McCleary v. Commissioner Social Security Administration

Filing 21

Opinion and Order signed on 11/16/2017 by Judge Robert E. Jones. The Commissioner's final decision is AFFIRMED. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

SCOTT MCCLEARY,

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Plaintiff,

6:16-CV-01848-JO

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v.

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NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
JONES, District Judge,

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OPINION AND ORDER

Plaintiff Scott McCleary appeals the Commissioner's decision denying his concurrent
applications for disability insurance benefits and supplemental security income under Titles II and
XVI of the Social Security Act. The court has jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the
Commissioner's decision.
PRIOR PROCEEDINGS

McCleaiy alleged disability beginning February 1, 2012, due to pain in the back, hip, and
right knee.

Admin. R. 23, 165, 172, 180, 223.

The ALJ applied the sequential disability

determination process described in 20 C.F .R. sections 404.1520 and 416.920. See Bowen v. Yuckert,
482 U.S. 137, 140 (1987).

The ALJ found McCleaiy's ability to perform basic work activities

adversely affected by obesity, mild degenerative disc disease in the lumbar spine, osteoarthritis in

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OPINION AND ORDER

the right hip, and migraines. Admin. R. 26. The ALI found that, despite these impairments,
McCleary retained the residual functional capacity ("RFC") to perform a range oflight work with
limited climbing, limited postural activities such as balancing, stooping, kneeling, and so forth, and
not even moderate exposure to workplace hazards. Admin. R. 27.
The vocational expert ("VE") testified that a person having McCleary' sage, education, work
experience, and RFC could perform the activities required in light, unskilled occupations such as
electronics worker, assembler of electrical accessories, and bench assembler, which represented
approximately 245,000 jobs in the national economy. Admin. R. 30, 57-58. The ALJ concluded that
McCleary was not disabled within the meaning of the Social Security Act. Admin. R. 31.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings of fact are supported by substantial evidence in the record as a whole.
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Substantial evidence is relevant

evidence that a reasonable person might accept as adequate to support a conclusion. Richardson v.
Perales, 402 U.S. 389, 401 (1971). Substantial evidence may be less than a preponderance of the

evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Under this standard, the
court must consider the record as a whole, and uphold the Commissioner's factual findings that are
supported by inferences reasonably drawn from the evidence, even if another interpretation is also
rational. Robbins, 466 F.3d at 882; Batson v. Comm 'r ofSoc. Sec. Admin., 359 F.3d 1190, 1193 (9th
Cir. 2004); Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995).
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OPINION AND ORDER

ASSIGNMENTS OF ERROR
The plaintiff bears the burden of showing that the ALJ erred and that any error was harmful.
McLeod v. Astrue, 640 F.3d 881, 886-87 (9th Cir. 2011). McCleary contends the ALJ improperly

evaluated his subjective symptoms and the opinion of orthopedic surgeon Craig Mohler, M.D.
McCleary contends these errors led the ALJ to elicit testimony from the VE based on assumptions
that did not accurately reflect his functional limitations and to erroneously conclude that he was not
disabled.
DISCUSSION
I.

Subjective Symptoms

In his application, McCleary alleged that he suffered back pain, leg pain, and hip pain since
being hit by a car while walking in 1994. Admin. R. 196, 222. He alleged these impairments
worsened gradually until they became disabling in February 2012. Admin. R. 197. He said he could
not work due to constant pain in the back, hip, and right knee. Admin. R. 223. He could walk about
two blocks before he needed to stop and rest. Admin. R. 228.
At the administrative hearing, McCleaiy testified that limitations in his ability to move due
to back and joint pain prevented him from working. His hip pain was gone after hip replacement
surgery in June 2014. His migraines, which he had experienced since long before the alleged onset
of disability, were controlled by medication. Admin. R. 47, 49. He said he could comfortably lift
40 to 50 pounds, but carrying as little as five pounds was difficult. McCleaiy said he could walk
about one and a half blocks without pain, but had to stop to rest for a few minutes every block or
two. Admin. R. 46-47.

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OPINION AND ORDER

The ALJ accepted that McCleary's obesity, mild degenerative disc disease in the lumbar
spine, osteoarthritis in the right hip, and migraines adversely affected his ability to perform basic
work activities. Admin. R. 26. She found, however, that McCleary failed to show that his pain was
so intense and persistent that it precluded him from engaging in work requiring light exertion with
limited climbing, postural activities, and exposure to workplace hazards. Admin. R. 27.
When a claimant produces objective medical evidence of an underlying impairment that
could reasonably be expected to produce the symptoms alleged and no affirmative evidence of
malingering exists, the ALJ must evaluate the severity, persistence, and frequency of the subjective
symptoms. The ALJ is not to engage in wide-ranging scrutiny of the claimant's character, but to
focus on the intensity and persistence of his symptoms. Treviso v. Berryhill, 862 F.3d 987, 1000 n.5
(9th Cir. 2017); Social Security Ruling (SSR) 16-3p available at 2016 WL 1119029 (2016).
A determination that the claimant's symptoms are less debilitating than subjectively claimed
must include specific findings supported by substantial evidence and a clear and convincing
explanation of the ALJ's reasoning. Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 1155, 1160
(9th Cir. 2008); Smolen v. Chafer, 80 F.3d 1273, 1281-82 (9th Cir. 1996). The findings must be
sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant's statements. Tommasetti v. Astrue, 533 F.3d at 1039.
In making findings about the severity of subjective symptoms, an ALJ must consider all the
evidence in the case record, including the objective medical evidence, the claimant's treatment
history, daily activities, work history, the observations of third parties with knowledge of the
claimant's functional limitations, and any other evidence that bears on the consistency and veracity
of the claimant's statements about his symptoms. Tommasetti at 1039; Smolen, 80 F3d at 1284.
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OPINION AND ORDER

The ALJ' s decision demonstrates that she performed a thorough review of all the evidence
relating to proper factors for evaluating the intensity, persistence and limiting effects ofMcCleary's
symptoms. She discussed the objective medical evidence and found it did not support the degree of
limitation McCleary alleged.

The absence of medical evidence cannot be the sole basis for

discrediting subjective symptoms, but remains a proper factor in assessing the severity, intensity,
persistence, and limiting effects of subjective symptoms. Lingenfelter v. Astrue, 504 F.3d 1028,
1040 (9th Cir. 2007); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Morgan v. Comm 'r of
Soc. Sec. Admin., 169 F .3d 595, 600 (9th Cir. 1999).

With respect to McCleary's hip pain, the objective evidence showed severe osteoatihritis
initially, before hip replacement surge1y, but no basis for limitation afterwards. In April 2014,
diagnostic imaging showed advanced osteoatihritis in the right hip with bone on bone articulation.
Admin. R. 310.

In June 2014, Craig Mohler, M.D., performed a hip replacement without

complications. When Kyle Home1igen, D.0., saw McCleary for a follow up ten days later,
McCleary was ambulating with crutches and said his pain was improving. Admin. R. 315. Three
months post op, McClemy denied hip pain, walked without a limp using a cane for balance, and had
only a slight limp without the cane. Adrnin. R. 298. At the administrative hearing, McCleary
testified that, after his hip replacement, the pain was gone from the hip. Admin. R. 47.
With respect to his low back pain, diagnostic imaging in August 2013 showed mild
narrowing of the L5-S 1 disc space, with all other disc heights normal. Lnrnbar alignment was
n01mal and there were no vertebral compression fractures. Admin. R. 274. Andrea Marshall, D.O.,
perfo1med a physical examination in which McCleary moved, sat, removed his shoes, and got on and
off the examination table without difficulty. His tandem gait, toe walking, and squatting were within
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OPINION AND ORDER

normal limits. He had a normal straight leg raise while seated and good motor strength. He had
subjective pain while heel walking, hopping, and doing supine leg raises. Dr. Marshall believed
these objective findings suggested McCleary could stand and walk for up to six hours, sit without
limitation, lift and carry 50 pounds frequently, and engage in frequent postural activities. Admin.
R. 270-273. In August 2014, McCleary told Dr. Homertgen that he had increased back pain after

hip replacement surgery, but Dr. Homertgen's findings were generally within normal limits except
that McCleaiy was morbidly obese. Admin. R. 314-315, 392. Over the ensuing months, McCleary
continued to complain of non-radiating back pain, but Dr. Homertgen's examinations found little
in the way of objective findings, other than a decrease in lumbar range of motion and obesity.
Admin. R. 313, 342, 392. In June 2015, an MRI of the lumbar region of the spine showed mild
degenerative changes without disc herniation or spinal steno sis. Admin. R. 395. In September 2015,
further diagnostic imaging showed mild to moderate facet arthropathy at L4-L5 and L5-S 1, but
McCleary's spine maintained normal lumbar alignment, vertebral body heights, and disc spaces.
Admin. R. 387. After viewing the diagnostic imaging, a neurosurgical consultant declined to offer
treatment. Admin. R. 396.
Similarly, with regard to McC!eary's knee pain, at her examination in August 2013, Dr.
Marshall obtained diagnostic imaging that showed no significant degenerative chapges or other
abnormality. Admin. R. 275.
The ALJ could reasonably expect the disabling limitations McCleary claimed to be reflected
in significant objective findings. McC!eary's medical records include only mild objective findings
which support the ALJ's assessment of his subjective symptoms. Lingenfelter, 504 F.3d at 1040;
Burch, 400 F.3d at 681; Morgan, 169 F.3d at 600.
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OPINION AND ORDER

The ALJ also considered McCleary's treatment record which showed there were large gaps
during which McCleary did not require treatment. Admin. R. 28. An unexplained or inadequately
explained failure to seek treatment is a proper factor in assessing a claimant's subjective symptoms,
including the extent to which the claimant was in pain. Burch, 400 F.3d at 681, Bruton v.

Massanari, 268 F.3d 824, 828 (9th Cir. 2001). Here, McCleary alleged disability beginning in
February 2012, but did not seek treatment for any of his allegedly disabling symptoms until February
2014. Admin. R. 28, 283. An ALJ can reasonably expect a claimant with disabling pain to require
treatment and infer from large gaps in treatment that the claimant's pain level was less than
debilitating. The type oftreatment a claimant receives is also a proper factor in assessing the severity
of subjective symptoms. Burch, 400 F.3d at 681; Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir.
2007). McCleary's treatment histmy shows that, with the exception of hip replacement surge1y, he
received very conservative treatment limited to medication, physical therapy, and weight loss
counseling.
The ALJ also found that McCleary' s most limiting symptoms were improved with treatment.
Admin. R. 26, 28-29. Impairments that are effectively controlled by medication or other treatment
are not disabling. Tommasetti, 533 F3d at 1040; Warre v. Comm 'r of Soc. Sec. Admin., 439 F.3d
1001, 1006 (9th Cir. 2006). As noted previously, hip replacement surgery relieved McCleary's hip
pain. Admin. R. 47, 297, 299, 314. McCleary also alleged he had suffered from migraines for years
before he became unable to work. The ALJ noted that McCleary said Imitrex effectively relieved
his symptoms. Admin. R. 29, 342-343.
The ALJ also relied on McCleary's reported daily activities in assessing his subjective
symptoms. Admin. R. 26. When a claimant engages in daily activities that are inconsistent with his

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OPINION AND ORDER

asserted limitations, an ALJ may properly draw an adverse inference as to the asserted limitations.

Molina v. Astrue, 674 F.3d 1103, 1112-1113 (9th Cir. 2012); Rollins v. Massanari, 261 F.3d 853,
857 (9th Cir. 2001). The ALJ noted that, even before hip replacement surgery, McCleary was
independent in personal care, washed dishes, cleaned floors, did yard work, picked up cans and
bottles to earn cash, mowed lawns, performed repairs, went fishing and took walks. Admin. R. 26,
224-227. After recovering from surgery, McCleary reported walking around town to get exercise.
Admin. R. 50. In August 2014, he reported walking two miles a day. Admin. R. 314. While these
activities are not equivalent to full time work, the ALJ could reasonably infer that they were
inconsistent with the totally debilitating pain that McCleaty claimed.
The ALJ also considered the opinions of consultative examiners. Admin. R. 28. As noted
previously, even before hip replacement surgery, Dr. Marshall examined McCleary and obtained
findings that led her to opine that he could stand and walk for up to six hours, sit without limitation,

lift and carry 50 pounds frequently, and engage in frequent postural activities. Admin. R. 270-273.
The ALJ's evaluation of McCleary's subjective symptoms is supported by inferences
reasonably drawn from the record. The decision provides an adequate basis for the court to conclude
that the ALJ did not discredit McCleary's subjective statements arbitrarily. TheALJ provided aclear
and convincing explanation that is supported by the record. Tommasetti, 533 F.3d at 1039; Batson,
359 F.3d at 1193; Thomas, 278 F3d at 958.

II.

Dr. Mohler's Opinion
As described previously, Dr. Mohler performed hip replacement surgety without

complications in June 2014, and McCleary reported that his hip pain was gone at his three month
follow up in August 2014. Admin. R. 29, 297, 302-303. During the interim, on July 17, 2014, Dr.
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OPINION AND ORDER

Mohler completed a Residual Functional Capacity Questionnaire indicating that pain and stiffness
following McCleary's hip replacement surge1y would require him to take frequent unscheduled
breaks, limit his standing and walking to five minutes at a time, limit sitting to fifteen minutes at a
time, interfere with attention and concentration, cause frequent absences from work, and preclude
him from working a full time schedule. Admin. R. 277-278. The ALI gave Dr. Mohler's
questionnaire little weight in assessing McCleaiy's RFC. Admin. R. 29.
An ALJ may discount the opinion of a treating physician that is contradicted by another
doctor's opinion by providing specific and legitimate reasons that are supported by substantial
evidence. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); Thomas v. Barnhart, 278 F.3d
947, 957 (9th Cir. 2002). An uncontradicted opinion may be rejected for clear and convincing
reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9tlt Cir. 2005); Thomas, 278 F3d at 956-57.
Here, the ALJ did not say Dr. Mohler's opinion was wrong, she simply found that his
questionnaire responses described McCleary's limitations before he had fully recovered from hip
replacement surge1y. Admin. R. 29. The ALJ found that Dr. Mohler's later treatment notes, other
medical evidence, and the record as a whole showed that McCleary continued to improve after Dr.
Mohler completed his questionnaire in July. Admin. R. 29. This conclusion is supported by
McCleary' s own statements indicating his hip pain was gone after his hip replacement, medical
records of his recovery showing that he weaned off of oxycodone and off of reliance on a cane, and
his ability to engage in a wide range of activities, including the ability to walk for miles on a daily
basis, within a few months after surgery. Admin. R. 29, 46, 50, 51, 297, 299, 314, 342.
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OPINION AND ORDER

The ALJ's reasons for giving Dr. Mahler's opinion diminished weight in assessing
McCleary's RFC are clear and convincing and supported by substantial evidence. Bayliss v.
Barnhart, 427 F.3d at 1216.

Ill.

Step Five Determination
At step five of the decision-making process, the Commissioner must show that jobs exist in

the national economy that a person having the functional limitations of the claimant can perform.
Yuckert, 482 US at 141-42; 20 C.F.R. §416.920(g). The ALJ can satisfy this burden by eliciting the
testimony of a vocational expert with a hypothetical question that sets forth all the limitations of the
claimant. Andrews, 53 F3d at 1043. Here the ALJ elicited testimony based on hypothetical
assumptions reflecting the limitations in McCleary's RFC assessment. Admin. R. 56-57.
McCleary contends the ALJ's hypothetical assumptions did not accurately reflect all of his
limitations because the ALJ did not include the limitations from Dr. Mahler's questionnaire. The
ALJ properly evaluated Dr. Mohler' s questionnaire and excluded limitations that she found
unsupported by the record as a whole. An ALJ is not required to incorporate additional limitations
she found unsupported by the record. Batson, 359 F3d at 1197-98; Osenbrock v. Apfel, 240 F3d
1157, 1163-65 (9th Cir 2001); Magallanes v. Bowen, 881 F2d 747, 756-57 (9th Cir 1989).
McClea1y's additional argument, that the jobs identified by the VE req11ired exposure to
workplace hazards contra1y to McCleary's RFC assessment has no merit. The job descriptions in
the Dictionary of Occupational Titles do not indicate that any of the three jobs require exposure to
workplace hazards.
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OPINION AND ORDER

CONCLUSION

The ALJ properly evaluated all the evidence and reached rational conclusions based on
inferences reasonably drawn from the record as a whole. Even if the evidence in this case record
could be interpreted differently, in a manner more favorable to McClemy, the court is not free to
overturn an ALJ's factual determinations on the basis that "the evidence is susceptible to more than
one rational interpretation." Andrews, 53 F.3d at 1039; Batson, 359 F.3d at 1193.
For the foregoing reasons, the Commissioner's final decision is AFFIRMED.
DATED this

.$
I it· dayofNovember,2017.

Unit

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OPINION AND ORDER

)Jones.
States District Judge