Gamble v. Commissioner Social Security Administration
Filing
25
Opinion and Order. For the reasons stated, the Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 9/8/2014 by Judge Anna J. Brown. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KATHLEEN S. GAMBLE,
Plaintiff,
v.
CAROLYN W, COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.
RICHARD F, MCGINTY
McGinty & Belcher, Attorneys
P.O. Box 12806
Salem, OR 97301
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
RONALD K. SILVER
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
1 - OPINION AND ORDER
6:13-CV-01119-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
LISA GOLDOFTAS
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2139
Attorneys for Defendant
BROWN, Judge.
Plaintiff Kathleen S. Gamble seeks judicial review of a
final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's
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 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 protectively filed her applications for DIB and
SSI on January 8, 2008, and alleged a disability onset date of
2 - OPINION AND ORDER
July 10, 2006.
Tr. 196, 200. 1
The applications were denied
initially and on reconsideration.
Tr. 84, 89, 94, 98.
Plaintiff requested a hearing before an Administrative Law Judge
(ALJ).
Tr. 101.
A hearing was held on April 15, 2011, and a
supplemental hearing was held on September 22, 2011.
Tr. 34-78, 1105-47.
At the hearings the ALJ took testimony from
Plaintiff; Kay Craig Ferguson, Plaintiff's mother; two
vocational experts (VE); and two medical experts.
1108-37.
hearings.
Tr. 38-78,
Plaintiff was represented by an attorney at the
Tr. 1105.
In a decision dated October 19, 2011, the
ALJ found Plaintiff is not disabled.
Tr. 26.
Pursuant to 20
C.F.R. § 404.984(d), that decision became the final decision of
the Commissioner on May 15, 2013, when the Appeals Council
denied Plaintiff's subsequent request for review.
BACKGROUND
Plaintiff was born in 1969 and was insured for DIB through
December 31, 2007.
Tr. 12, 196, 202.
Plaintiff speaks English,
completed three years of college, and was a younger individual
1
Citations to the official transcript of record filed by
the Commissioner on December 3, 2013, and March 27, 2014, are
referred to as "Tr. 11
3 - OPINION AND ORDER
on the date last insured.
Tr. 227.
Plaintiff has past relevant
work experience as a warranty service clerk, veterinary
technician, emergency medical technician, bookkeeper, sales
person, general office clerk, and administrative clerk.
Tr. 348.
She alleges disability due to neuropathy,
fibromyalgia, hearing loss, asthma, shingles, back problems, and
anxiety.
Tr. 222.
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 her
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)).
4 - OPINION AND ORDER
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.
42 U.S.C.
§
405(g).
See also Brewes v. Conun'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 adequate to support a conclusion."
Molina, 674 F.3d.
at 1110-11 (quoting Valentine v. Conun'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.
Conun'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.
2012) .
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir.
The court may not substitute its judgment for that of
5 - OPINION AND ORDER
the Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th
Cir. 2006).
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the
Commissioner determines the claimant is engaged in substantial
gainful activity.
20 C.F.R.
416.920(a) (4) {I).
See also Keyser v. Comm'r of Soc. Sec.,
§§
404.1520{a) (4) (I),
648
F.3d 721, 724 (9~ 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.
§§
20 C.F.R.
404 .1520 (a) (4) (ii), 416. 920 (a) (4) (ii). 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), 416. 920 (a) (4) (iii).
648 F.3d at 724.
20 C.F.R.
See also Keyser,
The criteria for the listed impairments, known
6 - OPINION AND ORDER
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 her limitations.
§§
404.1520(e), 416.920(e).
20 C.F.R.
See also Social Security Ruling
(SSR) 96-8p. "A •regular and continuing basis' means 8 hours a
day, for 5 days a week, or an equivalent schedule."
at *1.
In other words,
SSR 96-8p,
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 she has done in the past.
416. 920 (a) (4) (iv) .
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.
416.920(a) (4) (v).
20 C.F.R. §§ 404.1520(a) (4) (v),
See also Keyser, 648 F.3d at 724-25.
7 - OPINION AND ORDER
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)' 416. 920 (g) (1) .
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff met the insured status
requirements through her date last insured of December 31, 2007.
Tr. 12.
At Step Two the ALJ found Plaintiff has the following
severe impairments:
fibromyalgia, obesity, depression, post-
traumatic stress disorder (PTSD) or anxiety, osteoarthritis of
the left knee, post-herpetic neuralgia, and migraine headaches.
Tr. 13.
At Step Three the ALJ concluded Plaintiff's impairments do
not medically equal the criteria for Listed Impairments under
8 - OPINION AND ORDER
§§
416.920(d), 416.925, and 416.926 of 20 C.F.R. part 404,
subpart P, appendix 1.
Tr. 13-14.
The ALJ found Plaintiff has
the RFC to perform light work as defined in 20 C.F.R.
§§
404.1567(b) and 416.967(b) with the following limitations:
She can stand and walk for only about three hours out of an
eight-hour workday; she can sit for eight hours out of an eighthour workday with normal breaks, but she requires a sit or stand
option while remaining on task; she can lift or carry up to
twenty pounds occasionally and ten pounds frequently; she can
occasionally climb, balance, stoop, kneel, crouch, and crawl;
she should not be exposed to operational control of moving
machinery and unprotected heights or hazardous machinery; she is
capable of simple, routine, and repetitive tasks with no greater
than reasoning level number 2; and she should not have any
public interaction and no greater than occasional interaction
with coworkers as part of her job duties.
Tr. 15-16.
At Step Four the ALJ concluded Plaintiff is incapable of
performing any of her past relevant work.
Tr. 25.
At Step Five the ALJ concluded Plaintiff is capable of
performing jobs that exist in significant numbers in the
national economy, including toy stuffer, final assembler, and
9 - OPINION AND ORDER
eyeglass polisher.
Tr. 25-26.
Plaintiff is not disabled.
Accordingly, the ALJ found
Tr. 26.
DISCUSSION
Plaintiff contends the ALJ erred when he improperly
evaluated the medical evidence.
For the reasons discussed
below, the Court finds the ALJ provided legally sufficient
reasons supported by substantial evidence in the record for his
decision.
I.
Medical Evidence
The ALJ is responsible for resolving conflicts in the
medical record, including conflicts among physicians' opinions.
Carmickle v. Comm'r, 533 F.3d 1155, 1164 (9th Cir. 2008}.
The
Ninth Circuit distinguishes between the opinions of treating,
examining, and nonexamining physicians.
The opinion of a
treating physician is generally accorded greater weight than the
opinion of an examining physician, and the opinion of an
examining physician is accorded greater weight than the opinion
of a nonexamining physician.
(9th Cir. 1995).
Lester v. Chater, 81 F.3d 821, 830
An uncontradicted treating physician's opinion
can be rejected only for "clear and convincing" reasons.
v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991).
10 - OPINION AND ORDER
Baxter
In contrast,
if the opinion of an examining physician is contradicted by
another physician's opinion, the ALJ must provide "specific,
legitimate reasons" for discrediting the examining physician's
opinion.
Lester, 81 F3d at 830. Specific, legitimate reasons
for rejecting a physician's opinion may include reliance on a
claimant's discredited subjective complaints, inconsistency with
medical records, inconsistency with a claimant's testimony, and
inconsistency with a claimant's daily activities.
Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).
Tommasetti v.
An ALJ may also
discount a medical source's opinion that is inconsistent with
the source's other findings.
1211, 1216 (9th Cir. 2005).
Bayliss v. Barnhart, 427 F.3d
It is legal error to ignore an
examining physician's medical opinion without providing reasons
for doing so.
1996) .
An ALJ effectively rejects a medical opinion when he
ignores it.
1.
Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir.
Id.
Jill Spendal, Psy.D.
Plaintiff contends the ALJ improperly rejected the medical
opinion of Jill Spendal, Psy.D., consultative examining
psychologist.
Dr. Spendal performed a cognitive and psychological
evaluation of Plaintiff on November 24, 2008.
11 - OPINION AND ORDER
Tr. 20-21,
854-66.
Dr. Spendal diagnosed Plaintiff with pain disorder
associated with both psychological factors and general medical
conditions (fibromyalgia and postherpetic neuralgia); dysthymic
disorder; major depressive disorder; PTSD; pain disorder without
agoraphobia; and rule out somatization disorder).
Tr. 864.
Dr. Spendal also assessed Plaintiff with a GAF score of 55 2 and
concluded Plaintiff "is not in a place to be competitive in the
workforce" due to a "combination of . .
down, depression, and panic-."
Tr. 865.
physical pain, falling
She opined Plaintiff
"would have difficulty maintaining appropriate relationships
with her peers" and "her auditory attention and memory
weaknesses would cause her difficulty in learning a new job or
doing a previously learned job without a high level of errors."
Tr. 865.
The ALJ need not accept a medical opinion if that opinion
is inconsistent with other substantial evidence in the record.
Batson v. Comm'r, 359 F.3d 1190, 1195 (9th Cir. 2004).
2
See also
The GAF scale is used to report a clinician's judgment of
the patient's overall level of functioning on a scale of 1 to
100. A GAF of 41-50 indicates serious symptoms (suicidal
ideation, severe obsessional rituals frequent shoplifting) or
any serious impairment in social, occupational, or school
functioning (e.g., few friends, unable to keep a job).
Diagnostic and Statistical Manual of Mental Disorders IV (DSMIV) 31-34 (4th ed. 2000) .
12 - OPINION AND ORDER
20 C.F.R.
§§
04.1527(d) (2), 416.927(d) (2); SSR 96-2p.
Moreover,
an ALJ may discount the disability opinions of physicians if
those opinions are unsupported by clinical findings.
Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999).
Meanel v.
When the ALJ has
provided specific, legitimate reasons supported by the record
for rejecting a physician's opinion, the ALJ's decision must be
upheld even if there are alternative, reasonable interpretations
of the evidence.
See Tommasetti, 533 F.3d 1038.
Here the ALJ gave Dr. Spendal's opinion little weight on
the grounds that Dr. Spendal's opinion was inconsistent with
other medical evidence in the record and Dr. Spendal's opinion
was based in part on a case history provided by Plaintiff.
Tr. 20.
The ALJ found Dr. Spendal's opinion was inconsistent
with her own treatment notes and with other treatment notes from
the same period.
Those notes show Plaintiff exhibited a bright
affect, improvement in PTSD symptoms, and a normal mental-status
examination, and, therefore, they arguably contradict
Dr. Spendal's opinion.
See Tr. 20.
For example, consultative
physician Robert Henry, Ph.D., opined in September 2008 that
Plaintiff was capable of maintaining attention to simple,
routine tasks and instructions and had, at most, moderate
limitations in areas of mental functioning.
13 - OPINION AND ORDER
Tr. 573-76.
Richard Barnes, M.D., assessed Plaintiff's GAF score at 70
indicating only mild symptoms or some difficulty in functioning.
Tr. 464-65, 467.
In 2007 Dr. Barnes noted Plaintiff's mood was
"excellent," and her mood was observed elsewhere in other notes
to be "cheerful and bright."
Tr. 379, 406, 412, 464, 467.
In
2009 Yara Delgado, M.D., noted Plaintiff's PTSD was improving
with counseling and group therapy.
Tr. 830.
Moreover,
Dr. Spendal reported Plaintiff had average intelligence and
little cognitive impairment.
Tr. 861-64.
Thus, Dr. Spendal's
own observations of Plaintiff reflect moderate limitations and
symptoms that the ALJ found to be inconsistent with a finding of
disability.
Although Plaintiff points to several treatment
notes from late 2008 that appear to support Dr. Spendal's
conclusions, the ALJ's decision was rational and, therefore,
must be upheld because the ALJ provided specific, legitimate
reasons to support his grounds for rejecting Dr. Spendal's
opinion.
The ALJ also found Dr. Spendal's opinion was based in part
on a case history provided by Plaintiff.
Tr. 20.
When the ALJ
properly determines a claimant's description of her limitations
is not entirely credible, it is reasonable to discount a
physician's opinion that is based on those less-than-credible
14 - OPINION AND ORDER
Bray v, Comm'r, 554 F.3d 1219, 1228 (9th Cir. 2009).
statements.
Here the ALJ found Plaintiff's testimony was not credible, and
Plaintiff does not contest that finding.
Tr. 16-17.
Moreover,
because Dr. Spendal's mental-status examination was based in
part on Plaintiff's subjective reporting of symptoms and
limitations, the ALJ, in effect, provided an additional
See
specific, legitimate reason for rejecting her opinion.
Bray, 554 F.3d at 1228.
Based on this record the Court finds the ALJ provided
specific, legitimate reasons supported by evidence in the record
for rejecting Dr. Spendal's conclusions that Plaintiff's
impairments were so severe as to render her disabled.
2.
Irving Kushner, M.D.
Plaintiff contends the ALJ improperly rejected the opinion
of medical expert Irving Kushner, M.D.
Plaintiff's supplementary hearing.
Dr. Kushner testified at
Tr. 14, 1126-35.
He opined
Plaintiff suffered from fibromyalgia, hypothyroidism, postherpetic neuralgia, depression, osteoarthritis, PTSD, difficulty
hearing, gastroesophageal reflux disease, asthma, and low levels
of vitamin D.
Tr. 1127.
Dr. Kushner also noted there were not
any objective findings to support a diagnosis of fibromyalgia.
Tr. 1129.
He testified Plaintiff had functional limitations
15 - OPINION AND ORDER
related to ambulation and that she "quite possibly" meets or
equals Listing 1.02A (major dysfunction of a joint) due to a
knee condition.
Tr. 1133-35.
Dr. Kushner qualified his
testimony by disclaiming that his area of expertise was
rheumatology.
Tr. 14, 1128.
The ALJ considered Dr. Kushner's opinion and gave "no
weight" to Dr. Kushner's suggestion that Plaintiff "possibly"
meets or equals Listing 1.02A.
Tr. 14.
The ALJ found there was
very little objective evidence in the record to support
Plaintiff's knee impairment; i.e., to substantiate Dr. Kushner's
suggestion.
See Tr. 383-84, 396, 498, 589, 724, 730, 733.
In
addition, Dr. Kushner's own testimony arguably suggests there is
little objective evidence to support Plaintiff's alleged
ambulation problems.
Tr. 14, 1133, 1135.
The Court finds the ALJ did not err when he rejected
Dr. Kushner's opinion because his opinion regarding Plaintiff
meeting Listing 1.02A was equivocal and unsubstantiated in the
record as a whole.
See Morgan v. Comm'r, 169 F.3d 595, 601 (9th
Cir. 1999) (a physician's opinion regarding a claimant's level of
impairment may be rejected because it is unreasonable in light
of other evidence in the record) .
16 - OPINION AND ORDER
3.
Maria Armstrong-Murphy, M.D.
Finally, Plaintiff contends the ALJ erred in his evaluation
of the opinion of consultative examining physician Maria
Armstrong-Murphy, M.D., who also testified at the supplemental
hearing.
Tr. 18-19.
Dr. Armstrong-Murphy performed a
comprehensive neurological evaluation of Plaintiff on May 24,
2011.
Tr. 22, 1088-92.
Dr. Armstrong-Murphy also completed a
statement regarding Plaintiff's physical abilities to do workrelated activities.
Tr. 1093-1100.
She opined there were "no
objective findings to warrant use of an assistive device" and
noted Plaintiff had a normal tandem walk with only some ataxia
and loss of balance.
Tr. 1090-91.
Dr. Armstrong-Murphy also
inferred it was "likely" that Plaintiff had a "fall and loss of
balance" at some time before the report date because she had
been prescribed a cane and service dog.
Tr. 19, 1091.
Dr. Armstrong-Murphy concluded Plaintiff was capable of standing
and walking for 20 minutes at a time with a cane, lifting up to
20 pounds, handling objects, and traveling.
Tr. 19, 1091.
She
also stated Plaintiff requires the use of a cane to ambulate.
Tr. 1094.
17 - OPINION AND ORDER
The ALJ gave "significant weight" to Dr. Armstrong-Murphy's
opinion, but the ALJ rejected Dr. Armstrong-Murphy's conjecture
that Plaintiff had a "fall or loss of balance" as "pure
speculation."
Tr. 18-19.
Plaintiff contends Dr. Armstrong-
Murphy misunderstood the Social Security regulations, because
she failed to recognize that objective findings "include signs
and laboratory testing."
Plaintiff alleges the ALJ, therefore,
erred when he accepted Dr. Armstrong-Murphy's testimony.
Br. 19.
Pl.'s
Plaintiff, however, does not explain how the alleged
misunderstanding caused specific legal error.
The Court, thus,
rejects this argument.
Plaintiff next argues the ALJ improperly rejected portions
of Dr. Armstrong-Murphy's opinion, including Dr. ArmstrongMurphy's limitations on her ability to walk and carry small
objects, and her suggestion that Plaintiff use an assistive
device for ambulation.
Pl.'s Br. 20.
The Court disagrees.
The ALJ provided legally sufficient reasons for rejecting
portions of Dr. Armstrong-Murphy's opinion.
Dr. Armstrong-
Murphy' sown findings contradict her opinion that Plaintiff has
limitations on walking and carrying small objects.
Tr. 1090-91.
See
When a physician's opinion is inconsistent with
her own treatment notes, the ALJ may properly discount that
18 - OPINION AND ORDER
opinion.
Bayliss, 427 F.3d at 1216.
Here Dr. Armstrong-
Murphy' s evaluation revealed Plaintiff walked without a cane and
that there were not any objective findings that warranted use of
an assistive device.
Tr. 1090-91.
was capable of handling objects.
She also opined Plaintiff
Tr. 1090.
On this record,
therefore, the ALJ did not err when he rejected any limitations
on Plaintiff as to ambulation and handling of objects because
those limitations conflicted with Dr. Armstrong-Murphy's own
treatment notes.
Tr. 15-16.
See also Bayliss, 427 F.3d at
1216.
In any event, the ALJ's finding that Plaintiff could
perform sedentary work is consistent with the credible
limitations assessed by Dr. Armstrong-Murphy.
See Stubbs-
Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir.2008) (an ALJ's
RFC need only incorporate credible limitations supported by
substantial evidence in the record) .
See also Osenbrock v.
Apfel, 240 F.3d 1157, 1164-1166 (9th Cir. 2001) (holding
restrictions not supported by substantial evidence may freely be
accepted or rejected by the ALJ).
The Court, therefore,
concludes the ALJ did not err when he evaluated Dr. ArmstrongMurphy' s opinion.
19 - OPINION AND ORDER
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this
sfl.'l-
day of September, 2014.
ANNA J. BROWN
United States District Judge
20 - OPINION AND ORDER
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