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)

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