Gray v. Commissioner Social Security Administration

Filing 21

OPINION AND ORDER. The Commissioner's decision is AFFIRMED. See formal OPINION AND ORDER. Signed on 8/27/2015 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KELLI M. GRAY,
obo, JOHN W. GRAY, deceased
Plaintiff,

Case No. 6:14-cv-01096-AA
OPINION AND ORDER

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

AIKEN, Chief Judge:
This

action is brought pursuant to

42

U.S. C.

405 (g)

§

to

obtain judicial review of the final decision of the Commissioner

of

Social

application

Security
for

denying

Supplemental

1

Plaintiff's

Security

Income

late
(SSI)

husband's
1

For

the

The Court refers to Mr. Gray as "Claimant," and references his
wife as "Plaintiff."
1 - OPINION AND ORDER

reasons below, the Commissioner's decision is AFFIRMED.

Background
Claimant

applied

specifically in

for

2004,

Title

2006,

and

II

benefits

2007.

The

an onset of disability date of July 15,
because the

in

the

past,

applications

alleged

2000, ·and he was denied

agency determined that he was

not disabled through

that date.
On

March

application

for

as

2000.

of

July

SSI

reconsideration.

protectively

under Title XVI,

The

application

was
a

2010.

His wife,

Plaintiff,

was

interest.

Plaintiff

and

an

ALJ

Administrative

issued

disabled as
date.

a

Law

written

of January 11,

Plaintiff

sought

a

decision
2010,

review

denied

hearing,

initially

expert

(ALJ) .
finding

that

on
on

his party

(VE)

Shortly

and
died

Claimant

substituted as

vocational
Judge

an

filed

again alleging disability

requesting

before
the

Claimant

After

May 5,
in

2008,

26f

testified
thereafter,

Plaintiff

was

rather than the alleged onset

from

the

Appeals

Council,

which

was unable to take action on the Plaintiff's request because the
record

could

not

be

located.

As

instructed the ALJ to

recreate

the

such,

the

record.

Appeals

Council

The Appeals

Council

denied the request for review after resubmission of the record.

Standard of Review
The court must affirm the Commissioner's decision if it is
based on proper

legal

standards

2 - OPINION AND ORDER

and the

findings

are

supported

by

substantial

F. 2d

4 98,

than

a

evidence

501

mere

(9th

in

Cir.

mind

conclusion."

record.

198 9) .

scintilla.

reasonable

the

It

might

Substantial

means

such
as

accept

Richardson

v.

Hammock

402

evidence

the

[Commissioner's]

that

supports

conclusions."

7 71,

7 72

(9th Cir.

are

198 6) .

insignificant

if

as

389,

401

a
a

(1971)

The court must weigh

and

JVlartinez

"more

support

to

U.S.

is

879

evidence

adequate

Perales,

Bowen,

evidence

relevant

(citation and internal quotations omitted)
"both

v.

from

detracts

v.

Heckler,

the

807

F.2d

Variable interpretations of evidence
Commissioner's

the

interpretation

is

rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)
The

initial

establish
(9th

burden

disability.

Cir.

198 6) .

To

of

proof

rests

v.

Heckler,

Howard
meet

this

mental

by

reason

impairment

continuous

~eriod

of

any

which
of

not

be

less

claimant

F.2d

to

1486

claimant

the

1484,

must

in any substantial gainful

medically
can

the

782

burden,

demonstrate an "inabi1i ty to engage
activity

upon

determinable

expected...

than

12

to

months."

physical
last
42

or

for

a

U.S.C.

§

423(d) (1) (A).
Discussion

Plaintiff
husband's

first

argues

that

prior applications · or,

the

ALJ

in the

reopened

alternative,

her

late

Plaintiff

has a colorable constitutional due process claim reopening those
applications.

Second,

Plaintiff

3 - OPINION AND ORDER

argues

the

ALJ

erred

by

improperlY discounting Claimant's

allegations.

Third,

Plaintiff

argues that the ALJ failed to properly consider various medical
opinions.

Finally,

properly

consider

listing.

Plaintiff
whether

Plaintiff's

the

argues

Defendant
prior

argues

that

Claimant's

that

the

applications

the

ALJ

did

impairments

ALJ

because

could

they

equaled

not

are

not

reopen

time-barred

under the relevant regulations and that she has not

p~esented

colorable

argues

the

ALJ

constitutional
properly

doctor's
failed

evaluated

meet

her

Further,

the

Finally,

opinions.

to

claim.

burden

Defendant

Claimant's

Defendant

in

allegations

argues

establishing

a

a

that

and

his

that
the

that

Plaintiff
Claimant's

impairments equalled a listing.

I. Reopening of Plaintiff's Claims
Generally,
subject

to

authority

refusal

judicial

108-09

9 9,

a

review.

( 1977) .

to

The

reopen

months

a

of the notice

years

for good cause.

if

new

and material

to

reopen
See

regulations

claim,

for

20 C.F.R. §
evidence

on its

face,

404.989.

cause

is

is

to

v.

decision
Sanders,

grant

any

the

reason,

of initial determination,

clearly shows,

reopening

prior

Califano

is

404.988.
provided,

error in the computation of benefits,

Good

a

change

a

4 - OPINION AND ORDER

that

not

ruling

4 30

not
U.S.

Commissioner
within

twelve

and within

four

Good cause is found
there

is

a

clerical

or the evidence considered

an error was made.

found

is

if

the

upon which

only
a

~

id.

reason

§

for

determination of

disability was made.

See id.

However,

claimant

viable

constitutional

alleges

a

an exception exists if a
due

process

claim

pertaining to a denial to reopen a prior decision. See Califano,
430 U.S.

at 109;

(9th Cir.

198 9)

see also Panages v.

Bowen,

871 F.2d 91,

92-94

("The constitutional claims must relate to the

manner or means by which the Secretary decided not to reopen the
prior decision,

rather than to the merits of the prior decision

or

by

the

means

exception

applies

which
to

that

any

decision

was

The

claim

"colorable"

reached.").
implicating

the

denial of a meaningful opportunity to seek reconsideration of an
adverse benefits determination. Udd v. Massanari, 245 F.3d 1096,
1099 (9th Cir. 2001).
Plaintiff does not have a colorable constitutional claim as
she had a meaningful opportunity to
denied. Tr. 38-39. Instead,
late

husband's

her claim, which was

~eopen

Plaintiff seeks to re-adjudicate her

prior claims

on their merits.

Further,

had no authority to reopen the prior applications,
regulations

dictate

when,

Commissioner may reopen a
~'

King v.

Chater,

and

how,
claim.

for

what

See 2 0 C. F. R.

90 F.3d 323,

326

(8th Cir.

§

the ALJ

because the
reasons

the

4 0 4. 98 8;

see

1996)

("There

can be no constructive reopening after four years because
concept

cannot

extend

beyond

the

scope

of

authority

granted

under the regulations."); see Reyes v. Comm'r of Soc. Sec.,
WL

1094337

*14-15

(N.D.Cal.

5 - OPINION AND ORDER

March

29,

2012).

Thus,

[the]

2012

despite

considering

evidence

from

as

early

as

and

2002,

accepting

without comment the onset disability date of July 15,

2000,

the

ALJ could not reopen Claimant's prior applications.
II.

The ALJ's Evaluation of Claimant's Allegations

Once a claimant produces medical evidence of an impairment,
the

Commissioner may

discredit

the

claimant's

testimony

as

to

the severity of symptoms only with clear and convincing reasons.
Reddick v.
these

Chater,

determinations

techniques
Astrue,
a

157 F.3d 715,

used

engaged

is

in

functions

able

as

to

are

to

spend

a

595,

may

to

Molina

sufficient
Comm'r.

to

of

1999).

The

specific

discredit
Soc.

ALJ may

consider inconsistent or unexplained claimant testimony,
to follow a
evidence
history.

course of treatment or recommendations

of
See

self-limiting
Thomas

v.

behaviors,

Barnhart,

278

and
F.3d

a
947,

day

physical

a

the

v.

"[i] f

[his]

of

work setting,

Cir.

ordinary

of

performance

be

(9th

use

part

a

v.

In making

For example,

to

Morgan

600

2012).

the

1998).

credibility.

substantial

transferable
fact

of

(9th Cir.

involving

this

F.3d

allowed

evaluation

allegations."

169

(9th Cir.

is

ALJ

1112

pursuits

that

claimant's
Admin.,

the

674 F. 3d 1104,

claimant

finding

in

the

722

a

Sec.
also

failure

of doctors,

claimant's
959

(9th

work
Cir.

2002); see Molina, 674 F. 3d at 1112.
Plaintiff
the ALJ in his

takes

issue

with

the

evaluation of the

6 - OPINION AND ORDER

following

Claimant:

1)

reasons

used by

Claimant's work

history;

2)

did

support

not

Claimant's daily activities;
the

Claimant's

provided other reasons;

allegations.

for example,

stabilized

through

treatment

treatments.

See tr.

19-26.

convincing

reasons.

and 3)

and

that the record

However,

the

ALJ

the Claimant improved and

did

not

follow

proscribed

These in of themselves are clear and

Further,

the

ALJ

did

not

err

in

his

interpretation of the record or Claimant's daily activities and
work history.
The

ALJ

Claimant's

cited

daily

several

activities

factors
were

finding

that

the

consistent

with

his

in

not

allegations. The Claimant,

for example, claimed that he had poor

memory,

physical

could

activities,
friends,

not

was

a

do

"hermit,"

activities

estranged

and could not go out alone.

Tr.

from
222,

or
his

household
family

261-63,

226,

and
288.

However, the ALJ noted that his daily activities included taking
public

transportation,

of his

children including basic cooking and helping them with

homework,

shopping,

household chores,

taking

care

and he had meaningful interactions with neighbors and

friends. Tr. 22, 25-26, 218-19, 221-23, 671, 705-07, 770, 774.
Additionally,
indicated

that

allegations.

For

the

the

ALJ

record

example,

the

cited
did

substantial
not

reflect

evidence
the

that

Claimant's

ALJ noted that multiple

reports

showed the Claimant got better or was stable with treatment, and
some

of

his

claimed

limitations,

7 - OPINION AND ORDER

like

memory,

were

not

as

limited as alleged.
724-27,

731,

746,

Tr.

20,

756-57,

22,

768,

26,

313-14,

775.

611,

Finally,

657,

702,

709,

the ALJ noted that

the Claimant's poor work history began well before the

alleged

date

due

of

other

disability,

issues

rather

indicating

that

than medical

unemployment

impairments.

was

Tr.

the ALJ provided clear and convincing reasons

2 5.

In

to
sum,

to discredit

the

Claimant.

III. The Evaluation of Treating and Evaluating Physicians
Plaintiff

asserts

longitudinal medical

the

ALJ

evidence,

erred

focusing

in

upon

evaluating
the

evaluation

the
of

Drs. Burns, Brown, Ruminson, and Moore.
There
treating

are

three

physicians,

physicians,

who

types
who

of

opinions

treat

the

from

physicians:

claimant;

examine rather than treat

the

examining

2)

claimant;

and 3)

reviewing physicians,

who merely review the claimant's file.

Holohan v.

Massanari,

246 F. 3d 1195,

reject

uncontradicted

an

doctor,

an

ALJ

must

provide

supported

by

substantial

Barnhart,

427

F.3d 1211,

by another doctor's
of

a

treating

legitimate
record.

Id.

or

1216

opinion,

supported

a

clear

and

in

(9th Cir.

treating

the

(9th Cir.

or

2001).

2005).

To

examining

convincing
record.

See

reasons,

Bayliss

v.

If contradicted

an ALJ may only reject an opinion
doctor
by

conflicting with

8 - OPINION AND ORDER

of

evidence

examining

reasons
When

opinion

1201-02

1)

by

providing

substantial
other

specific

evidence

opi'nions,

in

and
the

an ALJ must ·

not

accept

an

opinion

if

it

brief,

is

conclusory,

and

inadequately supported by clinical findings. Id.
Factors that are
can

include

length

the

relationship

and

relevant to evaluating a medical opinion

the

and

"nature

frequency

and

extent"

of
of

treatment

the
the

relationship

between the claimant and the physician. Orn v. Astrue,
625,

631

(9th Cir. 2007)

may

include

the

495 F.3d

(citations omitted). Additional factors

amount

of

relevant

evidence

supporting

the

opinion, the consistency of the opinion with the record, and the
understanding a physician has of the disability process and its
evidentiary requirements.

Id.

Further,

more weight is given to

detailed opinions and to specialist opinions concerning matters
relating to their specialty.
20 C.F.R.

§

Holohan,

246 F.3d at 1202

(citing

404.1527(d) (3))

A. Dr . Burns'

Opinion

Plaintiff argues that the ALJ generally erred by rejecting
portions
most

of

Dr.

Burns'

extensive

and

comprehensive

record." See Pl.'s Br.
in

activities

of

evaluation because

at 14.

daily

Dr.

the

"report

examination

and

is

report

the
of

Burns found mild limitations

living,

moderate

limitations

in

concentration, persistence or pace, marked limitations in social
functioning,
Dr.
and

and

no

decompensation.

Tr.

719-22.

Additionally,

Burns found marked limitations in the ability to understand
remember

detailed

9 - OPINION AND ORDER

instructions

but

only

a

moderate

limitation

to

carry

them

extended periods of time,
complete a workday.

Id.

out,

maintain

concentration

over

work in coordination with others,

and

Further, Dr. Burns found the Claimant to

be only moderately limited in working with the public, accepting
instructions
changes

from supervisors,

in work settings.

and to

Id.

respond appropriately to

From this,

Dr.

Burns'

concluded

that the Claimant's major impediments were fatigue,

depression,

and

it

anxiety

and

that

the

combination

would

make

hard

to

adhere to regular employment. Tr. 714.
The
Burns

ALJ gave

stemmed

from

examination.
of

Dr.

Burns'

fatigue

included

Dr.

in

entirely
Tr.

because

resulted

less

suggested.

the

weight

as

and

a

Dr.

IAThich

assessment,

reporting

lack

of

the ALJ discounted a portion
Claimant's

regarding
objective

significant

some

functional

subjective

opinion

understanding
in

his

Additionally,

23.

Burns'

opinion only

testing,

limitations

memory

taken
than

and

together,
Burns

Dr.

Id. The ALJ's observation is reasonable and supported

by substantial evidence in the record. Within Dr. Burns'

report,

Claimant is described as a good historian and that his memory is
"generally okay." Tr.

700,

709.

Further,

while on the Wechsler

Memory Scale one score was poor, Dr. Burns commented that he did
well with other aspects of the

scale.

medical

ALJ

opinions

cited

by

the

Tr.

712.

indicated

Finally,
that

Claimant's

memory issues were not as severe as indicated by Dr. Burns,
10 - OPINION AND ORDER

other

such

as Drs. Anderson's and Kruger's assessments.
comparing

Regardless,
capacity (RFC)
Dr.

Burns'

the

Claimant's

Tr.

69 6,

6 98,

7 3 0.

functional

residual

and Dr. Burns' diagnoses, the ALJ largely adopted

findings.

See tr.

18,

713-14.

Thus,

the ALJ did not

err in evaluating Dr. Burns' opinion.
B. Dr. Brown' s Opinion

Plaintiff

argues

that

the

ALJ

Brown's opinion rendered in 2002,

erred

in

evaluating

Dr.

because the ALJ compares that

opinion with Dr. Kruger's 2010 opinion, which Plaintiff believes
is inadequate.
a

2002

Plaintiff also argues it is illogical to compare

opinion with

either

opinion.

one

Pl.

from

Br.

the ALJ misunderstood

2010

13-14.

Dr.

to

assess

Further,

Brown's

the

validity

Plaintiff argues

opinion

that

the

of

that

Claimant's

depression kept him from attending work.
The ALJ gave Dr. Brown's opinion "little weight" because it
"did

not

square

with

with that of Dr.
bipolar

range

Kruger,

disorder

cooperative,

II

testing"

gave great weight

and

depression

recent

was

inconsistent

Dr.

assessment

Kruger's
of the

but

otherwise

was

and limited by low-average

and memory functions.
to

and

who opined that Claimant had signs of

pleasant mild mannered,

intellectual

the most

objective

See

tr.

7 31.

opinion because his
Claimant

and was

The ALJ
opinion

consistent

with the most recent objective testing. Tr. 23, 24. Further,

Dr.

Kruger's opinion was more relevant in determining disability for
11 - OPINION AND ORDER

the applicable period,

as it is the most recent assessment and

took into account recent objective testing done by Dr. Burns, an
examining

psychologist.

agreed with

Dr.

See

Burns,

attention skills,

tr.

23,

concluding

729.

that

Dr.

the

Kruger

Claimant

largely
had

lower average intelligence quotients,

psychiatric

symptomatology,

information

adequately.

and was

See

tr.

able

to

730-31.

recall

The

fair

lack of

repetitive

major

area

of

disagreement with Dr. Burns' assessment was with memory. See tr.
730.

There,

Wechsler
memory

Dr.

Kruger

Memory

over

Scale

auditory

opined

that

examination

but

that

portions

Claimant's

Dr.

Burn's

improved

revealed

of

verbal

auditory

memory

was

only moderately impaired. Tr. 730.
The ALJ also noted that Dr. Brown conducted a psychological
examination

of

having

good cognitive skills,"

~very

functional

the

Claimant

problems,"

and

and

relied

Claimant

had

upon

mild

to

by

Drs.

~no

24,

Claimant

as

physical problems,"

~no

314-15.

Kruger

moderate

described

interact

~could

coworkers and the public." Tr.
evidence

also

and

satisfactory
Moreover,

Burns

limitations

with

objective

indicated

that

that

improved

with

treatment. See tr. 721-22, 726-27, 730-32.
Thus,

in evaluating Dr.

Brown,

Kruger's opinion was not erroneous,
the

filing

date

and

reliance

on

the ALJ' s

on

Dr.

based upon its proximity to
objective

within other reliable medical opinions.
12 - OPINION AND ORDER

reliance

evidence

contained

C. Dr. Ruminson's Opinion

Plaintiff
Ruminson's
little

takes

issue

opinion.

weight

The

because

with

ALJ

it

Tr.

was

2 4.

ALJ's

evaluation

of

Dr.

Ruminson's

opinion

afforded
not

assessments by Dr. Burns and Dr.
objective testing.

the

Dr.

consistent

Kruger,

with more

Dr.

recent

both of whom relied on

Ruminson opined that while

the

Claimant possessed the ability to process and retain information
well, medical issues and depression had a negative impact on his
capacity

for

implicitly

gainful

noted

by

testing within the
report

indicates

Claimant's

employment.
the

ALJ,

report.
that

there

See tr.

the

Tr.

23,

See

tr.

a

lack

is

23-2 4,

conclusions

self-reporting.

318.

316-19.

were

316-19.

However,
of

objective

Rather,

reached

as

the

through

Additionally,

the

opinion is not inconsistent with the ALJ's determination of the
Claimant's

RFC,

as

the

ALJ

severe impairments.

Tr.

18.

found

various

Regardless,

mental

disorders

as

the ALJ did not err by

relying upon reports containing objective testing and are closer
in time to the time of filing.
D. Dr. Moore's Opinion

Plaintiff also takes issue with the ALJ's evaluation of Dr.
Moore's

opinion.

The

ALJ

gave

Dr.

Moore's

opinion

"minimal"

weight because it was inconsistent with later opinions of Drs.
Burns and Kruger and their diagnostic conclusions, and Dr. Moore
conducted no objective testing.
13 - OPINION AND ORDER

Tr.

23-24.

Dr.

Moore concluded

that "while [Claimant]

is able to demonstrate adequate reasoning

and understanding, intact memory, and adequate concentration and
persistence,

his

social

interaction

and

adaption

abilities

appear to be limited to secondary to psychiatric concerns." Tr.
376.

However,

this

conclusion- was

reached

entirely

through

See tr.

369-7 6.

Claimant's self-reports and subjective testing.
Further,
was

Dr.

Moore noted that the history provided by Claimant

questionable

corroborative
Claimant

records,

during

eventually
could

due

and the

reporting.

concluded

improve

self-reporting,

to

that

with

strong smell
Tr.

the

369.

absence

of alcohol

However,

Claimant's

treatment,

an

supporting

the

on

Dr.

psychiatric

of
the

Moore
concerns

ALJ's

similar

contention. See tr. 376. Therefore, I find no error.
IV.

Whether Claimant's Impairments Equal a Listing.

A Claimant's impairments may meet or "equal" a listing to
establish disability.

See

20

C.F.R.

416.926.

§

Equivalence

is

determined through review of medical evidence in the record to
find

if

duration,
172, 176
combined

the
a

Claimant's
particular

effects

establish

listing.

listing.

(9th Cir. 1990)

equivalency to a
to

limitations

See

a

of

equal,

Marcia

v.

in

severity

Sullivan,

900

and
F. 2d

An ALJ is not required to discuss the
a

claimant's

impairments

and

their

listing unless the claimant presents evidence
plausible

Burch

v.

theory

Barnhart,

14 - OPINION AND ORDER

of
400

equivalence
F.3d

676,

to
683

a

specific
(9th

Cir.

2005).

Plaintiff argues that ALJ erred in not finding that the

Claimant's
However,

limitations
Plaintiff

were

failed

equivalent
to

to

present

listing

evidence

§12.04.

establishing

equivalence to that listing.
Plaintiff cites evidence that supports a connection between
the

Claimant's physical

and mental

impairments.

Yet,

Plaintiff

does not cite evidence of medical findings indicating a "marked"
restriction

or

maintaining
pace,

difficulty

social

functioning,

activities

of

concentration,

daily

living,

persistence,

or

or repeated episodes of decompensating as listed under B

in Listing §12.04.
12.04.
the

of

See 20 C.F.R.

For example,

Claimant

Pt.

Plaintiff cites Dr.

needed

to

address

cardiomyopathy to

succeed

in

cites

opinion

stating

Dr.

Burn's

404,

"greatly reduced by his

P,

Appx

1 §

Camacho's comment that

both

therapy.

Subpt.

his

Tr.

that

and

Plaintiff

also

334.

his

cardiomyopathy."

depression

functionality

Tr.

722.

However,

was
on

the same form,

only one limitation was found to be "marked." Id.

Rather,

record

the

indicates

mild

to

moderate

restrictions sprinkled with self-reported limitations.

objective
Thus,

the

ALJ did not err, because Plaintiff failed to support a plausible
theory of equivalence to a listing.
Conclusion

The ALJ did not

reopen 'the

Claimant's past

applications,

and the ALJ did not err in evaluating the Claimant's credibility
15 - OPINION AND ORDER

or the various medical opinions.

Finally, the ALJ did not err in

failing to discuss whether the Claimant's impairments equaled a
listing. Thus,

for the above reasons the Commissioner's decision

is AFFIRJVlED.
IT IS SO ORDERED.
Dated this

~~\

day of August, 2015.

Ann Aiken
U.S. District Judge

16 - OPINION AND ORDER