Oswald v. Commissioner Social Security Administration

Filing 17

OPINION AND ORDER. For these reasons, the ALJ's decision that Oswald is not disabled is based on correct legal standards and supported by substantial evidence. The decision of the Commissioner is affirmed. IT IS SO ORDERED. Signed on 01/07/2013 by Judge James A. Redden. (pvh)

'

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

RITAL. OSWALD,

Plaintiff,

6:12-cv-00160 RE

OPINION AND ORDER

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

REDDEN, Judge:
Plaintiff Rita Oswald ("Oswald") brings this action to obtain judicial review of a final
decision of the Commissioner of the Social Security Administration ("Commissioner") denying
her claim for disability insurance benefits ("DIB"). For the reasons set fmth below, the decision
of the Commissioner is affi1med and this matter is dismissed.

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1 - OPINION AND ORDER

BACKGROUND
Oswald was born in 1960, and filed her application for DIB benefits in January 2009.
She has some college education, and has worked as a sales service specialist in a bank, as a
clerical assistant, and as a customer services representative. Tr. 67-68. Oswald alleges disability
since April27, 2007, due to "back and pelvic conditions, [p]ain, [t]orn pubic synthesis muscle
holding front pubic bones together." Tr. 176. Her application was denied initially and upon
reconsideration. A hearing was held in December 2010. The Administrative Law Judge ("ALJ")
found her not disabled. Oswald's request for review was denied, making the ALJ's decision the
final decision of the Commissioner.

ALJ's DECISION
The ALJ found Oswald had the medically determinable severe impaitments oflower back
fusion at L4-5, hernia repair, depression, and anxiety. Tr. 18.
The ALJ found that Oswald's impailments did not meet or medically equal one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. ld.
The ALJ dete1mined that Oswald retained the residual functional capacity ("RFC") to
perforn1 a limited range of light work, with no climbing ladders, ropes, or scaffolds, only
occasional climbing of ramps and stairs, occasional stooping, kneeling, crouching and crawling,
no exposure to hazards, and limited to sh01i, simple tasks. Tr. 20.
The ALJ found Oswald was not disabled because she could perform her past relevant
work as a clerical assistant. Tr. 25. In the alternative, the ALJ found that Oswald was able to
perf01m other work, including the representative occupations of office helper, mail sorter, and
assembler of printed products. Tr. 26.
2 - OPINION AND ORDER

The medical records accurately set out Oswald's medical history as it relates to her claim
for benefits. The court has carefully reviewed the extensive medical record, and the parties are
familiar with it. Accordingly, the details of those medical records will be set out below only as
they are relevant to the issues before the court.
DISCUSSION
Oswald contends that the ALJ erred by: (1) finding her less than fully credible; and (2)
improperly detem1ining her RFC.
I. Credibility
The ALJ is responsible for determining credibility, resolving conflicts in medical
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testimony, and for resolving ambiguities. Andrews v. Shala/a, 53 F.3d 1035, 1039 (9 h Cir 1995).

However, the ALJ's findings must be supported by specific, cogent reasons. Reddick v. Chafer,
157 F.3d 715, 722 (9'h Cir 1998). Unless there is affitmative evidence showing that the claimant
is malingering, the Commissioner's reason for rejecting the claimant's testimony must be "clear
and convincing." Id The ALJ must identify what testimony is not credible and what evidence
undermines the claimant's complaints. Jd The evidence upon which the ALJ relies must be
substantial. Reddick, 157 F.3d at 724. See also Holohan v. lvfassinari, 246 F.3d 1195, 1208 (9'h
Cir 2001). General findings (e.g., "record in general" indicates improvement) are an insufficient
basis to support an adverse credibility determination. Reddick at 722. See also Holohan, 246
F.3d at 1208. The ALJ must make a credibility detetmination with findings sufficiently specific
to petmit the court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.
Thomas v. Barnhart, 278 F.3d 947, 958 (91h Cir 2002).

3 - OPINION AND ORDER·

j

In deciding whether to accept a claimant's subjective symptom testimony, "an ALJ must
perfmm two stages of analysis: the Cotton analysis and an analysis of the credibility of the
claimant's testimony regarding the severity of her symptoms." [Footnote omitted.] Smolen v.

Chafer, 80 F.3d 1273, 1281 (9'h Cir 1996).
Under the Cotton test, a claimant who alleges disability based on subjective
symptoms "must produce objective medical evidence of an underlying
impahment which could reasonably be expected to produce the pain or other
symptoms alleged .... " Bunnell, 947 F.2d at 344 (quoting 42 U.S.C. § 423
(d)(5)(A) (1988)); Cotton, 799 F.2d at 1407-08. The Cotton test imposes
only two requirements on the claimant: (1) she must produce objective
medical evidence of an impahment or impahments; and (2) she must
show that the impahment or combination of impaim1ents could
reasonably be expected to (not that it did in fact) produce some degree
of symptom.

Smolen, 80 F.3d at 1282.
Oswald testified that she has severe pain in her back and pelvis. Tr. 52-54. The pain
impairs her ability to sit, stand, walk, lift, and cany. Tr. 55-57. The ALJ found Oswald's
allegations as to the intensity, persistence and limiting effects of her symptoms not credible to the
extent that they are inconsistent with the RFC.
The ALJ noted that Oswald's treating otihopedist, Jeffrey Bert, M.D., indicated in June
2007 that Oswald had no back pain and her hip pain had resolved. Tr. 21, 256. Dr. Bert
reviewed x-rays of Oswald's hips and pelvis, but did not diagnose an mihopedic problem. Tr.
21, 258. Bone scans were umemarkable. Tr. 22,267. Dr. Bert concluded that Oswald's pain did
not come from her back. Tr. 278.

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4 - OPINION AND ORDER

I

The ALJ cited the opinion ofTenence Bach, M.D., Oswald's primary care physician. Tr.
21. Dr. Bach told Oswald's insurance company that Oswald's pain was subjective and he could
find no source for it. Tr. 21, 455. Dr. Bach stated that the location of Oswald's pain changes and
does not appear to be related to her prior surgeries. Id. Dr. Bach was not able to provide
specific, reproducible findings that indicated a functional impairment.
The ALJ properly noted that Oswald had a conservative course of treatment. Tr. 22.
Oswald repmted to examining physician Raymond P. Nolan, M.D., in October 2009, that she
took no medication for chronic back pain. Tr. 23, 495. Oswald testified at the December 2010
hearing that she took up to 12 Advil per day for pain. Tr. 23, 49.
The ALJ properly found that Oswald's inconsistent reports to her medical providers
undermined her credibility. Tr. 22-23. The ALJ noted that Oswald reported chronic left knee
pain, with difficulty climbing stairs or hills, to Dr. Nolan, though there is no other repmt of knee
pain in the record.
The ALJ articulated clear and convincing reasons to find Oswald less than fully credible.

II. Residual Functional Capacity
Social Security Ruling ("SSR") 96-8p, entitled "Policy Interpretation Ruling Titles II and
XVI: Assessing Residual Functional Capacity in Initial Claims," addresses assessment of a
claimant's RFC. SSR 96-8p (available at 1996 WL 374184). The Ruling defines the RFC
assessment and instructs the ALJ to make findings in construing a claimant's RFC. The Ruling
also instructs the ALJ to consider "all relevant evidence" in making RFC findings, and to
address the claimant's exertional and nonexertional capacity. Id. at *5-6.

5 - OPINION AND ORDER

A claimant's RFC is an assessment of what a claimant can do in a work setting despite
her mental or physical impairment. Here, the ALJ found Oswald capable of performing a
modified range of light work.
The ALJ found at step four that Oswald could perfom1 her past relevant work as a clerical
assistant. Tr. 25. Oswald contends that this work was precluded by her residual functional
capacity because the DOT defines this position as a semi-skilled job. Assuming Oswald was
unable to perf01m her past relevant work, any enor at step four was hmmless because the ALJ
properly found her not disabled at step five. 1vfolina v. Astrue, 674 F.3d 1104, 1115 (9'h Cir.
2012).
At step five, the ALJ asked the vocational expeti to assume a person of Oswald's age,
education, work experience, and residual functional capacity. Tr. 72-73. The vocational expert
testified that such a person would work as an office helper or mail sotter, both of which are
unskilled, light work. The vocational expert opined that such a person could also work as an
assembler of printed products, which is unskilled, sedentary work. Tr. 76-77.
Oswald argues that her residual functional capacity for sh01i, simple tasks precludes her
ability to perform any occupation with a General Educational Development reasoning level of
two or three.
The indicated components of the Dictionary of Occupational Titles ("DOT") are
"definitional trailers" accompanying each entry in the DOT. They outline a one to six scale
corresponding to reasoning levels required for a pmticular job. DOT App'x C (4'h ed.
1991)(available at 1991 WL 688702). The DOT defines "level two reasoning" as: "Apply
commonsense understanding to can-y out detailed but uninvolved written or oral instructions.

6 - OPINION AND ORDER

I

Deal with problems involving a few concrete variables in or from standardized situations." ld
This language addresses "instructions," is limited to problems involving "few concrete
variables," and is thus logically consistent with an ability to cany out simple "tasks." See Abew

v. Astrue, 303 Fed. Appx. 567 (9'h Cir. 2008)(umeported)(finding "simple" tasks consistent with
level-two reasoning).' Further, this couti has specifically found that a claimant limited to simple,
routine tasks may perform level-two reasoning. Koch v. Astrue (available at 2009 WL 1743680
at *17)(D. Or. July 12, 2011 ). Both the office helper and assembler of printed product jobs are
reasoning level two. The ALJ did not err by finding Oswald retained the residual functional
capacity to perf01m simple tasks that require reasoning level two.
Oswald argues that the ALJ ened by failing to include limitations arising from frequent
crying episodes, and that the vocational expert testified that frequent crying would preclude
employment. Oswald does not point to medical evidence of frequent ctying, but did cry
frequently during the hearing. The ALJ properly noted the opinion of consultative examiner Gail
Wahl, Ph.D., who found Oswald had good social interactiona nd adaptive skills, and adequate
concentration and persistence. Tr. 24, 492. The ALJ noted Oswald's decision not to pursue
recommended counseling, and her testimony that she did not want counseling but was sad
because she did not have a job. Tr. 24-25, 526, 51.

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Cited in accordance with 91h Cir: R. 36-3, which allows citations to unpublished cases
promulgated after 2007. 9'h Cir. R. 36-3. The Ninth Circuit reached a similar conclusion in
Temple v. Callahan, 114 F.3d 1195 (9 1h Cir.l997)(umep01ied), but that case cannot control under
Cir. R. 36-3.
7 - OPINION AND ORDER

CONCLUSION
For these reasons, the ALJ's decision that Oswald is not disabled is based on correct legal
standards and supported by substantial evidence. The decision of the Commissioner is affim1ed.
IT IS SO ORDERED.
Dated this

_z day ofJanuary, 2013.

"/~nited States District Judge

8 - OPINION AND ORDER