Noah v. Commissioner Social Security Administration

Filing 16

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 09/13/2016 by Judge Anna J. Brown. See attached 18 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BARBARA G. NOAH,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

TIM WILBORN
Wilborn Law Office, P.C.
P.O. Box 370578
Las Vegas, NV 89137
[phone]
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
[phone]

1 - OPINION AND ORDER

6:15-CV-01803-BR
OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
THOMAS M. ELSBERRY
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Judge.
Plaintiff Barbara G. Noah seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's applications
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act and 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 protectively filed her applications for SSI and
DIB on February 29, 2012, and alleged a disability onset date of
April 1, 2010.

Tr. 203-11, 212-13.1

1

The applications were

Citations to the official transcript of record filed by
the Commissioner on January 27, 2016, are referred to as "Tr."
2 - OPINION AND ORDER

denied initially and on reconsideration.

An Administrative Law

Judge (ALJ) held a hearing on November 14, 2013.

Tr. 53-86.

At

the hearing Plaintiff was represented by attorney David Tilton.
Tr. 53.

The ALJ heard testimony from Plaintiff and vocational

expert (VE) Kay Wise.

Id.

The ALJ issued a decision on April 17, 2014, in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 28-38.

Pursuant to 20 C.F.R. § 404.984(d),

that decision became the final decision of the Commissioner when
the Appeals Council denied Plaintiff's request for review.
Tr. 1-4.

Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

See

Plaintiff

appealed the decision of the Commissioner to this Court.

BACKGROUND
Plaintiff was born in April, 1970.
years old at the time of the hearing.

Tr. 203.

Tr. 203.

She was 44
Plaintiff speaks

English and dropped out of school in the eleventh grade.

Tr. 58.

Plaintiff has past relevant work experience as a tree-service
groundsman, dryer tender, bartender, production worker, and
receptionist.

Tr. 36, 276.

Plaintiff alleges disability due to degenerative disc
disease of the lumbar and cervical spine, fibromyalgia, and a
history of collagenous colitis.

Tr. 275.

Except when noted, Plaintiff does not challenge the ALJ’s
3 - OPINION AND ORDER

summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 31-36.

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.”
4 - OPINION AND ORDER

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
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
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), 416.920(a)(4)(I).

See

also Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.
5 - OPINION AND ORDER

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.
404.1520(a)(4)(ii), 416.920(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), 416.920(a)(4)(iii).
F.3d at 724.

20 C.F.R.

See also Keyser, 648

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.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.

See also Social Security Ruling

“A ‘regular and continuing basis’ means 8 hours a

day, for 5 days a week, or an equivalent schedule.”
at *1.

20 C.F.R.

SSR 96-8p,

In other words, the Social Security Act does not require

complete incapacity to be disabled.

6 - OPINION AND ORDER

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.
416.920(a)(4)(iv).

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.
416.920(a)(4)(v).

20 C.F.R. §§ 404.1520(a)(4)(v),

See also Keyser, 648 F.3d at 724-25.

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),

416.920(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since her alleged onset date of
April 1, 2010.

Tr. 30.

7 - OPINION AND ORDER

At Step Two the ALJ found Plaintiff has the severe
impairments of degenerative disc disease of the cervical and
lumbar spine, fibromyalgia, a history of collagenous colitis,
anxiety, hypertension, hypothyroidism, hyperlipidemia, asthma,
somatoform disorder, and cannabis dependence.

Tr. 31.

At Step Three the ALJ concluded Plaintiff's impairments
medically equal the criteria for Listed Impairments under
§§ 1.04, 3.03, and 5.06, 20 C.F.R. part 404, subpart P, appendix
1.

Tr. 31.

The ALJ found Plaintiff has the RFC to perform light

work with the following limitations:

She can perform tasks that

involve no more than four hours of sitting and no more than four
hours of standing/walking in an eight-hour workday with normal
breaks; she must be allowed to change positions as necessary to
mitigate discomfort while remaining on task; she must avoid tasks
requiring ambulation over uneven surfaces; she can occasionally
climb stairs and ramps, but she must avoid climbing ladders,
ropes, or scaffolds; she can occasionally stoop, kneel, crouch,
and crawl; she must avoid exposure to workplace hazards such as
unprotected heights and dangerous machinery; she can understand,
remember, and carry out no more than simple instructions that can
be learned within 30 days; she must avoid exposure to dust,
fumes, gases, or other respiratory irritants in concentrations
greater than those ordinarily found in a normal office
environment; she can engage in occasional overhead reaching

8 - OPINION AND ORDER

bilaterally, but she must avoid sustained overhead work; and she
can tolerate no more than occasional contact with co-workers,
supervisors, or the public.

Tr. 33.

At Step Four the ALJ concluded Plaintiff was not capable of
performing any of her past relevant work.

Tr. 36.

At Step Five the ALJ found Plaintiff has the RFC to work in
jobs that exist in the national economy, including office helper,
paper-goods inserter, and stock checker.

Tr. 37.

therefore, concluded Plaintiff is not disabled.

The ALJ,

Tr. 38.

DISCUSSION
Plaintiff contends the ALJ erred when she (1) failed to find
at Step Three that Plaintiff's impairments met or equalled
Listing 12.07, (2) rejected Plaintiff’s subjective symptom
testimony, and (3) rejected the lay-witness testimony.
I.

The ALJ did not err when she found Plaintiff's impairments
did not meet or equal Listing 12.07.
Plaintiff contends the ALJ erred at Step Three because she

failed to find that Plaintiff meets Listing 12.07 for Somatoform
Disorders.

At Step Three of the sequential evaluation the ALJ

considers whether a claimant’s impairment or combination of
impairments meets or equals a Listing that presumptively
demonstrates disability.

20 C.F.R. §§ 404.1520(d), 416.920(d).

For every major body system the Listings describe impairments

9 - OPINION AND ORDER

that are severe enough to be per se disabling.
180 F.3d 1094, 1099 (9th Cir. 1999).

Tackett v. Apfel,

Listing 12.07 requires a

claimant to establish the following:
Somatoform disorders: Physical symptoms for which there
are no demonstrable organic findings or known
physiological mechanisms. The required level of
severity for these disorders is met when the
requirements in both A and B are satisfied.
A. Medically documented by evidence of one of the
following:
1. A history of multiple physical symptoms of several
years duration, beginning before age 30, that have
caused the individual to take medicine frequently, see
a physician often an altered life patterns
significantly; or
2. Persistent non-organic disturbance of one of the
following:
a. Vision; or
b. Speech; or
c. Hearing; or
d. Use of a limb; or
e. Movement and its control (e.g., coordination
disturbance, psychogenic seizures, akinesia,
diskineasia; or
f. Sensation (e.g., diminished or heightened).
3. Unrealistic interpretation of physical signs or
sensations associated with the preoccupation or belief
that one has a serious disease or injury;
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social
functioning; or
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of
extended duration.
20 C.F.R., Part 404, Subpart P, App'x 1, § 12.07.
The ALJ is not required to explore the issue of equivalency
10 - OPINION AND ORDER

to a Listing unless the claimant affirmatively asserts
equivalency.
2005).

Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir.

Here the ALJ discussed Listing 12.07 and found Plaintiff

does not meet the criteria to establish that she is per se
disabled under that Listing.

Tr. 31.

Moreover, at the hearing Plaintiff did not present a theory
of equivalency in an effort to establish equivalency with Listing
12.07.

Tr. 55-86.

Plaintiff contends she meets Listing 12.07 and cites medical
evidence provided by Douglas Crane, M.D.; Gail Wahl, Ph.D.; and
Donald Yang, M.D., to support her position.

Tr. 525, 896, 963.

Plaintiff, however, has not alleged specific error in the ALJ’s
evaluation of the medical evidence and, therefore, has waived any
such argument.

In addition, Plaintiff did not present any

evidence that specific symptoms required to meet the Listing
began before age 30 (which was in 2000) and, therefore, has not
satisfied Listing 12.07A(1).

Tr. 36.

Similarly, Plaintiff has

not presented evidence of persistent nonorganic disturbance of
any of the six categories listed under Listing 12.07A(2).
Finally, Plaintiff does not satisfy any of the Listing 12.07A(3)
categories because she did not allege she has an "unrealistic
interpretation of physical signs or sensations associated with
the preoccupation or belief that she has a serious disease or
injury."

Thus, Plaintiff has not met her burden to prove that

11 - OPINION AND ORDER

her impairments meet or equal Listing 12.07, and, therefore, the
Court concludes the ALJ did not err when she found Plaintiff did
not meet or equal any of the “A criteria” for Listing 12.07.
Even if Plaintiff were correct that the evidence
establishes she meets or equals one of the “A criteria” for
Listing 12.07, she has failed to satisfy the “B criteria.”

The

ALJ reasonably found Plaintiff did not have marked restrictions
in at least two areas and had not experienced episodes of
decompensation of extended duration.

Tr. 31-33.

Plaintiff

maintains the medical evidence establishes her impairments result
in at least two “marked” limitations that satisfy the B criteria,
including a marked limitation in maintaining concentration,
persistence, and pace and in performing activities of daily
living.

Plaintiff, however, merely presents an alternative

interpretation of the evidence without legal support.

Because

the ALJ’s assessment of the medical evidence was reasonable, her
Step Three findings must be upheld.

Ludwig, 681 F.3d at 1051

(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).
In summary, the ALJ properly considered the relevant
listings at Step Three in light of the credible medical evidence
in the record, and the ALJ's findings were free of legal error.

12 - OPINION AND ORDER

II.

The ALJ provided clear and convincing reasons for rejecting
Plaintiff’s testimony.
Plaintiff contends the ALJ erred when she failed to give

clear and convincing reasons for 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 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 only reject
the claimant’s pain testimony if the ALJ 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 was unable to sit or
stand for longer than between 20 minutes and an hour at a time,
13 - OPINION AND ORDER

and she stated she often suffers vomiting and diarrhea.

Tr. 64.

Plaintiff testified she experiences joint pain and constant
nausea, which interfere with her concentration.

Tr. 64.

She

stated she is able to perform some basic household chores and to
provide emotional support to her 17-year-old son, who suffers
from mental illnesses.

Tr. 66-67.

She suffers from symptoms of

porphyria, including abdominal pain, but IV infusions have helped
manage her symptoms.

Tr. 68.

Plaintiff estimated she could walk

half a block and lift about 10 pounds, but she loses her grip if
she tries to use her hands for long periods.

Tr. 71-72.

estimated she vomits about five times on an average day.

She
Tr. 77.

The ALJ rejected Plaintiff’s testimony as to the nature and
extent of her limitations.

Tr. 34.

The ALJ found Plaintiff’s

testimony was contradicted by her activities of daily living and
that her complaints were not substantiated by the objective
medical evidence.

Tr. 36.

The ALJ may discount a claimant’s subjective symptom
allegations when they are undermined by activities such as
attending to the needs of children.
F.3d 853, 857 (9th Cir. 2001).

Rollins v. Massanari, 261

Here the ALJ noted Plaintiff was

a single mother of a child diagnosed with significant mentalhealth problems, including bipolar disorder and schizophrenia.
Tr. 36.

At the hearing Plaintiff testified she “spends all her

time caring for [her son]” because she does not feel comfortable

14 - OPINION AND ORDER

leaving her son alone at home.

Tr. 36, 67.

Based on the level

of care required by her teenage son, the Court finds it was
reasonable for the ALJ to infer that Plaintiff was less limited
by her symptoms than she alleged.

Rollins, 261 F.3d at 857.

Lack of substantiating medical evidence may also provide
weight to an ALJ’s credibility determination of a Plaintiff's
testimony when other legally sufficient reasons are present, such
as the ALJ's finding that the claimant’s activities of daily
living conflict with Plaintiff's alleged symptoms.

Stubbs-

Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008).

Here,

despite her complaints of gastrointestinal distress, Plaintiff
presented “[n]o acute distress” on examination.

Tr. 35, 976.

There also was not any evidence of dental problems indicative of
acid erosion from chronic vomiting, and radiological and
laboratory evidence did not identify any significant
gastrointestinal abnormalities.

Tr. 35, 906-18.

In addition,

medical imaging studies obtained in June of 2012 documented only
“minor” nerve impingement at L5-S1 that was “not significant
enough” to warrant surgical intervention.

Tr. 35, 537.

Radiological evidence also failed to show signs of progressive
lumbar degeneration.

Tr. 35, 537.

An imaging study performed in

July 2013 revealed only “mild” loss of disc space height at
L5-S1, but “the remainder of the lumbosacral spine has relatively
good preservation of disc space height,” which indicates a more

15 - OPINION AND ORDER

mild condition than Plaintiff alleged.

Tr. 35, 880.

On this record the Court concludes the ALJ reasonably found
Plaintiff’s allegations were unsupported by the medical evidence,
and this added further support to the ALJ's rejection of
Plaintiff’s testimony.

Stubbs-Danielson, 539 F.3d at 1175.

Plaintiff, nevertheless, challenges the ALJ’s conclusion
regarding her testimony and presents an alternative
interpretation of the evidence.

For example, Plaintiff contends

she could miss up to four days of work per month due to her IV
infusions, but she also testified at the hearing that she stopped
getting infusions because she was feeling better and because her
veins were “blowing.”

Tr. 65-66, 69.

In any event, Plaintiff’s

interpretation of the record is not significant because the ALJ’s
conclusions were rational and, therefore, must be upheld.

See

Ludwig, 681 F.3d at 1051 (when the evidence is susceptible to
more than one rational interpretation, the Commissioner’s
findings must be upheld when reasonable).
On this record the Court concludes 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 intensity, persistence, and limiting effects
of her conditions.

The Court, therefore, concludes the ALJ did

not err when she rejected Plaintiff’s testimony.

16 - OPINION AND ORDER

III. The ALJ did not err when she rejected the lay-witness
testimony.
Plaintiff contends the ALJ erred when she rejected the laywitness testimony of Michelle Dieke, Plaintiff’s friend.
The ALJ must provide “germane reasons” for rejecting the
testimony of lay witnesses, but need not “clearly link [her]
determination to those reasons.”
511-12 (9th Cir. 2001).

Lewis v. Apfel, 236 F.3d 503,

See also Molina, 674 F.3d at 1114.

Dieke completed a questionnaire describing Plaintiff’s
limitations.

Tr. 284-91.

She opined Plaintiff cannot sit,

stand, or walk for long periods of time or do any multitasking
without needing breaks to lie down.

Tr. 284.

She stated

Plaintiff needs reminders to take medications, has low energy,
can only drive for short distances, and often wakes up because of
her pain.

Tr. 285-87.

Dieke also confirmed Plaintiff's

allegations that she was limited in lifting, squatting, bending,
standing, reaching, walking, sitting, kneeling, talking, hearing,
climbing stairs, seeing, completing tasks, concentrating,
understanding, following instructions, and using her hands.
Dieke also stated Plaintiff has difficulty handling stress, and
her cognitive function and reaction time are adversely affected
by her medications.

Tr. 290.

The ALJ rejected Dieke’s testimony because it closely
mirrored Plaintiff’s statements, which the ALJ properly rejected.
When the ALJ properly rejects a claimant’s statements, those same
17 - OPINION AND ORDER

reasons apply with equal force to the similar statements of a lay
witness.

The ALJ, therefore, provided germane reasons for

rejecting the lay-witness testimony.

See Lewis, 236 F.3d at 511-

12.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 13th day of September, 2016.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

18 - OPINION AND ORDER