McNatt v. Commissioner Social Security Administration
Filing
15
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 05/02/2016 by Judge Anna J. Brown. See attached 16 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DEBRA M. MCNATT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
DREW L. JOHNSON
1700 Valley River Drive
Eugene, OR 97405
(541) 434-6466
JOHN E. HAAPALA, JR.
401 E. 10th Avenue
Suite 240
Eugene, OR 97401
(541) 345-8474
Attorneys 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-00584-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
JORDAN D. GODDARD
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2733
Attorneys for Defendant
BROWN, Judge.
Plaintiff Debra M. McNatt seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI 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 SSI on January 26, 2012,
and alleged a disability onset date of January 1, 2011.1
1
Plaintiff provided an alleged onset date of January 15,
2010, in her application, but at the hearing the ALJ accepted
Plaintiff’s request to amend her alleged onset date to January 1,
2011. Tr. 85, 253.
2 - OPINION AND ORDER
Tr. 85.2
Her application was denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on November 21, 2013.
Tr. 245-73.
At the hearing
Plaintiff and a vocational expert (VE) testified.
Plaintiff was
represented by an attorney.
On December 19, 2013, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Tr. 13-21.
On February 11, 2015, that decision
became the final decision of the Commissioner when the Appeals
Council denied Plaintiff's request for review.
Tr. 6-8.
See
Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
BACKGROUND
Plaintiff was born on May 17, 1958, and was 55 years old at
the time of the hearing.
Tr. 85.
Plaintiff has a GED.
Tr. 267.
She has past relevant work experience as an apartment manager.
Tr. 20.
Plaintiff alleges disability due to arthritis, depression,
anxiety, fibromyalgia, gout, stomach disorders, and “severe pain
throughout body all the time.”
Tr. 102.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
2
After carefully reviewing the
Citations to the official transcript of record filed by
the Commissioner on September 10, 2015, are referred to as "Tr."
3 - OPINION AND ORDER
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 18-20.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate her
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
4 - OPINION AND ORDER
(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
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
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
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. § 416.920.
dispositive.
5 - OPINION AND ORDER
Each step is potentially
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. § 416.920(b).
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 determines the claimant does not have any medically severe
impairment or combination of impairments.
§ 416.920(c).
20 C.F.R.
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 a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity.
C.F.R. § 416.920(a)(4)(iii).
20
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 her limitations.
§ 416.945(a).
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."
6 - OPINION AND ORDER
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
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
20 C.F.R. § 416.920(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. § 416.920(a)(4)(v).
Keyser, 648 F.3d at 724.
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. § 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since her January 26, 2012,
7 - OPINION AND ORDER
application date.
Tr. 15.
At Step Two the ALJ found Plaintiff has the severe
impairments of fibromyalgia, bilateral hip bursitis, and
degenerative joint disease in multiple joints.
Tr. 15.
The ALJ
found Plaintiff’s depression, tremors, and gastroesophageal
reflux disease (GERD) are not severe.
Tr. 16-17.
At Step Three the ALJ concluded Plaintiff's impairments do
not meet or equal the criteria for any Listed Impairment from 20
C.F.R. part 404, subpart P, appendix 1.
has the RFC to perform light work.
The ALJ found Plaintiff
Tr. 17.
The ALJ also found
Plaintiff is limited to frequent grasping, handling, fingering,
and feeling bilaterally.
Tr. 17.
At Step Four the ALJ concluded Plaintiff is able to perform
her past relevant work a an apartment manager as that job is
“generally performed in the national economy.”
Tr. 20.
Accordingly, the ALJ found Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) partially
rejected Plaintiff’s testimony; (2) rejected the opinion of
Plaintiff’s treating doctor Clyde Byfield, M.D.; (3) partially
rejected the lay-witness statement of Kerry Sanchez; and
(4) failed to include all of Plaintiff’s restrictions in his
hypothetical to the VE.
8 - OPINION AND ORDER
I.
The ALJ gave clear and convincing reasons for partially
rejecting Plaintiff’s testimony.
Plaintiff alleges the ALJ erred when he failed to give clear
and convincing reasons for partially rejecting Plaintiff's
hearing 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 she 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
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 she suffers from
9 - OPINION AND ORDER
fibromyalgia, which causes her to be in severe pain; she has
tremors; and she suffers from anxiety.
Tr. 254.
Plaintiff
acknowledged at the hearing that she had indicated on her
application for benefits that she had stopped working as an
apartment manager in 2010 because the building manager no longer
needed an apartment manager and Plaintiff had to care for her
four grandchildren.
Nevertheless, at the hearing Plaintiff
testified she also stopped working as an apartment manager in
2010 because she could no longer do the work that was required
for that position, which included painting, cleaning, and
replacing appliances.
Tr. 255.
Plaintiff testified she has
suffered fibromyalgia for almost four years and is in constant
pain.
Tr. 257.
Plaintiff conceded at the hearing that she was
suffering from fibromyalgia and experiencing pain at the time she
was working as an apartment manager, but it has become “worse
since.”
Tr. 257-58.
Plaintiff testified she cannot bend or move
two or three days per week, and she stays in bed because she
hurts all over.
Plaintiff stated her pain caused her to be
severely depressed.
Plaintiff noted she has been taking anti-
anxiety medication and/or an antidepressant for “a long time.”
Tr. 259.
Plaintiff testified “certain lights, florescent lights
. . . will trigger anxiety” as well as loud noises on some days.
Tr. 259.
Plaintiff testified she will not grocery shop alone
because her anxiety can “hit” suddenly and cause her to pass out.
10 - OPINION AND ORDER
Tr. 260.
Plaintiff noted she suffers anxiety attacks sometimes
up to twice per week even when she is taking medication.
Tr. 261.
The ALJ found Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged
symptoms,” but Plaintiff’s testimony “concerning the intensity,
persistence and limiting effects of [her] symptoms are not
entirely credible.”
Tr. 18.
The ALJ noted Mike Milstein, M.D.,
radiologist, reported x-rays of Plaintiff’s hands did not show
any rheumatoid arthritis or erosive arthritis of the hands.
Tr. 209-10.
In addition, William Hinz, M.D., examining
rheumatologist, noted on October 24, 2012, that Plaintiff had a
ganglion cyst on her right wrist, but her “28 joint exam
demonstrates no synovitis and normal range of motion in all
joints.”
Tr. 181.
Dr. Hinze conducted a bilateral examination
of Plaintiff’s feet and noted “no synovitis, no MTP squeeze pain,
prominent bunions bilaterally.
all extremities.”
Tr. 181.
Muscle strength is 5 out of 5 in
The ALJ found Plaintiff’s reported
level of pain and effects of her limitations were undermined by
these reports.
The ALJ also noted Plaintiff’s treating physician,
Dr. Byfield, prescribed gababentin for Plaintiff’s pain and
believed Plaintiff was taking that medication.
Plaintiff,
however, reported to Dr. Hinz in September 2012 that she never
11 - OPINION AND ORDER
started taking gababentin.
Tr. 183.
Plaintiff advised Dr. Hinz
that she “often reads possible side effects [of medication] and
it scares her away from the meds.”
Tr. 183.
Dr. Hinz also
recommended Plaintiff undergo a formal sleep study because it
appears she suffers from “probable obstructive sleep apnea,”
which is causing her to sleep poorly and, in turn, increases her
fibromyalgia symptoms.
Tr. 182.
Plaintiff, however, did not
undergo a sleep study.
Plaintiff also testified at the hearing
that she takes only ibuprofen for her pain because “my doctor
doesn’t believe in pain pills or he doesn’t give me anything
else.”
Tr. 258.
The record, however, reflects Dr. Byfield has
prescribed gabapentin, amipripyline, and lyrica.
Finally, the ALJ noted the inconsistency between Plaintiff’s
statement in her application that (1) she stopped working in 2010
because the building manager no longer needed an apartment
manager and she had to care for her four grandchildren and
(2) her testimony at the hearing that she stopped working because
she could not perform the requirements of the job.
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 only partially
credible.
The Court, therefore, concludes the ALJ did not err
when he rejected Plaintiff's testimony in part.
II.
The ALJ did not err when he rejected the August 2012 opinion
of Dr. Byfield.
12 - OPINION AND ORDER
Plaintiff contends the ALJ erred when he rejected the August
2012 opinion of Plaintiff’s treating physician Dr. Byfield.
Specifically, in August 2012 Dr. Byfield stated in a treatment
note that Plaintiff suffers “[s]evere fibromyalgia . . . with
impairments that do make her totally disabled as discussed in
[History of Present Illness] HPI.
Has not tolerated
amipripyline, gabapentin or lyrica.”
Tr. 196.
An ALJ may reject a treating physician's opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes "findings setting forth specific,
legitimate reasons for doing so that are based on substantial
evidence in the record."
Thomas v. Barnhart, 278 F.3d 947, 957
(9th Cir. 2002)(quoting Magallanes v. Bowen, 881 F.2d 747, 751
(9th Cir. 1989)).
When the medical opinion of a treating
physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.
957.
Thomas, 278 F.3d at
See also Lester v. Chater, 81 F.3d 821, 830-32.
The ALJ rejected Dr. Byfield’s opinion on the ground that it
reflected Plaintiff’s “subjective report of her capabilities.”
Tr. 20.
The ALJ also found the debilitating symptoms that
Plaintiff reported to Dr. Byfield and that formed the basis
for Dr. Byfield’s opinion were not credible.
In addition,
Dr. Byfield relied at least in part on Plaintiff’s lack of
success with gabapentin, but, as noted, Plaintiff reported to
13 - OPINION AND ORDER
Dr. Hinz that she never took the gabapentin prescribed by
Dr. Byfield. Moreover, neither Dr. Hinz nor Plaintiff’s other
examining physicians opined Plaintiff is disabled or totally
unable to work.
Lloyd Wiggins, M.D., reviewing physician also
concluded Plaintiff is not disabled.
On this record the Court concludes the ALJ did not err when
he rejected Dr. Byfield’s August 2012 opinion because the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
III. The ALJ did not err when he partially rejected the statement
of Plaintiff’s friend, Kerry Sanchez.
On April 7, 2012, Plaintiff’s friend, Kerry Sanchez
completed a third-party adult function report in which she
indicated she has known Plaintiff for ten years and that
Plaintiff’s symptoms have become worse.
Sanchez reported
Plaintiff takes care of her four grandchildren and her pets.
Sanchez noted Plaintiff cooks, cleans, helps her grandchildren
with their homework, grocery shops, does laundry, and does other
general household chores.
Tr. 135-36.
Sanchez reported
Plaintiff has limited mobility, can walk 10-20 minutes before
needing to rest, has trouble getting up after sitting for
prolonged periods, cannot lift more than eight pounds, and cannot
stand for long periods.
Tr. 137-38.
Lay testimony regarding a claimant's symptoms is competent
evidence that the ALJ must consider unless she "expressly
14 - OPINION AND ORDER
determines to disregard such testimony and gives reasons germane
to each witness for doing so."
(9th Cir. 2001).
Lewis v. Apfel, 236 F.3d 503, 511
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 rejected the portion of Sanchez’s statement in which
she noted Plaintiff could not lift more than eight pounds on the
ground that it was not supported by the medical evidence and was
inconsistent with Plaintiff’s reported level of activity.
In
particular, Plaintiff reported she had trouble grocery shopping
alone due to anxiety rather than because she could not lift items
weighing more than eight pounds.
In addition, none of
Plaintiff’s treating or examining physicians indicated Plaintiff
was unable to lift more than eight pounds.
The Court concludes on this record that the ALJ did not err
when he partially rejected Sanchez’s statement because the ALJ
provided specific reasons germane the witness for doing so.
IV.
The ALJ did not err in his hypothetical to the VE.
Plaintiff contends the ALJ erred when he relied on the VE’s
testimony because the ALJ failed to include all of Plaintiff's
limitations in the hypothetical posed to the VE.
15 - OPINION AND ORDER
Because the Court has found the ALJ properly rejected
Plaintiff’s testimony in part, properly rejected Dr. Byfield’s
August 2012 opinion, and properly partially rejected Sanchez’s
statement, the Court concludes the ALJ did not err when he did
not include in his hypothetical to the VE all of the limitations
set out in Plaintiff’s testimony, Sanchez’s statement, or in the
opinion of Dr. Byfield and when he relied on the VE’s testimony
in response to his hypothetical.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 2nd day of May, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
16 - OPINION AND ORDER
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