Payne v. Commissioner Social Security Administration
ORDER: The decision of the Commissioner is affirmed. Signed on 11/13/2017 by Magistrate Judge Thomas M. Coffin. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PAMELA RAE PAYNE,
Commissioner of Social Security,
Plaintiff brings this proceeding to obtain judicial review of
the Commissioner's final decision denying plaintiff's applications
period of disability,
supplemental security income benefits.
The ALJ found that plaintiff had the
impairments: degenerative disc disease,
carpal tunnel syndrome ,
osteoarthritis, and a history of recurring gastritis and urinary
1 - ORDER
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
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.
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.
Thomas, 540 U.S. 20, 25 (2003).
The ALJ made a reasonable translation of the medical evidence
regarding plaintiff's symptoms from
807 F.3d 996,
urinary incontinence and put
("the ALJ is
responsible for translating and incorporating clinical findings
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.
the ALJ' s
Vocational Expert also testified an individual with plaintiff's RFC
could perform sales work.
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."
comparison of the plaintiff's ability with the description of the
sales clerk job in the DOT is enough.
249 F.3d 840, 845
See , Pinto v. Commissioner,
("the best source for how a job
is generally performed is usually the DOT") .
The VE also provided subsequent,
additional testimony in
attempts to use this additional,
unnecessary testimony to argue
that the ALJ' s Step Four finding was in conflict with the VE' s
However, defendant persuasively argues that plaintiff's argument is
based on functional
appropriate RFC that
the ALJ found.
were not present in the
testimony and the
judicial review as to whether the ALJ's Step Four denial is based
upon substantial evidence."
3 - ORDER
P. 8 of Plaintiff's Memo.
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
description of the
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
were not contrary to law and substantial
evidence supported the ALJ's finding that plaintiff could perform
her past relevant work.
The ALJ Did Not Err in the Evaluation of Opinion Evidence
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."
12 of Plaintiff Memo.
assessment, but instead gave it "partial weight,"
" crediting it
only to the extent that it supported a limitation to light work."
4 - ORDER
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
restrictions contained in the physical capacity assessment were
rejected because of plaintiff's non-credible pain behavior.
ALJ's reasons to reject that part of the opinion of the evaluating
therapist were adequate
in that the
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
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.
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
If a treating or examining doctor's opinion is contradicted
providing specific and legitimate reasons that are supported by
5 - ORDER
substantial evidence. Lester v. Charter , 81 F.3d 821
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
inconsistencies in Dr.
conflicts between the
opinion and plaintiff's activities of daily living, and
supported by the medical
examples given by the ALJ for the latter reason, the ALJ cited Dr.
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
Although plaintiff argues the record was consistent with Dr.
interpretation of the record that is not sufficient to rebut the
ALJ's reasonable conclusions.
F. 3d 853,
Rollins v. Massinari ,
the ALJ presents
"'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.
6 - ORDER
evidence, a court may not "second guess" it)
did provided specific and legitimate reasons based on
substantial evidence to discount the opinion of Dr. Wang.
The ALJ Did Not Err in Assessing Plaintiff's Testimony
The ALJ found plaintiff's subjective statements were not
Rejection of plaintiff's testimony generally
requires cle'ar and convincing reasons in absence of evidence of
Valentine v. Commissioner ,
57 4 F. 3d 685,
convincing reasons for finding plaintiff not credible,
that the medical record did not establish a disabling level of
impairment, and that the positive Waddell's signs found in
plaintiff's pain complaints.
Plaintiff did not challenge
Plaintiff does argue that the ALJ erred in his credibility
the ALJ' s
credibility determination in the circumstances of this case.
assuming the ALJ erred as plaintiff suggests,
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.
The decision of the Commissioner is affirmed and this action
day of November, 2017.
United States Ma istrate Judge
8 - ORDER
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