Mainwaring v. Commissioner Social Security Administration

Filing 16

OPINION AND ORDER. Signed on 3/7/2017 by Judge Anna J. Brown. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KAREN SUE MAINWARING,
Plaintiff,

6:16-cv-00082-BR
OPINION AND ORDER

v.

NANCY A. BERRYHILL,
Acting Commissioner, Social
Security Administration, 1
Defendant.

KATHERINE L. EITENMILLER
MARK A. MANNING
Harder, Wells, Baron & Manning
474 Willamette, Suite 200
Eugene, OR 97401
[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

On January 23, 2017, Nancy A. Berryhill was appointed
Acting Commissioner of the Social Security Administration and
pursuant to Federal Rule of Civil Procedure 25(d) is substituted
as Plaintiff in this action.
1 - OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
ALEXIS L. TOMA
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]

Attorneys for Defendant
BROWN, Judge.

Plaintiff Karen Sue Mainwaring seeks judicial review of the
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 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 application for DIB and SSI
benefits on March 29, 2012.

Tr. 24. 2

Plaintiff alleged a

disability onset date of December 12, 2007.

2

Tr. 24.

Plaintiff's

Citations to the official transcript of record filed by
the Commissioner on June 3, 2016, are referred to as "Tr."
2 - OPINION AND ORDER

application was denied initially and on reconsideration.

An

Administrative Law Judge (ALJ) held a hearing on January 24,
2014.

Tr. 42-80.

testified.

Plaintiff and a vocational expert (VE)

Plaintiff was represented by an attorney at the

hearing.
On June 6, 2014, the ALJ issued an opinion in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 24-35.

On June 23, 2014, Plaintiff requested

review by the Appeals Council.

Tr. 18.

On November 13, 2015,

the Appeals Council denied Plaintiff's request to review the
ALJ's decision, and the ALJ's decision became the final decision
of the Commissioner.

Tr. 2-5.

See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).
On January 19, 2016, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner's decision.

BACKGROUND

Plaintiff was born on September 30, 1962.

Tr. 34.

Plaintiff was 51 years old at the time of the hearing.

Plaintiff

achieved a GED and completed some college, but she did not earn a
degree.

Tr. 50-51.

The ALJ found Plaintiff has worked as a

flagger and warehouse worker, but she is unable to perform any
past relevant work.

Tr. 34.

Plaintiff alleges disability due to severe migraines, post-

3 - OPINION AND ORDER

traumatic stress disorder (PTSD), hypertension, depression,
adjustment disorder, and suicidal tendencies and thoughts.
Tr. 81.
Except as 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. 29-34.

ST.ANDARDS

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.

4 - OPINION AND ORDER

42

U.S.C. § 405(g).

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 evaluating a claimant's
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
Cir. 2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th

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).

5 - OPINION AND ORDER

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commis-

sioner determines the claimant is engaged in substantial
gainful activity (SGA).
416.920(a) (4) (I).
F.3d 721, 724

20 C.F.R. §§ 404.1520(a) (4) (I),

See also Keyser v. Comm'r of Soc. Sec., 648

(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.
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
6 - OPINION AND ORDER

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 *l.

20 C.F.R.

SSR 96-8p,

In other words, the Social Security Act does not require

complete incapacity to be disabled.

Taylor v. Comm'r of Soc.

Sec . Adm in . , 6 5 9 F . 3 d 12 2 8 , 12 3 4 - 3 5 ( 9th Cir . 2 0 11 ) ( 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.

7 - OPINION AND ORDER

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 December 12, 2007, the alleged
date of onset.

Tr. 26.

At Step Two the ALJ found Plaintiff has the severe
impairments of migraine headaches, hypertension, major depressive
disorder, anxiety disorder, right-knee degenerative joint
disease, and undifferentiated somatoform disorder.

Tr. 26.

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. 27.

The ALJ found Plaintiff has the RFC to

perform light work; can lift/carry 20 pounds occasionally and 10
pounds frequently; can sit for six hours in an eight-hour
workday; can stand/walk for about six hours in an eight-hour
workday with the ability to change positions every 30 minutes;
should avoid ladders, ropes, and scaffolds; can occasionally
climb stairs and ramps; can occasionally stoop and crouch; should
avoid kneeling and crawling; must avoid workplace hazards such as
unprotected heights or dangerous machinery; must not be exposed
to noise or flashing lights in concentrations greater than those
generally found in the ordinary office-type environment; can

8 - OPINION AND ORDER

understand, remember, and carry out only simple instructions that
can be learned in 30 days or less; and can have occasional
contact with the public.

Tr. 29.

At Step Four the ALJ concluded Plaintiff is unable to
perform any past relevant work.

Tr. 34.

At Step Five the ALJ found Plaintiff could perform other
jobs that exist in the national economy.

Tr. 34-35.

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION
Plaintiff contends the ALJ erred when she (1) discredited
Plaintiff's symptom testimony,

(2) improperly evaluated the

medical evidence, and (3) failed to meet her burden at Step Five.

I.

The ALJ did not err when she found Plaintiff's testimony was
not credible.
Plaintiff contends the ALJ erred by failing to provide clear

and convincing reasons to support her finding that Plaintiff's
testimony was not entirely credible.

A.

Standards
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 must show the impairment or
combination of impairments could reasonably be expected to
produce some degree of symptom.
9 - OPINION AND ORDER

Cotton, 799 F.2d 1403, 1407 (9th

Cir. 1986).

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 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).
B.

Analysis

Plaintiff testified at the hearing on January 14, 2014,
that she cannot work due to migraines that she suffers from "six
to seven times a month, sometimes more," and that last from "two
to 14 days."

Tr. 53.

At the time of the hearing Plaintiff wore

sunglasses because she had a headache.

Tr. 45.

Plaintiff also

testified her migraines have "never been controlled with
medication," but she stated she takes Valium for them and that
"sometimes" Valium makes her "functional."

Tr. 54.

Plaintiff

further testified her fibromyalgia, bad knee, and back problems
cause her pain, limit her ability to walk and to stand, require
10 - OPINION AND ORDER

her to use a cane, and make it difficult for her to sit for more
than 20 minutes.

Tr. 54, 58-59.

"focus" and "get[s] confused."

Plaintiff also stated she can't
Tr. 55.

The ALJ concluded Plaintiff's "medically determinable
impairments could reasonably be expected to cause some of the
alleged symptoms; however,

[Plaintiff's] statements concerning

the intensity, persistence and limiting effect of these symptoms
are not entirely credible."

Tr. 30.

The ALJ identified specific

evidence in the record to support her determination that
Plaintiff's testimony was not credible.

Tr. 30-32.

For example,

although Plaintiff alleged significant pain from her
f ibromyalgia, the medical records indicate Plaintiff tends to
"exaggerate" or to "overstate" her complaints, and she was
"somewhat dramatic" when describing her pain.

Tr. 31, 389, 409.

The ALJ also noted Plaintiff's demeanor at the time of the
hearing "did not have the appearance of a person who was
suffering from a debilitating headache."

Although an ALJ cannot

rely on her personal observations of a plaintiff's purported lack
of pain behavior as a basis for discrediting the plaintiff's
testimony, inclusion of the ALJ's personal observations does not
render her decision improper.

Verduzco v. Apfel, 188 F.3d 1087,

1090 (9th Cir. 1999) (rejecting the "sit and squirm" test of
credibility).

Here the ALJ stated, however, that Plaintiff's

lack of pain behavior was "only one among many observations" she

11 - OPINION AND ORDER

relied on to reach her conclusion that Plaintiff's testimony was
not credible.

Tr. 30.

Although Plaintiff testified she had significant
anxiety and depression symptoms, the ALJ noted these symptoms
were not reported to physicians with any frequency.

The ALJ

noted Scott Alvord, Psy.D., a consultative psychological
examiner, observed Plaintiff downplayed psychiatric distress in
favor of other pain and migraine headaches.

Tr. 31, 389-90.

The

ALJ also noted Plaintiff had substantial gainful employment in
only one of the past fifteen years, and that poor work history
raised credibility concerns regarding Plaintiff's motivation to
seek and to maintain employment.

Tr. 32.

On this record the Court finds the ALJ did not err when
she found Plaintiff's testimony was not credible because the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
II.

The ALJ did not err in her evaluation of the medical
evidence.
Plaintiff contends the ALJ failed to provide legally

sufficient reasons for discounting the opinions of Plaintiff's
treating physicians Gulrukh Rizvi, M.D., and James Kiley, M.D.,
and the opinion of Plaintiff's mental-health clinician Noelle
Osborn, MEd, MFR, QMHP.

A.

Standards
An ALJ may reject an examining or treating physician's

12 - OPINION AND ORDER

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."
Barnhart, 278 F.3d 947, 957

Thomas v.

(9th Cir. 2002) (quoting Magallanes v.

Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

When the medical

opinion of an examining or treating physician is uncontroverted,
however, the ALJ must give "clear and convincing reasons" for
rejecting it.

Thomas, 278 F.3d at 957.

See also Lester v.

Chater, 81 F.3d 821, 830-32 (9th Cir. 1996).

The opinion of an

examining physician is entitled to greater weight than the
opinion of a nonexamining physician.

Garrison v. Colvin, 759

F.3d 995, 1012 (9th Cir. 2014).
Medical sources are divided into two categories:
"acceptable" and "not acceptable."

20 C.F.R. § 416.902.

Acceptable medical sources include licensed physicians and
psychologists.

20 C.F.R. § 416.902.

Medical sources classified

as "not acceptable" include, but are not limited to, nurse
practitioners, therapists, licensed clinical social workers, and
chiropractors.

SSR 06-03p, at *2.

Factors the ALJ should

consider when determining the weight to give an opinion from
those "important" sources include the length of time the source
has known the claimant and the number of times and frequency that
the source has seen the claimant, the consistency of the source's

13 - OPINION AND ORDER

opinion with other evidence in the record, the relevance of the
source's opinion, the quality of the source's explanation of his
opinion, and the source's training and expertise.
*4.

SSR 06-03p, at

On the basis of the particular facts and the above factors,

the ALJ may assign a "not acceptable" medical source opinion
either greater or lesser weight than that of an acceptable
medical source.

SSR 06-03p, at *5-6.

The ALJ, however, must

explain the weight assigned to such sources to allow the claimant
or subsequent reviewer to follow the ALJ's reasoning.

SSR 06-

03p, at *6.
B.

Drs. Rizvi and Kiley.
Plaintiff contends the ALJ did not provide a legally

sufficient basis to discredit the reports of Plaintiff's treating
physicians.
On September 19, 2013, Dr. Rizvi prepared an Impairment
Questionnaire at the request of Plaintiff's attorney.
44.

Tr. 440-

Dr. Rizvi estimated Plaintiff was able to perform a job in a

seated position for less than one hour, perform a job in a
standing and/or walking position for one hour, and needed to take
unscheduled breaks to rest every half-hour.

Tr. 442.

Dr. Rizvi

indicated his evaluation was completed "per patient report" with
Plaintiff "answering questions about her ability to do certain
tasks as [Dr. Rizvi] had no way to assess this without a PT
referral which [Plaintiff] cannot afford."

14 - OPINION AND ORDER

Tr. 518.

On October 2, 2013, Dr. Kiley prepared a Headaches
Impairment Questionnaire.

Tr. 452-457.

Dr. Riley also indicated

he relied on Plaintiff's self-reported symptoms and limitations
in making his assessments that included Plaintiff's inability to
tolerate even "low stress" work.

Tr. 456.

The ALJ may reasonably discount a treating physician's
opinion if it is based largely on the claimant's self-reporting.
Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014).

Here the ALJ gave "little weight" to the reports of
Drs. Rizvi and Kiley because they were dependent on Plaintiff's
self-reporting and "not based on clinical findings or other
objective evidence."

Tr. 32.

Accordingly, on this record the Court concludes the ALJ did
not err when she gave little weight to the reports of Plaintiff's
treating physicians because the ALJ provided legally sufficient
reasons supported by the record for doing so.

C.

Mental-Health Clinician (MHC) Osborn

The Plaintiff also contends the ALJ improperly
discredited the opinion of MHC Osborn.
On October 8, 2013, MHC Osborn submitted a letter in
support of Plaintiff's application for disability benefits.

She

stated Plaintiff has "symptoms of anxiety and depression" and
"becomes easily overwhelmed by being over stimulated and requires
opportunities to ground herself when her anxiety spikes."

15 - OPINION AND ORDER

Tr. 458.

MHC Osborn concluded Plaintiff's "mental health

symptoms hinder her ability to participate in employment."
Tr. 458.

Because MHC Osborn, a mental-health clinician, is

classified as a "not acceptable'' medical source, the ALJ may
properly discount MHC Osborn's assessment by providing reasons
that are "germane" to her opinion.
The ALJ gave "little weight" to MHC Osborn's opinion on
the grounds that "she provided no functional limits" to support
her assessment of Plaintiff mental health and Plaintiff had
refused mental-health medications to aid in the treatment of any
such mental impairments.

Tr. 33.

On this record the Court concludes the ALJ provided
sufficient "germane" reasons for discounting the opinion of
MHC Osborn.
III. The ALJ did not fail to meet her burden at Step Five.
Plaintiff contends the ALJ failed to meet her burden at Step
Five on the ground that the ALJ's hypothetical to the VE did not
include all of Plaintiff's limitations as a result of improperly
discounting the reports of Dr. Rizvi, Dr. Kiley, MHC Osborn, and
Plaintiff herself.
If the ALJ finds Plaintiff is unable to perform her past
relevant work at Step Five, the ALJ bears the burden to establish
that Plaintiff has the ability to perform other work.

Here, as

noted, the ALJ determined Plaintiff was unable to perform any

16 - OPINION AND ORDER

past relevant work.

Tr. 34.

The ALJ, however, concluded

Plaintiff has the RFC to perform the full range of light work 3
with the additional limitations that she can sit for six hours in
an eight-hour workday; can stand/walk for about six hours in an
eight-hour workday with the ability to change positions every 30
minutes; should avoid ladders, ropes, and scaffolds; can
occasionally climb stairs and ramps; can occasionally stoop and
crouch; should avoid kneeling and crawling; must avoid workplace
hazards such as unprotected heights or dangerous machinery; must
not be exposed to noise or flashing lights in concentrations
greater than those generally found in the ordinary off ice-type
environment; can understand, remember, and carry out only simple
instructions that can be learned in 30 days or less; and can have
occasional contact with the public.

The ALJ's hypothetical posed

to the VE properly included the limitations of light work and was
based on substantial medical evidence in the record.

See

Osenbrock v. Apfel, 240 F3.d 1157, 1165 (9th Cir. 2001).

The

ALJ's hypothetical also included Plaintiff's age, education, work
experience, and the limitations set out in the ALJ's evaluation
of Plaintiff's RFC.
Based on the ALJ's hypothetical, the VE testified there are
jobs that exist in significant numbers in the national economy

3

Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to
10 pounds.
20 C.F.R. §§ 404.1567(b), 416.967(b).
17 - OPINION AND ORDER

that Plaintiff can perform such as part sorter, linen folder, and
hand packager.
disabled.

The ALJ, therefore, found Plaintiff is not

Tr. 34.

On this record the Court concludes the ALJ did not err at
Step Five when she found Plaintiff is able to perform jobs that
exist in significant numbers in the economy.

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

'
'l"'-day

of March, 2017.

ANN~

United States District Judge

18 - OPINION AND ORDER