Senser v. Commissioner of Social Security Administration

Filing 15

Order, Opinion. The decision of the Commissioner is AFFIRMED. See, formal Opinion. Ordered on 1/19/2017 by Judge Ann L. Aiken. (rdr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DNISION
KATHRYN MARIE SENSER,

Case No. 6:15-cv-02387-AA
OPINION AND ORDER

Plaintiff,

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
AIKEN, Judge:
PlaintiffKathryn Marie Senser brings this action pursuant to the Social Security Act ("Act"),
42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social
Security ("Commissioner"). The Commissioner denied plaintiffs applications for Disability
Insurance Benefits ("DIB"). For the reasons set forth below, the Commissioner's decision is
affirmed.

BACKGROUND
OnJanuary6, 2012, plaintiff applied for DIB. Tr. 159. She alleged disability beginning May
1, 2010, due to bipolar disorder, anxiety, and depression. Tr. 245. Her application was denied
initially and upon reconsideration. Tr. 88, 99. On Febrnary 5, 2014, a hearing was held before an
Administrative Law Judge ("ALJ"). Tr. 36. Plaintiff, represented by counsel, testified, as did a
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vocational expert ("VE") and a medical expert. Tr. 36. On March 21, 2014, the ALJ issued an
unfavorable decision. Tr. 23. After the Appeals Council denied her request for review, plaintiff filed
a complaint in this Court. Tr. 1.
STANDARD OF REVIEW

The district court must affinn the Commissioner's decision if it is based upon proper legal
standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g);
Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than a mere

scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion." Gutierrez v. Comm 'rofSoc. Sec., 740 F.3d 519, 522 (9th Cir.
2014) (quotation marks omitted). The comt must weigh "both the evidence that supports and the
evidence that detracts from the ALJ's conclusion." Mayes v. Massanari, 276 F.3d453, 459 (9th Cir.
2001). If the evidence is susceptible to more than one interpretation but the Commissioner's
decision is rational, the Commissioner must be affirmed, because "the court may not substitute its
judgmentforthatofthe Commissioner." Ed/11ndv. lvfassa11ari,253F.3d1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION

The initial burden ofproofrests upon the plaintiff to establish disability. Howardv. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an "inability
to engage in any substantial gainful activity by reason of any medically determinable physical or
mental impaitment 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 person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502(a)(4). At
step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the alleged
disability onset date. Tr. 13; 20 C.F.R. §§ 404.1520(a)(4)(i), (b). At step two, the ALJ found
plaintiff had the following severe impaitments: bipolar disorder, anxiety disorder, sciatica, and
lumbar spondylosis. Tr. 13; 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). At step tlu·ee, the ALJ determined
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plaintiffs impairments, whether considered singly or in combination, did not meet or equal "one of
the listed impairments" that the Commissioner acknowledges are so severe as to preclude substantial
gainful activity. Tr. 14; 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).
The ALJ found plaintiff retained the residual functional capacity ("RFC")
to perform light work as defined in 20 C[.F.R. §] 404.1567(b) except: the claimant
is limited to occasional postural activities; should avoid pulmonary irritants; is
limited to unskilled work; can have only incidental public contact; and no teamwork.
Tr. 16; 20 C.F.R. § 404.1520(e). At step four, the ALJ concluded plaintiff would be unable to
perform any "past relevant work." Tr. 21, 20 C.F.R. §§ 404.1520(a)(4)(iv), (f). At step five, relying
on the VE's testimony, the ALJ found plaintiff could perform several jobs existing in significant
numbers in the national economy: mail sorter, price marker, and packing line worker. Tr. 22, 20
C.F.R. §§ 404.1520(a)(4)(v), (g). Accordingly, the ALJ found plaintiff not disabled and denied her
application for benefits. Tr. 23.
DISCUSSION
Plaintiff raises five allegations of error on appeal. She contends the ALJ erred when he: (1)
found, at step three, that plaintiff did not meet the criteria for listing 12.04 (affective disorder); (2)
discounted plaintiffs subjective symptom testimony without providing clear and convincing reasons
to do so; (3) improperly weighed the medical evidence; (4) rejected the lay witness testimony of
plaintiffs domestic partner; and (5) formulated the RFC and hypothetical questions to the VE.
Because plaintiffs statements about the extent of her own limitations affect the analysis of all other
allegations of error, I address those statements first. I then tum to plaintiffs arguments regarding
the medical evidence and the lay witness statements. Finally, I address the step three analysis and
the formulation of the RFC. Because plaintiffs arguments on appeal relate only to her mental
impairments, this opinion does not address the ALJ's treatment of her physical limitations.

I.

PlaintijJ's Subjective Symptom Testimony

When a claimant's medically documented impairments reasonably could be expected to
produce some degree of the symptoms complained of, and the record contains no affirmative
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evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of ...
symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater,
80 F.3d 1273, 1281 (9th Cir. 1996). A general assertion the claimant is not credible is insufficient;
the ALJ must "state which ... testimony is not credible and what evidence suggests the complaints
are not credible." Dodrill v. Shala/a, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must
be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant's testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir. 1995). If the
"ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not
engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
At the hearing, plaintiff testified that her biggest obstacle to working would be difficulty
"staying on task and being able to concentrate and staying there." Tr. 43. She loses track of time,
cannot stay focused, does not finish projects, and has trouble getting along with others. Tr. 49. She
gets "anxiety and panic attacks from it comes to work." Tr. 266. "Because oflack of concentration
and motivation" she cannot "stay interested in anything very long." Tr. 270.
Plaintiff also testified regarding the severity of her manic and depressive episodes. Mania
causes her to "fly off the handle" and "yell and scream and you know, it could go on maybe an hour
or two sometimes." Tr. 48. When she is depressed, she sleeps until about 2:00 in the afternoon or
even stays in bed all day. Tr. 56. She estimates that without medication, she has one episode of
depression every two to three months. Tr. 56.
Plaintiffs medications for bipolar disorder help balance her mood swings but also make her
feel tired. Tr. 56-57. Plaintiff feels stt1ck in a "cycle": if she docs not take her medication, she
becomes psychotic and manic. Tr. 225. But if she docs take medication, she becomes extremely
fatigued. Plaintiff told one healthcare provider that "if she is not on her medication then she is a
ticking time bomb, but when she does take her medication she feels extremely sedated." Tr. 332.
Plaintiffs difficulties with concentration appear connected to the side effects of her medication.
Plaintiff conceded her symptoms were better on medication than they were off. Tr. 57.
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The ALJ declined to fully credit plaintiffs testimony about the extent of her symptoms for
several reasons. First, the ALJ noted evidence of dishonesty in plaintiffs hearing testimony and in
the medical record. Tr. 17. The ALJ characterized plaintiffs testimony about the reason she could
not work as vague and evasive. The ALJ also specifically noted that plaintiff testified she could not
remember what drugs she was taking when she was arrested for driving under the influence of
intoxicants. Later in the hearing, plaintiff admitted she was using marijuana and methadone. The
notes from plaintiffs treating psychiatric nurse practitioner reveal that plaintiff has previously lied
about her drug use and the arrest.
To the extent that the ALJ considered plaintiffs dishonesty about the narrow issue of prior
drug use and arrest to be a reason for disbelieving all of her testimony, he e1Ted. Although the Court
does not condone plaintiffs dishonesty, the fact that she was not forthcoming about illegal drug use
and her criminal hist01y does not support the inference that she exaggerated her symptom testimony.
Moreover, I find it significant that plaintiff corrected her own dishonest statements and eventually
told both the ALJ and the nurse practitioner about her drug use in connection with the arrest. The
medical records do not contain evidence of malingering on any other topic. Moreover, plaintiffs
responses to questions about why she could not work were not evasive. She responded that her
difficulties with concentration and memory would present the greatest difficulty with respect
working. The "clear and convincing reasons" standard remains the appropriate one to apply
regarding the ALJ's treatment of plaintiffs testimony.
Second, the ALJ noted the plaintiffs own testimony that she was able to sell items on eBay,
travel to Hawaii (for vacation) and Alabama (for a class reunion), host extended family for weeks
at a time, and do a deep cleaning of her house. Although the record shows plaintiff at times had
difficulty with those activities, the ALJ permissibly concluded they suggested "greater cognitive and
social functioning than alleged" with respect to plaintiffs concentration and motivation. Tr. 18. See

Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) ("Even where [participation in everyday
activities] suggest some difficulty functioning, [those activities] may be grounds for discrediting the
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claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.").
Third, the ALJ noted that the plaintiff had previously taken mental health medication while
successfully holding down a job. Tr. 18. This aligns with plaintiffs testimony that her mental
limitations regarding concentration are longstanding and have been a problem "all [her] life." Tr.
43. The ALJ reasonably concluded that plaintiffs past ability to work while suffering from the same
mental health problems and taking the same medication undermined her claim of disability.
Fourth, there is evidence in the record regarding a severe manic episode during which
plaintiff believed her domestic partner was collaborating with unknown persons against her. The
ALJ noted that episode came on the heels of a number of situational stressors related to plaintiffs
family and personal relationships. Tr. 18. She also noted it coincided with plaintiff's relapse into
illegal drng use. Finally, the ALJ cited plaintiff's testimony, and the opinion of plaintiff's treating
provider, thatplaintiff s mood swings are well-controlled with medication. Taking all that evidence
together, the ALJ concluded plaintiff's mania would not prevent her from working in the future.
That conclusion is supported by substantial evidence.
In sum, although the ALJ erred to the extent he discredited plaintiff's testimony on the

ground that she was dishonest about her criminal history and dmg use, his decision to give limited
weight to her subjective symptom testimony was nonetheless based on clear and convincing reasons
supported by substantial evidence.

II.

Medical Evidence
Plaintiff next challenges the ALJ's decision to give only partial weight to the opinion of Jody

Guyette, Psy.D. Dr. Guyette consultatively examined plaintiff. Where, as here, an examining
physician's opinion conflicts with other evidence in the record, it may be rejected only for specific,
legitimate reasons supported by substantial evidence. Lesterv. Chafer, 81F.3d821, 830-31 (9th Cir.
1995). Specific and legitimate reasons for rejecting the opinion of an examining physician include
the opinion's inconsistency with medical records or a claimant's daily activities. Tommasetti v.
Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
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Dr. Guyette assessed plaintiffs concentration, persistence, and pace as "adequate." Tr. 334.
After administering a set of cognitive tests, Dr. Guyette concluded:
[T]he claimant does have the ability to perform simple and repetitive tasks as well
as more detailed to complex tasks. She would have difficulty attending work on a
consistent and regular basis due to her motivation and depression issues. She would
also have difficulty interacting with coworkers and accepting directions from a boss
because she finds that anxiety provoking and tends to shut down. She would also
have difficulty dealing with the usual stress of a workplace because it would
exacerbate her anxiety and depression. Overall, the claimant's capacity is moderately
impaired.
Tr. 336.
The ALJ gave "some weight" to the opinion that plaintiffs overall capacity was moderately
impaired and incmporated into the RFC limitations designed to reflect that impaiiment and Dr.
Guyette's opinion about plaintiffs difficulty with social functioning. Tr. 20. The ALJ then
concluded that the evidence was "not persuasive that [plaintiff] would be unable to perform basic
work activities on a regular and continuing basis." Tr. 20. That conclusion rested on medical
evidence showing plaintiff performed well on tests measuring concentration and memory and on
plaintiffs testimony regarding her activities of daily living.
The ALJ erred in relying on plaintiffs performance on memmy and concentration tests to
reject Dr. Guyette's attendance limitation. Dr. Guyette's attendance limitation was not tied to
difficulties with concentration or pace, but to plaintiffs "motivation and depression issues." Tr. 336.
It is unclear how plaintiff's performance on tests measuring recall of series of numbers and ability

to spell words forwards and backwards com1ect to motivation and depression. Nonetheless, the ALJ
pe1missibly found a conflict between plaintiffs activities of daily living, including taking long trips
and deep-cleaning her house, and Dr. Guyette's attendance limitation. The ALJ's treatment of Dr.
Guyette's opinion is therefore supported by substantial evidence. 1 See Carmickle v. Comm '1; Soc.
1

Plaintiff also asserts the ALJ e!Ted by giving too much weight to the opinion of Bill
Hennings, Ph.D., an agency reviewing psychologist. Contrmy to plaintiffs argument, there is no
conflict between Dr. Henning's and Dr. Guyette's assessment of plaintiffs concentration,
persistence, or pace limitations, as both doctors found at most moderate limitations in that area.
Compare Tr. 70 (Dr. Hennings assessing moderate limitations) with Tr. 334 (Dr. Guyette
deeming plaintiffs concentration, persistence, or pace "adequate"). The conflict between Dr.
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Sec. Admin., 533 F.3d 1155, 1163 (9th Cir. 2008) (affirming ALJ's rejection of evidence even

though two of the reasons for discrediting the evidence were erroneous).
III.

Lay Witness Testimony

Plaintiff also contends the ALJ ened in rejecting the opinion of her domestic partner, Pete
Senser ("Pete"), regarding the extent of her limitations. Lay testimony as to a claimant's symptoms
is competent evidence which the Commissioner must take into account unless the ALJ expressly
disregards the testimony for "germane" reasons. Stout v. Comm 'r, 454 F.3d 1050, 1053 (9th Cir.
2006). Although lay witnesses are not competent to testify to medical diagnoses, they may provide
evidence regarding a claimant's symptoms or how an impairment affects ability to work. Nguyen

v. Chafer, 100 F.3d 1462, 1467 (9th Cir. 1996).
In a third-party function repo1t, Pete wrote that "whenever there [are] conflicts or problems,

[plaintiffs] illness is likely to manifest itself." Tr. 258. Plaintiff is able to cook, clean, do laund1y,
and rnn enands. Tr. 259. Sometimes she sleeps "ve1y little" and other times up to twenty hours per
day. Tr. 259. Plaintiff "hardly ever" goes over to anyone's house or to social events. Tr. 262.
Although plaintiff has difficulty with memory, completing tasks, and concentration, "as long [as]
tasks aren't ve1y long or can be stopped and restmted, she will get it finished." Tr. 263. She has had
episodes of severe paranoia. Tr. 264. The ALJ gave Pete's report "some weight," finding the
"overall record" supported the mental limitations detailed in the report. Tr. 21. However, the ALJ
did not think Pete's statements supported greater limitations than those included in the RFC.
Plaintiff challenges the ALJ's treatment of Pete's report on two grounds. First, she argues
the ALJ did not give sufficient weight to Pete's statements about her paranoia. However, as noted
above, the ALJ permissibly found those episodes were well-controlled with medication. Any error
in failing to reiterate that reason in the paragraph addressing Pete's report was harmless. See lvfolina

Guyette's and Dr. He111lings's opinions is that Dr. Guyette predicted plaintiffs depression would
likely prevent her from maintaining regular attendance, while Dr. Hennings opined her "past
mood stability is sufficient to allow reliable work activity." Tr. 70. As explained above, the ALJ
permissibly relied on plaintiffs reported activities of daily living to resolve that conflict.
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v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) (error in addressing lay witness testimony is harmless
when a clear, convincing reason for discrediting the testimony was already "discussed at length"
when the ALJ addressed the claimant's subjective symptom testimony).
Second, plaintiff contends Pete's statements require more extensive limitations regarding
social interactions. Here, I find no eiror. Pete documented some difficulty getting along with others,
but that difficulty is adequately addressed by the limitations in the RFC pe1mitting "only incidental
public contact" and "no teamwork." Tr. 16. The ALJ's treatment of Pete's statement is supported
by substantial evidence.

N.

Step Three Analysis
Plaintiff contends the ALJ erred by failing to find her bipolar disorder met the requirements

of Listing 12.04, which addresses affective disorders including bipolar disorder. "In order to qualify
as disabled at step three of the evaluation, a claimant must meet or exceed the listed impairments in
Appendix 1 to Pait 404 of the regulations." Holohan v. Massanari, 246 F.3d 1195, 1203 (9th Cir.
2001). To meet an Appendix 1 listing," a claimant must satisfy criteria in paragraph A of the
listings, which medically substantiate the presence of a mental disorder, and the criteria in
paragraphs B or C, which describe the functional limitations associated with the disorder are
incompatible with the ability to work." Id. It is undisputed that plaintiff satisfies the paragraph A
criteria for bipolar disorder. It is also undisputed that she does not meet the criteria in paragraph C.
The dispute is over whether she meets the criteria in paragraph B.
In order to satisfy the criteria in paragraph B, plaintiffs bipolar disorder must result in at least

two of the following: ( 1) marked restriction in the activities of daily living; (2) marked difficulties
in maintaining social functioning; (3) deficiencies of concentration, persistence or pace resulting in
frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or (4) repeated
episodes of decompensation, each ofextcndcd duration. Id. at 1203-04. Plaintiff contends she meets
the second and third paragraph B requirements.
No medical opinion in the record assesses more than moderate difficulties with concentration,
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persistence or pace or social interactions. Plaintiff's argument regarding Listing 12.04 therefore rests
entirely on her own testimony, which the ALJ partially discredited for clear and convincing reasons
supported by substantial evidence. The ALJ did not eJT at step three.

V.

Formulation of the RFC and Questions to the VE
Relatedly, plaintiff contends that even assuming the ALJ correctly found only moderate

restrictions in concentration, persistence or pace and social functioning, the RFC and hypothetical
questions to the VE failed to account for those restrictions. The only limitation in the RFC related
to concentration, persistence or pace is the limitation to unskilled work. The only limitations in the
RFC related to social functioning are the restrictions on contact with the public and teamwork. The
question is whether those li)nitations adequately account for plaintiff's moderate difficulties.
Taking the area of social functioning first, the ALJ adequately addressed plaintiff's moderate
limitations. The requirement that plaintiffhave "only incidental public contact" and "no teamwork"
accounts for the limitations documented in the record and credited by the ALJ. Plaintiff relies on
her own testimony in arguing that greater restrictions were waJTanted. However, as explained, the
ALJ partially discredited that testimony for clear and convincing reasons supported by substantial
evidence.
There is disagreement among the circuits regarding whether a limitation to unskilled work
adequately accounts for moderate difficulties with concentration, persistence, or pace. Compare
Smith v. Colvin, 821 F.3d 1264, 1269 (10th Cir. 2016) ("[A]n administrative law judge can account
for moderate limitations by limiting the claimant to particular kinds of work activity," including
"unskilled work") with Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015) ("[A]n ALJ does not
account for a claimant's limitations in concentration, persistence, and pace by restricting the
hypothetical to simple, routine tasks or unskilled work." (internal quotation marks omitted)) and
Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008) (restricting hypothetical to unskilled work did
not address difficulties with memmy or concentration). The Ninth Circuit has not decided the issue.
However, in Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008), theNinth Circuit held
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a restriction to "simple tasks" adequately accounted for the plaintiffs "slow pace" and moderate
limitations in other mental areas. Stubbs-Danielson did not issue a blanket rule; instead, the court
carefully parsed the medical evidence to determine whether the "simple tasks" restriction accounted
for the limitations found by the ALJ and supported by substantial evidence in the record.
I tend to agree with the comts that have held a restriction to unskilled work generally does
not account for moderate limitations in concentration, persistence, or pace. As those courts have
noted, "[t]he ability to stick with a given task over a sustained period is not the same as the ability
to learn how to do tasks of a given complexity." O'Connor-Spinner v. Astrue, 627 F.3d 614, 620
(7th Cir. 2010). However, in this particular case, the medical evidence supports the conclusion that
the restriction to unskilled work addressed plaintiffs restrictions. Dr. Hennings, the only physician
in the record to assess moderate limitations in concentration, persistence or pace, opined plaintiff
could pcrfonn "reliable work activity." Tr. 70. Dr. Guyette, after concluding plaintiff had
"adequate" concentration, persistence and pace, specifically opined plaintiff has "the ability to
perform simple and repetitive tasks as well as more detailed to complex tasks." Tr. 334, 336. The
other medical providers either did not address concentration, persistence or pace or assessed mild
limitations in that area. Under the specific circumstances of this case, the ALJ's restriction to
unskilled work adequately addressed plaintiffs limitations. The ALJ erred neither in the formulation
of the RFC nor in his questions to the VE.
CONCLUSION

The Conuuissioner's decision is AFFIRMED and this case is dismissed.
IT IS SO ORDERED.
Dated this L&/Jay of January 2017.

AnnAiken
United States District Judge

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