Keith v. Commissioner Social Security Administration
Filing
18
Opinion and Order. The Commissioner's decision is based on substantial evidence and the proper legal standard and is therefore affirmed. This case is dismissed. Signed on 6/20/2012 by Chief Judge Ann L. Aiken. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DONNA F. KEITH,
Plaintiff,
v.
MICHAEL ASTRUE,
Commissioner of Social
Security,
Defendant.
Kathryn Tassinari
Mark A. Manning
Harder, Wells, Baron & Manning, P.C.
474 Willamette st., Suite 200
Eugene, Oregon 97401
Attorneys for plaintiff
S. Amanda Marshall
United States Attorney
Adrian L. Brown
Assistant United States Attorney
1000 SW Third Ave., Suite 600
Portland, Oregon 97201
PAGE 1 - OPINION AND ORDER
Case No. 6:ll-cv-06l30-AA
OPINION AND ORDER
Kathryn A. Miller
Special Assistant United States Attorney
Office of General Counsel
Social Security Administration
701 Fifth Ave., Suite 2900 MIS 221A
Seattle, Washington 98104
Attorneys for defendant
AIKEN, Chief Judge:
Plaintiff, Donna F. Keith, brings this action pursuant to the
Social
Security Act
judicial
review
Commissioner
(the Act),
of
a
denied
final
U.S.C.
decision
plaintiff's
supplemental security income
42
of
405(g),
§
the
application
to obtain
Commissioner.
for
Title
The
XVI
(SSI) disability benefits under the
Act. For the reasons set forth below, the Commissioner's decision
is affirmed and this case is dismissed.
PROCEDURAL BACKGROUND
On
August
30,
2007,
plaintiff
protectively
filed
an
application for SSI benefits. Tr. 102-08. After the application was
denied
initially
and
upon
reconsideration,
plaintiff
timely
requested a hearing before an administrative law judge (ALJ). Tr.
65-69, 71-73. On April 3, 2009, an ALJ hearing was held before the
Honorable Moira Ausems. Tr. 28-61. On November 27, 2009, ALJ Ausems
issued a decision finding plaintiff not disabled within the meaning
of the Act. Tr.
9-27.
On February 7,
2011,
the Appeals Council
declined to review the ALJ's decision. Tr. 1-3, 6-8. Plaintiff then
filed a complaint in this Court.
STATEMENT OF THE FACTS
Born on February 28, 1975, plaintiff was 32 years old on the
alleged onset date of disability and 34 years old at the time of
PAGE 2 - OPINION AND ORDER
the hearing. Tr. 102. Plaintiff left school after completing the
eighth grade and has no past relevant work experience. Tr. 21, 183.
She alleges disability beginning May 1, 2007 due to a neurological
disorder, a seizure disorder, and an anxiety or panic disorder. Tr.
73, 102.
STANDARD OF REVIEW
The 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. 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 (197l)
(quoting Consol. Edison Co. v.
N.L.R.B., 305 U.S. 197, 229 (1938)). The court must weigh "both the
evidence that
supports and detracts
conclusions." Martinez v.
from the
[Commissioner's]
Heckler, 807 F.2d 771,
772
(9th Cir.
1986) .
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) (1) (A).
The Commissioner has established a five-step sequential process
for determining whether a person is disabled. Bowen v. Yuckert, 482
PAGE 3 - OPINION AND ORDER
U.S. 137, 140 (1987); 20 C.F.R.
§
416.920. First, the Commissioner
determines whether the claimant is engaged in "substantial gainful
activity." If so, the claimant is not disabled. Yuckert, 482 U.S.
at 140; 20 C.F.R.
416.920(b).
§
At step two the Commissioner determines whether the claimant
has a "medically severe impairment or combination of impairments."
Yuckert, 482 U.S. at 140-41; 20 C.F.R.
416.920(c). If not, the
§
claimant is not disabled.
At
step
three
the
Commissioner
determines
whether
the
impairment meets or equals "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 141; 20 C.F.R.
§
416.920(d).
If
so,
the
claimant
is
conclusively
presumed
disabled; if not, the Commissioner proceeds to step four. Yuckert,
482 U.S. at 141.
At step four the Commissioner determines whether the claimant
can still perform "past relevant work." 20 C.F.R.
§
416.920(e). If
the claimant can work, she is not disabled. If she cannot perform
past relevant work, the burden shifts to the Commissioner.
At step five the Commissioner must establish that the claimant
can perform other work. Yuckert, 482
u.s.
at 141-42; 20 C.F.R.
§
416.920(e) & (f). If the Commissioner meets this burden and proves
that the claimant is able to perform other work which exists in the
national economy, she is not disabled. 20 C.F.R.
PAGE 4 - OPINION AND ORDER
§
416.966.
DISCUSSION
I. The ALJ's Findings
At step one of the five-step sequential process, the ALJ found
that plaintiff had not engaged in substantial gainful activity
since the alleged onset date. Tr. 14, Finding 1. At step two, the
ALJ found that plaintiff had the following severe impairments:
pseudo-seizures,
post-traumatic stress disorder
(PTSD),
a panic
disorder with agoraphobia, alcohol dependence, amphetamine abuse in
remission, a cognitive disorder, and a personality disorder. Tr.
14,
Finding 2.
At
step
three,
the ALJ found
that
plaintiff's
impairments did not meet or equal the requirements of a listed
impairment. Tr. 14-15, Finding 3.
Because she did not establish disability at step three, the
ALJ continued to evaluate how plaintiff's impairments affected her
ability to work. The ALJ determined that plaintiff had the residual
functional capacity (RFC) "to perform work at any exertional level
that will allow her to avoid concentrated exposure to workplace
hazards
such
understanding,
as
machinery and
remembering,
heights;
that
does
not
require
and carrying out more than simple,
routine tasks; and that would require no more than casual contact
with the general public and co-workers." Tr. 15-16, Finding 4.
At step four,
past
relevant
the ALJ found that plaintiff did not have any
work.
Tr.
21,
Finding
5.
At
step
five,
the ALJ
determined that there are jobs that exist in significant numbers in
the national and local economy that plaintiff could perform, such
as nut sorter, household appliance patcher, and taper. Tr. 21-22,
PAGE 5 - OPINION AND ORDER
Finding
9.
Accordingly,
the
ALJ
found
disabled within the meaning of the Act.
that
plaintiff was
not
~
II. Plaintiff's Allegations of Error
Plaintiff alleges the ALJ erred by: 1) improperly rejecting
her testimony; 2) improperly evaluating the medical evidence; and
3) failing to include all of her limitations in the RFC assessment
and hypothetical questions posed to the VE.
A. Plaintiff's Credibility
Plaintiff argues that the ALJ failed to provide clear and
convincing reasons for rejecting her subjective symptom testimony
regarding
the
extent
of
her
impairments.
When
a
claimant
has
medically documented impairments that could reasonably be expected
to produce some degree of the symptoms complained of and the record
contains
rej ect
no affirmative
the
symptoms
claimant's
evidence
testimony
only if he makes
of malingering,
regarding
specific
the
findings
"the ALJ may
severity of her
stating clear and
convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273,
1283-84
(9th Cir.
1996). When the "ALJ's credibility finding is
supported by substantial evidence in the record, we may not engage
in second-guessing." Thomas v.
Barnhart,
278 F.3d 947,
959
(9th
. Cir. 2002). 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. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).
Here, the ALJ resolved that plaintiff's medically determinable
impairments could reasonably be expected to produce some degree of
PAGE 6 - OPINION AND ORDER
the
alleged
symptoms;
however,
the
ALJ
also
found
that
her
testimony regarding the extent of those symptoms was not credible
to the extent that it was inconsistent with other evidence in the
administrative record. Tr. 18-21. Specifically, the ALJ first noted
that plaintiff's hearing testimony regarding her alcohol use was
inconsistent with her prior statements.' Tr. 18-20. Inconsistent
statements, or lack of candor, about alcohol and drug abuse is a
clear and convincing reason for an adverse credibility finding.
Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999).
At the hearing, plaintiff testified that she had been sober
since 2001, but had relapsed twice,
once in November 2007,
and
again in January 2009. Tr. 16-17, 47-48. Plaintiff characterized
the latter relapse as minor, "maybe a bottle of wine," motivated by
ineffective pain medication. Tr. 48. Plaintiff also definitively
stated she has not used alcohol since January 2009. Tr. 50.
As the ALJ noted, however, in July 2007, plaintiff reported
'The ALJ's discussion of the evidence, however, included
several inaccurate citations to the record. The ALJ cited to two
medical reports in support of the finding that plaintiff was
consuming alcohol after she reported stopping. Tr. 18. These
reports merely summarize plaintiff's statements regarding her
alcohol use from earlier examinations. Tr. 225, 499. The ALJ also
cited to a statement from plaintiff's boyfriend in support of her
determination that plaintiff was experiencing alcohol withdrawal
in 2008, despite plaintiff's testimony to the contrary. Tr. 18.
This evidence instead shows that the boyfriend was speaking about
himself. Tr. 266. Thus, plaintiff is correct that the ALJ's
mischaracterization of the record constitutes error; as discussed
above, substantial evidence nonetheless supports the ALJ's
credibility finding. Consequently, the error was harmless. See
Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir.
2006); see also Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d
1155, 1162-63 (9th Cir. 2008).
PAGE 7 - OPINION AND ORDER
drinking four or more alcoholic beverages a day and indicated
current alcohol use, including the "need to cut down." Tr. 18, 235.
In August 2008, plaintiff consumed five alcoholic drinks before
being admitted to the ER. Tr.
499. Three months later, another
medical report shows that plaintiff drank hard liquor two days
before an examination and continued to drink beer thereafter. Tr.
578.
Finally,
on April
14,
2009,
plaintiff reported
recently
consuming a beer. Tr. 520.
Finding this evidence belied her hearing testimony, the ALJ
concluded that plaintiff was not credible. Such a conclusion is
legitimate and supported by substantial evidence in the record.
Verduzco,
188
F. 3d at
1090.
For this reason alone,
the ALJ's
credibility determination is upheld.
Moreover, while neither party addressed these reasons in their
briefs, the ALJ found that plaintiff was not fully credible because
her testimony was inconsistent with the Cooperative Disability
Investigation Unit (CDIU) report2 and the medical evidence. 3 Tr. 1721. Inconsistencies between the claimant's testimony and the record
Z The CDIU investigated plaintiff based on SUsplclon of
secondary gain due to inconsistencies in her reporting. Tr. 264.
3 While this Court cannot uphold the ALJ's decision based on
grounds the ALJ did not raise, it nonetheless notes that there is
additional evidence in the record belying plaintiff's subjective
statements. For example, at the hearing, plaintiff testified she
lost her housekeeping job as a result of her involuntary
twitching and memory problems. Tr. 16-17, 34-35. Plaintiff,
however, reported to a clinician that she quit this job after
being confronted about an allegation a fellow employee had made.
Plaintiff was later told she could get her job back, but decided
against it. Tr. 198.
PAGE 8 - OPINION AND ORDER
is
also a
clear and convincing reason
for making an adverse
credibility finding. TOmmasetti v. Astrue, 533 F.3d 1035, 1040 (9th
Cir. 2008); Morgan
V.
Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600
(9th Cir. 1999).
At the hearing, plaintiff reported suffering from involuntary
bodily movements,
which frequently caused her to drop things,
created difficulty using knives and eating, and kept her awake at
night.
Tr.
17,
36-38,
49,
54.
Plaintiff
also
testified
that
seizures significantly limited her ability to spend time outside of
her house, walk, balance, and stand. Tr. 17, 37-39. Additionally,
plaintiff stated that, because of her panic and anxiety disorders,
she was unable to have a social life and experienced difficulty
focusing and remembering. Tr. 17, 41-42, 47, 54-55.
The
ALJ
found
this
testimony
was
contradicted
by
the
observations of the CDIU investigator, who noted that plaintiff had
no difficulty talking, standing, or walking; he also remarked that
her cognitive skills appeared intact and she demonstrated no signs
of shaking or tremors.
Tr.
265-266.
Further,
the investigator
reported that plaintiff was able to speak clearly and articulately,
as well as recall details of historical events, the names of people
in the area, and her recent doctor visits. Tr. 266.
The
ALJ also
discussed
several
examining
and
consulting
doctors whose medical reports undermined plaintiff's testimony. Dr.
Mia Schriener, M.D., and Dr. Judith Eckstein, Ph.D., both examined
plaintiff and did not observe any involuntary movements. Tr. 19.
Drs. Dorothy Anderson,
Ph.D,
PAGE 9 - OPINION AND ORDER
Frank Lahman,
Ph.D., Linda Jensen,
M.D., and Sharon B. Eder, M.D., each reviewed plaintiff's medical
file and opined that plaintiff's descriptions of her symptoms were
neither credible nor supported by the medical evidence. Tr. 20-21,
275, 289, 332, 335. Based on these additional inconsistencies, the
ALJ concluded that plaintiff was not fully credible. Tr. 21.
Therefore, the Court finds that the ALJ provided clear and
convincing reasons, supported by substantial evidence, to reject
plaintiff's testimony.
B. Evaluation of the Medical Evidence
Plaintiff next asserts that the ALJ erred by not giving clear
and convincing reasons for rejecting the opinion of Dr. Eckstein.
Plaintiff further argues that this opinion establishes the listing
cri teria for
12.02
(organic mental disorders),
12.06
(anxiety
disorders), and 12.08 (personality disorders), under 20 C.F.R. pt.
404, Subpart P, Appendix 1.
In social security cases, there are three sources of medical
opinions: treating doctors, examining doctors, and non-examining
doctors. Lester v. Chater, 81 F.3d 821, 830 (9th
general,
Cir. 1995). In
opinions from treating doctors carry more weight than
those of examining doctors; likewise, opinions of examining doctors
carry more weight than those of non-examining doctors. Ramirez v.
Shalala, 8 F.3d 1449, 1453 (9th Cir. 1993). To reject a treating or
examining doctor's uncontradicted opinion,
~clear
the ALJ must supply
and convincing reasons" for doing so. Lester, 81 F.3d at
830. If, however, the treating or examining doctor's opinion is
contradicted, the ALJ may reject it for "specific and legitimate
PAGE 10 - OPINION AND ORDER
reasons" supported by substantial evidence in the record.
Id. at
830-31.
After a single examination on December 18, 2007, Dr. Eckstein
diagnosed plaintiff with PTSD, a panic disorder with agoraphobia,
alcohol and amphetamine abuse in remission, a mathematics disorder,
a
personality
disorder
with
avoidant
and
obsessive-compulsive
traits, chronic seizures, and possibly Huntington's disease. Tr.
259-62.
Dr.
restrictions
activities
Eckstein
in
of
social
daily
also
assessed
functioning,
living,
and
plaintiff
moderate
wi th
marked
restrictions
restrictions
moderate
in
in
concentration, persistence, or pace, as well as four episodes of
decompensation. Tr. 261-62.
As
the ALJ
correctly
noted,
Dr.
Eckstein's
findings
are
contradicted by other medical evidence, including reports from Drs.
Anderson and Lahman. Tr. 19-21, 287-89, 335. Accordingly, the ALJ
only needed to provide specific and legitimate reasons to reject
Dr. Eckstein's opinion. Lester, 81 F.3d at 830-31.
The ALJ gave Dr. Eckstein's opinion little weight because it
was based on a one-time examination, in which the doctor did not
have plaintiff's medical records. Tr.
doctor's
familiarity
with
19. An ALJ can consider a
information
in
the
record
when
determining the weight accorded to their medical opinion. Orn v.
Astrue,
495
F.3d
625,
631
(9th
Cir.
2007).
When
evaluating
conflicting opinions, however, an ALJ is not required to accept an
opinion that is not supported by clinical findings, or is brief and
conclusory.
Bayliss v.
Barnhart,
PAGE 11 - OPINION AND ORDER
427 F.3d 1211,
1216
(9th Cir.
2005). Further, a doctor's work restrictions based on a claimant's
subj ecti ve statements about symptoms are reasonably discounted when
the ALJ finds the claimant not credible.
See, e.g., Bray v. Comm'r
of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); see also
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.
2004).
Finally,
an ALJ is not obliged to explicitly link his
determination to his stated reasons,
so long as he provides a
sufficiently detailed summary of the facts and evidence from which
the court can infer specific and legitimate reasons. Magallanes v.
Bowen, 881 F.2d 747, 755 (9th Cir. 1989).
Here, the record reveals that Dr. Eckstein's opinion was based
predominately on plaintiff's subj ecti ve complaints. Tr.
258-59,
261-62. Dr. Eckstein observed none of plaintiff's alleged symptoms
first hand; instead, the doctor reported plaintiff was prompt and
cooperative, showing no signs of abnormal speech, gait, or motor
movements. Tr. 257. Dr. Eckstein also noted that plaintiff remained
logical
and
coherent
throughout
agitated and over talkative at
the
exam,
times.
Tr.
despite
257.
appearing
Moreover,
the
cognitive tasks that plaintiff performed for Dr. Eckstein suggested
only mild
impairments
in
numerical
equations,
word
problems,
general fund of knowledge, and abstract reasoning skills. Tr. 25859. Yet, Dr. Eckstein diagnosed plaintiff with a number of serious
disorders and opined that plaintiff was markedly limited in social
functioning and had experienced four episodes of decompensation.
The ALJ is not obliged to accept a medical opinion unsupported
by
clinical
findings
or
PAGE 12 - OPINION AND ORDER
based
on
an
uncredible
claimant's
subjective reports.
See Bayliss, 427 F.3d at 1216; Bray, 554 F.3d
at 1228; Batson, 359 F.3d at 1195.
As discussed above, substantial
evidence in the record supports the ALJ's finding that plaintiff is
not credible.
is
not
Also, as the ALJ points out, Dr. Eckstein's report
internally
consistent,
administrative record.
nor
Moreover,
is
it
consistent
although Dr.
with
the
Eckstein does not
specify so in her report, her assessment was based almost entirely
on plaintiff's
subj ecti ve
testimony,
as
the
doctor's
clinical
findings are minimal and do not support her diagnoses. Further, she
did not review any of the other objective medical evidence pursuant
to the evaluation. As such, the Court finds that the ALJ set forth
specific
and
Eckstein's
legitimate
medical
reasons
opinion.
address plaintiff's argument
for
not
Consequently,
fully
the
crediting
Court
need
Dr.
not
regarding meeting or equaling the
listing criteria.
C. Plaintiff's RFC and Step Five Determination
Finally, plaintiff argues that the ALJ erred by failing to
incorporate limitations for all of her impairments in the RFC and
hypothetical questions posed to the VE.
alleges
that
the ALJ did not
consider
Specifically,
limitations
plaintiff
assessed by
psychologist Keith Murdock, Ed.s.'
When assessing the RFC,
the ALJ must consider limitations
imposed by all of claimant's impairments, even those that are not
4 Mr. Murdock provided his evaluation pursuant to the
Department of Human Services' "Learning Disability Assessment
Project," in order to assist in the development of a vocational
program for plaintiff. As such, Mr. Murdock was not tasked with
assessing plaintiff's allegedly disabling conditions. Tr. 213.
PAGE 13 - OPINION AND ORDER
deemed severe. SSR 96-8p, available at 1996 WL 374184, *5. Further,
the ALJ is required to consider all medical opinions and assess the
weight to be afforded each opinion. 20 C.F.R.
however,
§
416.927. The ALJ,
is not required to make his RFC findings "correspond
precisely to any physician's findings." Wilberg v. Astrue, 2009 WL
1066260, *3 (E.D.Cal. Apr. 20, 2009). Additionally, RFC need only
incorporate limitations found on the record. Osenbrock v. Apfel,
240 F.3d 1157, 1164-65 (9th Cir. 2001).
Mr. Murdock concluded that plaintiff did not have a specific
learning disability and was a low-average to average learner. Tr.
220-21. Mr. !1urdock therefore opined that plaintiff's work ability
was restricted by various factors other than a learning disability.
Tr. 18, 220-21. Nonetheless, Mr. Murdock advised that an employer
offer plaintiff praise,
time
limitations,
or
show "extreme patience," and set longer
remove
them altogether.
Tr.
221-22.
Mr.
Murdock's report, however, makes clear that these accommodations
are merely "recommendations" and are "not legally mandated," but
rather are only "offered for consideration in helping [plaintiff]
succeed" in her vocational program. Tr. 220.
Nevertheless,
beyond
suggestions
plaintiff argues that these statements went
and
were,
in
fact,
an
"analysis
of
what
Plaintiff 'can do' in spite of her mental limitations." PI's Reply
Br.
6;
see also PI's Opening Br.
19.
Contrary to plaintiff's
argument, the above-quoted language reveals that these statements
are merely recommendations. Tr. 220. !1r. Murdock did not conclude,
as plaintiff contends, that an employer would have to remove time
PAGE 14 - OPINION AND ORDER
limits for all projects, instead he only found it "advisable." Tr.
221.
Alternatively,
he suggests giving her time and a half to
complete a project. Tr. 222. Neither of these suggestions amount to
a impairment-related limitation.
Further,
in determining plaintiff's RFC,
considered Mr.
Murdock's
evaluation and,
as
the ALJ expressly
a
result,
limited
plaintiff's RFC to work thAIOat did not involve "understanding,
remembering, and carrying out more than simple,
routine, tasks,"
and only "casual contact with the general public and co-workers."
Tr. 15-16, 18. Plaintiff fails to explain how these restrictions
are
inconsistent
with
Mr.
Murdock's
assessment,
which
the
Regardless,
vocational recommendations are but one element.
of
the
Court finds that, when construed in its entirety and in conjunction
with the other medical opinion evidence, the report of Mr. Murdock
is consistent with plaintiff's RFC. Therefore, the ALJ did not err
in failing to expressly include all of Mr. Murdock's vocational
recommendations in his RFC assessment.
Because
the
ALJ
properly
concluded
that
Mr.
Murdock's
suggestions did not amount to additional limitations in the RFC, it
follows
that
the ALJ was
not
obliged to
include
them in
the
hypothetical questions posed to the VE.
See Stubbs-Danielson v.
Astrue,
Cir.
539
plaintiff's
insufficient
F.3d
1169,
1175-76
argument
that
the
RFC
because
they
lacked
(9th
and
VE
2008)
(rejecting
hypothetical
limitations
attested
were
to
in
properly-discredited testimony); see also Osenbrock, 240 F.3d at
1164-65.
PAGE 15 - OPINION AND ORDER
Therefore,
the
ALJ's
RFC
determination
and
hypothetical
questions are supported by substantial evidence in the record.
Accordingly, the Court finds that the ALJ met his step-five burden.
CONCLUSION
The Commissioner's decision is based on substantial evidence
and the proper legal standard and is therefore affirmed. This case
is dismissed.
IT IS SO ORDERED.
Dated this
112 day of
June 2012.
Ann Aiken
United States District Judge
PAGE 16 - OPINION AND ORDER
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