Rodriguez v. Commissioner Social Security Administration

Filing 22

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 05/12/2014 by Judge Anna J. Brown. See attached 16 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JOHN RODRIGUEZ,
Plaintiff,

6:13-CV-00722-BR
OPINION AND ORDER

v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,1
Defendant.

BRUCE W. BREWER
P.O. Box 421
West Linn, OR 97068
[phone]
Attorney for Plaintiff

1

Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this case. No
further action need be taken to continue this case by reason of
the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405.
1 - OPINION AND ORDER

S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
GERALD J. HILL
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Judge.
Plaintiff John Rodriguez 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 July 6, 2010,

2 - OPINION AND ORDER

alleging a disability onset date of June 24, 2010.

Tr. 100.2

The application was denied initially and on reconsideration.

An

Administrative Law Judge (ALJ) held a hearing on March 12, 2012,
and a supplemental hearing on July 17, 2012.

Tr. 37-68, 69-77.

At the hearings Plaintiff was represented by an attorney.
Plaintiff testified at the first and second hearings, and a
vocational expert (VE) testified at the second hearing.
The ALJ issued a decision on August 7, 2012, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 16-36.

Pursuant to 20 C.F.R. § 404.984(d),

that decision became the final decision of the Commissioner on
February 26, 2013, when the Appeals Council denied Plaintiff's
request for review.

BACKGROUND
Plaintiff was born June 24, 1965; was 46 years old at the
time of the first hearing; and was 47 years old at the time of
the second hearing.
Tr. 43.

Tr. 100.

Plaintiff completed high school.

Plaintiff has past relevant work experience as a sales-

route driver.

Tr. 29.

Plaintiff alleges disability due to a “back disorder” and
numerous surgeries.

Tr. 78.

2

Citations to the official transcript of record filed by
the Commissioner on September 5, 2013, are referred to as "Tr."
3 - OPINION AND ORDER

Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

After carefully reviewing the

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

See Tr. 25-28.

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 his

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
4 - OPINION AND ORDER

adequate to support a conclusion.”

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.
5 - OPINION AND ORDER

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

2007).

See also 20 C.F.R. § 404.1520.

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 his limitations.
§ 404.1520(e).

20 C.F.R.

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

6 - OPINION AND ORDER

“A

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

7 - OPINION AND ORDER

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since his June 24, 2010, alleged
onset date.

Tr. 21.

At Step Two the ALJ found Plaintiff has the severe
impairments of lumbar radiculopathy, carpal-tunnel syndrome,
lumbar stenosis, lumbar spondylosis, herniated disc, “L3-4
radiculopathy with foraminal stenosis at L3-4 and L4-5,” moderate
obstructive sleep apnea, major depressive disorder, and anxiety
disorder.

Tr. 21.

The ALJ found Plaintiff’s impairments of

glaucoma, gout, and hip pain to be nonsevere.

Tr. 22.

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. 56.

The ALJ found Plaintiff has the RFC to

perform sedentary work.

Tr. 24.

The ALJ found Plaintiff can

stand and/or walk for two hours in an eight-hour work day; can
sit for six hours in an eight-hour work day; can occasionally
climb ramps and stairs, balance, and stoop; can never kneel,
crouch, crawl, or climb ladders, ropes, or scaffolds; and “should
avoid” exposure to unprotected heights, walking on uneven
terrain, and all moving machinery.

Tr. 24.

The ALJ found

Plaintiff “can be off task for five percent of the work day, can
experience only occasional changes in the work setting, and can

8 - OPINION AND ORDER

only occasionally engage in decision making.”

Tr. 24.

At Step Four the ALJ concluded Plaintiff was unable to
perform his past relevant work as a sales-route driver.

Tr. 28.

At Step Five the ALJ found Plaintiff could perform jobs that
exist in significant numbers in the national economy.

Tr. 29.

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
rejected Plaintiff’s testimony; (2) improperly gave “little
weight” to the opinion of treating physician Janey Purvis, M.D.;
(3) improperly rejected lay-witness testimony; and (4) did not
give a complete hypothetical to the VE.
I.

The ALJ gave clear and convincing reasons for partially
rejecting Plaintiff’s testimony.
Plaintiff alleges the ALJ erred when he failed to give clear

and convincing reasons for partially rejecting Plaintiff's
testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments, and he must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).

Cotton, 799 F.2d 1403, 1407 (9th

The claimant, however, need not produce objective

9 - OPINION AND ORDER

medical evidence of the actual symptoms or their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and
convincing reasons for doing so.

Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)).

General assertions that the claimant's testimony is

not credible are insufficient.

Id.

The ALJ must identify "what

testimony is not credible and what evidence undermines the
claimant's complaints."

Id. (quoting Lester, 81 F.3d at 834).

At the first hearing in March 2012 Plaintiff testified he
has to lie down three-to-four times during the day, he cannot
prepare meals or wash dishes without sitting down, he uses a
shower chair, he cannot put on or tie his shoes without
difficulty, he cannot consistently lift ten pounds, he cannot
bend down to pick things up off of the floor when he drops them,
and he has difficulty reaching overhead.

Plaintiff testified his

limitations are due to his surgeries and back pain.
The ALJ found Plaintiff’s “medically determinable
impairments could reasonably be expected to cause [Plaintiff's]
alleged symptoms,” but he concluded Plaintiff’s testimony
“concerning the intensity, persistence, and limiting effects” of
his symptoms “are not credible to the extent they are
10 - OPINION AND ORDER

inconsistent with the [RFC]."

Tr. 27.

The ALJ noted the record reflects periods of time after
Plaintiff’s alleged onset date during which he stopped taking
pain medication.

The ALJ also noted Plaintiff stopped working in

June 2010 for reasons unrelated to his impairments.
Specifically, Plaintiff reported he lost his job because he lost
his certified drivers license after receiving a citation for
driving under the influence of alcohol.
The ALJ also pointed out that Mike Henderson, M.D.,
examining physician, noted on April 30, 2012, that “[t]here were
discrepancies between [Plaintiff’s] history today and [his]
previous medical records that were quite significant.”

Tr. 1793.

Dr. Henderson noted the record reflects Plaintiff reported his
pain level is typically between two and six out of ten, but
Plaintiff reported to Dr. Henderson that his pain level is
typically six or seven out of ten.

Tr. 1792.

For example, on

April 24, 2012, which was six days before Plaintiff’s examination
with Dr. Henderson, Plaintiff’s treating physician, Kent Yundt,
M.D., reported Plaintiff “actually says he is doing ‘well’, which
is a long time since I have heard [Plaintiff] say that. . . .
[H]e is happy and this is the best I’ve seen him look in a long
time.”

Tr. 1925.

On this record the Court finds the ALJ provided clear and
convincing reasons supported by substantial evidence in the

11 - OPINION AND ORDER

record for finding Plaintiff's testimony was not entirely
credible as to the intensity, persistence, and limiting effects
of his conditions.

The Court, therefore, concludes the ALJ did

not err when he rejected Plaintiff's testimony in part.
II.

The ALJ did not err when he gave little weight to the
opinion of Dr. Purvis.
On June 8, 2012, Dr. Purvis, treating physician, opened in a

letter To Whom It May Concern that Plaintiff “is currently
disabled, is expected to be disabled for the next 12 months,” and
is “limited from performing any substantial gainful activity on a
sustained basis.”

Tr. 1808.

The ALJ gave

Dr. Purvis’s opinion “little weight.”

Tr. 28.

An ALJ may reject an examining or treating 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 or treating physician is uncontroverted,
however, the ALJ must give "clear and convincing reasons" for
rejecting it.

Thomas, 278 F.3d at 957.

See also Lester v.

Chater, 81 F.3d 821, 830-32.
The ALJ noted Dr. Purvis did not cite any objective medical
evidence in the record to support her opinion.
12 - OPINION AND ORDER

In addition,

Dr. Purvis failed to set out the impairments that she believed
caused Plaintiff’s disability and did not list any specific
limitations caused by Plaintiff’s impairments.

See Thomas, 278

F.3d at 957 (“The ALJ need not accept the opinion of any
physician, including a treating physician, if that opinion is
brief, conclusory, and inadequately supported by clinical
findings.").

In addition, the record reflects in April 2012

after Plaintiff had his final surgery to place a spinal cord
stimulator (SCS) in his back, he was doing “well” and looked
better than he had in a long time.

Tr. 1925.

On May 17, 2012,

Dr. Yundt reported “[t]he SCS has given [Plaintiff] significantly
improved management of his pain.”

Tr. 1927.

On June 5, 2012,

Plaintiff reported to Dr. Yundt that he was “50% better than he
was before surgery and he has remained stable since his last
visit.”

Tr. 1929.

Dr. Yundt reported Plaintiff was “awake,

alert, and cooperative.
well.”

He is smiling and appears to be doing

Tr. 1929.

On this record the Court concludes the ALJ did not err when
he gave little weight to the opinion of Dr. Purvis because the
ALJ provided clear and convincing reasons supported by
substantial evidence in the record for doing so.
III. The ALJ did not err when he rejected lay-witness statements.
On July 30, 2010, Plaintiff’s stepfather-in-law, Howard
Rackley, filled out a Third-Party Adult Function Report in which

13 - OPINION AND ORDER

he noted Plaintiff could not sit or stand “very long,” could not
lift more than five pounds, needed a cane or walker to walk, used
a shower chair, could not tie his own shoes, and could not stand
long enough to prepare meals.

T. 271-73.

Rackley stated

Plaintiff did not do house or yard work because “no bending,
standing, or lifting!”

Tr. 273.

Rackley noted Plaintiff could

“pay attention” for 20 minutes at a time and was depressed due to
pain.

Tr. 276-77.
Lay testimony regarding a claimant's symptoms is competent

evidence that the ALJ must consider unless he "expressly
determines to disregard such testimony and gives reasons germane
to each witness for doing so."
(9th Cir. 2001).

Lewis v. Apfel, 236 F.3d 503, 511

See also Merrill ex rel. Merrill v. Apfel, 224

F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a
claimant's disability, must give full consideration to the
testimony of friends and family members.").

The ALJ's reasons

for rejecting lay-witness testimony must also be "specific."
Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006).

When "the

ALJ's error lies in a failure to properly discuss competent lay
testimony favorable to the claimant, a reviewing court cannot
consider the error harmless unless it can confidently conclude
that no reasonable ALJ, when fully crediting the testimony, could
have reached a different disability determination."
F.3d at 1056.

14 - OPINION AND ORDER

Stout, 454

The ALJ gave little weight to Rackley’s Report on the
grounds that Rackley stated he sees Plaintiff only eight hours
per week and that Rackley’s observations of Plaintiff “may not be
reflective of [Plaintiff’s] maximal capabilities,” which the ALJ
addressed in the context of partially rejecting Plaintiff’s
testimony and giving little weight to the opinion of Dr. Purvis.
Tr. 28.
On this record the Court finds the ALJ did not err when he
gave little weight to Rackley’s Report because the ALJ provided
specific reasons germane to Rackley for doing so.
IV.

The ALJ’s vocational hypothetical to the VE was complete.
Plaintiff asserts the ALJ erred when he failed to pose a

complete hypothetical to the VE.

Specifically, Plaintiff asserts

the ALJ did not include in the hypothetical all of the
limitations identified by Plaintiff.
Because the Court has concluded the ALJ properly rejected
Plaintiff’s testimony in part, properly gave little weight to the
opinion of Dr. Purvis, and properly gave little weight to
Rackley’s Report, the Court also concludes the ALJ did not err
when he did not include in his hypothetical to the VE the
limitations set out by those sources.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
15 - OPINION AND ORDER

Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 12th day of May, 2014.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

16 - OPINION AND ORDER