Polston v. Commissioner Social Security Administration

Filing 23

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. IT IS SO ORDERED. Signed on 3/8/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ELYSE S. POLSTON,
Plaintiff,
v.
Commissioner, Social
Security Administration,
Defendant.

KATHRYN TASSINARI
MARK A. MANNING
Harder, Wells, Baron, & Manning, P.C.
474 Willamette, Suite, 200
Eugene, OR 97401
[phone]
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
Michael W. Pile
Acting Regional Chief Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, M/A 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
1 - OPINION AND ORDER

6:17-CV-00273-BR
OPINION AND ORDER

BROWN, Senior Judge.
Plaintiff Elyse S. Polston seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Disability Insurance Benefits (DIB) and Supplemental Security
Income (SSI) under Titles II and XVI of the Social Security Act.
This Court has jurisdiction to review the Commissioner's final
decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.
ADMINISTRATIVE HISTORY
Plaintiff filed an application for DIB and SSI on
January 29, 2013, alleging a disability onset date of October 1,
Tr. 17.1

2011.

reconsideration.

The application was denied initially and on
An Administrative Law Judge (ALJ) held a

hearing on June 23, 2015.

Tr. 44-85.

by an attorney at the hearing.

Plaintiff was represented

Plaintiff and a vocational expert

(VE) testified.
The ALJ issued a decision on July 27, 2015, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 17-30.

Pursuant to 20 C.F.R. § 404.984(d),

that decision became the final decision of the Commissioner on

1

Citations to the official transcript of record filed by
the Commissioner on July 28, 2017, are referred to as "Tr."
2 - OPINION AND ORDER

December 19, 2016, when the Appeals Council denied Plaintiff's
request for review.

Tr. 1-4.

See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).
BACKGROUND
Plaintiff was born on August 10, 1989, and was 25 years old
at the time of the hearing.
school.

Tr. 223.

Tr. 209.

Plaintiff completed high

Plaintiff previously worked at a call center

dialing telephones and performing general work in a kitchen.
Tr. 223.
Plaintiff alleges disability due to morbid obesity and
lymphedema.

Tr. 222.

Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 20-28
STANDARDS

The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate her

inability "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."
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

3 - OPINION AND ORDER

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).

42

See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”

Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).

"It is more than a mere scintilla [of

evidence] but less than a preponderance."
574 F.3d at 690).

Id. (citing Valentine,

'

The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the

4 - OPINION AND ORDER

record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).
DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

See also 20 C.F.R. §§ 404.1520, 416.920.

Each step is

potentially dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(b).

See also

Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii), 416.920©).

20 C.F.R. §§ 404.1509,

See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
5 - OPINION AND ORDER

20 C.F.R.

See also Keyser, 648

F.3d at 724.

The criteria for the listed impairments, known as

Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§§ 404.1520(e), 416.945(a).
(SSR) 96-8p.

See also Social Security Ruling

“A 'regular and continuing basis' means 8 hours a

day, for 5 days a week, or an equivalent schedule."
at *1.

20 C.F.R.

SSR 96-8p,

In other words, the Social Security Act does not require

complete incapacity to be disabled.

Taylor v. Comm’r of Soc.

Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
416.920(a)(4)(iv).

20 C.F.R. §§ 404.1520(a)(4)(iv),

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a)(4)(v).

20 C.F.R. §§ 404.1520(a)(4)(v),

See also Keyser, 648 F.3d at 724-25.

Here the

burden shifts to the Commissioner to show a significant number of

6 - OPINION AND ORDER

jobs exist in the national economy that the claimant can perform.
Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
Cir. 2010).

The Commissioner may satisfy this burden through the

testimony of a VE or by reference to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.

If the Commissioner meets this burden,

the claimant is not disabled.

20 C.F.R. §§ 404.1520(g)(1),

416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff had not engaged in
substantial gainful activity since the alleged onset date of
October 1, 2011.

Tr. 19.

At Step Two the ALJ found Plaintiff has the severe
impairments of lymphedema and morbid obesity.

Tr. 19.

The ALJ

found Plaintiff’s depressive disorder, hypertension, tachycardia,
and sleep apnea are nonsevere impairments.

Tr. 20-22.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments during the relevant period did not meet
or medically equal one of the listed impairments in 20 C.F.R.
part 404, subpart P, appendix 1.

Tr. 22.

The ALJ found during

the relevant period Plaintiff had the RFC to perform sedentary
work except:
[S]he would be able to sit more than 6 hours in an
8 hour day, but can stand/walk for 1 hour in an 8
hour day. She can do no climbing of ramps,
7 - OPINION AND ORDER

stairs, ladders and scaffolds, kneeling,
crouching, or crawling, but occasional stooping
(i.e. bending at the waist). She cannot be
exposure [sic] to hazards such as unprotected
heights.
Tr. 23.
At Step Four the ALJ found Plaintiff did not have any past
relevant work.

Tr. 28.

At Step Five the ALJ found Plaintiff could have performed
jobs during the relevant period that existed in significant
numbers in the national economy such as appointment clerk,
telephone surveyor, or routing clerk.

Tr. 29-30.

the ALJ found Plaintiff is not disabled.

Accordingly,

Tr. 30.

DISCUSSION
Plaintiff contends the ALJ erred when he gave little weight
to (1) Plaintiff’s subjective symptom testimony and (2) the
opinion of Plaintiff’s treating physician, Justin Montoya, M.D.
I.

The ALJ did not err when he rejected Plaintiff’s subjective
symptom testimony.
Plaintiff alleges the ALJ erred when he failed to provide

clear and convincing reasons for rejecting Plaintiff's subjective
symptom testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments and she must show the impairment
8 - OPINION AND ORDER

or combination of impairments could reasonably be expected to
produce some degree of symptom.

Cotton, 799 F.2d 1403 (9th Cir.

1986), aff'd in Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.
1991).

The claimant, however, need not produce objective medical

evidence of the actual symptoms or their severity.

Smolen, 80

F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and
convincing reasons for doing so.

Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995)).

General assertions that the claimant's

testimony is not credible are insufficient.

Id.

The ALJ must

identify "what testimony is not credible and what evidence
undermines the claimant's complaints."

Id. (quoting Lester, 81

F.3d at 834).
On March 8, 2013, Plaintiff completed an Adult Function
Report indicating she experienced difficulty standing, walking,
kneeling, and climbing stairs.

Tr. 232-40.

Specifically,

Plaintiff alleged she could walk about three blocks and stand
for no more than 20 minutes.

Tr. 23.

Plaintiff testified she

swam two or three times per week, regularly used public
transportation, shopped with an assistive cart, and participated
in a weekly card game.
9 - OPINION AND ORDER

Tr. 44-84.

Plaintiff stated she cooked

and performed chores at home, but she spent most of her time
sitting at her desk or bed.

Tr. 44-84.

The ALJ gave Plaintiff’s subjective symptom testimony little
weight.

First, the ALJ doubted Plaintiff’s testimony and

statements on the Adult Function Report.

Tr. 26.

Plaintiff was

fired in October 2011 and alleged a contemporaneous disability
onset date.

Tr. 222.

Plaintiff also indicated on her Adult

Disability Report that she ceased working for reasons other than
her impairments.

Tr. 222.

The fact that a plaintiff left her

job for reasons other than a disability can be a clear and
convincing reason to doubt that plaintiff’s subjective testimony.
Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001).

The

Court, therefore, finds on this record that the ALJ did not err
when he discounted Plaintiff’s subjective testimony.
The ALJ also noted Plaintiff’s activities of daily living
were inconsistent with her subjective symptom allegations.

See

Garrison v. Colvin, 759 F.3d 995, 1015-16 (9th Cir. 2014)
(inconsistency between a plaintiff’s alleged symptoms and her
activities of daily living is a legally sufficient reason for the
ALJ to doubt the plaintiff's symptom testimony).

Plaintiff

testified she swam three or five times each week for up to one
hour, walked to the bus stop to take public transportation to and
from the pool, spent up to two hours per day preparing meals,
walked eight blocks to the library to check her email, walked two

10 - OPINION AND ORDER

miles from home to her volunteer shifts at a recycling center,
and walked to a weekly card game.

Tr. 57, 234, 406.

The record

reflects Plaintiff also regularly used her computer, shopped for
groceries, performed household chores, and pursued her hobbies.
Tr. 23, 392.

Thus, the ALJ concluded Plaintiff engaged in daily

activities that indicate Plaintiff can perform sedentary work.
The ALJ further discounted Plaintiff’s symptom allegations
due to inconsistencies with the medical record.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

See Connett v.

Plaintiff testified

compression garments adequately control her symptoms of
lymphedema, which indicates she is not unduly hindered by her
condition.

Tr. 24, 25, 70.

In fact, even when her lymphedema

was unmanaged, Plaintiff did not report any pain in the affected
limbs.

Tr. 361.

After her lymphedema was brought under control,

Plaintiff demonstrated normal muscle strength and reported she
frequently walked and swam without any pain.
375.

Tr. 309, 315, 350,

As noted, Plaintiff can walk two miles and swim for nearly

an hour, and her medical examinations reflected largely normal
physical findings after her treatment began in 2012.
414.

Tr. 396,

Plaintiff also reported she was “not tired during [the]

day” and that a machine adequately controlled her sleep apnea.
Tr. 72, 294.

The record reflects Plaintiff’s depression was also

adequately controlled by medication and counseling.
415.

Tr. 403-04,

Thus, the Court finds the ALJ provided legally sufficient

11 - OPINION AND ORDER

reasons for discounting Plaintiff's testimony based on the fact
that Plaintiff’s subjective symptom testimony and other
statements are inconsistent with the record.
On this record the Court concludes the ALJ did not err when
he discounted Plaintiff's testimony because the ALJ provided
clear and convincing reasons supported by substantial evidence in
the record for doing so.
II.

The ALJ did not err when he gave little weight to
Dr. Montoya’s medical opinion.
Plaintiff asserts the ALJ erred when he gave little weight

to Dr. Montoya’s April 2014 opinion.
An ALJ may reject a treating physician's opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes "findings setting forth specific,
legitimate reasons for doing so that are based on substantial
evidence in the record."

Thomas v. Barnhart, 278 F.3d 947, 957

(9th Cir. 2002)(quoting Magallanes v. Bowen, 881 F.2d 747, 751
(9th Cir. 1989)).

When the medical opinion of a treating

physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.
957.

Thomas, 278 F.3d at

See also Lester v. Chater, 81 F.3d 821, 830-32 (9th Cir.

1996).
In a medical evaluation completed on April 15, 2014,
Dr. Montoya opined Plaintiff suffered from morbid obesity and
lymphedema.

Tr. 368.

12 - OPINION AND ORDER

Dr. Montoya stated even though Plaintiff’s

impairments do not require her to lie down or to rest, she
requires ten minutes per hour to elevate her legs during the
workday.

Tr. 370-71.

Dr. Montoya further opined in a normal

workday Plaintiff could stand or walk for less than two hours and
sit for about six hours.

Tr. 370.

The ALJ gave Dr. Montoya’s opinion little weight on the
grounds that it was unsupported by explanatory notes and
inconsistent with the record.

Tr. 27.

533 F.3d 1035, 1041 (9th Cir. 2008).

See Tommasetti v. Astrue,

The ALJ specifically

rejected Dr. Montoya’s statements restricting Plaintiff to
standing or walking for less than two hours, to sitting for
“about” six hours, and to elevating her legs for ten minutes
every hour during the workday.

Tr. 27.

Although the ALJ took issue with the standing and walking
restriction assigned by Dr. Montoya, the ALJ accommodated those
restrictions in his evaluation of Plaintiff’s RFC; i.e.,
Dr. Montoya opined Plaintiff could stand or walk for less than
two hours, and the ALJ included a restriction in his evaluation
of Plaintiff’s RFC that limits Plaintiff to one hour of standing
or walking each day.

Tr. 23, 369-70.

The sitting restriction in the AlJ's assessment of
Plaintiff's RFC, however, conflicts with Dr. Montoya’s opinion on
the surface.

Dr. Montoya opined Plaintiff could sit for “about”

six hours during the workday whereas the ALJ found Plaintiff

13 - OPINION AND ORDER

could sit “more than” six hours during the workday.

The ALJ,

however, supported his conclusion with Plaintiff's testimony that
she spends most of her day sitting at her desk or bed and
“stay[s] sitting” after she sits down.

Tr. 66-67.

The Court

finds the ALJ did not err by relying on Plaintiff’s assessment of
her abilities.
In his opinion Dr. Montoya also asserted Plaintiff required
ten minutes per hour to elevate her legs, which the ALJ rejected
due to inconsistencies with the medical record.

Dr. Montoya,

however, managed Plaintiff’s lymphedema through compression
garments and exercise without any indication in his treatment
notes that leg elevation would alleviate her symptoms.
Inconsistency between a medical opinion and medical records is a
legally sufficient reason to discount the medical opinion.
Tommasetti, 533 F.3d at 1041.

Thus, the ALJ did not err when he

discounted Dr. Montoya’s opinion because Dr. Montoya's treatment
notes do not reflect he instructed Plaintiff to elevate her legs
during a non-work day even though he recommended she elevate her
legs for ten minutes per hour during a workday.

See Morgan v.

Comm’r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999)
(internal inconsistencies between a physician’s notes and opinion
are a valid reason to discount the opinion).
The ALJ also gave little weight to Dr. Montoya’s opinion
because it was conclusory and included little explanation for the

14 - OPINION AND ORDER

various recommended restrictions.

Dr. Montoya rendered his

opinion through a check-the-box questionnaire and did not offer
any explanation for his findings.

As noted, the record does not

reflect Dr. Montoya recommended Plaintiff elevate her legs
to alleviate her symptoms during a non-work day.

As for

restrictions related to sitting, standing, or walking, the record
indicates Dr. Montoya, in fact, encouraged Plaintiff to engage in
more frequent and rigorous exercise and did not limit Plaintiff
to less than two hours of movement per day.

In addition, under

the medical evaluation section of the questionnaire titled
“[d]escribe the patient’s symptoms,” Dr. Montoya did not include
symptoms related to lymphedema of the lower extremities such as
discomfort, pain, or difficulty with mobility.

Tr. 368.

Although Plaintiff argues numerous other records support
Dr. Montoya’s opinion, his treatment notes do not support his
opinion nor indicate how he reached his conclusions.

An ALJ may

give little weight to a physician’s opinion if that opinion is
conclusory and unsupported by evidence in the record.

Batson v.

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).
On this record the Court concludes the ALJ did not err when
he gave little weight to portions of Dr. Montoya’s opinion
because the ALJ provided legally sufficient reasons supported by
substantial evidence in the record for doing so.

15 - OPINION AND ORDER

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 8th day of March, 2018.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

16 - OPINION AND ORDER