Payne v. Commissioner Social Security Administration

Filing 23

ORDER: The decision of the Commissioner is affirmed. Signed on 11/13/2017 by Magistrate Judge Thomas M. Coffin. (ck)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PAMELA RAE PAYNE, Plaintiff, No. 6:16-cv-2207-TC v. ORDER Commissioner of Social Security, Defendant. Plaintiff brings this proceeding to obtain judicial review of the Commissioner's final decision denying plaintiff's applications for a period of disability, disability insurance benefits and supplemental security income benefits. The ALJ found that plaintiff had the impairments: degenerative disc disease, following severe carpal tunnel syndrome , osteoarthritis, and a history of recurring gastritis and urinary tract infections. 1 - ORDER TR. 14. At Step Four of the Disability Analysis, the ALJ found that plaintiff could perform her past relevant work as a sales person as it was generally performed in the national economy. to the Step Four finding, As a predicate the ALJ determined plaintiff had the Residual Functional Capacity (RFC) to perform a reduced range of light work, including the restriction that, due to occasional symptoms of urinary incontinence, plaintiff required "close, ready access to a restroom at all times." TR. 15. Plaintiff contends that the ALJ erred in his Step Four analysis, and in assessing the medical opinions and plaintiff's testimony. I. The ALJ' s Step Four Finding Is Not Contrary to Law And Is Supported by Substantial Evidence A plaintiff has the burden of showing they can no longer perform their past relevant work their past relevant work, - if they are able to perform they are not disabled. Barnharrt v. Thomas, 540 U.S. 20, 25 (2003). The ALJ made a reasonable translation of the medical evidence regarding plaintiff's symptoms from it into a concrete Commissioner , functional 807 F.3d 996, urinary incontinence and put limitation. 1006 (9th Cir. Rounds 2015) v. ("the ALJ is responsible for translating and incorporating clinical findings into a succint RFC") . The ALJ compared the RFC finding to plaintiff's past work as a sales clerk and determined plaintiff 2 - ORDER could perform that work "as generally performed, according to the Dictionary of Occupational Titles [DOT)." Tr. 19. In addition to the ALJ' s application of the DOT, the Vocational Expert also testified an individual with plaintiff's RFC could perform sales work. Tr. 53. The ALJ did not need to and did not rely on this testimony that supports the ALJ's finding. testimony at Step Four is "useful, but not required." Shalala I 10 F. 3d 678, 681 (9th Cir. 1993). VE Matthews v. The ALJ' s own comparison of the plaintiff's ability with the description of the sales clerk job in the DOT is enough. 249 F.3d 840, 845 (9~ Cir. 2001) See , Pinto v. Commissioner, ("the best source for how a job is generally performed is usually the DOT") . The VE also provided subsequent, response to questions from additional testimony in plaintiff's attempts to use this additional, Plaintiff attorney. unnecessary testimony to argue that the ALJ' s Step Four finding was in conflict with the VE' s additional testimony regarding plaintiff's bladder symptoms. However, defendant persuasively argues that plaintiff's argument is based on functional limitations that appropriate RFC that the ALJ found. ALJ's acknowledge "failure explanation to to reconcile this were not present in the Plaintiff contends or provide testimony and the an that the adequate RFC precludes judicial review as to whether the ALJ's Step Four denial is based upon substantial evidence." 3 - ORDER P. 8 of Plaintiff's Memo. Plaintiff cites no authority suggesting an ALJ must discuss vocational expert testimony regarding restrictions not included in the RFC finding and no such authority exists. Plaintiff also states that "the description of the plaintiff's past relevant work as generally performed in the DOT is facially inconsistent with the RFC." P. 7 of Plaintiff's plaintiff facially does not actually inconsistent explain with the DOT' s how the Memo. RFC However, finding description of the was sales person work and the Commissioner asserts no such conflict exists. Plaintiff did not file an optional Reply brief. Plaintiff has not shown how the ALJ erred in his comparison of plaintiff's ability with the requirements of the sales person job. The ALJ' s findings were not contrary to law and substantial evidence supported the ALJ's finding that plaintiff could perform her past relevant work. II. The ALJ Did Not Err in the Evaluation of Opinion Evidence Plaintiff argues that "[d]espite purporting to give dispositive weight to the physical capacity evaluation opinion, the ALJ's RFC does not incorporate the 15 pound lifting restriction and does not explain why." incorrect. The ALJ did P. 12 of Plaintiff Memo. not give dispositive assessment, but instead gave it "partial weight," Plaintiff is weight. to this " crediting it only to the extent that it supported a limitation to light work." 4 - ORDER Tr. 18. The functional limitation in the assessment, including the limitation to 15 pounds lifting, is only slightly less than the 20 pound lifting requirement for light level work included in the RFC finding. Although partial weight was afforded this assessment because it was close to the ALJ' s RFC finding, the specific restrictions contained in the physical capacity assessment were rejected because of plaintiff's non-credible pain behavior. The ALJ's reasons to reject that part of the opinion of the evaluating therapist were adequate in that the reasons were specific and germane. Plaintiff also asserts that the ALJ erred in the evaluation of the opinion of plaintiff's treating physician, Dr. Wang. discussed and gave little weight to his The ALJ opinion and gave more weight to the opinions of examining and non-examining physicians finding that plaintiff could perform at a light level of exertion. Tr. 17-19. The opinions of a treating physician are entitled to greater weight than an examining physician , and an opinion of an examining physician is entitled to greater weight than the opinion of a nonexamining physician. Ryan v. Commissioner, 157 F.3d 1194, 1198 (9th Cir. 2008). If a treating or examining doctor's opinion is contradicted by another doctors' s opinion, the ALJ may only reject it by providing specific and legitimate reasons that are supported by 5 - ORDER substantial evidence. Lester v. Charter , 81 F.3d 821 (9th Cir. 1995). Defendant persuasively argues that the reasons provided by the ALJ to discount plaintiff Wang's opinion were specific and legitimate reasons and supported by substantial evidence The ALJ provided several inconsistencies in Dr. independent reasons Wang's materials, such as internal conflicts between the opinion and plaintiff's activities of daily living, and opinion was not supported by the medical evidence. that the Among the examples given by the ALJ for the latter reason, the ALJ cited Dr. Lewis' 2013 consultative examination which revealed a "fairly benign" physical examination and a number of positive Waddell' s signs 1 • Tr. 17, Tr. 771-772. This evidence contradicted Dr. Wang's opinion and provided a specific and legitimate basis for rejecting his conclusions. Although plaintiff argues the record was consistent with Dr. Wang's opinion, plaintiff, at most, presents a contrary interpretation of the record that is not sufficient to rebut the ALJ's reasonable conclusions. F. 3d 853, reasonable 857 (9th Cir. interpretation See , 2001) (so that Rollins v. Massinari , long is as 261 the ALJ presents supported by a substantial "'Physicians use Wadell tests to detect nonorganic sources, such as psychological conditions or malingering, for lower back pain." Reinertson v. Barnhart , 127 Fed. Appx. 285, 289 (9th Cir. 2005) 6 - ORDER evidence, a court may not "second guess" it) The ALJ . did provided specific and legitimate reasons based on substantial evidence to discount the opinion of Dr. Wang. III. The ALJ Did Not Err in Assessing Plaintiff's Testimony The ALJ found plaintiff's subjective statements were not credible. Tr. 16. Rejection of plaintiff's testimony generally requires cle'ar and convincing reasons in absence of evidence of malingering. Cir. Valentine v. Commissioner , 2009). The ALJ offered several, 57 4 F. 3d 685, independent convincing reasons for finding plaintiff not credible, 693 (9th clear and including that the medical record did not establish a disabling level of impairment, and that the positive Waddell's signs found in Lewis examination suggested plaintiff's pain complaints. these reasons and they a Tr. 17. are "non-organic" Dr. component to Plaintiff did not challenge sufficient to uphold the ALJ.ts credibility findings. Plaintiff does argue that the ALJ erred in his credibility assessment history." by failing This to consider argument is plaintiff's insufficient to "exemplary work rebut the ALJ' s credibility determination in the circumstances of this case. assuming the ALJ erred as plaintiff suggests, Even the unchallenged independent reasons mentioned above make any such error harmless. See, Batson v, Commissioner, 359 F.3d 1190, 1197 (9th Cir. 2004). 7 - ORDER The ALJ gave clear and convincing reasons for rejecting plaintiff's testimony that were as based on substantial evidence. CONCLUSION The decision of the Commissioner is affirmed and this action is dismissed. DATED this ('j~ day of November, 2017. United States Ma istrate Judge 8 - ORDER

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