Sturgill v. Commissioner Social Security Administration
Filing
24
Opinion and Order: Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is AFFIRMED and this case is DISMISSED. Signed on 9/21/2017 by Magistrate Judge Jolie A. Russo. (plb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID D. STURGILL,
Plaintiff,
Civ. No. 6:16-cv-00862-JR
v.
OPINION & ORDER
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_______________________________________
RUSSO, Magistrate Judge:
Plaintiff David Douglas Sturgill seeks judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying Disability Insurance Benefits
(“DIB”) under Title II and Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act. For the reasons set forth below, the decision of the Commissioner is AFFIRMED.
BACKGROUND
Plaintiff was born on May 2, 1966. Tr. 27. He has at least a high school education and is
able to communicate in English. Id. Plaintiff filed a Title II and a Title XVI application on
September 18, 2012, alleging disability based on neck fusion; knee, back, and elbow surgery;
knee problems; back problems; elbow problems; hip problems; arm, wrist and ankle injuries; and
crushed right leg, with an onset date of July 31, 2011, later amended to March 2, 2012. Tr. 15,
17, 82. His application was denied initially and upon review. Tr. 15. At plaintiff’s request, a
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hearing was held before an Administrative Law Judge (“ALJ”) on October 10, 2014. Id. On
December 19, 2014, the ALJ issued a decision finding plaintiff not disabled. Tr. 28. On March
17, 2016, the Appeals Council denied review, making the ALJ’s decision the final decision of the
Commissioner. Tr. 1. This appeal followed.
DISABILITY ANALYSIS
A claimant is disabled if he or she is unable 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[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r, 648 F.3d 721, 724 (9th Cir. 2011).
The five-steps are: (1) Is the claimant presently working in a substantially gainful
activity? (2) Is the claimant’s impairment severe? (3) Does the impairment meet or
equal one of a list of specific impairments described in the regulations? (4) Is the
claimant able to perform any work that he or she has done in the past? and (5) Are
there significant numbers of jobs in the national economy that the claimant can
perform?
Id. at 724-25; see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Bustamante, 262 F.3d
at 953. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999); see also 20 C.F.R. §§ 404.1566; 416.966 (describing “work which exists in the national
economy”). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant
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is able to perform other work existing in significant numbers in the national economy, the
claimant is not disabled. Bustamante, 262 F.3d at 953-54.
THE ALJ’S FINDINGS
The ALJ performed the sequential analysis. At step one, the ALJ found plaintiff had not
engaged in substantial gainful activity since the amended alleged onset date, March 2, 2012. Tr.
17. At step two, the ALJ determined plaintiff had the following severe impairments: obesity,
degenerative disc disease with post-laminectomy syndrome; degenerative joint disease with a
history of recent anterior cruciate ligament (ACL) reconstructive surgery of the left knee; and
depression. Id. At step three, the ALJ determined plaintiff’s impairments did not meet or
medically equal one of the listed impairments. Tr. 19.
The ALJ then assessed plaintiff’s residual functional capacity (“RFC”) and determined
plaintiff could perform sedentary work with the following additional limitations: no more than
frequent stooping, kneeling, crawling, and crouching; occasional climbing of stairs and ramps;
no climbing ropes, ladders, or scaffolds; no more than frequent overhead reaching; no more than
occasional reaching with the left upper extremity; and plaintiff is limited to simple, repetitive,
routine tasks. Tr. 21.
At step four, the ALJ determined plaintiff could not perform past relevant work. Tr. 26.
At step five, the ALJ found plaintiff not disabled and had the RFC to perform work as a small
parts sorter, final inspector of small parts, and marker/price sticker. Tr. 27-28.
STANDARD OF REVIEW
The district court must 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, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial
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evidence “means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal
quotation marks omitted). In reviewing the Commissioner’s alleged errors, this Court must
weigh “both the evidence that supports and detracts from the [Commissioner’s] conclusion.”
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence
are insignificant if the Commissioner’s interpretation is rational. Burch v. Barnhart, 400 F.3d
676, 679 (9th Cir. 2005).
When the evidence before the ALJ is subject to more than one rational interpretation, we
must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shalala, 53
F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, cannot affirm the
Commissioner’s decision on a ground that the agency did not invoke in making its decision.
Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a court may not reverse an
ALJ’s decision on account of an error that is harmless. Id. at 1055–56. “[T]he burden of
showing that an error is harmful normally falls upon the party attacking the agency’s
determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
DISCUSSION
Plaintiff alleges the ALJ erred by (1) rejecting plaintiff’s subjective symptom testimony;
and (2) improperly weighing the medical evidence. Plaintiff urges this Court to remand for
immediate payment of benefits.
I.
Subjective Symptom Testimony
Plaintiff asserts the ALJ erred by rejecting plaintiff’s subjective symptom testimony.
There is no evidence of malingering, so “the ALJ can reject the claimant’s testimony about the
severity of her symptoms only by offering specific, clear and convincing reasons for doing so.”
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Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (internal quotation marks and
citation omitted). A general assertion that 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. Shalala, 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. Shalala, 50 F.3d 748, 750 (9th Cir. 1995).
In this case, the ALJ did not fully credit plaintiff’s subjective symptom testimony on the
basis that plaintiff’s alleged physical and mental limitations were not supported by the objective
medical evidence. Tr. 22. An ALJ “may not reject the claimant’s statements regarding her
limitations merely because they are not supported by objective evidence.” Tonapetyan v. Halter,
242 F.3d 1144, 1147-48 (9th Cir. 2001). However, “[c]ontradiction with the medical record is a
sufficient basis for rejecting the claimant’s subjective testimony.” Carmickle v. Comm’r, 533
F.3d 1155, 1161 (9th Cir. 2008). Here, plaintiff reported difficulty walking and standing. Tr.
60-62, 243. Plaintiff’s surgeon, however, reported plaintiff was “doing well” following his ACL
surgery with no specific restrictions or follow-up. Tr. 402.
The ALJ also noted that plaintiff’s “robust” daily activities were inconsistent with his
alleged limitations. “In reaching a credibility determination, an ALJ may weigh inconsistencies
between the claimant’s testimony and his or her conduct, daily activities, and work record,
among other factors.” Bray v. Comm’r, 554 F.3d 1219, 1227 (9th Cir. 2009). Engaging in daily
activities that are incompatible with the severity of symptoms alleged can support an adverse
credibility determination. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); Batson, 359
F.3d at 1196. Plaintiff alleged difficulty walking, sitting, standing, lifting, and reaching. Tr.
243. Plaintiff also alleges difficulty with memory, concentration, ability to complete tasks,
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understand and follow instructions, and get along with others. Tr. 243. The ALJ noted plaintiff
completes household chores, including sweeping, vacuuming, laundry and washing dishes. He
goes grocery shopping and manages his own finances. He drives his son to and from the bus
stop, attends church, and meets regularly with friends and family. Tr. 20, 55-58, 242. The ALJ
reasonably concluded that plaintiff’s daily activities were inconsistent with his alleged degree of
impairment.
Although the evidence may be susceptible to a more favorable interpretation, the Court
concludes the ALJ’s interpretation was rational and supported by substantial evidence. “When
evidence supports either confirming or reversing the ALJ’s decision, we may not substitute our
judgment for that of the ALJ.” Batson, 359 F.3d at 1196. Accordingly, the Court affirms the
ALJ’s conclusions regarding plaintiff’s subjective symptom testimony.
II.
Medical Opinion Evidence
Plaintiff contends the ALJ erred by disregarding the opinions of Ryan Scott, Ph.D.,
plaintiff’s examining psychologist, and Cynthia Voegeli, FNP-C, plaintiff’s treating family nurse
practitioner.
A. Dr. Ryan Scott
The ALJ is responsible for resolving conflicts in the medical record. Carmickle, 533
F.3d at 1164. “As a general rule, more weight should be given to the opinion of a treating source
than to the opinion of doctors who do not treat the claimant[.]” Turner v. Comm’r, 613 F.3d
1217, 1222 (9th Cir. 2010) (internal quotation marks and citation omitted). An ALJ may reject
the uncontradicted medical opinion of a treating or examining physician only for “clear and
convincing” reasons supported by substantial evidence in the record. Bayliss v. Barnhart, 427
F.3d 1211, 1216 (9th Cir. 2005). An ALJ may reject the contradicted opinion of a treating or
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examining doctor by providing “specific and legitimate reasons that are supported by substantial
evidence.” Id.
Dr. Scott performed a psychological examination of plaintiff in September 2014, and
opined that his cognitive limitations and depression would make it difficult for plaintiff to follow
instructions, concentrate, or maintain regular work attendance. Tr. 436-437. Dr. Scott diagnosed
plaintiff with “Major Depressive Disorder, Severe, Recurrent, With Anxious Distress,” and
“Alcohol Use Disorder, In Sustained Remission.” Tr. 438. Dr. Scott opined that plaintiff’s
mental health issues became significant in 2010, although Dr. Scott believed his cognitive issues
were probably lifelong. Id. The ALJ relied on Dr. Scott’s assessment in finding plaintiff’s
depression to be a severe impairment. Tr. 18.
The ALJ gave little weight to Dr. Scott’s opinion regarding plaintiff’s cognitive and
social limitations, finding that (1) Dr. Scott’s opinion was inconsistent with the objective medical
evidence; (2) Dr. Scott assessed plaintiff’s mental limitations going back to 2010; and (3) the
limitations identified by Dr. Scott were at odds with plaintiff’s “robust” daily activities. Tr. 1822.
An ALJ may reject a medical opinion that is internally inconsistent, inconsistent with the
claimant’s activities, or inconsistent with other medical findings. See Morgan v. Comm’r, 169
F.3d 595, 601-03 (9th Cir. 1999). A medical opinion may also be rejected as unreasonable in
light of other evidence in the record. Id. at 601. Plaintiff’s robust daily activities have been
previously noted and the Court concludes the ALJ reasonably considered those activities in
assigning less weight to Dr. Scott’s opinion, particularly regarding the cognitive demands of
those daily activities. The ALJ also noted there is no explanation for Dr. Scott’s conclusion that
plaintiff’s mental and cognitive limitations date back to at least 2010 and that such a conclusion
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is contradicted by the fact that plaintiff continued to work until 2011 and possibly into 2012. Tr.
26, 45-46.
The ALJ also determined that Dr. Scott’s opinion was contradicted by the rest of the
medical record. In May 2012, plaintiff was seen by Glenn Keiper, M.D., who noted plaintiff has
fluent speech, was oriented to person, place, and time, had “no deficit of memory or mentation,”
and an “adequate” attention span. Tr. 282. Dr. Keiper noted no history of depression. Tr. 281.
Paul Coelho, M.D., examined plaintiff in October 2012, and found him “pleasant and
cooperative” with “no apparent distress.” Tr. 285. Dr. Coelho found plaintiff appropriately alert
and oriented to person, place, time, and situation, and found him to be “a fair medical historian.”
Id. In February 2013, plaintiff was seen by James Kiley, M.D., who found plaintiff wellgroomed and cooperative, with “normal” speech, attention, concentration, and language. Tr.
309. In April 2013, plaintiff was seen by Holly Easton, M.D., who found plaintiff pleasant, with
a normal affect and in no acute distress. Tr. 322.
Based on this record, the Court concludes that the ALJ adequately supported his
conclusion that Dr. Scott’s diagnosis of mental and cognitive limitations was inconsistent with
the medical evidence and plaintiff’s daily activities. The Court concludes that the ALJ gave
specific and legitimate reasons for his decision to assign little weight to Dr. Scott’s opinion and
that decision was supported by substantial evidence.
B. Cynthia Voegeli
An ALJ may discount the opinion of an “other source,” such as nurse practitioner, if he
provides “reasons germane to each witness for doing so.” Molina v. Astrue, 674 F.3d 1104,
1111 (9th Cir. 2012) (internal quotation marks and citation omitted); Popa v. Berryhill,
___F.3d___, No. 15-16848, 2017 WL 3567827, at *4 (9th Cir. Aug. 18, 2017). In considering
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the opinions of those who are not “acceptable medical sources,” an ALJ may take into account
the following factors: (1) the length of the source’s relationship with the claimant and how
frequently the source has seen the claimant; (2) whether the source’s opinion is consistent with
other evidence; (3) the degree to which the source presents relevant evidence to support an
opinion; (4) the quality of the source’s explanation of an opinion; (5) whether the source has
expertise related to the claimant’s impairment; and (6) any other factors tending to support or
refute the opinion. See SSR 06-03p, available at 2006 WL 2329939, at *4-5.
In December 2012, plaintiff was seen by Cynthia Voegeli, a family nurse practitioner.
Tr. 305. Ms. Voegeli administered a Patient Health Questionnaire, which attempts to quantify
nine criteria for depression (“PHQ-9”). The PHQ-9 results indicated “moderate depression,
although the patient has little insight of this.” Tr. 305, 312.
In January 2013, plaintiff reported
feeling “frustrated” with “little joy in anything.” Tr. 303. Plaintiff also reported trying many
different anti-depressants, but did not like how they made him feel. In February 2013, Ms.
Voegeli asked Ellie Dominguez, Ph.D., to meet briefly with plaintiff. Dr. Dominguez did not
provide a separate report of plaintiff’s condition or make a diagnosis, but her summary is
included in Ms. Voegeli’s notes. Dr. Dominguez described plaintiff as oriented, but scattered in
his thinking. Plaintiff avoided eye contact and became tearful when describing deaths in his
family. Dr. Dominguez “did not pick up on diagnosed active conditions,” but noted plaintiff’s
history of substance abuse and family troubles as possible sources of stress. Tr. 311. On
February 14, 2013, Ms. Voegeli reported plaintiff was “overwhelmed with [a] multitude of forms
and appointments” and “stressed.” Tr. 297. That same month plaintiff reported depression to
Ms. Voegeli and presented with feelings of “hopelessness,” however, Ms. Voegeli found plaintiff
appropriately oriented to time, place, person, and situation, and significantly, without mood
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swings or suicidal ideation. Tr. 418, 420. Ms. Voegeli referred plaintiff to Carmen MacMillan,
a mental health provider, who noted plaintiff’s reports of depression and difficulty concentrating,
apparently related to plaintiff’s family issues. Tr. 416. Ms. MacMillan observed that plaintiff
might benefit from an anti-depressant “to help him get through this difficult time,” but no
antidepressant was prescribed. Regarding plaintiff’s alleged mental and cognitive limitations,
the ALJ determined those limitations were contradicted by both the medical evidence and
plaintiff’s daily activities. Tr. 25-26.
Regarding plaintiff’s physical complaints, Ms. Voegeli opined plaintiff was limited to
only occasional overhead reaching and should never “handle, finger, or feel” as part of his job.
Tr. 296. Ms. Voegeli opined plaintiff could lift less than ten pounds frequently and stand/walk at
least two hours in an eight hour work day. Tr. 295. She opined plaintiff would need to
periodically alternate sitting and standing to relieve pain or discomfort and he would be limited
in his ability to push and pull with both his upper and lower extremities. Id. Ms. Voegeli opined
that plaintiff had been disabled since 2009. Tr. 296.
The record shows that plaintiff was injured in a car accident in March 2012. Tr. 264.
Emergency room reports indicate “mild discomfort,” no difficulty with ambulation, and negative
straight leg raises. Id. X-rays revealed mild lumbar levoscoliosis and degenerative changes in
the lower thoracic spine, but no acute fractures or anterolisthesis. Tr. 267.
On March 5, 2012, and again on March 19, 2012, plaintiff was seen by Mark Litchfield,
M.D., who also found negative straight leg raise results, with normal strength and sensation. Tr.
269, 271. On May 8, 2012, plaintiff was seen by Glenn Keiper, Jr., M.D., who found normal gait
and station, without crepitation or tenderness. Tr. 281. Dr. Keiper found a normal range of
motion without pain in all of plaintiff’s extremities. Id. Dr. Keiper did find a positive straight
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leg raise result on plaintiff’s left side, but noted normal motor strength in all extremities. Tr.
282. In October 2012, plaintiff was seen by Paul Coelho, M.D., complaining of arm, back, neck,
shoulder, and inguinal pain. Tr. 284. Dr. Coelho found a full, painless range of motion in
plaintiff’s shoulders and full motor strength in plaintiff’s lower extremities. Tr. 285. Dr. Coelho
observed normal gait and station, with no listing or limping. Id.
In February 2013, plaintiff was seen by James Kiley, M.D., reporting numbness in his
hands and weakening grip strength. Tr. 308. Dr. Kiley found full strength in plaintiff’s upper
extremities with “fairly good grip strength,” although Dr. Kiley noted he was not sure plaintiff
had given his full effort when performing the test. Tr. 309. Dr. Kiley found plaintiff’s gait and
station “unremarkable.” Id.
In April 2013, plaintiff was seen by Holly Easton, M.D., reporting he had fallen into a
hole while mowing his yard. Tr. 321. Dr. Easton observed an antalgic gait, but no deformity or
edema to the knee. Tr. 322. Dr. Easton found that plaintiff could extend his knee 180 degrees
and bend it past 90 degrees. Id. In May 2013, plaintiff was seen by Christopher Walton, M.D.,
who diagnosed an injury to plaintiff’s ACL.
Tr. 364.
Dr. Walton performed an ACL
reconstruction and, in June 2014, Dr. Walton found plaintiff was “doing well,” with “excellent
motion, full range.” Tr. 402. Dr. Walton provided no specific restrictions and determined that
no follow-up was necessary. Id. The ALJ gave significant weight to Dr. Walton’s opinion. Tr.
25.
The ALJ rejected Ms. Voegeli’s opinion because (1) it was contradicted by the objective
opinions of the treating and examining physicians; (2) it offered no specific objective medical
findings to support the limitations she identified; (3) she accepted plaintiff’s subjective
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complaints from prior medical examinations without review; and (4) her opinion was
contradicted by plaintiff’s activities of daily living. Tr. 25-26.
Based on the record, the Court concludes that the ALJ adequately supported his decision
to assign less weight to Ms. Voegeli’s opinion. The extreme limitations, both mental and
physical, assessed by Ms. Voegeli are contradicted by the generally benign findings of the
examining and treating physicians and are inconsistent with plaintiff’s reported daily activities.
Accordingly, the Court concludes the ALJ gave germane reasons for rejecting Ms. Voegeli’s
opinion that plaintiff had been disabled since 2009 and for rejecting the physical and mental
limitations she assessed.
CONCLUSION
Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is
AFFIRMED and this case is DISMISSED.
It is ORDERED and DATED this 21st day of September 2017.
s/Jolie A. Russo
JOLIE A. RUSSO
United States Magistrate Judge
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