Jones v. Commissioner Social Security Administration

Filing 36

ORDER: The decision of the Commissioner is affirmed. Signed on 11/5/2015 by Magistrate Judge Thomas M. Coffin. (plb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
6:14-cv-1624-TC

JEROD LEE JONES,
Plaintiff,

ORDER

v.
Commissioner of Social Security,
Defendants.
COFFIN, Magistrate Judge:
Plaintiff brings this proceeding to obtain judicial review ofthe Commissioner's. final decision
denying plaintiffs application for disability insurance benefits and supplemental security income
benefits.
Plaintiff asserts disability beginning February 27, 2006, 1 due to a back injury. After a
hearing, an administrative law judge (ALJ) determined that plaintiff is not disabled. Plaintiff
contends that the ALJ erred in: (1) assessing plaintiffs credibility (2) failing to develop the record;
(3) assessing medical opinion; (4) assessing witness testimony; and in (5) determining plaintiffs

1

At a hearing held on February 22, 2013, plaintiff amended his alleged onset date to
January 1, 2011.
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residual functional capacity (RFC). Plaintiff also contends that the Appeals Council failed to
consider new evidence. 2

A.

Credibility
Plaintiff asserts that he hurt his back when moving furniture in December of 2010. Tr 39. 3

As a result, plaintiff asserts he can only walk/sit for about 15 minutes and that he has episodes where
he stands up and his legs will give out and he will be bedridden for a week to a month. Tr. 43-45.
Plaintiff states that he only takes ibuprofen to manage his pain and that when he does, his pain level
runs at a seven out of ten, but that he is in constant pain. 4 Tr. 45-46. The ALJ found plaintiffs
allegations of disability unsupported and that he is only partially credible. Tr. 17-18.
The ALJ found plaintiffs symptoms were disproportionate to the objective and clinical
findings. Tr. 16-17. The ALJ noted the routine and conservative nature of treatment for plaintiffs
impairments. Tr. 17. The ALJ also noted that although Dr. Curtis Hill recommended another
laminectomyinMarch of2012, in August of2012 plaintiff decided he did not want surgery. Tr. 17;
469 (Hill states plan is to do a lumbar laminectomy diskectomy at L5-S 1 from the right); 491 (Hill

2

Plaintiffhas also submitted voluminous medical records and other materials to this court
that are not part of the record before the Commissioner. Plaintiff does not sufficiently explain
how these records are material to the disability determination during the period under review by
the ALJ. Plaintiff merely offers a conclusion that the documents "show a history of medical
mismanagement and document numerous complaints by plaintiff about continued pain
subsequent to back surgery." Reply (#35) at p. 2. Accordingly, plaintiff fails to show how the
additional material provide a basis for a remand.
3

Plaintiff initially hurt his back in 2006 requiring surgery, but was working as a babysitter
at the time of the new injury in 2010. Tr. 39, 40-41.
4

Plaintiff did state that he had an epidural steroid shot and that he hasn't had a bedridden
episode since. Tr. 45.
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notes that patient has decided he does not want surgery and can proceed with workers comp claim
closure and disability determination). The ALJ discussed the fact that plaintiff only takes ibuprofen
and occasionally took some muscle relaxants and noted that it suggests pain that is not as severe as
claimed. Tr 17-18. The ALJ also noted that while plaintiff told his doctor that he did not feel that
steroid injections helped, he stated at the hearing that he had not had episodes of severe pain since
he received the injection. Tr. 18; 45 (no bedridden pain since injection); 491 (In February of 2012
plaintiff told Dr. Hill that steroid injection did not help). Finally, the ALJ noted that plaintiff helps
care for his wife's grandmother who has dementia a couple of hours per day, checks his e-mail five
times a day, prepares food daily, pays his own bills, and goes to church on a regular basis. Tr. 18;
43.
Plaintiffs statement of constant pain at a level of seven or higher and episodic need for
weeks-long bed rest is contradicted by his ability to help care for his wife's grandmother for two
hours a day. Plaintiff also demonstrated credibility issues with regard to his statements about the
steroid injections. Where a plaintiffs allegations of disabling pain are contradicted by his daily
activities, the ALJ may appropriately discount those allegations. See Fair v. Bowen, 885 F.2d 597,
603 (9th Cir. 1987) (activities that contradict testimony permit adverse credibility finding).
The ALJ also appropriately relied on the lack of medical treatment. See id. (unexplained,
or inadequately explained, failure to seek treatment or follow a prescribed course of treatment
permits adverse credibility determination). While plaintiff implies in his briefing that he could not
get surgery because his insurance would not pay for it, his citations to the record merely note one
instance on February 13, 2012, in which Dr. Hill noted that plaintiff "is apparently having some

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problems with insurance in terms of whether surgery is going to be authorized." (Tr. 470). 5 But
plaintiffs follow-up with Dr. Hill simply shows that plaintiff decided that he does not want surgery.
Tr. 491; See also Tr. 509 (April 2013 exam by Dr. Kellogg in which Kellogg recommends
microdiskectomy and plaintiff stated he is currently not interested in pursuing surgical intervention).
Plaintiff, despite his complaint of constant severe pain, has only sought minimal treatment and
generally only uses over the counter medications to treat it. The ALJ provided clear and convincing
reasons in discrediting plaintiffs testimony and statements, and did not err in rejecting plaintiffs
allegations of disabling pain. 6

B.

Develop the Record
Plaintiff again takes issue with the ALJ's assessment of his credibility and this time argues

that there may be a functional overlay to his experience of pain. Plaintiff contends that his counsel,
during the administrative proceedings, requested additional mental health assessments, but that the
ALJ failed to obtain a consultative psychological evaluation.
The only suggestion in the record, that plaintiff points to, of psychological issues impacting
plaintiffs pain is Dr. Thomas Rosenbaum's statement that plaintiffs range of motion findings are not

5

Plaintiff also cites a portion of the record in which his attorney argues to the Appeals
Council that the ALJ failed to inquire as to the reasons for plaintiffs refusal to have surgery. Tr.
328. However, here again, plaintiff fails to offer an adequate explanation as to his refusal of
anything beyond minimal medical treatment despite allegations fo extreme disabling pain,.
6

Plaintiff also asserts that his entire treating team never indicated that plaintiff was
exaggerating or lying in his self-reported symptoms, but the portion of the record he cites, a
physical capacities evaluation, indicates that on October 22, 2012, plaintiff declined surgery and
the results the evaluation demonstrate an ability to perform full time work at the medium range
of physical activity. Tr. 502. In addition, the evaluator specifically noted, "Concern, if surgery is
warranted, why has he chosen not to have it done." Id.
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valid because while he has straight leg raising of 30 degrees, "in the distracted position ... straight
leg raising is 90 degrees" suggesting a functional overlay. Tr. 498. However, plaintiff never alleged
a mental impairment. Plaintiff makes no viable claim of mental impairment and the ALJ's failure
to evaluate psychological issues is, thus, not error. Cf. Gutierrez v Apfel, 199 F .3d 1048, 1051 (9th
Cir. 2000) (failure to evaluate alleged mental disorder does not require reversal where there is no
viable claim of mental impairment).
An ALJ's duty to develop the record further is triggered only when there is ambiguous
evidence or when the record is inadequate to allow for proper evaluation of the evidence.
Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). It is plaintiffs duty to prove that he is
disabled. 42 U.S.C. § 423(d)(5) (An individual must furnish medical evidence and other evidence
of a disability. An individual's statement as to pain or other symptoms shall not alone be conclusive
evidence of disability without medical signs and findings, established by medically acceptable
clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that
results from physiological or psychological abnormalities). The Commissioner will only consider
impairments a claimant says he has. 20 C.F.R. § 404.1512(a). Not only did plaintiff fail to allege
any psychological issues in his application for disability, he specifically denied problems with
memory, completing tasks, concentration, understanding, following instructions, and getting along
with others. Tr. 265. The ALJ did not err in regard to developing the record vis-a-vis any ostensive
mental impairment contributing to plaintiffs experience of pain. Indeed, plaintiff fails to explain
how any professed functional overlay would lead him to experience pain beyond what the objective
medical evidence suggest while at the same time he refuses surgery. As noted above, the ALJ
provided clear and convincing reasons for rejecting plaintiffs credibility regarding his symptoms of

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disabling pain.

C.

Medical Opinion
Plaintiff asserts the ALJ failed to discuss the medical evidence of.Margaret Lang Smith, PA-

C; improperly rejected the opinion of Dr. Rosenbaum; and failed to note aspects of Dr. Hill's reports.
The ALJ did discuss the medical record and need not discuss all evidence presented. Plaintiff
faults the ALJ for failing to discuss a chart note from Physician Assistant Smith in which she notes
general vitals and repeats plaintiffs subjective complaints. Tr. 4 73. As noted above, the ALJ
appropriately found plaintiffs subjective complaints to lack credibility. An ALJ may reject medical
opinion to the extent it relies on subjective complaints. Tommasetti v. Astrue, 533 F.3d 1035, 1041
(9th Cir. 2008) (An ALJ may reject a treating physician's opinion if it is based "to a large extent" on
a claimant's self-reports that have been properly discounted as incredible).
Plaintiff notes that Dr. Rosenbaum determined that plaintiffs prognosis is poor and does not
have a correctable pathology. Tr. 499. The ALJ generally accepted Dr. Rosenbaum's assessment,
but appropriately determined that opinion about poor prognosis was based on plaintiffs subjective
complaint, Tr. 19, and rejected it.
Plaintiff also notes that Dr. Hill noted objective symptoms and suggested another
laminectomy to correct a large herniation to relieve pain. Tr. 463-65, 468-69. However, as noted,
the ALJ found plaintiffs unexplained refusal to undertake the surgery undercut his credibility
regarding pain symptoms.
In his reply brief, plaintiff addresses the opinion of Dr. Donald Ramsthel as showing an

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ability to perform less than Sedentary work. Reply (#25) at p. 6, Tr. 460. 7 Here again, however, the
ALJ appropriately discounted the opinion to the extent it was based on plaintiffs subjective
complaints. Tr. 18.
The ALI did not err with respect to medical opinion.

D.

Witness Testimony
Plaintiff argues the ALJ improperly discredited Gabrielle Barnett's third party statement.

Plaintiffs friend, Gabrielle Barnett, described plaintiffs inability to walk long distances, or stand for
more than a few minutes. Tr. 239. The ALJ found some of Barnett's statements credible but
determined that the statements regarding limitations in function to lack credibility because they were
based on plaintiffs subjective complaints. Tr. 19. The ALJ also found that the assigned RFC was
supported by the medical evidence. As noted above, assessments of limitations largely based on
plaintiffs own discredited subjective complaints may be rejected. In addition, lay testimony may be
discounted where it is inconsistent with the medical record. Bayliss v. Barnhart, 427 F.3d 1211,
1218 (9th Cir. 2005).

E.

Residual Functional Capacity
Plaintiff argues that the ALJ failed to incorporate all of his limitations in the RFC including

those identified by his own statements, treating medical sources and those of third party witnesses.
However, as noted above, the ALJ appropriately discounted such limitations.

7

0ddly, plaintiff here again cites an actual physical capacities evaluation in which the
evaluator determined plaintiff is capable of full time work in the medium range of physical
demand. Tr. 502.
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F.

New Evidence
Plaintiff submitted additional evidence, post decision, to the Appeals Council from Dr.

Kellogg. Tr. 508-09 (April 2013 exam noting a large disk herniation, but that plaintiff is not
interested in pursuing surge1y).
When the Appeals Council denies review, the decision of the ALJ is the final decision.
Russell v. Brown, 856 F.2d 81, 83-84 (9th Cir. 1988). However, any new evidence considered by
the Appeals Council in denying the request for review becomes paii of the administrative record for
review by this court. See Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); see also Harman
v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000) (the court may properly consider the additional
materials because the Appeals Council addressed them in the context of denying appellant's request
for review). To justify a remand, the claimant must show that the new evidence is material, i.e., that
there is a reasonable possibility that the new evidence would have changed the outcome of the
administrative hearing. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir.2001.) Additionally, new
evidence will be considered only if it relates to the period on or before the date of the administrative
law judge hearing decision. 20 C.F.R. § 416.1476(b). 8
The new medical evidence showing an apparently larger disk extrusion at the same L5-S 1
location already noted to require surgery, does not disrupt the ALJ's decision because the ALJ
already determined that plaintiffs refusal to have surgery suggested that his pain was not as
debilitating as alleged. The new evidence shows that plaintiff is still not interested in pursuing
surgery. Thus, in considering this new evidence, which was made part of the record by its

8

To the extent plaintiff suggests the chart note shows a significant worsening of his
condition, it is dated after the period under review.
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submission to and acceptance by the Appeals Council, along with the remainder of the record as
whole, it does not impact the ALJ's decision.

CONCLUSION
For the reasons stated above, the decision of the Commissioner is affirmed.
DATED this

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5 f-day of November 2015.