Dewolfe v. Commissioner Social Security Administration

Filing 20

OPINION AND ORDER. Signed on 5/16/17 by Judge Anna J. Brown. See 18 page order for details. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BRANDON LEE DEWOLFE,
Plaintiff,

6:16-CV-00543-BR
OPINION AND ORDER

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

MERRILL SCHNEIDER
Schneider Kerr Law Offices
P.O. Box 14490
Portland, OR 97293
[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
KATHRYN A. MILLER
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 Brandon Lee DeWolfe seeks judicial review of the
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 juris-

diction 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 his application for DIB on
June 4, 2013, and his application for SSI on June 24, 2013.
Tr. 31.2

Plaintiff alleged a disability onset date of June 1,

2

Citations to the official transcript of record filed by
the Commissioner on January 20, 2016, are referred to as "Tr."
2 - OPINION AND ORDER

2012.3

Tr. 31.

Plaintiff’s applications were denied initially

and on reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on July 22, 2015.

Tr. 31, 48-83.

vocational expert (VE) testified.

Plaintiff and a

Plaintiff was represented by

an attorney at the hearing.
On August 7, 2015, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 31-42.

On September 28, 2015, Plaintiff

requested review by the Appeals Council.

Tr. 22.

On February 5,

2016, 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. 1-4.

See Sims v. Apfel, 530

U.S. 103, 106-07 (2000).
On March 29, 2016, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner’s decision.

BACKGROUND
Plaintiff was born on November 10, 1970.
was 44 years old at the time of the hearing.
tenth-grade education.

Tr. 41, 242.

Tr. 41.

Plaintiff

Plaintiff has a

The ALJ found Plaintiff has

past relevant work experience as an auto mechanic and auto-shop
supervisor.

Tr. 40.

3

Plaintiff initially alleged disability onset beginning
June 1, 2009, but amended the onset to June 1, 2012. Tr. 31, 56.
3 - OPINION AND ORDER

Plaintiff alleges disability due to nerve damage to his
right arm and shoulder, arm and shoulder pain, ruptured disc in
lower spine, low-back pain, anxiety, scar tissue in the lungs,
torn cartilage in his left knee, and neck pain from a curved
spine.

Tr. 241.

Plaintiff also has Erb’s Palsy from a birth

trauma resulting in a short dysfunctional right arm.

Tr. 34,

383.
Except as noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

See Tr. 34-40.

After carefully

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

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 his

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
4 - OPINION AND ORDER

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]

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

5 - OPINION AND ORDER

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

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
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
6 - OPINION AND ORDER

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 his 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.

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 he 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

7 - OPINION AND ORDER

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 June 1, 2012, the amended
alleged onset date.

Tr. 33.

At Step Two the ALJ found Plaintiff has the severe
impairments of Erb’s Palsy, obesity, mild degenerative disc
disease with sciatica, and a history of carpal-tunnel syndrome of
the left wrist.

Tr. 34.

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. 34-5.

The ALJ found Plaintiff has the RFC to

perform sedentary work; can occasionally stoop or crouch; cannot
climb ladders, ropes, or scaffolds; can only lift with his left
arm; cannot reach in any direction; cannot grasp, handle, or feel
with his right arm, which can be used only minimally to steady an
item that is lifted or held with his left arm; can no more than
frequently handle, grip, or finger with his left arm; and must
avoid concentrated exposures to dust, fumes, gases, poor

8 - OPINION AND ORDER

ventilation, and other noxious odors.

Tr. 35.

At Step Four the ALJ concluded Plaintiff is incapable of
performing his past relevant work.

Tr. 40.

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

Tr. 41.

the ALJ found Plaintiff is not disabled.

Accordingly,

Tr. 42.

DISCUSSION
Plaintiff contends the ALJ erred (1) when he improperly
rejected Plaintiff’s subjective symptom testimony and (2) when he
made findings at Step Five that are not supported by substantial
evidence in the record.
I.

The ALJ did not err when he found Plaintiff’s testimony was
not fully credible.
Plaintiff contends the ALJ did not provide 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 and must show the impairment or combination of
impairments could reasonably be expected to produce some degree
of symptom.

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.

9 - OPINION AND ORDER

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 he 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).

The ALJ identified three reasons for discounting Plaintiff’s
testimony:

(a) the medical records do not support Plaintiff’s

testimony regarding the severity of his symptoms; (b) Plaintiff’s
daily activities are not consistent with his claim of disability;
and (c) Plaintiff received unemployment benefits during the
period of his alleged disability.
A.

Medical Records
After a thorough review of Plaintiff’s medical records

(Tr. 36-39), the ALJ concluded the records do not support the
severity of Plaintiff’s symptom testimony.

The ALJ noted the

following medical evidence in support of his finding:
In April 2012 Plaintiff was examined by Todd J. Lewis,
M.D.

Plaintiff reported pain in his right arm, shoulder, neck,

low back, and left knee.

On examination Plaintiff had decreased

range of motion in his neck, shoulder, and lumbar spine, but he
10 - OPINION AND ORDER

had a normal gait and was able to perform toe-and-heel walking
without difficulty.

Dr. Lewis indicated Plaintiff had “valid”

physical findings in his right arm, but his lumbar motions were
“self-limited and not valid.”

Tr. 383.

In March 2013 Plaintiff was seen in the emergency room
for back pain radiating into his left leg, which started after he
lifted a 150-pound transmission.
strain and discharged.

He was diagnosed with lumbar

Tr. 368.

In December 2013 Plaintiff experienced numbness in the
tips of his fingers.

Imaging revealed mild degenerative changes

without acute findings.

Tr. 387.

In October 2014 Plaintiff had

a carpal-tunnel release procedure on his left wrist.

In his

evaluation of Plaintiff’s RFC the ALJ restricted Plaintiff’s use
of his left hand and arm to “only frequently” for activities that
involved handling, fingering, and feeling.

Tr. 38.

In September 2014 Plaintiff was examined by Weijia
Wang, M.D., for complaints of low-back pain radiating into his
left leg.

On examination Plaintiff exhibited full range of

motion, normal muscle tone, and normal gait.

Dr. Wang, however,

noted Plaintiff chose not to flex his lumbar spine because of
pain.

Plaintiff’s follow-up in November 2014 with Dr. Wang

indicated Plaintiffs’ nerve conduction study was “unremarkable.”
Tr. 564.
In June 2015 Plaintiff reported his current medications

11 - OPINION AND ORDER

relieved his pain and provided improved overall functionality.
Tr. 471.

The ALJ noted Plaintiff’s treatment was “very

conservative, largely prescription medication and injections,”
and Plaintiff had “not generally received the type of medical
treatment one would expect for a completely disabled individual.”
Tr. 39.

Plaintiff contends it was improper for the ALJ to assess

“the type of treatment that is warranted for any particular
condition,” and the ALJ “cannot simply reject the pain complaints
as unsupported when the record contains an objective basis for
the pain.”
Medications and treatment are “important indicator[s]
of the intensity and persistence of . . . symptoms.”
§§ 404.1529(c)(3), 416.929(c)(3).

20 C.F.R.

Conservative treatment is

“sufficient to discount a claimant’s testimony regarding severity
of impairment.”

Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir.

2007)(quoting Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.
1995)).
On this record the Court concludes the ALJ did not err
when he found Plaintiff’s allegations were not consistent with
the medical evidence in the record because the ALJ provided clear
and convincing reasons supported by substantial evidence for
doing so.
B.

Activities of Daily Living
The ALJ further discounted Plaintiff’s testimony on the

12 - OPINION AND ORDER

basis that his daily activities are not consistent with his claim
of disability.

Plaintiff, however, contends these activities are

not inconsistent with his disabling level of pain nor with his
inability to work on a full-time basis.
To support his conclusion the ALJ noted during the
period of his alleged disability Plaintiff was able to “perform
adequate self-care, prepare simple meals, to do household chores
and to go out to the store,” to ride his bike, and to lift a 150pound transmission.

Tr. 39, 368, 375.

“When evidence reasonably supports either confirming or
reversing the ALJ’s decision, [the court] may not substitute
[its] judgment for that of the ALJ.”

Baston v. Comm’r of Soc.

Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
On this record the Court concludes the ALJ did not err
when he discounted Plaintiff’s credibility based on the ALJ’s
finding that Plaintiff’s daily activities are inconsistent with
his alleged disabilities.
C.

Unemployment Benefits
The ALJ pointed out that Plaintiff received

unemployment benefits after the date of his alleged initial
disability onset.

Plaintiff contends he only received such

benefits for a few months following the end of his last job in
2009, and, therefore, this information is irrelevant.
When a claimant has held himself out as available for

13 - OPINION AND ORDER

full-time work, receipt of unemployment benefits can undermine
the claimant’s alleged inability to work full-time.

See

Carmickle v. Comm’r, 533 F.3d 1155, 1161-62 (9th Cir. 2008).
Plaintiff initially alleged an onset of disability
beginning in June 2009.

At the time of the hearing the ALJ noted

there were not any corroborating medical records from June 2009
to 2012 or 2013.
to June 2012.

Plaintiff later amended his alleged onset date

Tr. 54.

In his findings the ALJ specifically noted the
acceptance of unemployment benefits did not impact his
determination of Plaintiff’s disability, but “[s]uch acceptance
shows that the claimant was actively applying for work, claimed
to be able to be available for work, and held [himself] out [to]
another agency [as being] able and willing to work” during the
period that Plaintiff alleged he was disabled.

The ALJ concluded

this inconsistency “erode[d]” Plaintiff’s credibility.

Tr. 39.

The Court concludes the ALJ properly considered
Plaintiff’s receipt of unemployment benefits as a factor in
determining Plaintiff’s credibility.
In summary, on this record the Court finds the ALJ did not
err when he found Plaintiff was not fully credible because the
ALJ provided clear and convincing reasons supported by
substantial evidence in the record for doing so.
II.

The ALJ’s finding at Step Five is supported by substantial
evidence.

14 - OPINION AND ORDER

Plaintiff contends the ALJ erred at Step Five when he relied
on the testimony of the VE that Plaintiff was capable of
performing other work that existed in significant numbers in the
national economy on the basis that the VE’s testimony was not
supported by substantial evidence.
The ALJ posed a hypothetical to the VE based on his
evaluation of Plaintiff’s RFC.

The VE testified the “only job”

Plaintiff could perform with the limitations posed by the ALJ was
“a retail surveillance monitor.”

The VE stated the Dictionary of

Occupational Titles (DOT) code for that job was 379.367-010, it
was an unskilled job at the sedentary level, and 82,000 such jobs
existed in the national economy.

Tr. 80.

The ALJ relied on this

testimony and, accordingly, found Plaintiff is not disabled.
Tr. 41-42.
Plaintiff, however, asserts the DOT code given by the VE is
for a different job titled “Surveillance-System Monitor
(government ser.)” and does not describe a “retail” position.
Plaintiff also contends the VE’s testimony is inconsistent with
the standard publications recognized by the Commissioner.
Plaintiff asserts he submitted additional evidence to the
Appeals Council that undermines the VE’s position that such a job
exists in significant numbers.

Plaintiff submitted the statement

of another vocational expert to the Appeals Council regarding the
job of system surveillance monitor in today’s economy.

15 - OPINION AND ORDER

Based on

that expert’s opinion, Plaintiff contends the number of jobs
nationally for the entire Occupational Employment Survey (OES)
statistical group, which includes the surveillance system monitor
job, is 96,000, and the number of jobs nationally for the
surveillance system monitor job alone is only 4,553.

In

addition, Plaintiff argues the number of jobs (82,000) stated by
the VE at the hearing included all job categories for the OES
group rather than only surveillance system monitor jobs.
Plaintiff's evidence was submitted to the Appeals Council
after the ALJ rendered his decision.

The Appeals Council

reviewed the evidence, but it declined to review the ALJ’s
decision.

When a claimant “submits evidence for the first time

to the Appeals Council, which considers that evidence in denying
review of the ALJ’s decision, the new evidence is part of the
administrative record, which the district court must consider in
determining whether the Commissioner’s decision is supported by
substantial evidence.”

Brewes v. Comm’r of Soc. Sec. Admin., 682

F.3d 1157, 1159-60, 1162-63.

If the new evidence changes the

“record as a whole” in a substantial manner, the ALJ’s decision
may no longer be supported by substantial evidence in the record.
Id.

See also Lingenfelter v. Astrue, 504 F.3d 1028, 1039 n.2

(9th Cir. 2007).
In Beltran v. Astrue the ALJ found the plaintiff was able to
work as a surveillance system monitor.

16 - OPINION AND ORDER

The ALJ found a

“significant number” of jobs existed that the plaintiff could do
despite her limitations based on the VE’s testimony that there
were 135 jobs regionally and 1,680 jobs nationally.
(9th Cir. 2012).

700 F.3d 386

On appeal the Ninth Circuit found this was not

a “significant number” of jobs and reversed the finding of the
ALJ as unsupported by substantial evidence in the record.
391.

Id. at

The Court did not, however, decide “what the floor for a

‘significant number’ of jobs should be.”

Id. at 390.

Here the VE testified Plaintiff could perform the duties of
a retail surveillance monitor with the RFC limitations stated by
the ALJ.

At the hearing or on appeal to this Court Plaintiff did

not challenge the ALJ’s finding that he is able to perform that
job.

Plaintiff only asserts the ALJ’s finding that the retail

surveillance monitor job exists in significant numbers in the
economy is not supported by substantial evidence in the record.
Although the VE testified there were over 82,000 such jobs
available nationally, Plaintiff points out that there are
actually only 4,553 security surveillance monitor jobs nationally
according to the OES, which is not a “significant number.”

The

Court, however, notes that number is two and a half times the
number of jobs the Beltran court found to be insignificant.
On this record the Court finds the ALJ did not err at Step
Five because the ALJ’s determination that other work exists in
significant numbers in the national economy is supported by

17 - OPINION AND ORDER

substantial evidence based on Beltran.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter pursuant to sentence four
of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
DATED this 16th day of May, 2017.

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

18 - OPINION AND ORDER