Pittman v. Commissioner Social Security Administration
Opinion and Order: The decision of the Commissioner is affirmed. Signed on 4/7/2017 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
WENDY KIM PITTMAN,
Civ. No. 6:16-cv-00488-MC
OPINION AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner of the Social Security
Plaintiff Wendy Kim Pittman seeks judicial review of the Commissioner's decision
denying her application for Disability Insurance Benefits and Supplemental Security Income
under Titles II and XVI of the Social Security Act. This Court has jurisdiction under 42 U.S.C.
§§ 405(g) and 1383(c)(3).
Ms. Pittman applied for Disability Insurance Benefits and Supplemental Security Income
on May 1, 2012, alleging disability beginning April 29, 2012. Tr. 16. She applied for a hearing
after her applications were denied initially and on reconsideration. Tr. 16, 88-91, 93-95. After the
hearing, the Administrative Law Judge (ALJ) issued a written decision finding that Ms. Pittman
is not disabled. Tr. 13-34. The Appeals Council denied Ms. Pittman's request for review of the
1 - OPINION AND ORDER
hearing decision on January 19, 2016, making the ALJ's decision final. Tr. 1-4. Ms. Pittman
argues that the ALJ erred by failing (1) to credit the opinion of examining psychologist, Dr.
Wahl; (2) to give proper consideration to the opinion of treating psychiatrist, Dr. Martin; (3) to
give clear and convincing reasons for not crediting Ms. Pittman's testimony; and (4) to give
proper consideration to Ms. Pittman's husband's lay witness testimony. Additionally, Ms.
Pittman claims that the Commissioner failed to prove that Ms. Pittman retains the ability to
perform "other work." For the reasons stated below, the Commissioner's decision is
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner's decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm 'r ofSoc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
"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."' Hill
v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chafer, 108 F.3d 978, 980
(9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative
record as a whole, weighing both the evidence that supports and that which detracts from the
ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). "'If the evidence can
reasonably support either affirming or reversing,' the reviewing court 'may not substitute its
judgment' for that of the Commissioner." Gutierrez v. Comm 'r o/Soc. Sec. Admin., 740 F.3d
519, 523 (9th Cir. 2014) (quoting Reddickv. Chafer, 157 F.3d 715, 720-21 (9th Cir. 1996)).
2 - OPINION AND ORDER
A claimant is disabled if she cannot "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." 42 U.S.C. § 423(d)(l)(A).
The Social Security Administration (SSA) uses a five step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920 (2012). The initial burden of
proof rests upon the claimant to meet the first four steps but shifts to the Commissioner for step
five if claimant satisfies her burden with respect to the first four steps. 20 C.F.R. § 404.1520.
At step one, the SSA considers whether the claimant is currently engaged in substantial
gainful activity; if she is, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4). At step two,
the SSA considers the medical severity of the claimant's impairment. Id. The agency will find
the claimant not disabled if the impairment is not severe enough. Id At step three, the claimant
will be found disabled ifher impairment is of sufficient duration and it meets or equals a list of
impairments. Id. If the impairment does not meet these requirements, then the claimant's residual
functional capacity (RFC) is determined. Id. The claimant's RFC is an assessment of the greatest
level of work that she can do based on an analysis of the effects of all limitations evident in her
record on the physical, mental, sensory, and other requirements of work. 20 C.F.R. §
404.1545(a)(l). At step four, the SSA looks at the claimant's past work and RFC. 20 C.F.R. §
404.1520(a)(4). If the claimant is able to do her past work the claimant is not disabled. Id
At step five, the Commissioner bears the burden of demonstrating that although the
claimant is unable to do past relevant work she is capable of making an adjustment to other
work. Id. To make that determination, the SSA considers the claimant's vocational factors: her
RFC, age, education, and work experience. Id. If the Commissioner proves that the claimant is
3 - OPINION AND ORDER
able to perform other work existing in significant numbers in the national economy, then the
claimant is not disabled. Id.
At step one, the ALJ found that Ms. Pittman had not engaged in substantial gainful
activity since the claimed disability date. Tr. 18. At step two, the ALJ found that Ms. Pittman's
"partial complex seizures; cognitive disorder, not otherwise specified; major depressive disorder;
borderline intellectual functioning; and generalized anxiety disorder" qualified as severe
impairments under 20 C.F.R. §404.1520(c). Tr. 18. At step three, the ALJ found that Ms.
Pittman's impairments did not meet or equal any listed impairment. Tr. 18. Between steps three
and four, the ALJ found Ms. Pittman had the RFC "to perform a full range of work at all
exertional levels" with nonexertional exceptions. Tr. 20. At step four, the ALJ found that Ms.
Pittman was unable to perform her past relevant work. Tr. 27. At step five, the ALJ found that
Ms. Pittman was not disabled because there were jobs existing in significant numbers in the
national economy that she could perform. Tr. 27. In doing so, the ALJ considered Ms. Pittman's
age, education, work experience, and RFC. Tr. 27.
Ms. Pittman contends that the ALJ wrongly discounted the opinions of both an examining
psychologist, Dr. James Wahl, and the treating psychiatrist, Dr. James Martin. An ALJ must
provide clear and convincing reasons supported by substantial evidence in order to reject an
uncontradicted opinion of a treating or examining physician. Ghanim v. Colvin, 763 F .3d 1154,
1160-61 (9th Cir. 2014). That said, the ALJ is responsible for resolving ambiguities in the
medical evidence. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)(citing Andrews v.
Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995)). The ALJ can resolve ambiguities in medical
evidence and meet the burden for rejecting a physician's opinion "by setting out a detailed and
4 - OPINION AND ORDER
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings." Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)(citing
Swanson v. Secretary, 763 F.2d 1061, 1065 (9th Cir. 1985)). The ALJ met that burden here.
a. Dr. Wahl's Opinion
Ms. Pittman argues that the ALJ improperly rejected the opinion of her examining
psychologist, Dr. Wahl. Dr. Wahl evaluated Ms. Pittman once, on October 11, 2012. Tr. 256-65.
The ALJ gave significant weight to Dr. Wahl's objective test results, but only some weight to Dr.
Wahl's opinion. Tr. 24. Ultimately, she found his single evaluation of Ms. Pittman to be less
consistent with the evidence ofrecord than that of Dr. Martin, the treating psychiatrist. Tr. 25.
Ms. Pittman asserts that the ALJ did not actually give significant weight to the objective test
results, because Dr. Wahl's tests document Ms. Pittman's markedly impaired concentration and
pace, which the ALJ discounted. In making this argument, Ms. Pittman relies on Dr. Wahl's
opinion regarding the tests. Ms. Pittman further argues that the ALJ was incorrect to rely on Ms.
Pittman's activities as a basis for rejecting Dr. Wahl's opinion.
Ms. Pittman has conflated Dr. Wahl's tests with Dr. Wahl's opinion. While Dr. Wahl's
opinion regards the objective test results, it is still an opinion. Because Dr. Wahl's opinion that
the tests "suggest significantly impaired general cognitive functioning" is not a part of the
objective test results, the ALJ's claim that she gave significant weight to the objective test results
is unharmed by Dr. Wahl's assessment of those results.
I find that the ALJ's use of Ms. Pittman's daily activities is substantial evidence
supporting the ALJ's clear and convincing reasons for giving only some weight to Dr. Wahl's
opinion. The ALJ determined that Ms. Pittman's daily activities contradict Dr. Wahl's opinion
and that Ms. Pittman's independence in "driving, going to the store, and attending appointments
5 - OPINION AND ORDER
without being accompanied" refute Ms. Pittman's allegations of needing constant supervision.
Ms. Pittman disagrees with the ALJ's interpretation of Ms. Pittman's daily activities,
arguing that the Commissioner's claim that I must uphold the Commissioner's conclusion where
evidence supports multiple rational interpretations attempts to replace the clear and convincing
standard with a rational basis standard. Ms. Pittman conflates two separate issues, which use
different standards. The ALJ's findings regarding Ms. Pittman's daily activities, if rational, are
entitled to deference. Tommasetti, 533 F.3d at 1038. The ALJ is only required to meet the clear
and convincing standard for her reasons to reject Dr. Wahl's opinion. When I give the ALJ's
rational findings regarding Ms. Pittman's daily activities the deference to which they are entitled,
they, along with Dr. Martin's records, provide the necessary clear and convincing reasons to
reject Dr. Wahl's opinion.
b. Dr. Martin's Opinion
Ms. Pittman argues that the ALJ failed to give proper weight to the treating psychiatrist,
Dr. Martin, who noted that Ms. Pittman had numerous moderate limitations that reduced her
ability to work. Tr. 501. The ALJ gave little weight to Dr. Martin's Mental Residual Capacity
Questionnaire, completed May 8, 2013. Tr. 26. She did so based on Ms. Pittman's regular and
punctual attendance at appointments, the inconsistency of his opinion with his notes, the
opinion's reliance on self-reporting, and Ms. Pittman's social behavior exemplified in her doctorpatient relationships. Id. Ms. Pittman asserts that Dr. Martin's opinion was not inconsistent with
his treatment notes, that Ms. Pittman's slow processing speed shows that she would have
difficulty staying on schedule, that the record indicates Ms. Pittman cannot accept confrontation
OPINION AND ORDER
or constructive criticism, and that the ALJ did not fully account for Ms. Pittman's difficulty with
Dr. Martin's opinion that Ms. Pittman's symptoms would make working full-time, eighthour days five days a week difficult was inconsistent with his treatment notes. Dr. Martin's notes
show improvement with medication management and counseling. Tr. 269, 271, 273, 531, 533,
535. Further, his notes show that Dr. Martin believed Ms. Pittman functioned within normal
cognitive range. Tr. 531. Inconsistency between a doctor's opinion and his notes is adequate
reason for an ALJ to reject the doctor's testimony. Tommasetti, supra, 533 F.3d at 1041. The
ALJ acted within her authority when she rejected Dr. Martin's testimony based on the
inconsistency between his notes and his opinion.
Dr. Martin's treatment notes do not support his opinion that Ms. Pittman would not
maintain attendance. 1 As the ALJ points out, his notes do not document any missed
appointments. Tr. 26. For that reason, it is unclear on what grounds Dr. Martin based his opinion.
Ms. Pittman reasons that Dr. Martin's opinion is supported by her extremely low processing
speed, which indicates that she would struggle to perform her activities on schedule. The ALJ
appears to have distinguished between Ms. Pittman's ability to show up on time and her ability
to perform her activities on schedule. Tr. at 26. While there is no evidence to support the belief
that Ms. Pittman could not show up on time, Ms. Pittman cites to Dr. Wahl's testimony as
support for the section of the question addressing her ability to perform on schedule. However,
neither doctor makes this connection nor is it clear from the record that it exists.
As Ms. Pittman points out, the ALJ appears to be referring to the MRFC form's question #7, which relates to
patient's "ability to perform activities within a schedule, maintain regular attendance and be punctual within
customary tolerances." Tr. 504. Dr. Martin checked the "Moderately Limited" box. Id.
7 - OPINION AND ORDER
Additionally, Dr. Martin's opinion that Ms. Pittman has moderate social limitations is
not supported by his treatment notes. Ms. Pittman did not report to Dr. Martin any significant
social conflict during the relevant period, and the record reveals no doctor-patient conflicts.
Going to her ability to accept instructions and respond appropriately to criticism, Dr. Martin
noted that Ms. Pittman has "marked feelings of inadequacy and inferiority going back into
childhood." Tr. 310. The ALJ acknowledged that Ms. Pittman had a history of not receiving
criticism well and addressed it by limiting her to "unskilled, low stress work" to "eliminate a
significant amount of work-related stress and potential for conflict." Tr. 23.
Ms. Pittman attacks this restriction in that it fails to address Ms. Pittman's ability to stay
on task. The question is not whether this restriction addresses all of Ms. Pittman's limitations,
but whether the ALJ gave appropriate weight to Dr. Martin's testimony and properly accounted
for it. The restriction does address Ms. Pittman's history of not receiving criticism well. The ALJ
has met her burden of clear and convincing reasons based on substantial evidence in her rejection
of parts of Dr. Martin's testimony.
Wendy Pittman's Testimony
The ALJ properly rejected Ms. Pittman's testimony regarding her limitations. To reject a
claimant's testimony, the ALJ must provide specific, clear, and convincing reasons. Burrell v.
Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014).The ALJ is not "required to believe every allegation
of disabling pain, or else disability benefits would be available for the asking, a result plainly
contrary to 42 U.S.C. § 423(d)(5)(A)." Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)
(quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). To access credibility, the ALJ "may
consider a range of factors. Ghanim, 763 F.3d at 1163. These factors include: (I) "ordinary techniques of
The MRFC's questions #12 and #14 respectively refer to "the ability to interact with the general public" and to
"accept instructions and to respond appropriately to criticism from supervisors." Tr. 405.
OPINION AND ORDER
credibility evaluation," like whether the claimant has a reputation for lying, contradicts her prior
statements, or is not candid; (2) whether the claimant's daily activities are inconsistent with the alleged
symptoms; and (3) whether the claimant fails to follow, without adequate explanation, a prescribed course
of treatment. Id. Where substantial evidence in the record supports the ALJ's credibility finding, the court
"may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
Here, the ALJ met her burden for rejecting Ms. Pittman's testimony by referencing the factors
above, specifically Ms. Pittman's contradictory statements and the fact that her daily activities are
inconsistent with her alleged symptoms. Regarding claimant's contradictory statements, the ALJ points to
Ms. Pittman's statements that she does the grocery shopping, Tr. 160, and that her husband does the
grocery shopping, Tr. 53. With regards to Ms. Pittman's daily activities as being inconsistent with her
alleged symptoms, the ALJ points to a series of activities. Ms. Pittman alleges balance issues, but claims
to ride a bike, walk the dogs, walk on the beach, and walk as her mode of transportation. Tr. 23. Ms.
Pittman alleges that she needs constant reminders because of issues with short-term memory, but says she
drives herself unaccompanied and goes out by herself daily. Id. The record shows she attends most of her
appointments alone. Id. I find the ALJ discredited Ms. Pittman's testimony by providing specific, clear,
and convincing reasons supported by substantial evidence in the record.
Mr. Pittman's Lay Witness Testimony
The ALJ properly rejected the lay witness testimony of John Pittman, Ms. Pittman's husband.
Lay witness testimony is competent, must be accounted for, and "cannot be disregarded without
comment." Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012)(quoting Nguyen v. Chafer, 100 F.3d
1462, 1467 (9th Cir. 1996)). An ALJ must offer reasons germane to the witness to discount the witness's
testimony. Id. The ALJ provided germane reasons for rejecting Mr. Pittman's testimony. Tr. 24.The ALJ
pointed out that while Mr. Pittman says Ms. Pittman shakes and has sleep apnea, there is no evidence in
the record that Ms. Pittman has sought treatment for hypoglycemia or that she has sleep apnea. Id. The
ALJ points to Mr. Pittman's statement Ms. Pittman "goes nowhere really," as being contrary to both the
function report and Ms. Pittman's own testimony. Id. The inconsistencies between Mr. Pittman's
9 - OPINION AND ORDER
testimony and the record the ALJ cites to discount Mr. Pittman are germane. The ALJ's decision was
Commissioner's Burden to Prove Ability to Work
At step five, the ALJ has the burden of identifying "specific jobs existing in substantial numbers
in the national economy that claimant can perform despite her identified limitations." Johnson v. Shala/a,
60 F.3d 1428, 1432 (9th Cir. 1995). For a sufficiently complex claim, the ALJ may enlist testimony from
a vocational expert (VE) or other specialist to help identify potential suitable employment opportunities
for the claimant. 20 C.F.R. § 404.1566(e). In posing hypotheticals to the VE, the ALJ must include
properly supported limitations and exclude those limitations not supported by substantial evidence.
Robbins v. SSA, 466 F.3d 880, 886 (9th Cir. 2006).
I find the ALJ's hypothetical to the VE included properly supported limitations and excluded
those not supported by substantial evidence. Ms. Pittman asserts that fully crediting the opinions of Dr.
Wahl and Dr. Martin would mean that the ALJ's hypothetical question to the VE was incomplete.
Because Dr. Wahl's and Dr. Martin's testimony have not been fully credited the ALJ's hypothetical to the
VE was complete and the Commissioner met her step five burden.
Because the ALJ based her decision on the proper legal standards and supported her findings with
substantial evidence in the record and met her step five burden of proving Ms. Pittman's ability to work,
the Commissioner's final decision denying Ms. Pittman Disability Insurance Benefits and Supplemental
Security Income is AFFIRMED.
IT IS SO ORDERED.
·.:r- day of April, 2017.
---- J. McShane
United States District Judge
10 - OPINION AND ORDER
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