Hernandez v. Commissioner Social Security Administration

Filing 17

OPINION AND ORDER. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. IT IS SO ORDERED. Signed on 4/21/2017 by Judge Anna J. Brown. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CAROLYN LEE HERNANDEZ,
Plaintiff,

6:16-cv-00142-BR
OPINION AND ORDER

v.
NANCY A. BERRYHILL,1
Acting Commissioner, Social
Security Administration,
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 the
Acting Commissioner of the Social Security Administration and
pursuant to Federal Rule of Civil Procedure 25(d) is substituted
as Defendant 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 Carolyn Lee Hernandez 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.

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
benefits on December 3, 2012.

Tr. 18.2

Plaintiff alleged a

disability onset date of October 15, 2010.

Tr. 18.

Plaintiff’s

application was denied initially and on reconsideration.

An

Administrative Law Judge (ALJ) held a hearing on June 11, 2014.

2

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

Tr. 31-56.

Plaintiff and a vocational expert (VE) testified.

Plaintiff was represented by an attorney at the hearing.
On July 21, 2014, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 18-26.

On July 30, 2014, Plaintiff requested

review by the Appeals Council.

Tr. 12, 14.

On December 1, 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. 1-3.

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

106-07 (2000).
On January 26, 2016, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner’s decision.

BACKGROUND
Plaintiff was born on July 10, 1953.
60 years old at the time of the hearing.
earned a GED.

Tr. 52.

Tr. 58.
Tr. 36.

Plaintiff was
Plaintiff has

The ALJ found Plaintiff has worked as an

accounting clerk and office assistant.

Tr. 52-53.

Plaintiff alleges disability due to obesity, degenerative
disc disease, and neuropathy in her feet due to chemotherapy.
Tr. 23, 148.
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

3 - OPINION AND ORDER

medical evidence.

See Tr. 20-25.

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
(9th Cir. 2009)).

It is more than a mere scintilla [of evidence]

4 - OPINION AND ORDER

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).

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).

20 C.F.R. § 404.1520(a)(4)(I).

See also

Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
5 - OPINION AND ORDER

impairment or combination of impairments.
404.1520(a)(4)(ii).

20 C.F.R. §§ 404.1509,

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

At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 404.1520(a)(4)(iii).

20 C.F.R.

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

The

criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§ 404.1520(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

“A

‘regular and continuing basis’ means 8 hours a day, for 5 days a
week, or an equivalent schedule.”

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform

6 - OPINION AND ORDER

work she has done in the past.

20 C.F.R. § 404.1520(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.

20 C.F.R. § 404.1520(a)(4)(v).

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

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.

Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.

If the Commissioner meets this burden,

the claimant is not disabled.

20 C.F.R. § 404.1520(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since October 15, 2010, the alleged
date of onset.

Tr. 20.

At Step Two the ALJ found Plaintiff has the severe
impairments of obesity and cervical degenerative disc disease
with a history of discectomy and fusion.

Tr. 20.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
7 - OPINION AND ORDER

the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.

Tr. 22.

The ALJ found Plaintiff has the RFC to

lift/carry 20 pounds occasionally and 10 pounds frequently; to
stand about fours hours in an eight-hour workday; to walk between
two and four hours in an eight-hour workday; to sit about six
hours in an eight-hour workday; and occasionally to climb, kneel,
crouch, stoop, squat, crawl, twist, or turn.

Tr. 22.

At Step Four the ALJ concluded Plaintiff is able to perform
her past relevant work.

Tr. 34.

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
discredited Plaintiff’s symptom testimony, (2) improperly
evaluated the medical evidence, and (3) found Plaintiff could
perform her past relevant work at Step Four.
I.

The ALJ did not err when he found Plaintiff’s testimony was
not credible.
Plaintiff contends the ALJ erred when he failed to provide

clear and convincing reasons for discrediting Plaintiff’s
testimony.
A.

Standards
In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

8 - OPINION AND ORDER

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.
Cir. 1986).

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

The claimant, however, need not produce objective

medical evidence of the actual symptoms or her 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 June 11, 2014,

that she retired in October 2010 from her prior employment in
California due to stress.

Tr. 37.

Plaintiff noted her employer

was “short staffed,” she was supervising a staff of 14, and she
was “constantly running back and forth, and my back was killing
me.”

Tr. 37.

Plaintiff moved to Oregon in November 2010 to

9 - OPINION AND ORDER

spend time with her parents.

Tr. 41.

Plaintiff testified her

ability to perform activities “changed” after her morphine pump
was “turned off” in November 2013.

Tr. 38-39.

Plaintiff

testified she could stand for about 30 minutes, perform household
chores for ten minutes at a time, shop for about 30 minutes
before needing to sit down, and sit for no more than an hour at a
time.
Tr. 38, 41, 42, 44.
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. 23.

The ALJ cited several

reasons, including examples from Plaintiff's medical records, for
his determination that the medical evidence did not support
Plaintiff’s statements.

Tr. 23-25.

For example, although

Plaintiff alleged significant hip and back pain, her medical
records indicate she had a consistent work history since her
cervical fusion in 1991 and continued to work until her
retirement in October 2010.

Tr. 23.

After Plaintiff moved to

Oregon she continued to travel from Coos Bay, Oregon, to Fresno,
California, approximately every other month for follow-up and
maintenance of her morphine pump.

Tr. 271-75, 343-424, 452-71.

Moreover, the ALJ noted Plaintiff’s ability to travel for

10 - OPINION AND ORDER

treatment without any indication of difficulty suggested
Plaintiff’s alleged symptoms and limitations were overstated and
inconsistent with Plaintiff’s allegations of disabling pain.
Tr. 24.
The ALJ noted even though Plaintiff testified she had
stopped working due to significant pain and limitations, her
treatment records after that time indicated she was “enjoying
retirement.”

Tr. 274, 385, 397, 402, 407, 413, 418, 423.

The

ALJ also noted Plaintiff suggested in her testimony that she
stopped working for reasons other than her alleged impairments.
Tr. 24.
On this record the Court concludes the ALJ did not err
when he found Plaintiff’s testimony was not entirely 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 his evaluation of the medical
evidence.
Plaintiff contends the ALJ failed to provide legally

sufficient reasons for discounting the opinion of Robert Salazar,
M.D., Plaintiff’s treating pain-management physician in Fresno,
California.
A.

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

opinion when it is inconsistent with the opinions of other
treating or examining physicians if the ALJ makes "findings
11 - OPINION AND ORDER

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 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).
B.

Analysis of the Medical Evidence
1.

Dr. Salazar

Plaintiff contends the ALJ did not provide a legally
sufficient basis for discrediting Dr. Salazar’s opinion.
In various reports Dr. Salazar noted Plaintiff
experienced moderate to severe pain-related impairments when
performing activities of daily living.
347, 368.

Tr. 379-80, 367, 353-54,

Plaintiff asserts Dr. Salazar’s assessment is

consistent with Plaintiff’s reported limitations, which
significantly worsened after her morphine pump was turned off,
and with Plaintiff’s reported daily activities, which most
closely resemble a sedentary or sub-sedentary work setting.
The ALJ, however, gave “little weight” to Dr. Salazar’s
12 - OPINION AND ORDER

opinion on the grounds that Dr. Salazar did not provide a
“function by function assessment” of Plaintiff’s actual abilities
and limitations and his findings did not support a more
restrictive RFC.

Tr. 25.

“The ALJ need not accept the opinion of any physician,
including a treating physician, if that opinion is brief,
conclusory, and inadequately supported by clinical findings.”
Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.
2009).
Although in some chart notes Dr. Salazar gave a “painrelated impairment score” (Tr. 347-48, 354, 361, 367-68, 379-380,
391-92, 455-56, 462-63, 469-70), he did not give such a score in
other chart notes because Plaintiff “did not fill out a total
pain-related impairment questionnaire” during the visit.
Tr. 203, 207, 211, 274, 279, 373, 385, 397, 402, 407, 413, 418,
423.

Dr. Salazar’s reports also specifically indicate the

pain-related impairment score “is not an impairment rating.”
Tr. 347, 354, 361, 367, 379, 391, 455, 462, 469.

The ALJ found

Dr. Salazar’s report as to Plaintiff’s pain-related scores merely
reflected Plaintiff’s self-reported level of pain and did not
include Dr. Salazar’s opinion as to Plaintiff’s limitations, if
any.
The ALJ may reasonably discount a treating physician’s
opinion if it is based largely on the claimant’s self-reporting.

13 - OPINION AND ORDER

Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014).

Here, as

noted, the Court has determined the ALJ did not err when he found
Plaintiff was not fully credible.
2.

Drs. Berner, Kehrli, and Nolan

The ALJ gave “great weight” to the findings of Neal E.
Berner, M.D., and Martin Kehrli, M.D., consultative physicians,
and gave “significant weight” to the opinion of Raymond Nolan,
M.D., Ph.D., an examining physician.

These physicians opined

Plaintiff could perform less than the full range of light work.
They also found Plaintiff could stand/walk for four hours and sit
for six hours, but only occasionally squat and kneel.

Tr. 25-26.

Dr. Nolan’s assessment was based on his review of Plaintiff's
records and also a personal interview and examination of
Plaintiff.

The ALJ found the RFC assessed by these physicians

was supported by the medical records and that Plaintiff could
perform a light level of physical assertion with additional
limitations as noted in the RFC assessment.
Accordingly, on this record the Court concludes the ALJ
did not err when he gave little weight to Dr. Salazar’s opinion
and more weight to the opinions of the examining physicians
because the ALJ provided legally sufficient reasons supported by
substantial evidence in the record for doing so.

14 - OPINION AND ORDER

III. The ALJ did not err at Step Four.
Plaintiff contends the ALJ erred when he found Plaintiff
could perform her past relevant work at Step Four.

Plaintiff

also contends the ALJ’s hypothetical to the VE did not include
all of Plaintiff’s limitations because the ALJ improperly
discounted Dr. Salazar’s opinion and Plaintiff’s testimony.
At Step Four the ALJ found Plaintiff retains the RFC to
perform work that she has done in the past, and, therefore, the
ALJ concluded Plaintiff is not disabled.

The ALJ posed a

hypothetical to the VE based on Plaintiff’s age, education, work
experience, and his evaluation of Plaintiff’s RFC.

Tr. 53.

The

ALJ’s hypothetical posed to the VE appropriately included only
the credible limitations that were based on substantial medical
evidence in the record.
1165 (9th Cir. 2001).

See Osenbrock v. Apfel, 240 F3.d 1157,

As noted, the Court has already found the

ALJ properly discounted the opinion of Dr. Salazar, Plaintiff's
treating physician, and properly found Plaintiff’s testimony was
not fully credible regarding her symptoms and limitations.
Based on the ALJ’s hypothetical, the VE testified Plaintiff
could perform her past relevant work.

Tr. 53.

The ALJ,

therefore, found Plaintiff’s past relevant work is not precluded

15 - OPINION AND ORDER

by her RFC and Plaintiff is not disabled.3

Tr. 25-6.

On this record the Court concludes the ALJ did not err at
Step Four.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 21st day of April, 2017.

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

3

At the time of the hearing Plaintiff was 60 years old.
Under Social Security Regulations a person’s age is considered
when determining the ability to adjust to other work. See
20 C.F.R. § 404.1563. Under the regulations Plaintiff was
considered to be of advanced age (55 or older). 20 C.F.R.
§ 404.1563(e). A person of advanced age with severe
impairment(s) that limits them to sedentary or light work will be
considered disabled if they cannot make an adjustment to other
work unless they have skills that transfer to other work that can
be done despite any impairments. Here, however, the ALJ found
Plaintiff could perform her past relevant work despite her
impairments, and Plaintiff did not assert any error in the ALJ's
finding based on her age.
16 - OPINION AND ORDER