261 F.3d 853,857 (9th Cir. 2001).
Conclusion

For all the reasons set forth herein, the court finds that the Commissioner's findings were
supported by substantial evidence and inferences reasonably drawn from the record. The final
decision of the Commissioner that plaintiff is not disabled under Title II or XVI of the Social Security
Act is, therefore, affirmed.
The Clerk is directed to enter judgment in accordance with this order.
IT IS SO ORDERED

t

DATED this.). -1'day ofFebruary 2012.

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