Carver v. Commissioner Social Security Administration

Filing 18

ORDER: The decision of the Commissioner is affirmed. Signed on 6/3/2013 by Magistrate Judge Thomas M. Coffin. (plb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CLIFFORD A. CARVER,
Plaintiff,

No. 6:12-cv-461-TC

v.

0 R D E R

Commissioner of Social Security,
Defendant.
Plaintiff brings this proceeding to obtain judicial review of
the Commissioner's final decision denying plaintiff's application
for disability insurance benefits.
Plaintiff asserts disability beginning August 12, 1998, due to
monoeuritis,
syndrome,

obesity,

and

cervical

administrative law judge

deep

vein

thrombosis,

spondylosis.
(ALJ)

After

post
a

laminectomy
hearing,

an

determined that plaintiff was not

disabled as of his date last insured because he could still perform
his prior relevant work.

1 - ORDER

In general, plaintiff attacks the ALJ's overall interpretation
of the evidence and argues that a remand for an award of benefits
is

necessary.

asserts

his

the ALJ erred

opening
in

brief,

plaintiff

discounting his

specifically

treating physician's

Also in his opening brief, plaintiff does assert that

opinions.
the

In

ALJ's

analysis

"featured"

an

unlawful

discounting

of

plaintiff's testimony, but focuses on the ALJ's treatment of his
opinions. 1

doctor's

In his

reply brief,

plaintiff essentially

raises for the first time an argument that the ALJ's rejection of
his

testimony

failed

to

meet

the

required

legal

standard.

Accordingly, the Commissioner has not had an opportunity to respond
to this argument and for that reason the court deems the argument
waived.

See, e.g., United States v. Moore, 376 F.3d 570, 576 (6th

Cir. 2004)

(declining to consider issues not raised in the opening

brief); Winnett v. Caterpillar, Inc., 553 F. 3d 1000, 1007 (6th Cir.
("These

2009)

evenhanded

waiver

litigation

and
by

forfeiture
requiring

rules

parties

ensure
to

fair

disclose

and
legal

theories early enough in the case to give an opposing party time
not only to respond but also to develop an adequate factual record
supporting their side of the dispute.") . 2

1

The ALJ did not discount the opinions by asserting that they
relied
on
plaintiff's
subjective
complaints
that
lacked
credibility.
2

Moreover, the ALJ appropriately found that the plaintiff's
complaints of disabling symptoms were not established prior to his
last date insured because plaintiff received conservative treatment
2 - ORDER

Plaintiff

first

argues

required to receive benefits.

that

he

meets

the

legal

standard

Plaintiff, in essence, contends that

the evidence in the record establishes that he is disabled as of
his date last insured, December 31, 2006.

Of course, the issue for

the court is not whether there is evidence to support a finding of
disability,

but whether substantial evidence supports the ALJ's

determination
reasonable

that

mind

plaintiff

might

find

is

not

adequate

disabled,
evidence

conclusion that plaintiff is not disabled.
even

rise

to

Accordingly,

the

level

of

a

i.e.,
to

whether

support

a

the

The standard does not

preponderance

of

the

evidence.

the more germane issue is whether the ALJ properly

after his laminectomy surgeries, displayed sub-optimal effort
during physical therapy evaluation, has not sought treatment from
his primary care doctor regarding alleged disabling dizziness,
displayed resistance to vocational rehabilitation, and because of
the normal physical exam findings by the Pain Consultants of Oregon
from July 4, 2002 to September .12, 2007.
Tr. 16-18, 326
(substandard effort); 344-45 (somatic amplification score is
positive); Tr. 576-77
(major concern is not dizziness when
specifically referred for evaluation of dizziness and plaintiff has
not sought treatment for it); Tr. 349 (complains about release to
vocational retraining asserting it is merely going from job to job
with a resume seeking positions); Tr. 431, 435-36, 439, 443-44,
418-19, 407-08, 389 (exam records of Pain Consultants of Oregon).
These are clear and convincing reasons supported by substantial
evidence for rejecting plaintiff's symptom testimony.
See, e.g.,
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may
reject testimony for,
among other things,
failure to seek
treatment);
Alexander v. Commissioner of Social Sec., 373
Fed.Appx. 741, 743 (9th Cir. 2010) (ALJ may reject testimony based
on clinician's observations of sub-optimal effort) .
In addition
the ALJ noted that despite plaintiff's alleged onset date of August
12, 1998, plaintiff engaged in substantial gainful activity until
December 31, 2000, and continued to work until sometime in 2002.
The ALJ also noted that record did not support plaintiff's
assertion that he had excessive absences.
Tr. 14.
3 - ORDER

discounted the opinions of plaintiff's treating physicians that he
is

disabled

which

the

ALJ

rejected

in

favor

of

nonexamining

consulting physicians who found plaintiff capable of light work.
The ALJ may not reject the opinion of an examining or treating
physician,

even

if

contradicted

by

another

physician,

without

providing ''specific and legitimate reasons" that are supported by
substantial evidence in the record.
821, 830-31 (9lli Cir. 1996).
advisor

cannot

by

itself

See Lester v. Chater 81 F.3d

The opinion of a non-examining medical
constitute

substantial

evidence

that

justifies the rejection of the opinion of an examining or treating
physician.

But, where the opinions of physicians contradict each

other, the ALJ must resolve the conflict.
Prior to his alleged onset date, plaintiff worked as a systems
analyst which was a sedentary position,
only occasional reaching.

as performed,

involving

Plaintiff began experiencing issues with

his cervical spine following a motor vehicle accident in August of
1998.

After two discectomy and fusion surgeries, plaintiff asserts

his condition deteriorated to the point he could no longer work by
sometime in 2002.
In
surgeon,

May

of

2001,

released

Dr.

Scott

plaintiff

lifting, bending or twisting.

with

Kitchel,

plaintiff's

instruction

to

do

treating
no

heavy

Tr. 203.

In July of 2002, Dr. Kitchel opined that he does not believe
that plaintiff

4 - ORDER

can return to his regular employment.
I would put his
lifting and carrying restrictions at ten pounds. I would
say, as a practical matter, he is currently completely
disabled from work.
Tr. 553.
The ALJ gave this opinion little weight.

The 10 pound lifting

limit would not preclude plaintiff's former work.
404.1567 (a)

(sedentary

work

involves

lifting

no

20 C.F.R.
more

than

§

10

pounds).
In August of 2002, Dr. Kitchel opined that plaintiff's neck
and

arm

condition

probably

precluded

him

from

sitting

and

functioning at a computer for more than 30 minutes and he probably
would be unable perform work at a computer workstation at all at
least one day a week.

Tr. 554-55.

In April of 2003, however, Dr.

Kitchel opined that while plaintiff was currently precluded from
systems analyst work, he was not precluded from all work.

Tr. 315.

These

and

opinions

generally

are

not

Furthermore,

virtually

framed

Dr.

in

devoid

terms

of

insured,

Dr.

Kitchel

completely disabled from work.

conclusory

and

limitations.

again opined that plaintiff is

Tr. 547-48.

1216

(9th Cir.

inadequately

2002)

The ALJ did not err in

See Bayliss v. Barnhart,
(ALJ need not accept brief

supported

opinions showing discrepancies).
5 - ORDER

functional

are

By 2010, after plaintiff's

rejecting these inconsistent opinions.
427 F.3d 1211,

explanation

Kitchel released plaintiff to work within his

physical capacities on April 20, 2004.
last date

of

opinion

and

may

reject

The ALJ similarly properly rejected the opinion of Dr. Joseph
Dunn, plaintiff's treating pain specialist.

Dr. Dunn did not opine

as to plaintiff's inability to work until June of 2010.
51.

(condition has progressed over a lengthy period).

to

plaintiff's

counsel's

prompting,

Dr.

Dunn

Tr. 551-

In response
agreed

that

plaintiff's inability to function dates back to before December 31,
2006.

Tr.

Again,

549.

there is no discussion of plaintiff's

functional capacities or clinical findings.
While medical

evaluations made

after

the

expiration of

a

plaintiff's insured status are relevant to an evaluation of the
pre-expiration condition,
Cir.

198 8) ,

Dr.

Dunn's

Smith v. Bowen, 849 F.2d 1222, 1225 (9th
opinion

shortcomings as Dr. Kitchel's.

suffers

from many of

the

same

The opinion is brief, conclusory

and provides virtually no explanation as to the basis

for

the

conclusion that

The

ALJ

plaintiff

is

"unable

appropriately rejected the opinion.

to

function."

Tr. 18.

The court is not free to interject its own assessment of the
treating doctors'

opinions but is limited to simply determining

whether substantial evidence supports the ALJ's decision.

In this

case, substantial evidence supports the ALJ's decision to reject
the

opinions

and

find

perform his prior work.

6 - ORDER

that

plaintiff

retains

the

capacity

to

CONCLUSION
For the reasons stated above, the decision of the Commissioner
is affirmed.
DATED this

3

:::fwJ

day of ..May, 2 0 13 .

United

7 - ORDER

Magistrate Judge