Nash v. Commissioner Social Security Administration

Filing 40

OPINION AND ORDER. The Commissioner's decision is AFFIRMED and this case is DISMISSED. See formal OPINION AND ORDER. Signed on 1/20/2016 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
AUDREY NASH,
Plaintiff,

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.
Bruce W. Brewer
Attorney at Law
PO Box 421
West Linn, Oregon 97068
Attorney for plaintiff
Billy J. Williams
Janice E. Hebert
United States Attorney's Office
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97201
Martha A. Boden
Social Security Administration
Off ice of General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104
Attorneys for defendant
Page 1 - OPINION AND ORDER

Case No. 6:14-cv-01496-AA
OPINION AND ORDER

AIKEN, Chief Judge:
Plaintiff Audrey Nash brings

this

Social Security Act ("Act"), 42 U.S.C.

§

action pursuant

to

the

405(g), to obtain judicial

review of a final decision of the Commissioner of Social Security
("Commissioner"). The Commissioner denied plaintiff's application
for Title II disability insurance benefits.

For the reasons set

forth below, the Commissioner's decision is affirmed and this case
is dismissed.
PROCEDURAL BACKGROUND

On June 29, 2012, plaintiff applied for disability insurance
benefits,

alleging disability beginning June 12,

2012. Tr.

178. 1

Her application was denied initially and upon reconsideration. Tr.
96, 110. On February 12, 2014, a video hearing was held before an
Administrative

Law

Judge

("ALJ").

Plaintiff,

represented

by

counsel, provided testimony. Tr. 57-81. On March 20, 2014, the ALJ
issued a decision finding plaintiff not disabled within the meaning
of the Act. Tr. 7-18. After the Appeals Council denied her request
for review, plaintiff filed a complaint in this Court. Tr. 1-3.
STATEMENT OF FACTS

Born September 26,

1959,

plaintiff was 52 years old on the

alleged onset date of disability and 54 years old at the time of
the hearing. Tr. 17. She completed two years of college. Tr. 81.
Plaintiff worked previously as a delivery truck driver. Tr. 82. She

1

The record before the Court contains multiple incidences
of duplication. Where evidence occurs in the record more than
once, the Court will generally cite to the transcript pages on
which that information first appears.
Page 2 - OPINION AND ORDER

alleges disability due to severe arthritis, diabetes, pseudotumor
cerebri (increased pressure inside her skull), and obesity. Tr. 88,
182.
STANDARD OF REVIEW

This 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. Hammock v. Bowen, 879 F.2d 498,
501

(9th Cir.

scintilla.

1989).

Substantial evidence is "more than a mere

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971)

(citation and internal quotations

omitted) . The court must weigh "both the evidence that supports and
detracts

from

Heckler,

807

the

[Commissioner's]

F.2d

interpretations

of

771,
the

772
evidence

conclusions."

(9th

Cir.

are

Martinez

1986).

v.

Variable

insignificant

if

the

Commissioner's interpretation is rational. Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005).
The

initial

burden

of

proof

rests

upon

the

claimant

to

establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th
Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected . . . to last for a continuous period of not less
than 12 months." 42
The

u.s.c.

Commissioner

has

§

423 (d) (1) (A).
established

a

five-step

process for determining whether a person is disabled.
Page 3 - OPINION AND ORDER

sequential
Bowen v.

Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
Commissioner

determines

whether

a

404.1502. First, the

§

claimant

is

engaged

in

"substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R.
§

404.1520(b). If so, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant

has a "medically severe impairment or combination of impairments."
Yuckert,

482

claimant

U.S.

does

at

not

140-41;

have

a

20

C.F.R.

severe

§

404.1520(c).

impairment

If

the

or combination of

impairments, she is not disabled.
At

step

three,

the

Commissioner

determines

whether

the

claimant's impairments, either singly or in combination, meet or
equal

"one

of

[Commissioner]

a

number

of

acknowledges

are

substantial gainful activity."
C.F.R.

§

404.1520(d).

If

listed

so,

so

impairments
severe

Yuckert,
the

as

482 U.S.

claimant

is

to

that

the

preclude

at 140-41;

20

presumptively

disabled; if not, the Commissioner proceeds to step four. Yuckert,
482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant
can still perform "past relevant work." 20 C.F.R.

§

404.1520(f). If

the claimant can work, she is not disabled; if she cannot perform
past relevant work, the burden shifts to the Commissioner. At step
five, the Commissioner must establish that the claimant can perform
other work existing in significant numbers in the national and
local

economy.

Yuckert,

482

U.S.

at

141-42;

20

C.F.R.

§

404.1520(g). If the Commissioner meets this burden, the claimant is
not disabled. 20 C.F.R.

§

Page 4 - OPINION AND ORDER

404.1566.

THE ALJ'S FINDINGS

At step one of the process outlined above,

the ALJ found

plaintiff "ha[d] not engaged in substantial gainful activity since
June 12, 2012, the alleged onset date." Tr. 12. At step two,

the

ALJ determined plaintiff's "degenerative disc disease of the lumbar
spine with osteoarthritis,
syndrome"

obesity,

asthma,

[and]

carpal tunnel

were severe and resulted in significant work-related

functional

limitations.

Id.

At

step

three,

the

ALJ

found

plaintiff's impairments, singly and in combination, did not meet or
equal the requirements of a listed impairment. Tr. 13.
The ALJ then evaluated how plaintiff's impairments affected
her ability to work.

The ALJ resolved plaintiff possessed the

residual functional capacity ("RFC") to:
[P]erform light work as defined in 20
[C.F.R. §]
404.1567(b) except she can do no more than occasionally
kneel, crawl, stoop, climb and crouch. She can no more
than frequently perform tasks requiring bilateral
grasping, handling and fingering. She should avoid more
than occasional exposure to fumes, dust, gases, poorly
ventilated areas and other noxious odors and avoid
concentrated exposure to heights, moving machinery and
similar hazards.

At step four, the ALJ determined plaintiff could not perform
any past relevant work. Tr. 16. At step five,

based on the VE's

testimony and considering the plaintiff's age, work experience, and
RFC, the ALJ found plaintiff was "capable of making a successful
adjustment to other work that exists in significant numbers in the
national

economy."

Tr.

1 7-18.

Accordingly,

the

plaintiff was not disabled under the Act. Tr. 18.
Page 5 - OPINION AND ORDER

ALJ

concluded

DISCUSSION

Plaintiff argues the ALJ erred by (1) discrediting plaintiff's
testimony without clear and convincing reasons for doing so; and
(2) improperly evaluating the statements of plaintiff's daughter.
I.

Credibility
Plaintiff

convincing

argues

reasons

the

for

ALJ

failed

rejecting her

to

provide

testimony

clear

and

concerning

the

severity of her symptoms. When a claimant's medically documented
impairments reasonably could be expected to produce some degree of
the symptoms complained of, and the record contains no affirmative
evidence

of

malingering,

"the

ALJ

testimony about the severity of
specific,

can

reject

the

claimant's

. symptoms only by offering

clear and convincing reasons for doing so." Smolen v.

Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)

(citation omitted). A

general assertion the claimant is not credible is insufficient; the
ALJ must "state which

. testimony is not credible and what

evidence suggests the complaints are not credible." Dodrill v.
Shalala, 12 F.3d 915,

918

(9th Cir. 1993). The reasons proffered

must be "sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's
testimony." Orteza v. Shalala,

50 F.3d 748,

750

(9th Cir.

1995)

(internal citation omitted). If the "ALJ's credibility finding is
supported by substantial evidence in the record,

[the court] may

not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947,
959

(9th

Cir.

2002)

(citation

omitted).

The

ALJ's

overall

credibility decision may be upheld even if not all of the ALJ's
Page 6 - OPINION AND ORDER

reasons for rejecting the claimant's testimony are upheld. Batson
v. Comm'r Soc. Sec., 359 F.3d 1190, 1197 (9th Cir. 2004).
At the hearing, plaintiff testified severe back pain prevented
her from sitting or standing for long periods of time and hindered
her ability to walk or lift objects. Tr. 64-65, 74-75. Plaintiff
also testified she has trouble holding objects because of numbness
in

her

hands.

Id.

The

ALJ

determined

plaintiff's

medically

determinable impairments could reasonably be expected to produce
some

degree

of

symptoms,

but

found

plaintiff's

"statements

concerning the intensity, persistence and limiting effects of these
symptoms not fully credible." Tr. 15.
In making this adverse credibility finding,

the ALJ first

noted inconsistencies between plaintiff's testimony and plaintiff's
statements

in

the

record.

Tr.

15.

Consistency

between

an

individual's statements is a "strong indication" of credibility.
Thomas,

278 F.3d at 958.

Consistent with her hearing testimony,

plaintiff stated in a function report that she was only able to
stand for a

few minutes at a

report

she had no

that

time,

feeling

and stated in a disability

in her fingers.

Tr.

213,

240.

However, plaintiff testified at the hearing as well as indicating
to her doctors that she participated in fitness classes, yoga, and
computer classes during the period of alleged disability. Tr. 6859,

311,

535.

The ALJ found plaintiff's participation in these

activities inconsistent with difficulty standing for more than a
few minutes at a time and having no feeling in her fingers. The ALJ
also noted plaintiff sought light duty work after her alleged onset
Page 7 - OPINION AND ORDER

date of disability.

Evidence that a

claimant sought employment

during the time she claimed disability is a legitimate reason to
discount her credibility. Bray v. Comm'r Soc. Sec. Admin., 554 F.3d
1219, 1227 (9th Cir 2009).
The ALJ erred in concluding plaintiff's symptom testimony was
inconsistent with her testimony she is able to care for her cat,
prepare meals, do laundry and dishes, grocery shop, and vacuum. Tr.
206-08. In connection with these activities, plaintiff indicated
limitations consistent with her symptom testimony -

for example,

she explained she sits down to prepare meals, and at the grocery
store she "know[s] where the seats are & take[s] breaks." Tr. 20708. However, as the ALJ's determination is otherwise supported by
substantial evidence, this error was harmless. See Batson, 359 F.3d
at 1197.
The

ALJ

also

testimony and the

noted

inconsistencies

between

objective medical evidence.

Tr.

plaintiff's
15.

The ALJ

referred to examination findings that plaintiff had normal gait and
motor functions, and could bend and touch the floor. Tr. 262, 314,
322. The medical consultants who reviewed plaintiff's file at the
initial and reconsideration levels of adjudication found the record
indicated nothing more than "mild abnormalities." Tr. 16; see also
tr. 94-94, 107-09. Although absence of medical corroboration alone
is insufficient to negate credibility,

it may support an adverse

credibility finding in combination with other negative credibility
factors. See Thomas, 278 F.3d at 959 (absence of supporting medical
evidence

was

among

specific,

Page 8 - OPINION AND ORDER

clear

and

convincing

reasons

to

discount plaintiff's testimony). Because the ALJ provided clear and
convincing reasons for rejecting plaintiff's subjective symptom
statements, the ALJ's credibility finding is affirmed.
II.

Lay Witness Testimony
Plaintiff also argues the ALJ improperly discredited written

statements

from

plaintiff's

daughter.

Generally,

lay

witness

testimony describing a plaintiff's symptoms is "competent evidence
that the ALJ must take into account." Molina v. Astrue, 647 F.3d
1104, 1114 (9th Cir. 2012). "[I]n order to discount competent lay
witness testimony, the ALJ 'must give reasons that are germane to
each witness."' Id.

(citing Dodrill, 12 F.3d at 919). An ALJ may,

however, reject lay testimony when it is substantially similar to
the claimant's testimony and the claimant's testimony has been
rejected for clear and convincing reasons.

Molina,

674 F.3d at

1114.
Plaintiff's daughter completed a third party report on October
20, 2012, and a declaration on January 31, 2014. Tr. 216-27, 25455. In 2012, she reported plaintiff could only stand for minutes at
a time, walking was painful for her back, and she spent most of her
day sitting or lying down. Tr.

216,

plaintiff's

plaintiff

grandson,

daughter
attended

reported
church

218-19.

regularly,

In the same report,

cared
and

for

her

performed

infant
certain

household chores. Tr. 218-19.
The ALJ erred in concluding plaintiff's ability to care for
her

grandson

plaintiff

and

was
her

inconsistent
daughter.

with

The

ALJ

the

symptom

statements

inaccurately

ref erred

of
to

Page 9 - OPINION AND ORDER
I

~

I

plaintiff's grandson as a

"toddler," while the record indicates

that, at the time plaintiff was able to take care of her grandson,
he was merely 4 months old. Tr. 16, 218. Moreover, the ALJ ignored
plaintiff's daughter's subsequent declaration, completed once the
grandson actually was a toddler, indicating plaintiff was no longer
able to care for the child. Tr. 254.
Plaintiff's

daughter's

statements

regarding

plaintiff's

ability to stand and walk, however, mirror plaintiff's statements
on

the

same

topics.

As

explained

above,

the

ALJ

properly

discredited plaintiff's symptom testimony regarding standing and
walking as inconsistent with plaintiff's statements about yoga and
fitness classes and unsupported by the medical evidence. Because
plaintiff's daughter's statements permissibly could be rejected for
the same reasons,

any error in failing to address the daughter's

statements was harmless. See Molina, 674 F.3d at 1114.
CONCLUSION

The

Commissioner's

decision

is AFFIRMED

DISMISSED.
IT IS SO ORDERED.
Dated this

·1rffVL·

f~ILI_

day of January 2016.

Ann Aiken
United States District Judge

Page 10 - OPINION AND ORDER

and

this

case

is