Holloway v. Commissioner Social Security Administration

Filing 22

ORDER: The decision of the Commissioner is affirmed. Signed on 10/5/2015 by Magistrate Judge Thomas M. Coffin. (plb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
6:14-cv-1657-TC

ANDREA DEE HOLLOWAY,
Plaintiff,

ORDER

v.
Commissioner of Social Security,
Defendants.
COFFIN, Magistrate Judge:
Plaintiffbrings 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 December 31, 2006, due to right hip problems, chronic
pain, and mental health problems. Tr. 121-22 .. After a hearing, an administrative law judge (ALJ)
determined that plaintiff is not disabled. Plaintiff contends that the ALJ erred in: (1) discrediting
psychogenic symptoms and limitations; (2) failing to credit Dr. Kay Dieter's assessment of
limitations; (3) rejecting lay witness observations; (4) assessing plaintiffs credibility; (5) failing to
include limitations in plaintiffs residual functional capacity assessment; and (6) relying on the

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vocational expert's testimony.

Plaintiffs Credibility
Plaintiff tends to put the cart before the horse in that she argues that because the ALJ failed
to give proper consideration to, for example, plaintiffs treating physician's opinion or her stated
impairments, the ALJ failed to properly consider plaintiffs credibility based on the record as a
whole. However, plaintiffs subjective complaints play a large role in determining whether treating
opinion or alleged impairments have any impact on her ability to work.
The ALJ determined that plaintiffs assertions regarding the intensity, persistence, and
limiting effects of her medically determinable impairments are not fully credible. Tr. 29. The ALJ
noted improvements with treatment such as use of CP AP and right hip surgery, exhibition of normal
hip functioning, and exhibition of difficulty-free walking despite claims of need for an assistive
device. Tr. 29-30. The ALJ further noted that cooperative disability investigation agents noted that
plaintiff displayed normal stride without an assistive device and ability to bend at the waist with no
hesitation. Tr. 31. The ALJ also noted that plaintiff routinely exhibited normal motor functioning,
normal sensory functioning, and normal reflexes. Tr. 31.
Morever, the ALJ noted that plaintiff gave inconsistent reports of the etiology of her weight
loss claiming diet and exercise on the one hand and depression on the other. Tr. 31. The ALJ also
took issue with plaintiffs claim of involuntary clenching of her hands, feet, and neck, as well as
seizure-like activity noting that reported details varied considerably with doctors questioning the

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veracity of the complaints. Tr. 32-33. 1 In short, the ALJ noted voluntary exaggeration of her alleged
incapacitating dystonia, specifically noting that an attending physician during an ER visit observed
that when her significant other quickly lifted a sheet to how him her toes, plaintiff moved her toes
from a neutral position to a flexed position quickly. Tr. 34. The ALJ further noted during a January
2012 appointment, Dr. Derek Clark concluded that plaintiffhad an effort-dependent examination that
was inconsistent with known dystonias. Tr. 34. Moreover, the ALJ noted that another doctor
observed that plaintiffs flexion in her toes and hands reduced when distracted. Tr. 34.
The ALJ also noted contradictory reports made during an ER visit for an alleged complete
paralysis. Tr. 35. The ALJ further noted inconsistent reports from plaintiff regarding her drug abuse
of opiates, methamphetamine, and marijuana. Tr. 35-36.
The ALJ also cited plaintiffs daily activities as inconsistent with physical or psychological
disability such as visiting casinos despite allegations of social anxiety and agoraphobia, a loss of 70
pounds through diet, and exercise and babysitting a four year old for four to eight hours at a time.
Tr. 41. In addition, the ALJ noted a criminal history that includes forgery, identity theft, and fraud.
Tr. 42.
The ALJ appropriately relied on lack of medical etiology for neurological dysfunction,
inconsistent examination findings, and indications of symptom exaggeration to find plaintiff to lack
credibility regarding her claimed limitations. See Light v. Social Sec. Admin., 119 F.3d 789, 792
(9th Cir. 1997} (ALJ may consider reputation for truthfulness, inconsistencies between testimony
and conduct, and daily activities in a finding that a claimant generally lacked credibility and to reject

1

Plaintiff asserts she has a psychogenic disorder causing her alleged incapacitating
dystonia, but she has not been formally diagnosed with any such disorder.
·'

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testimony).

Psychogenic Symptoms and Limitations
Plaintiff asserts that the ALJ erred in finding plaintiff to lack any psychogenic impairment.
However, while plaintiff presents speculation from medical sources that her symptoms of dystonia
may be psychogenic in nature, the ALJ properly found the symptoms exaggerated. Plaintiff fails to
present an actual diagnosis of a medically determinable conversion disorder or psychogenic
impairment. See Tr. 46. Such diagnosis is a prerequisite to finding that the impairment exists. See
Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (Because none of the medical opinions
included a finding of impairment, a diagnosis, or objective test results, plaintiff fails to meet the
burden of establishing the impairment). Plaintiffs treating physician thought perhaps there was a
conversion disorder versus genetic dystonia, but was not sure (Tr. 1059), and Dr. Derek Clark noted
"likely conversion disorder, but cannot rule out unknown genetic dystonia (Tr. 1177, 1181 ). Because
there is no diagnosis of a conversion disorder, the ALJ did not err in failing to include limitations
from such a disorder and did not err in failing to undertake the special psychiatric review technique
described at 20 C.F.R. § 404.1520a.

Treating Physician's Opinion
Dr. Kay Dieter opined that plaintiff requires breaks incompatible with full-time work, has
an inability to maintain concentration required for work activity, and has an inability to maintain
necessary attendance. Tr. 1136-39. The ALJ rejected Dr. Dieter's opinion because it was largely
based on plaintiffs subjective reports which lack credibility. Tr. 46. Although plaintiff asserts that

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the long-term care provided by Dr. Dieter necessarily dictates that Dr. Dieter's opinion is based on
objective observation, the assessments could only come from an evaluation of plaintiffs self-reports
as the office visits simply could not demonstrate actual daily activities, out-of-office exaggerations,
etc. The ALJ appropriately rejected the opinfon. See Ukolov, 420 F.3d at 1006 (Despite apparent
objective observations, the patient's ability to manipulate test results and other's observations of
exaggeration permitted rejection of treating source opinion); 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).

Lay Witness
Plaintiffs boyfriend provided a statement that plaintiff was unable to sit and stand long
enough to work and lacked sufficient ability to concentrate. The ALJ gave little weight to the
statement stating it was incompatible with the longitudinal record specifically noting exams showing
no problems in sitting and standing. Tr. 45. This is a sufficient reason germane to this witness for
rejecting the statement. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005)(Inconsistency
with medical evidence is a sufficient reason for rejecting lay statement).

Residual Functional Capacity
Plaintiff argues that the ALJ erred in failing to consider plaintiffs psychogenic impairments
in the residual functional capacity assessment.
discounted such impairments .

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However, as noted above, the ALJ properly

Vocational Testimony
Plaintiff argues that hypothetical offered to the vocational expert failed to account for all
limitations and, thus, the vocational expert's opinion is of no value. However, the ALJ properly
discounted the limitations plaintiff asserts were improperly omitted. 2
Plaintiff also argues that the vocational expert was not qualified to offer an opinion regarding
the number of jobs available or that, at a minimum, plaintiffs counsel should have been afforded an
opportunity to cross-examine the expert. However,
An ALJ may take administrative notice of any reliable job information, including
information provided by a VE Johnson v. Shalala, 60 F.3d 1428, 1435 (9th
Cir.1995). A VE's recognized expertise provides the necessary foundation for his or
her testimony. Thus, no additional foundation is required.

Bayliss, 427 F.3d at 1218.

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

('"'..-{DATED this_~ day of October 2015.
__

2

Plaintiff also asserts that the ALJ failed to find a lifting limitation of ten pounds, but
included such limitation to the vocational expert. At best, plaintiff found a typo in the RFC
discussion and does not demonstrate that the ALJ erred in asserting a ten pound limitation.
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