King v. Commissioner Social Security Administration
Filing
19
OPINION & ORDER:The Commissioner's decision is AFFIRMED. See 12-page opinion and order attached. Ordered by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SHERRY KING,
No. 6:13-cv-00765-HZ
Plaintiff,
OPINION & ORDER
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
BRUCE W. BREWER
Law Offices of Bruce W. Brewer, P.C.
PO Box 421
West Linn, OR 97068
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
RONALD K. SILVER
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97201-2902
1 - OPINION & ORDER
JORDAN D. GODDARD
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Sherry King seeks judicial review of a final decision of the Commissioner of
Social Security (the “Commissioner”) denying her applications for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security
Act. This court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) & 1383(c)(3). For the reasons
set forth below, the Commissioner’s final decision is AFFIRMED.
PROCEDURAL BACKGROUND
On April 8, 2009, Plaintiff protectively filed applications for DIB and SSI, alleging an
onset date of July 11, 2003. Tr. 147–158.1 Her applications were denied initially and upon
reconsideration. Tr. 89–111. Thereafter, Plaintiff amended her onset date to July 16, 2008. Tr.
166.
On June 8, 2011, Plaintiff appeared, with counsel, at a hearing before an Administrative
Law Judge (“ALJ”). Tr. 40–76. On July 20, 2011, the ALJ issued a decision finding Plaintiff
not disabled. Tr. 24–33. The Appeals Council denied review, making the ALJ’s decision the
final decision of the Commissioner. Tr. 1–7.
FACTUAL BACKGROUND
Plaintiff was born on December 4, 1966. Tr. 147, 151. She alleges disability based on
fibromyalgia, lumbar disease, mental health issues, ankle injury, hip problems, posttraumatic
1
Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative record filed herein as
Docket No. 10.
2 - OPINION & ORDER
stress disorder (“PTSD”), borderline schizophrenia, sleeping disorder, eyeglasses, speech
impairment, being a slow learner, and migraine headaches. Tr. 174. Plaintiff has an eighth
grade education and attended special education classes. Tr. 52. Because the parties are familiar
with the medical and other evidence of record, I will refer to any additional relevant facts
necessary to my decision in the discussion section below.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if she is unable 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.” 42 U.S.C. §
423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. See Valentine
v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate
burden of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S.
137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner
determines whether the claimant has a “medically severe impairment or combination of
impairments.” Yuckert, 482 U.S. at 140–41; see also 20 C.F.R. §§ 404.1520(c), 416.920(c). If
not, the claimant is not disabled.
In 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; see also 20 C.F.R. §§
404.1520(d), 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.
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In step four, the Commissioner determines whether the claimant, despite any
impairments, has the residual functional capacity (“RFC”) to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If so, the claimant is not disabled. If the claimant cannot
perform past relevant work, the burden shifts to the Commissioner.
In step five, the Commissioner must establish the claimant can perform other work.
Yuckert, 482 U.S. at 141–42; see also 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the
Commissioner meets his burden and proves the claimant is able to perform other work which
exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity
since July 16, 2008, her amended alleged onset date. Tr. 26. At step two, the ALJ found
Plaintiff had the following severe impairments: borderline intellectual functioning (“BIF”);
fibromyalgia; affective disorder NOS; and personality disorder NOS. Tr. 27. At step three, the
ALJ found Plaintiff’s impairments did not meet or equal the requirements of a listed impairment
pursuant to 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
At step four, the ALJ assessed Plaintiff as having the following RFC: “perform light
work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except: limited to simple routine tasks;
no public contact; and occasional co-worker contact.” Tr. 28. With this RFC, the ALJ
determined Plaintiff is unable to perform any of her past relevant work. Tr. 32. However, at step
five, the ALJ determined Plaintiff is able to perform jobs that exist in significant numbers in the
national economy such as postage machine operator and assembler of small products. Tr. 32–33.
Thus, the ALJ determined Plaintiff is not disabled. Tr. 33.
4 - OPINION & ORDER
STANDARD OF REVIEW
The reviewing 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. 42 U.S.C. §
405(g); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). Substantial
evidence is “more than a mere scintilla, but less than a preponderance.” Bray, 554 F.3d at 1222
(citation and internal quotations omitted). It is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id.
The court must weigh the evidence that supports and detracts from the Commissioner’s
conclusions. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation omitted).
Where the evidence can support either a grant or a denial, the court may not substitute its
judgment for that of the Commissioner. Id. (citation omitted). Variable interpretations of the
evidence are insignificant if the Commissioner’s interpretation is a rational reading. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the court cannot affirm the
Commissioner’s decision upon reasoning the ALJ did not assert in denying the claimant benefits.
Bray, 554 F.3d at 1225–26 (citation omitted).
DISCUSSION
Plaintiff makes the following assignments of error: (1) the ALJ failed to properly
consider the opinion of Dr. Joshua Boyd; (2) the ALJ failed to properly consider the lay witness
statement of Michelle Pendergrass; and (3) the ALJ erred by failing to inquire whether the VE’s
testimony was consistent with the Dictionary of Occupational Titles (“DOT”).
I.
Dr. Boyd
Plaintiff argues the ALJ erred by “silently rejecting” portions of the opinion of Dr. Joshua
Boyd, a non-examining State-agency psychologist, when making the RFC assessment.
5 - OPINION & ORDER
There are three types of medical opinions in social security cases: (1) treating physicians;
(2) examining physicians; and (3) non-examining physicians. See Holohan v. Massanari, 246
F.3d 1195, 1201–02 (9th Cir. 2001) (internal citation omitted); see also 20 C.F.R. §§
404.1527(c)(1)–(2), 416.927(c)(1)–(2). Generally, a treating source’s opinion carries more
weight than an examining source’s opinion, and an examining source’s opinion carries more
weight than that of a source who did not examine the claimant but formed an opinion based on a
review of the claimant’s medical records. Id.
On July 10, 2009, Dr. Boyd completed a Psychiatric Review Technique form and Mental
Residual Functional Capacity Assessment (“MRFCA”) form.2 Tr. 377–390, 391–94. In Section
I of the MRFCA form, Dr. Boyd checked various boxes identifying Plaintiff’s mental limitations.
Tr. 391–92. In Section III, Dr. Boyd found the following Functional Capacity Assessment:
A and B. Cl is able to perform simple and routine tasks in a routine setting with
regular brks only. More detailed tasks too daunting for this lady.
C. No public contact and limited coworker interaction due to histrionic
presentation.
D. Would benefit from vocational rehab in her attempts to seek employment with
restrictions noted on this mrfc.
Tr. 393. The ALJ discussed these limitations at the hearing and incorporated them into
the RFC. Tr. 28, 43–44, 74–75. However, Plaintiff argues the ALJ erred by failing to
incorporate all of the limitations identified by Dr. Boyd in the MRFCA.
The Social Security Administration Program Operations Manual System (“POMS”)
provides that the MRFCA is divided into four sections.3 Bertram v. Colvin, 2013 WL 2659471,
*2 (D. Or. June 4, 2013) (citing POMS DI 24510.060(B)). “Section I is merely a worksheet to
2
Plaintiff does not argue the ALJ failed to incorporate any of Dr. Boyd’s findings found in the Psychiatric Review
Technique form.
3
“The POMS does not have the force of law, but it is persuasive authority.” Warre v. Comm’r of Soc. Sec. Admin,
439 F.3d 1001, 1005 (9th Cir. 2006) (internal citation omitted).
6 - OPINION & ORDER
aid in deciding the presence and degree of functional limitations and the adequacy of
documentation and does not constitute the RFC assessment.” Id. (quoting POMS DI
24510.060(B)(2)). Section III, the “Functional Capacity Assessment, is for recording the mental
RFC determination. It is in this section that the actual mental RFC assessment is recorded.” Id.
(quoting POMS DI 24510.060(B)(4)); see also POMS DI 25020.010(B)(1) (“It is the narrative
written by the psychiatrist or psychologist in section III . . . that adjudicators are to use as the
assessment of RFC.”). As such, “the ALJ need not incorporate every checked box in Section I
into the ultimate RFC.” Rounds v. Comm’r Soc. Sec. Admin., 2013 WL 1767880, *7 (D. Or.
April 24, 2013); see also Israel v. Astrue, 494 Fed. Appx. 794, 797 (9th Cir. Oct. 12, 2012).
As a result, there was no error by the ALJ in failing to incorporate each checked box in
Section I of the MRFCA into the RFC. In Section III of the MRFCA, Dr. Boyd found Plaintiff
“is able to perform simple and routine tasks in a routine setting with regular [breaks] only. . .”
and “[n]o public contact and limited coworker interaction due to histrionic presentation.” Tr.
393. This finding is reflected in the RFC limiting Plaintiff to “simple routine tasks; no public
contact; and occasional co-worker contact.” Tr. 28. However, Dr. Boyd also stated Plaintiff
“[w]ould benefit from vocational [rehabilitation] in her attempts to seek employment with
restrictions noted on this MRFC.” Tr. 393. This statement is not reflected in the RFC.
The RFC is “the maximum degree to which the individual retains the capacity for
sustained performance of the physical-mental requirements of the jobs.” 20 C.F.R. § 404, Subpt.
P, App. 2 § 404.1512(a). Thus, the RFC is the most a claimant can do despite his or her
limitations. 20 C.F.R. §§ 404.1545(a)(1)–(2), 416.945(a)(1)–(2). All of the claimant’s
impairments, both severe and nonsevere, must be considered when assessing the RFC. Id.
7 - OPINION & ORDER
The language used by Dr. Boyd when suggesting Plaintiff would benefit from vocational
rehabilitation indicates it is merely a recommendation. When incorporating functional
limitations from a medical opinion into the RFC, an ALJ may rely on specific imperatives, rather
than recommendations. Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir.
2008). This statement by Dr. Boyd is neither a diagnosis nor statement of Plaintiff’s RFC, but
rather a recommendation of a way for Plaintiff to seek employment. See Valentine, 574 F.3d at
691–92. As a result, the ALJ did not err by omitting Dr. Boyd’s recommendation that Plaintiff
would benefit from vocational rehabilitation in her attempts to seek employment, from the RFC.
II.
Lay Witness Statement
Plaintiff also argues the ALJ erred by “silently rejecting” portions of a lay witness
statement from Michele Pendergrass, the girlfriend of Plaintiff’s son.
The ALJ has a duty to consider lay witness testimony. 20 C.F.R. §§ 404.1513(d)(4) &
(e), 416.913(d)(4) & (e); Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). The ALJ must
provide “germane reasons” when rejecting lay testimony. Molina, 674 F.3d at 1114. The ALJ
may reject lay testimony that conflicts with the medical evidence. Lewis v. Apfel, 236 F.3d 503,
511 (9th Cir. 2001) (citing Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)). The ALJ,
however, is not required to address each witness “on an individualized witness-by-witness basis”
and may reject lay testimony predicated upon reports of a claimant properly found not credible.
Molina, 674 F.3d at 1114. “[W]here the ALJ’s error lies in a failure to properly discuss 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.” Stout v. Comm’r Soc. Sec. Admin., 454 F.3d
1050, 1056 (9th Cir. 2006).
8 - OPINION & ORDER
On June 1, 2011, Ms. Pendergrass submitted a one-page declaration describing how
Plaintiff lived with her for approximately two years, along with Plaintiff’s son and Plaintiff’s
three granddaughters. Tr. 238. Ms. Pendergrass described how Plaintiff had a lot of negative
psychological issues, including suicidal intentions. Id. She explained how Plaintiff had
difficulty watching her granddaughters, acted very childish, and would get in fights with her
granddaughters. Id. She described how Plaintiff would forget to take her medications and attend
her appointments, did not interact with others and had no friends, and how it was very difficult to
get Plaintiff out of her bedroom and out into public. Id. Finally, she explained Plaintiff was not
good at learning new things, would get frustrated very easily, and was paranoid of the neighbors.
Id. As a result, Ms. Pendergrass stated Plaintiff moved out of the house because they could no
longer handle dealing with Plaintiff and her difficulties. Id.
The ALJ discussed Ms. Pendergrass’ declaration with Plaintiff at the hearing and stated
he considered it in his decision. Tr. 31, 51–52. The ALJ noted “Ms. Pendergrass reported that
the claimant had problems getting along with her grandchildren, acting childish, some memory
issues as well as some anxiety issues in addition to her negative outlook.” Tr. 31. The ALJ then
found: “Ms. Pendergrass’ statement was considered in arriving at the residual functional capacity
outlined above. The claimant has been limited to simple routine tasks; no public contact; and
occasional co-worker contact.” Tr. 31.
Plaintiff argues the ALJ failed to incorporate all of Ms. Pendergrass’ declaration.
Specifically, Plaintiff argues Ms. Pendergrass’ statement about Plaintiff spending most of her
time alone in her bedroom establishes Plaintiff will be absent from work in excess of one day per
month. The VE testified at the hearing that absenteeism in excess of one day per month on a
regular ongoing basis would preclude employment. Tr. 73. However, nothing about Ms.
9 - OPINION & ORDER
Pendergrass’ statement establishes Plaintiff would be absent in excess of one day per month.
Although her statement about Plaintiff spending most of her time in her bedroom could be
interpreted to create excessive absenteeism from work, the ALJ's failure to interpret her
statement that way was not unreasonable. “[The court] must uphold the ALJ's decision where
the evidence is susceptible to more than one rational interpretation.” Burch, 400 F.3d at 680–81
(internal quotation marks and citation omitted).
Furthermore, in finding Plaintiff’s own testimony not credible, the ALJ noted multiple
times how Plaintiff’s testimony of her inability to do practically anything was inconsistent with
her reported activities of daily living. Tr. 27, 29, 31. The ALJ noted how mental health sources
stated Plaintiff reported engaging in activities including cleaning, cooking, gardening, camping,
and coping with stress by exercising and walking. Id. In rejecting Plaintiff’s credibility, the ALJ
found these activities far exceed her self-reported inability to do anything. Id. An ALJ’s failure
to discuss lay testimony is harmless when the lay testimony describes the same limitations as the
claimant’s own testimony, and the ALJ properly rejected the claimant’s testimony. Molina, 674
F.3d at 1122. Because Plaintiff does not challenge the ALJ’s credibility finding of her own
testimony, any error by the ALJ in failing to discuss Ms. Pendergrass’ statement about Plaintiff
spending most of her time in her bedroom was harmless.
III.
VE Testimony
Finally, Plaintiff contends the ALJ erred at step five by failing to inquire whether the
VE’s testimony was consistent with the DOT.
In accordance with Social Security Ruling (“SSR”) 00–4p, an ALJ may rely upon the
testimony of a VE regarding the requirements of a particular job, but first must inquire whether
the VE’s testimony conflicts with the DOT. Massachi v. Astrue, 486 F.3d 1149, 1152–54 (9th
10 - OPINION & ORDER
Cir. 2007); see also SSR 00–4p, available at 2000 WL 1898704. An ALJ’s failure to inquire is a
procedural error, and may be harmless if no conflict existed or if the VE “provided sufficient
support for her conclusion so as to justify any potential conflicts.” Massachi, 486 F.3d at 1154
n.19. It is Plaintiff’s burden to establish the error was prejudicial. Ludwig v. Astrue, 681 F.3d
1047, 1054 (9th Cir. 2012).
At the hearing, the ALJ posed a hypothetical to the VE. Tr. 43–44. Based on the
hypothetical, the VE identified two occupations that Plaintiff could perform: Postage Machine
Operator, DOT § 208.685–026 available at 1991 WL 671757, and Assembler of Small Products
I, DOT § 706.684–022 available at 1991 WL 679050. Tr. 45–46. While the ALJ stated in his
decision “[p]ursuant to SSR 00–4p, the vocational expert’s testimony is consistent with the
information contained in the Dictionary of Occupational Titles,” the ALJ did not explicitly pose
this question to the VE at the hearing. Compare Tr. 33 with Tr. 43–50.
While Plaintiff argues the ALJ erred by failing to inquire whether the VE’s testimony
was consistent with the DOT, she does not articulate any specific discrepancies between the
VE’s testimony and the DOT. Further, Plaintiff did not file a reply brief after the Commissioner
identified this shortcoming. A court only considers “issues which are argued specifically and
distinctly in a party’s opening brief.” Boyer v. Colvin, 2013 WL 3333060, *10 (D. Or. July 1,
2013) (quoting Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994)). Therefore, Plaintiff’s
bare recitation of this procedural error is insufficient. See id. An independent review of the
record reveals no patent disparities between the VE’s testimony and the DOT. As such, any
failure by the ALJ to inquire whether the VE’s testimony was consistent with the DOT was
harmless.
11 - OPINION & ORDER
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
Dated this _____ day of May, 2014.
___________________________
MARCO A. HERNANDEZ
United States District Judge
12 - OPINION & ORDER
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