Williams v. Commissioner Social Security Administration

Filing 33

Opinion and Order: The ALJ's decision is free of harmful legal error and is supported by substantial evidence. The Commissioner's final decision is affirmed. Signed on 4/9/2018 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ALEXANDER J. WILLIAMS,
Plaintiff,

Civ. No. 6:16-cv-01543-MC

v.

OPINION AND ORDER

COMMISSIONER,
Social Security Administration,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff Alexander J. Williams (“Williams”) seeks judicial review of the Commissioner’s
decision denying his application for Supplemental Security Income (“SSI”) under Title XVI of
the Social Security Act (“the Act”). This court has jurisdiction under 42 U.S.C. §§ 405(g) and
1383(c)(3). Because the Commissioner’s decision is not based on proper legal standards and is
not supported by substantial evidence, the decision is AFFIRMED.
BACKGROUND
Williams filed his application for SSI on September 26, 2012, alleging a disability onset
date of August 1, 2012. Tr. 56.1 After the Commissioner denied the applications initially and
upon reconsideration, Williams requested a hearing before an administrative law judge (“ALJ”),
which was held on November 5, 2014. Tr. 27-55. On January 16, 2015, ALJ Marilyn S. Mauer
issued a written decision finding Williams not disabled. Tr. 10-20. On May 23, 2016, the

1

“Tr.” refers to the transcript of the Social Security Administration’s (“SSA”) administrative record.

1 - OPINION AND ORDER

Appeals Council denied Williams’ subsequent request for review, so the ALJ’s decision became
the final decision of the Commissioner. Tr. 1-3. This appeal followed.
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 of Soc. 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. Chater, 108 F.3d 978, 980
(9th Cir. 1997)). To determine whether substantial evidence exists, I 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 of Soc. Sec. Admin., 740 F.3d
519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).
DISCUSSION
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). The Social Security Administration (“SSA”) utilizes a five-step sequential
evaluation to determine disability. 20 C.F.R. §§ 404.1520; 416.920 (2012). The initial burden of
proof rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden
with respect to the first four steps, the burden then shifts to the Commissioner for step five. 20

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C.F.R. § 404.1520. At step five, the Commissioner must demonstrate the claimant is capable of
making an adjustment to other work after considering the claimant’s residual functional capacity
(“RFC”), age, education, and work experience. Id. If the Commissioner fails to meet this burden,
the claimant is considered disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If,
however, the Commissioner proves the claimant is able to perform other work existing in
significant numbers in the national economy, the claimant is found not disabled. Bustamante v.
Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
At step one, the ALJ determined Williams had not worked since September 26, 2012, the
application date. At step two, the ALJ concluded that Williams had the following severe
impairments: chronic right shoulder pain status post multiple dislocations and four surgeries for
SLAP repair; Bankart lesion; rotator cuff repair and subacromial decompression; and chronic
migraine headache. Tr. 12. Between steps three and four, the ALJ assessed Williams’ RFC. She
determined Williams retains the capacity to perform light work, except that he is limited to
lifting 20 pounds occasionally and 10 pounds frequently with the left upper extremity only and
cannot perform any lifting with the right upper extremity; due to shoulder pain when his arm is
dependent, he can stand and walk no more than four out of eight hours; he can sit without
limitation; he can never perform forceful pushing or pulling with the right upper extremity; he
can occasionally reach in all planes with his right upper extremity; he can never climb ladders,
ropes, and scaffolds; he should not be exposed to hazards such as unprotected heights or large
moving equipment; he can frequently balance, stoop, and crouch; he can occasionally kneel and
crawl; he has no limits in the use of his left hand; he can use his right hand for unlimited
handling, fingering, and feeling when the arm is supported close to his body and for occasional
handling, fingering, and feeling when the arm is not supported close to his body; and due to the

3 - OPINION AND ORDER

impact of pain on concentration, persistence, and pace, he can understand, remember, and carry
out only simple instructions. Tr. 14-15. At step four, the ALJ found Williams did not have any
past relevant work. Tr. 18. At step five, based on the testimony of a vocational expert (“VE”), the
ALJ concluded that Williams could perform jobs that exist in significant numbers in the national
economy, including final inspector of hand packaging processes, loader monitor, and toll
collector, parking. Tr. 19.
William contends the ALJ: (1) erroneously discredited his symptom testimony; (2)
erroneously rejected lay witness testimony provided by his wife, (3) failed to consider the effects
of his migraines in formulating an RFC; and (4) erroneously found plaintiff could perform other
work in the national economy based on the assessed RFC.
I. Credibility Analysis
Williams argues the ALJ erred by rejecting her subjective symptom testimony. An 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)).
The ALJ “may consider a range of factors in assessing credibility.” Ghanim v. Colvin, 763 F.3d
1154, 1163 (9th Cir. 2014). These factors can include “ordinary techniques of credibility
evaluation,” id., as well as:
(1) whether the claimant engages in daily activities inconsistent with the alleged
symptoms; (2) whether the claimant takes medication or undergoes other
treatment for the symptoms; (3) whether the claimant fails to follow, without
adequate explanation, a prescribed course of treatment; and (4) whether the
alleged symptoms are consistent with the medical evidence.
Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir.2007). However, a negative credibility
finding made solely because the claimant’s symptom testimony “is not substantiated
affirmatively by objective medical evidence” is legally insufficient. Robbins v. Soc. Sec. Admin.,
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466 F.3d 880, 882 (9th Cir. 2006). Nonetheless, the ALJ’s credibility finding may be upheld
even if not all of the ALJ’s rationales for rejecting claimant testimony are upheld. See Batson,
359 F.3d at 1197.
Williams argues the ALJ erred by finding that his lack of consistent employment raised a
question as to whether Williams’ unemployment was actually due to his impairments. Tr. 16.
When evaluating the credibility of a claimant’s allegations, an ALJ is allowed to consider
whether the claimant had a poor work history prior to his alleged disability onset date. Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Here, the ALJ’s finding was based on substantial
evidence, as Williams’ last employment ended nearly two years before he allegedly became
disabled. Tr. 30-31. Williams argues that a person of his age (24) would not be expected to have
a “significant connection to the workforce,” but even assuming evidence could be interpreted to
support more than one interpretation of the record, the Court is bound to uphold the rational
interpretation of the ALJ. Batson, 359 F.3d at 1193. Williams further contends that his work
history was poor because he was in special education classes, but that spurious argument is
squarely contradicted by the record. See Tr. 42 (Williams recounting some of his favorite novels
during the hearing); 162 (self-report indicating Williams was not in special education classes).
Williams further contends that the ALJ erred by finding that his doctor concluded “that if
he did not require [narcotic] medication his pain must not be so great as he alleged.” Tr. 16-17.
Williams argues instead that he stopped taking Vicodin and Percocet because those medications
caused undesirable side effects. The ALJ’s finding, however, is supported by substantial
evidence: by April 2014, Williams’ treating provider noted that Williams was not on any
prescription pain medications, had not taken any pain medication the previous month and
expressed interest in using medical marijuana instead. Tr. 330. As above, the ALJ’s

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interpretation of the record was rational even if other interpretations are possible, and therefore
the ALJ’s finding is affirmed. Batson, 359 F.3d at 1193.
The ALJ provided a number of other reasons for impugning the credibility of Williams’
pain allegations which Williams does not contest on review. These include findings that despite
his allegedly debilitating shoulder pain, Williams reports he has somehow retained the ability to
golf, one of Williams’ providers expressed concern about secondary gain motivation, and despite
allegations of disabling concentration deficits, he reads novels for pleasure. See Tr. 17-18. The
ALJ also noted Williams’ pain complaints were not consistent with a number of objective
medical findings. Id. Williams has therefore waived argument on these issues. Because the ALJ
is only required to provide a single valid reason for rejecting a claimant’s pain complaints, any
one of the ALJ’s reasons would be sufficient to affirm the overall credibility determination.
Batson, 359 F.3d at 1196. Thus, on this record, the ALJ adequately impugned Williams’
complaints of disabling pain.
II. Lay Witness Testimony
Lay witness testimony regarding the severity of a claimant’s limitations is generally
competent evidence that an ALJ must consider. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.
1996). In order to reject lay witness testimony as to a claimant’s limitations, an ALJ must
provide reasons germane to each witness. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).
However, where, as here, the ALJ has provided clear and convincing reasons for rejecting the
claimant’s symptom testimony and the lay witness has not described limitations beyond those
alleged by the claimant, the failure to provide germane reasons for rejecting lay witness
testimony is harmless. Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012).

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The ALJ commented on both the third-party function report submitted by Williams’ wife,
and the separate letter she submitted post-hearing. Tr. 16. Regarding the third-party report, the
ALJ found that its contents were substantially similar to the adult function report submitted by
Williams. The ALJ found that the limitations set forth in the report did not establish limitations
beyond those outlined in the RFC.
Williams argues that the ALJ erroneously rejected the limitations in the third-party report
because several of the limitations were beyond the scope of the RFC, including difficulty
performing some personal care tasks and household chores, and struggles with pain that cause
impairments in concentration, attention, and memory. Pl.’s Br. 16. However, the ALJ reasonably
accounted for the level of limitation she described, as the RFC includes significant
accommodation for his right shoulder impairment, and contemplates deficits in understanding,
remembering, and carrying out tasks due to pain by limiting him to simple work. Tr. 15.
Williams further argues that the ALJ failed to account for limitations that Ms. Williams
noted relating to Williams’ alleged migraine headaches, including the need to recline and take
naps. However, the ALJ rejected similar allegations regarding migraines in her credibility
analysis. There, the ALJ found that although Williams alleged frequent and debilitating
migraines, he had not pursued one of the most common conservative treatments for migraines,
the medication Topamax. Tr. 14, 17, 35-36. Instead, Williams testified that he treats migraines
by taking Excedrin and caffeine, in the form of Red Bull beverages. Accordingly, any error in
failing to discuss the allegations with regard to Ms. Williams’ testimony was harmless. Molina,
674 F.3d at 1122.
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III. Migraine Headaches
Williams further argues that the ALJ generally failed to account for limitations arising
from his migraine headaches in formulating the RFC. Specifically, Williams contends that the
limitation to work involving no more than “simple instructions” failed to capture symptoms of
his migraine headaches. In support, Williams explains that his migraines interfere with his
“exertional abilities,” they require him to take breaks in his recliner with his eyes closed, and that
chemical exposure would exacerbate any migraine and cause excessive absenteeism.2 Pl.’s Br. 6.
The ALJ included chronic migraine headaches as a severe impairment in her decision. Tr.
12. Consistent with the ALJ’s assertion that migraines could interfere with cognitive and
exertional abilities, the ALJ’s RFC formulation limited him to less than a full range of light work
including numerous restriction to address his pain complaints, and no more than simple
instructions. Further, as discussed infra, the ALJ identified a sedentary job that Williams could
perform at step five. Tr. 19. Further eliminating any doubt regarding the propriety of the ALJ’s
analysis, treating physician Richard Hindmarsh, M.D., opined that Williams did not need to lie
down at unpredictable intervals during the day. Tr. 254.
Williams also submits that the ALJ “rejected out of hand” Dr. Hindmarsh’s opinion that
he would likely miss more than four days per month due to migraine symptoms. Pl.’s Br. 6-7.
The argument is without merit because the ALJ explicitly addressed the opinion, stating:
“Concerning expected absences, there is nothing of record such as failed work attempts to
support this provision.” Tr. 18. The ALJ’s finding was supported by Williams’ testimony at the
hearing, where Williams described a number of prior temporary jobs that he held prior to his

2

Williams’ assignment of error regarding chemical exposure as it relates to migraine headaches is taken up in
Section IV, infra.

8 - OPINION AND ORDER

onset date but well after his first shoulder surgery, and none of which ended because of
Williams’ alleged symptoms.
As such, none of the assignments of error regarding Williams’ migraine symptoms are
sufficient to disturb the ALJ’s rationales. Batson, 359 F.3d at 1193.
IV. Step Five, Other Work
At step five of the sequential evaluation process, the burden of proof shifts to the
Commissioner to identify other work in the national economy that a claimant is able to perform,
considering his age, work experience, and RFC. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999). In making the determination, the ALJ may rely on an impartial VE to provide testimony
about jobs the applicant can perform despite his limitations. Hill v. Astrue, 698 F.3d 1153, 1161
(9th Cir. 2012). The VE’s analysis is typically guided by the Dictionary of Occupational Titles
(DOT). Gutierrez v. Colvin, 844 F.3d 804 (9th Cir. 2016). “If the expert’s opinion that the
applicant is able to work conflicts with, or seems to conflict with, the requirements listed in the
[DOT], then the ALJ must ask the expert to reconcile the conflict before relying on the expert to
decide if the claimant is disabled.” Id. (citing SSR 00-4p, 2000 WL 1898704, at *2).
As a threshold matter, the Commissioner concedes that two of the three jobs the ALJ
identified at step five were erroneous: “final inspector of hand packaging processes” and
“parking toll collector.” Def.’s Br. 15. The Commissioner maintains, however, that the ALJ did
not err in identifying the job of “loader, semiconductor dies.” For the reasons that follow, the
Court agrees that ALJ’s finding was not erroneous.
Williams argues that the job of semiconductor die loader as described in the DOT is
different than the VE’s description of it. Indeed, there appears to be a substantial difference.
The DOT description of loader, semiconductor dies:

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Loads dies, using vacuum wand, into carriers that hold and protect dies during
fabrication of semiconductor packages: Pours dies from container onto filter
paper. Picks up and placed dies circuit-side up in indentations in carrier, using
vacuum wand. Secures lid on carrier, using manual pressure. May clean dies prior
to loading, using solutions and cleaning equipment. May sort semiconductor
devices to remove defective devices marked in inspection department.
DOT, # 726.687-030, available at 1991 WL 679937. The VE, in contrast, explained, “[the]
equipment is automated. [The semiconductor die loaders] monitor the loading process and watch
the gauges and switches.” Tr. 50. The VE further characterized the job as “visual, overseeing,
checking.” Tr. 52. Although Williams asserts that the VE did not report the conflict between the
DOT description of the job and his own understanding of it, the record reflects that the VE both
noted the inconsistency and elaborated on it, noting than an individual could perform tasks with
one arm, even assuming the arm was non-dominant, because the processes described in the
description are now automated. Tr. 50-51. Accordingly, the inconsistency between the VE’s
testimony and the DOT description was adequately addressed.
Williams further argues that the DOT description for semiconductor die loader requires
constant reaching, handling, and fingering, which is inconsistent with his RFC. The VE
explained, however, that the job could be performed even if the worker was limited to reaching,
pushing and pulling, with the non-dominant arm. Tr. 51. The VE indicated the deviation from the
DOT, and stated that his testimony was based on his analysis of the job. Id. As such, the VE
identified the conflict between his testimony and that of the DOT, and provided relevant
information to reconcile the discrepancy prior to the ALJ’s reliance on it. The Court notes further
that the semiconductor die loader job is classified as sedentary; thus, removing automation from
the equation, the job requires physically manipulating no more than ten pounds at a time. 20
C.F.R. § 416.967(a). Considering the added assistance of automated processes, there is no
indication that Williams would be required to use his non-dominant hand to reach, handle, or
10 - OPINION AND ORDER

finger, based on the testimony of the VE. The ALJ adequately resolved the apparent
inconsistency.
Moreover, the RFC reflects that when Williams’ non-dominant arm is “supported close to
his body,” he was not limited at all in handling, fingering, or feeling. Although Williams argues
that there is “no explanation what the functional limitation for ‘supported close to the body”
entails, the argument is inapposite, based on the testimony of the VE that the position could be
adequately performed with one arm, even assuming the arm was non-dominant.
Similarly, Williams argues, albeit with regard to the job of toll collector, that the ALJ
failed to account for diminished productivity if a hypothetical worker was limited to using only
one arm. Pl.’s Br. 14-15. Although the ALJ and VE did not explicitly invoke the term
“productivity” during the hearing, the VE clearly stated that, “[f]olks seem to manage quite well
in these occupations and there’s [sic] several others that are similar with a stationary work area, a
[non] dominant arm that can handle the task.” Tr. 51. The VE’s assertion, in context, is
consistent with his opinion that the semiconductor die loader job could be adequately performed
based on Williams’ RFC. Id. Further, to the extent the issue of productivity represents a conflict,
the conflict is not “obvious or apparent,” particularly considering the VE’s statements about the
adequacy of a limitation to a single upper extremity. See Gutierrez, 844 F.3d at 808. Because the
ALJ was entitled to rely on the VE’s experience in his field to account for the job at issue, he did
not err by failing to inquire explicitly about productivity requirements. See id. at 809.
Finally, Williams argues the ALJ failed to resolve an apparent conflict between the DOT
and the VE testimony with regard to exposure to toxic chemicals. Specifically, Williams
contends that Dr. Hindmarsh limited him to “avoid concentrated exposure” to chemicals, while
the DOT contemplates that the semiconductor die loader job entails “occasional” exposure to

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toxic or caustic chemicals. See Tr. 255; DOT # 726.687-030. As noted above, however, in order
for an apparent conflict to be cognizable, it must be obvious or apparent. Gutierrez, 844 F.3d at
808. While Dr. Hindmarsh indicated Williams should avoid “concentrated exposure” to
chemicals, he declined to opine that Williams should avoid “moderate exposure” or “no
exposure” to chemicals. Tr. 255. Accordingly, because the VE’s testimony was not obviously or
apparently contrary to the DOT, the ALJ’s duty to resolve the issue was not triggered. Gutierrez,
844 F.3d at 808; see also Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017) (requirement
for an ALJ to ask follow up questions is fact-dependent). Here, the record contains substantial
evidence that Williams can tolerate up to moderate exposure to chemicals, which is not
obviously at odds with “occasional” exposure. Tr. 255. Considering the VE’s testimony that the
workplace tasks of the semiconductor die loader are now automated, the likelihood of an
apparent conflict is even further diminished. The ALJ did not err.
CONCLUSION
The ALJ’s decision is free of harmful legal error and is supported by substantial
evidence. The Commissioner’s final decision is therefore AFFIRMED.
IT IS SO ORDERED.

DATED this 9th

day of April 2018.

s/Michael J. McShane
Michael McShane
United States District Judge

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