Ericksen v. Commissioner Social Security Administration

Filing 21

AMENDED OPINION & ORDER: The ALJ's decision finding Ericksen not disabled is supported by substantial evidence in the record and is therefore Affirmed. Signed on 7/27/16 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CANDICE A. ERICKSEN,
Plaintiff,

6: 15-CV-00150-PK
AMENDED OPINION
AND ORDER

v.

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

PAPAK, Magistrate Judge:
Plaintiff Candice Ericksen ("Ericksen") seeks judicial review of the Commissioner of
Social Security's final decision denying her application for disability insurance benefits ("DIB")
under Title II of the Social Security Act (the "Act"). This Court has jurisdiction pursuant to 42
U.S.C. § 405(g) and 1383(c)(3). I have considered all of the paiiies' briefs and all of the

evidence in the administrative record. For the reasons set foi1h below, the Commissioner's final
decision is affirmed.
DISABILITY ANALYSIS FRAMEWORK
To establish disability within the meaning of the Act, a 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 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step
sequential process for determining whether a claimant has made the requisite demonstration. See

Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. § 404.1520(a)(4). At the first
four steps of the process, the burden of proof is on the claimant; only at the fifth and final step
does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999).
At the first step, the Administrative Law Judge considers the claimant's work activity, if
any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. § 404.1520(a)(4)(i). If the ALJ finds that
the claimant is engaged in substantial gainful activity, the claimant will be found not disabled.

See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b). Otherwise,
the evaluation will proceed to the second step.
At the second step, the ALJ considers the medical severity of the claimant's impaiiments.

See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is
"severe" ifit significantly limits the claimant's ability to perform basic work activities and is
expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see

also 20 C.F.R. § 404.1520(c). The ability to perform basic work activities is defined as "the
abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b); see also Bowen, 482
2 - AMENDED OPINION AND ORDER

U.S. at 141. If the ALJ finds that the claimant's impairments are not severe or do not meet the
duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see

also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c).
If the claimant's impairments are severe, the evaluation will proceed to the third step, at
which the ALJ determines whether the claimant's impai1ments meet or equal "one of a number of
listed impairments that the [Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d). If the claimant's impairments are equivalent to one of the impairments enumerated
in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See

Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d).
If the claimant's impairments are not equivalent to one of the enumerated impairments,
the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all
the relevant medical and other evidence in the claimant's case record. See 20 C.F.R. §
404.1520(e). The RFC is an estimate of the claimant's capacity to perform sustained, workrelated, physical and mental activities on a regular and continuing basis, despite the limitations
imposed by the claimant's impairments. See 20 C.F.R. § 404.1545(a); see also SSR 96-8p, 1996
WL 374184.
At the fomih step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §
404.1520(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can
still perform his or her past relevant work, the claimant will be found not disabled. See Bowen,
482 U.S. at 141; see also 20 C.F.R. § 404.1520(a)(4)(iv), 404.1520(f). In the event the claimant

3 - AMENDED OPINION AND ORDER

is no longer capable of performing his or her past relevant work, the evaluation will proceed to
the fifth and final step, at which the burden of proof is, for the first time, on the Commissioner.
At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's age, education, and work experience to determine whether the claimant can perfo1m
any jobs that exist in significant numbers in the national economy. See Bowen, 482 U.S. at 142;

see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566. If the
Commissioner meets its burden to demonstrate that the claimant is capable of performing jobs
existing in significant numbers in the national economy, the claimant is conclusively found not
to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v),
404.1520(g), 404.1560(c), 404.1566. A claimant will be found entitled to benefits ifthe
Commissioner fails to meet its burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20
C.F.R. §§ 404.1520(a)( 4)(v), 404.1520(g).

LEGAL STANDARD
A reviewing Court must affom an Administrative Law Judge's decision ifthe ALJ
applied the proper legal standards and his findings are supported by substantial evidence in the
record. See 42 U.S.C. § 405(g); see also Batson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir.
2004). ·"'Substantial evidence' means more than a mere scintilla, but less than a preponderance;
it is such relevant evidence as a reasonable person might accept as adequate to suppmi a
conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing Robbins v. Soc.

Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
The Court must review the record as a whole, "weighing both the evidence that supports
and the evidence that detracts from the Commissioner's conclusion." Id. at 1035. The Court
may not substitute its judgment for that of the Commissioner. See id., citing Robbins, 466 F.3d
4 - AMENDED OPINION AND ORDER

at 882; see also Edlund v. 1\lassanari, 253 F.3d 1152, 1156 (9th Cir. 2001). If the ALJ's
interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible
[ofj more than one rational interpretation." iV!agallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
1989).
BACKGROUND

Born in April, 1970 Ericksen was 40 years old on her alleged onset date of September 10.
2010. Tr. 18, 177, 202. 1 She filed for DIB on June 13, 2011, alleging disability due to
fibromyalgia, degenerative disc disease, and osteoarthritis. Id. After her applications were
denied initially and on reconsideration, Ericksen appeared and testified before an ALJ on March
28, 2013. Tr. 34-66, 100, 107. On July 26, 2013 the ALJ issued a decision finding Ericksen not
disabled. Tr. 15-29. The Appeals Council denied Ericksen's subsequent request for review on
December 5, 2014, making the ALJ's decision the final decision of the Commissioner. Tr. 1-4;

see 20 C.F.R. § 422.210(a); see also, e.g., Sims v. Apfel, 530 U.S. 103, 107 (2000). This appeal
followed.
SUMMARY OF ALJ FINDINGS

At the first step of the five-step sequential evaluation process, the ALJ found that
Ericksen had not engaged in substantial gainful activity since her alleged onset date. Tr. 20. At
the second step, the ALJ found that Ericksen had the severe impairments of degenerative disc
disease, obesity, and diabetes mellitus with peripheral neuropathy. Id. The ALJ also found
Ericksen suffered from the non-severe impairments of fibromyalgia, hypertension, and affective

1

Citations to "Tr." refer to the page(s) indicated in the official transcript of the administrative
record filed herein as Docket No. 17.
5 - AMENDED OPINION AND ORDER

mood disorder. Tr. 20-21. Because Ericksen's impairments were deemed severe, the ALJ
properly proceeded to the third step of the analysis. Id.
At the third step, the ALJ found that none ofEricksen's impaitments met or equaled any
of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. 1. Tr. 22. The ALJ therefore
conducted an assessment ofEricksen's RFC and found that Ericksen could perfo1m light work
with the following limitations: she can lift and carry 20 pounds occasionally and 10 pound
frequently; she can stand and/or walk a total of six hours in an eight hour workday, and sit for six
hours in an eight hour workday with normal breaks; she can frequently climb ramps or stairs up
to one story; she can never climb ladders, ropes, or scaffolds; she can frequently stoop, kneel,
crouch and crawl; she must avoid concentrated exposure to extreme cold, extreme heat,
excessive vibration, and workplace hazards such as dangerous machinery and unprotected
heights. Tr. 23.
At the fourth step of the five-step process, the ALJ found that Ericksen was capable of
performing her past relevant work as a nurse supervisor and as a pediatric nurse practitioner. Tr.
28. The ALJ therefore concluded that Ericksen was not disabled. Tr. 28-29.
ANALYSIS
Ericksen argues that the Commissioner e11'ed because she (1) improperly evaluated the
medical evidence and (2) failed to find her fibromyalgia and affective disorder to be "severe" at
step two.

I.

Medical Evidence
Ericksen argues that the ALJ improperly rejected the medical opinion of treating

physician Giovanni Catalano, D.O., and of nurse practitioner Courtney Strand. The ALJ is
responsible for resolving conflicts in the medical record, including conflicts among physicians'
6 - AMENDED OPINION AND ORDER

opinions. Carmickle v. Comm 'r, 533 F.3d 1155, 1164 (9th Cir. 2008). The Ninth Circuit
distinguishes between the opinions of treating, examining, and non-examining 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 ofa non-examining physician. Lester v. Chafer, 81F.3d821, 830 (9th Cir. 1995).

An uncontradicted treating physician's opinion can be rejected only for "clear and convincing"
reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991).
In contrast, ifthe 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 its 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. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).

An ALJ may also discount a medical source's opinion that is inconsistent with the source's other
findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). It is legal enor to ignore an
examining physician's medical opinion without providing reasons for doing so, and an ALJ
effectively rejects an opinion where he ignores it. Smolen v. Chafer, 80 F.3d 1273, 1286 (9th
Cir. 1996).
1. Treating Physician Giovanni Catalano, D.O.

Dr. Catalano evaluated Ericksen's limitations on January 23, 2013. Tr. 454-65. He
opined that Ericksen's pain would constantly interfere with her attention and concentration; that
she could sit, stand, and walk for one hour each in an eight-hour workday; that she must walk
every 15 minutes for 5 minutes, and that she needed an assistive device while standing and
7 - Alv1ENDED OPINION AND ORDER

walking. Tr. 457-58, 461. Dr. Catalano stated that Ericksen should elevate her legs 90 percent
of the time spent sitting during an eight-hour workday. Tr. 459. He concluded that Ericksen was
disabled.
The ALJ gave little weight to Dr. Catalano's opinion. Tr. 26. As an initial matter, Dr.
Catalano's opinion was contradicted by the opinions of state agency medical consultants Neal
Berner, M.D., and Richard Alley, M.D., who both assessed Ericksen's ability to work at the light
exertional level. Tr. 27, 75-76, 90-91. The ALJ was therefore required to provide specific,
legitimate reasons for rejecting Dr. Catalano's controverted opinion. Lester, 81 F3d at 830.
The ALJ provided at least two such reasons. First, the ALJ noted that Dr. Catalano's
opinion was inconsistent with the medical record and with his own treatment notes. Tr. 26. An
ALJ may reject an opinion that is brief, conclusory, or unsupported by clinical findings.

Chaudh1y v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). The ALJ may also reject a medical
opinion that is inconsistent with the doctor's own treatment notes. Valentine v. Comm 'r, 574
F .3d 685, 692-93 (9th Cir. 2009). Here, while Dr. Catalano noticed unsteadiness and opined that
Ericksen required a cane or assistive device for ambulation (Tr. 458, 475), on multiple
examinations he also noted that Ericksen walks with a normal gait. Tr. 468, 469, 478.
Examining physician Clifford Roberson, M.D., also found that Ericksen was able to heel and toe
walk fairly well despite a slow gait, and did not note any instability or weakness. Tr. 321. While
susceptible to multiple interpretations, this inconsistency between Dr. Catalano's opinion and the
objective medical record, including his own exam findings, constitutes a specific, legitimate
reason for according less weight to his opinion. Chaudhry, 688 F.3d at 671; Valentine, 574 F.3d
at 692-93; see also 1'vlagal/anes, 881 F.2d at 750 (the cou1i must uphold the ALJ's rational
interpretation of the record).
8 - AMENDED OPINION AND ORDER

The ALJ also noted that Dr. Catalano's opinion was belied by Ericksen's ability to
perfo1m various activities of daily living. Tr. 26. The ALJ may assign less weight to a
physician's opinion that conflicts with a claimant's rep01ied activities. }vlorgan v. Comm 'r, 169
F.3d 595, 601-02 (9th Cir. 1999). Here, for example, while Dr. Catalano opined that Ericksen's
pain would cause constant interference with her attention and concentration, Ericksen was able to
attend school online and practice Reiki, and planned to run a business from her home. Tr. 26,
180-86, 475. The ALJ also noted Ericksen was able to complete schoolwork every day, and to
read for school and for entertainment several times a week. Tr. 22, 222-23. Because Ericksen's
.,
daily activities suggest a level of functioning greater than that assessed by Dr. Catalano, it was
reasonable for the ALJ to assign less weight to Dr. Catalano's opinion. 1\forgan, 169 F.3d at
601-02. In sum, the ALJ provided legally sufficient reasons to assign little weight to Dr.
Catalano' s opinion.

2. Nurse Practitioner Courtney Strand
Nurse Strand submitted an assessment ofEricksen's functioning on September 8, 2011.
Tr. 427-28. She opined that Ericksen can never lift any weight and that she can walk and stand
for two hours and sit for six hours in an eight-hour workday. Tr. 427. In January, 2012, Nurse
Strand submitted a statement opining that Ericksen had marked physical impahments, ambulated
with limitations, and was unable to perform her past work. Tr. 437-42. She indicated that
Ericksen would need to elevate her legs 75 percent of the time while sitting, and could never lift
more than 10 pounds. Tr. 441.
Nurse Strand's treatment notes from March, 2012 indicate that Ericksen's pain would
frequently interfere with her attention and concentration; that she must walk every 30 minutes for

9 - AMENDED OPINION AND ORDER

1 to 5 minutes, and that she would occasionally require the use of an assistive device for standing
and walking. Tr. 339-40.
The ALJ rejected Nurse Strand's opinion because it was inconsistent with the medical
record as a whole. Tr. 25-26. Because Nurse Strand was an "other" source under the
regulations, the ALJ was required to provide gennane reasons for rejecting her opinion. }vfolina

v. Astrue, 674 F.3d 1104, 1111-12 (9th Cir. 2012). Here, while Nurse Strand opined that
Ericksen could never lift anything, 2 Michael Malos, M.D., noted that Ericksen could lift up to 25
pounds. Tr. 393. Further, Ericksen testified that she was not as limited as Nurse Strand alleged.
Tr. 26, 47 (Ericksen's testimony that total limitation on lifting was "a little ridiculous"), 427. On
this record, the ALJ provided a germane reason for rejecting Nurse Strand's opinion. },Jolina,
674 F.3d at 1111-12.

II.

Step Two Findings
Ericksen next argues that the Commissioner ell"ed because she omitted fibromyalgia from

the list of severe impairments at step two and, as a result, formulated an inaccurate RFC. She
also alleges that the ALJ eITed by finding her affective disorder to be non-severe. At step two of
the sequential evaluation, the ALJ determines whether the claimant has a medically severe
impainnent or combination of impaitments. 20 C.F.R. § 404.1520(a). Step two findings must be
based upon medical evidence. Id. An impaitment is "not severe" if it "does not significantly
limit [the claimant's] ability to do basic work activities." Id. "Omissions at step two are
harmless ifthe ALJ's subsequent evaluation considered the effect of the impairment omitted at

2

But see Tr. 441 (indicating that Eriksen could perhaps lift less than I 0 pounds, but not
indicating frequency).
JO-AMENDED OPINION AND ORDER

step two." Harrison v. Astrue, 2011 WL 2619504, *7 (D. Or. July!, 2011) (citing Lewis v.

Astrue, 498 F.3d 909, 911 (9th Cir. 2007)).
The ALJ resolved step two in Ericksen's favor. Tr. 20. While she found Ericksen's
fibromyalgia to be non-severe, she neve1iheless included limitations related to fibromyalgia in
the RFC by limiting Ericksen to occupations that do not require concentrated exposure to
extreme cold or heat. Tr. 23.
In support of her contention that her fibromyalgia was "severe," Ericksen cites the
opinion evidence of Dr. Catalano and Nurse Strand. As discussed above, the ALJ provided
legally sufficient reasons for assigning less weight to those opinions and therefore was not
required to credit their opinions in the sequential evaluation process. Further, Ericksen does not
argue that the ALJ omitted any specific fibromyalgia-associated limitations in the RFC;
therefore, any e1rnr in the ALJ' s omission of her fibromyalgia in the listing of severe
impairments at step two was harmless. Lewis, 498 F.3d at 911.
Regarding Ericksen's affective disorder, the ALJ found it to be non-severe. Tr. 21. She
reasoned that Ericksen' s mild depression and occasional complaints of anxiety did not cause
significant work-related limitations. Tr. 21, 354, 368, 477. As Ericksen does not point to any
limitations enoneously omitted from the RFC as a result of the ALJ' s step two reasoning
regarding he1: affective disorder, she has failed to show harmful error. Lewis, 498 F.3d at 911.
The ALJ's step two findings are afiirmed.

11 -AMENDED OPINION AND ORDER

CONCLUSION
The ALJ's decision finding Ericksen not disabled is suppmied by substantial evidence in
the record and is therefore affomed.
IT

rs so ORDERED.

DATED this 27th day of July, 2016.

(~ ,(~) ~)
\ Olil/f \ c: i:XZJ~
Honorable Paul Papak
United States Magistrate Judge

12 - AMENDED OPINION AND ORDER