Goudie v. Commissioner Social Security Administration
Filing
20
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and Dismisses this matter. Signed on 07/05/2016 by Judge Anna J. Brown. See attached 17 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DENNIS M. GOUDIE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
RICHARD F. MCGINTY
McGinty & Belcher, PC
P.O. Box 12806
Salem, OR 9730
(503) 371-9636
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
1 - OPINION AND ORDER
6:15-CV-00381-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
LISA GOLDOFTAS
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/A 221A
Seattle, WA 98104
(206) 615-2950
Attorneys for Defendant
BROWN, Judge.
Plaintiff Dennis M. Goudie seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act.
This Court has jurisdiction to review the
Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.
ADMINISTRATIVE HISTORY
Plaintiff filed an application for DIB on November 3, 2011,
alleging a disability onset date of April 21, 2010.
Tr. 126.1
The application was denied initially and on reconsideration.
An
Administrative Law Judge (ALJ) held a hearing on August 9, 2013.
Tr. 28-70.
At the hearing Plaintiff was represented by a “non-
1
Citations to the official transcript of record filed by
the Commissioner on November 23, 2015, are referred to as "Tr."
2 - OPINION AND ORDER
attorney representative.”
Plaintiff and a vocational expert (VE)
testified at the hearing.
The ALJ issued a decision on September 27, 2013, in which
she found Plaintiff was not disabled before his March 31, 2014,
date last insured and, therefore, is not entitled to benefits.
Tr. 13-27.
Pursuant to 20 C.F.R. § 404.984(d), that decision
became the final decision of the Commissioner on January 6, 2015,
when the Appeals Council denied Plaintiff's request for review.
Tr. 1-5.
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
BACKGROUND
Plaintiff was born August 17, 1974, and was 38 years old at
the time of the hearing.
school.
Tr. 160.
Tr. 126.
Plaintiff completed high
Plaintiff has past relevant work experience as
a maintenance assistant.
Tr. 23.
Plaintiff alleges disability due to migraine headaches,
right-shoulder issues, and knee and back pain.
Tr. 81.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 20-22.
STANDARDS
The initial burden of proof rests on the claimant to
3 - OPINION AND ORDER
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate his
inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months."
§ 423(d)(1)(A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district 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 as a whole.
U.S.C. § 405(g).
42
See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
"It is more than a mere scintilla [of
evidence] but less than a preponderance."
Id. (citing Valentine,
574 F.3d at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
4 - OPINION AND ORDER
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
record.
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
See also 20 C.F.R. § 404.1520.
Each step is potentially
dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. § 404.1520(a)(4)(I).
See also Keyser v.
Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
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determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii).
20 C.F.R. §§ 404.1509,
See also Keyser, 648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 404.1520(a)(4)(iii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
The
criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§ 404.1520(e).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
“A
'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."
SSR 96-8p, at *1.
In other
words, the Social Security Act does not require complete
incapacity to be disabled.
Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
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Commissioner determines the claimant retains the RFC to perform
work he has done in the past.
20 C.F.R. § 404.1520(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 404.1520(a)(4)(v).
Keyser, 648 F.3d at 724-25.
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.
If the Commissioner meets this burden, the claimant
is not disabled.
20 C.F.R. § 404.1520(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since his April 21, 2010, alleged
onset date.
Tr. 18.
The ALJ, however, noted Plaintiff applied
for and received “extensive unemployment benefits” during the
relevant period, which “bears negatively on the issue of
[Plaintiff’s] credibility.”
Tr. 18.
At Step Two the ALJ found Plaintiff has the severe
7 - OPINION AND ORDER
impairments of migraines, “status post right knee surgery,” and
“recurrent right shoulder dislocations.”
Tr. 18.
The ALJ found
Plaintiff’s impairments of Irritable Bowel Syndrome (IBS),
allergic rhinitis, and “exercise-induced asthma” are nonsevere.
Tr. 18.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.
Tr. 19.
perform light work.
The ALJ found Plaintiff has the RFC to
The ALJ also found Plaintiff could
frequently “engage in push or pull and foot control operation
with his right side,” balance, and reach overhead with his right
arm; occasionally climb ramps or stairs and stoop, kneel, crouch,
or crawl; should never climb ladders, ropes, or scaffolds; and
“should avoid concentrated exposure to irritants such as fumes,
odors, dust, gases, . . . poorly ventilated areas . . .[,]
hazardous machinery, operational control of moving machinery, and
unprotected heights.”
Tr. 19.
The ALJ found Plaintiff “would
consistently be absent from work no more than one day per month.”
Tr. 19
At Step Four the ALJ found Plaintiff cannot perform his past
relevant work.
Tr. 23.
At Step Five the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy.
8 - OPINION AND ORDER
Tr. 23.
Accordingly, the ALJ found Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when she (1) improperly
rejected Plaintiff’s testimony; (2) improperly rejected laywitness statements; and (3) failed to include all of Plaintiff’s
functional limitations in his evaluation of Plaintiff's RFC.
I.
The ALJ did not err when she partially rejected Plaintiff’s
testimony.
Plaintiff alleges the ALJ erred by failing to provide clear
and convincing reasons for partially rejecting Plaintiff's
testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and he must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).
Cotton, 799 F.2d 1403, 1407 (9th
The claimant, however, need not produce objective
medical evidence of the actual symptoms or their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if she provides clear and
9 - OPINION AND ORDER
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)).
General assertions that the claimant's testimony is
not credible are insufficient.
Id.
The ALJ must identify "what
testimony is not credible and what evidence undermines the
claimant's complaints."
Id. (quoting Lester, 81 F.3d at 834).
At the hearing Plaintiff testified he had suffered migraine
headaches since the late 1990s.
Plaintiff stated he had attended
Lane Community College in 2005, but he had to drop out of school
to care for his child when his child-care costs got too high (he
was a divorced single parent).
Plaintiff testified he was laid
off from his job “close to” his April 21, 2010, onset date and
was told it was “for economical reasons.”
Tr. 37.
Plaintiff
testified he believed he was laid off due to his headaches
because he had been reprimanded by his employer and two people
less senior than him “took over [his] department when [he] left.”
Tr. 37.
Plaintiff testified he had been absent and leaving work
early during the period before he was laid off.
Plaintiff noted
his migraines had become more frequent in the eight months before
he was let go, and they were happening “anywhere from two to
three times a week, up to five to six” times per week.
Tr. 39.
As a result, he was missing work three or four days a week.
Tr. 42.
Plaintiff stated the medications he takes for migraine
pain “take the edge off,” and the antinausea medication works
10 - OPINION AND ORDER
“really well.”
Tr. 40.
Plaintiff, however, noted his pain
medication “doesn’t actually kill” the migraine pain.
Tr. 40.
The medication “was working really great” when it was first
prescribed, but it no longer works as well.
The ALJ noted at the hearing that Plaintiff received
unemployment insurance from the fourth quarter of 2010 through
the fourth quarter of 2011.
Even though a person must be looking
for work to receive unemployment insurance, Plaintiff testified
initially that he was not looking for work during that time.
Tr. 45.
After the ALJ questioned him about unemployment
insurance, however, Plaintiff testified he had looked for work
“as customer service, or maintenance, or electronic repair” while
he received unemployment insurance.
Tr. 47.
Plaintiff also
testified he believed he could have done that kind of work as
long as he was not suffering from a migraine.
Tr. 47.
Plaintiff
stated he stopped receiving unemployment insurance in the fourth
quarter of 2011 because he “ran out of extensions.”
Tr. 47.
Plaintiff testified his doctors had tried prescribing
different medications over the last 20 years in an attempt to
give him some kind of relief from migraines.
Plaintiff stated he
had “tried probably close to 40 different combinations of
medications over the last 20 years” without success.
Plaintiff testified even after his migraines subside, he
suffers a “low-level headache” all day.
11 - OPINION AND ORDER
He “can deal with the
headache,” but the migraines are debilitating.
Plaintiff
testified he would consider “a success, as far as [his] headaches
go” to be “eliminating them down to once to twice a week” or
ideally three times per month.
Tr. 55.
The ALJ found Plaintiff’s “medically determinable
impairments could reasonably be expected to cause some of the
alleged symptoms,” but Plaintiff’s testimony “concerning the
intensity, persistence and limiting effects of [his] symptoms are
not entirely credible.”
Tr. 20.
The ALJ noted the record
indicated only three visits by Plaintiff to the emergency room:
two in 2009 and one in 2012.
The ALJ also noted even though
Plaintiff testified he missed three or four days of work per week
due to migraines in the months before he was laid off from his
job in April 2010, the record contains only one reference to
Plaintiff’s condition interfering with work in that period.
Specifically, in March 2012 Plaintiff reported he was suffering
daily headaches when his doctor diagnosed him with analgesic
rebound in addition to migraines and changed his medication to
oxycodone.
Tr. 336.
In April 2012 Plaintiff reported oxycodone
stopped his migraines and his “headache remains gone x 36 hours.”
Tr. 333.
In September 2012 Plaintiff reported to his doctor that
the oxycodone was not working as effectively to reduce his pain.
Tr. 429.
John Roberts, M.D., treating physician, noted in
October 2012, however, that the frequency of Plaintiff’s
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migraines decreased and the efficacy of oxycodone increased
“following treatment of possible chronic sinusitis and increase
in valproic acid dose.”
Tr. 428.
In March 2013 Plaintiff
reported having migraines every other day.
Tr. 417.
In April
2013 Plaintiff reported “he is satisfied with current level of
pain control” and with his current medications.
Tr. 416.
The
ALJ noted there is not any indication in the record that
Plaintiff has tried 40 combinations of medication to control his
migraines.
The ALJ also noted Plaintiff reported to medical staff in
2010 that he had been “laid off due to staffing cut backs - due
to the declining economy.”
Tr. 249.
Plaintiff did not indicate
he believed he was, in fact, laid off because of his migraines or
absences due to migraines.
The ALJ also pointed out that Plaintiff testified initially
that he did not look for work after he was laid off “around”
April 2010, but he “later changed his testimony to say that he
did try to find a job when [the ALJ] asked him about his receipt
of unemployment insurance for an extended period.”
Tr. 22.
On this record the Court finds the ALJ provided clear and
convincing reasons supported by substantial evidence in the
record for finding Plaintiff's testimony was not entirely
credible as to the limiting effects of his impairments.
The
Court, therefore, concludes the ALJ did not err when she rejected
13 - OPINION AND ORDER
Plaintiff's testimony in part.
II.
The ALJ did not err when she partially rejected the
statement of Plaintiff’s wife, Kimberly Goudie.
On December 5, 2011, Plaintiff’s wife completed a third-
party adult function report in which she indicated she has known
Plaintiff since 2005.
Kimberly Goudie stated Plaintiff’s
migraines are debilitating.
“When one comes on he is either in
the bathroom vomiting [or] laying in bed with no lights, cold
packs over his head just trying to get the pain to stop.”
Tr. 150.
Kimberly Goudie noted Plaintiff “gets the kids up,”
does “some chores around the home,” helps to make dinner, helps
the children with their homework, helps to care for the children,
and helps to “manage a diabetic step-son to make sure [he] keeps
in check with his A1C.”
Tr. 151.
Kimberly Goudie stated
Plaintiff is “so tired after having a migraine all day [that] he
just can’t think about taking medication.”
Tr. 152.
Kimberly
Goudie noted Plaintiff’s hobbies include darts, pool, hunting,
and watching television.
Plaintiff goes out to play darts once a
week and gets together with friends once a month,
Tr. 154.
Kimberly Goudie noted Plaintiff’s migraines had become worse and
more frequent since the time she met him in 2005.
Tr. 157.
Lay testimony regarding a claimant's symptoms is competent
evidence that the ALJ must consider unless she "expressly
determines to disregard such testimony and gives reasons germane
to each witness for doing so."
14 - OPINION AND ORDER
Lewis v. Apfel, 236 F.3d 503, 511
(9th Cir. 2001).
See also Merrill ex rel. Merrill v. Apfel, 224
F.3d 1083, 1085 (9th Cir. 2000) ("[A]n ALJ, in determining a
claimant's disability, must give full consideration to the
testimony of friends and family members.").
The ALJ's reasons
for rejecting lay-witness testimony must also be "specific."
Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006).
The ALJ found Kimberly Goudie’s statement was not “entirely
credible” regarding the intensity, persistence, and limiting
effects of Plaintiff’s symptoms for the same reasons that the ALJ
found Plaintiff’s testimony was only partially credible.
The Court concludes on this record that the ALJ did not err
when he partially rejected Kimberly Goudie’s statement because
the ALJ provided specific reasons germane to the witness for
doing so.
The Ninth Circuit held in Molina that when “the ALJ
gives germane reasons for rejecting testimony by one witness, the
ALJ need only point to those reasons when rejecting similar
testimony by a different witness.”
674 F.3d at 1114.
See also
Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.
2009) (because “the ALJ provided clear and convincing reasons for
rejecting Plaintiff’s own subjective complaints, and because [the
lay witness’s] testimony was similar to such complaints, it
follows that the ALJ also gave germane reasons for rejecting [the
lay witness’s] testimony’”).
15 - OPINION AND ORDER
In Valentine the Court noted
Mrs. Valentine’s testimony about her husband’s fatigue was
similar to her husband’s subjective complaints.
“Unsurprisingly,
the ALJ rejected this evidence based, at least in part, on ‘the
same reasons [she] discounted Plaintiff’s allegations.’”
Id.
Here this Court has concluded the ALJ provided clear and
convincing reasons for rejecting Plaintiff’s testimony in part
and, for similar reasons, concludes the ALJ gave germane reasons
for rejecting Kimberly Goudie’s statement.
Accordingly, the Court concludes the ALJ did not err when
she partially rejected Kimberly Goudie’s statement because the
ALJ gave legally sufficient reasons for doing so.
III. The ALJ did not err at Step Three.
Plaintiff asserts the ALJ erred at Step Three when she
assessed Plaintiff’s RFC because she did not consider all of
Plaintiff’s limitations as set out by Plaintiff and Kimberly
Goudie.
Because the Court has found the ALJ properly rejected in
part Plaintiff's testimony and Kimberly Goudie’s statements, the
Court concludes the ALJ did not err at Step Three when she did
not include all of the limitations reported by Plaintiff and
Kimberly Goudie in her assessment of Plaintiff's RFC.
Accordingly, the Court concludes the ALJ did not err at Step
Three.
16 - OPINION AND ORDER
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 5th day of July, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
17 - OPINION AND ORDER
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