Holmes v. Commissioner Social Security Administration

Filing 16

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. IT IS SO ORDERED. Signed on 2/28/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBIN M. HOLMES,
Plaintiff,
v.
Commissioner, Social Security
Administration,
Defendant.

SHERWOOD J. REESE
DREW L. JOHNSON
Drew L. Johnson, P.C.
1700 Valley River Drive
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]
1 - OPINION AND ORDER

6:17-cv-00384-BR
OPINION AND ORDER

MICHAEL W. PILE
Acting Regional Chief Counsel
THOMAS M. ELSBERRY
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 901
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Robin M. Holmes seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Supplemental Security Income (SSI) under Title 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 applications for Disability Insurance
Beneficts (DIB) and SSI on July 24, 2012, and alleged a
disability onset date of December 12, 2003.

Tr. 301-06.1

applications were denied initially and on reconsideration.

His
An

Administrative Law Judge (ALJ) held a hearing on October 16,

1

Citations to the official transcript of record filed by
the Commissioner on September 8, 2017, are referred to as "Tr."
2 - OPINION AND ORDER

2015.

Tr. 55-83.

At the hearing Plaintiff withdrew his

application for DIB and amended his onset date to July 24, 2012.
Tr. 59-60.

Plaintiff and a vocational expert (VE) testified at

the hearing, and Plaintiff was represented by an attorney.
On December 10, 2015, the ALJ issued an opinion in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 14-27.

On February 10, 2017, that decision

became the final decision of the Commissioner when the Appeals
Council denied Plaintiff's request for review.

Tr. 1-7.

See

Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

BACKGROUND
Plaintiff was born on January 22, 1962, and was 53 years old
at the time of the hearing.
Associates Degree.

Tr. 463.

experience as a sales clerk.

Tr. 301.

Plaintiff has an

Plaintiff has past relevant work
Tr. 76.

Plaintiff alleges disability due to congestive heart
failure, depression, lower-back strain, obesity, and cognitive
defects.

Tr. 321.

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. 17, 21-24.

3 - OPINION AND ORDER

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 his

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

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.
at 690).
4 - OPINION AND ORDER

Id. (citing Valentine, 574 F.3d

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

record.

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. § 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. § 416.920(b).

5 - OPINION AND ORDER

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.
§ 416.920(c).

20 C.F.R.

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 a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity.
C.F.R. § 416.920(a)(4)(iii).

20

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 his limitations.
§ 416.945(a).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

“A

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."

SSR 96-8p, at *1.

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

6 - OPINION AND ORDER

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 he has done in the past.

20 C.F.R. § 416.920(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.

20 C.F.R. § 416.920(a)(4)(v).

Keyser, 648 F.3d at 724.

See also

Here the burden shifts to the

Commissioner to show a significant number of 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. § 416.920(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since his July 24, 2012, amended
alleged onset date.

Tr. 17.

At Step Two the ALJ found Plaintiff has the severe
impairments of morbid obesity, left-knee patellofemoral syndrome,
7 - OPINION AND ORDER

ischemic cardiomyopathy, “coronary artery disease status post
quadruple coronary artery bypass with graft and residual ejection
fraction of 40 percent,” depression, alcohol abuse, and “lumbago
with no associated neurological deficits.”

Tr. 17.

The ALJ

found Plaintiff’s conditions of irritable bowel syndrome,
hypertension, and diabetes are nonsevere.

Tr. 18.

At Step Three the ALJ concluded Plaintiff's impairments do
not meet or equal the criteria for any Listed Impairment from 20
C.F.R. part 404, subpart P, appendix 1.

The ALJ found Plaintiff

has the RFC to perform light work with the following limitations:
lifting ten pounds frequently and 20 pounds occasionally;
standing and walking “in combination for four hours” in an eighthour work day; sitting for four hours in an eight-hour work day;
occasionally climbing ramps and stairs; frequently handling,
fingering, and feeling; and never climbing ladders, ropes, or
scaffolds.

Tr. 20.

The ALJ found Plaintiff can “understand,

remember and carry out simple instructions in a setting with no
public contact.”

Tr. 20.

At Step Four the ALJ found Plaintiff is unable to perform
his past relevant work.

Tr. 25.

At Step Five the ALJ found Plaintiff could perform jobs that
exist in significant numbers in the national economy.
Accordingly, the ALJ found Plaintiff is not disabled.

8 - OPINION AND ORDER

Tr. 26.

DISCUSSION
Plaintiff contends the ALJ erred when she (1) improperly
rejected Plaintiff’s testimony in part, (2) improperly rejected
the statement of lay witness Lois Holmes, and (3) improperly
rejected Plaintiff’s reaching limitations assessed by examining
physician Nadine Williams, M.D.
I.

The ALJ did not err when she partially rejected Plaintiff’s
testimony.
Plaintiff alleges the ALJ erred by failing to provide clear

and convincing reasons for partially rejecting Plaintiff’s
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 he must show the impairment
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 she provides clear and

9 - OPINION AND ORDER

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).

At the hearing Plaintiff testified he experiences pain daily
in his chest and back.

Tr. 64.

Plaintiff stated his heart and

chest pain keep him from “getting aerobic exercise,” and he gets
fatigued easily and “can’t last long.”

Tr. 64.

Plaintiff noted

his doctor advised him to exercise “in little spurts to add up to
an hour a day,” and he does that.

Tr. 64.

Plaintiff testified

he can lift up to 20 pounds “off and on,” sit for one hour at a
time, stand or walk for 15-20 minutes at a time, has difficulty
using his hands above shoulder level, and spends “close to half
of the day” lying down.

Tr. 66.

Plaintiff stated he suffers

from depression that keeps him from thinking clearly, but he is
not currently receiving mental-health counseling because it is
not available to him .

Tr. 68, 70.

consumes alcohol once a month.

Plaintiff testified he

Specifically, he “splurge[s], and

. . . buy[s] a fifth of bourbon . . . and it lasts [him] two days
. . . .

So [he] just drink[s], like, two, maybe four days a

month.”

Tr. 68.

The ALJ found Plaintiff’s “medically determinable
10 - OPINION AND ORDER

impairments could reasonably be expected to cause some symptoms,”
but Plaintiff’s testimony “concerning the intensity, persistence
and limiting effects of [his] symptoms [is] not entirely
credible.”

Tr. 20.

The ALJ noted the record reflects Plaintiff

experienced a myocardial infarction in 2001 “with subsequent
bypass and grafting of four vessels.”

Tr. 21.

The ALJ stated

Plaintiff recovered well from surgery and “did not require
additional significant intervention regarding his heart condition
for several years.”

Tr. 21.

The ALJ concluded the medical

record did not support Plaintiff’s alleged level of intensity of
his symptoms.

The record reflects in 2012 Plaintiff reported

suffering from intermittent chest pain, but he did not require
significant treatment.

Treating cardiologist Sudeshna Banerjee,

M.D., diagnosed Plaintiff with coronary artery disease and
ischemic cardiomyopathy and noted Plaintiff had “LVEF2 40% with
akinesis of the inferior and inferoseptal walls.”

Tr. 629.

In

July 2014 a coronary angiogram revealed Plaintiff had severe
3-vessel heart disease with 100% occlusion in 3 of 4 vessels.
Tr. 511-12.

Plaintiff’s bypass grafts were catheterized with

good results.

Tr. 624-25.

Nevertheless, in August 2014, the

month after the catheterization, Plaintiff reported to treating

2

LVEF is the left-ventricular ejection fraction and is the
measurement of the percentage of blood leaving the heart each
time it contracts. A LVEF of 55% or higher is considered normal.
https://www.mayoclinic.org/ejection-fraction.
11 - OPINION AND ORDER

physician Mary Loeb, M.D., that he continued to suffer chest pain
“confusion, depression” and that “chronic pain continue[d] to be
an issue.”

Tr. 571.

Nitroglycerin.

Dr. Loeb prescribed Imdur and

Tr. 575.

In August 2014 Plaintiff also reported

to Briana O’Kelly, PA-C, that he had been “bothered by increased
fatigue.”

Tr. 674.

In October 2014 Dr. Loeb increased

Plaintiff’s Gabapentin prescription for chronic pain.
Tr. 569.

In December 2014 Plaintiff again complained of chronic

pain and depression.

Tr. 547-9.

In May 2015 Dr. Loeb reported

Plaintiff presented with persistent angina, back pain, and
depression, and he complained of chest pain and fatigue.
536.

Tr.

Dr. Loeb assessed “unspecified chest pain” and indicated

“Triage will try to get patient in.”

Tr.

534.

A week later

Plaintiff complained of chest pain and back pain.

Tr. 528, 530.

In May 2015 Dr. Loeb stated Plaintiff “has had continued intense,
constant chest pain” and suffers from severe coronary artery
disease.

Tr. 517.

In June 2015 Dr. Banerjee found Plaintiff

suffered from chest pain and claudication.

Tr. 644-5, 648.

Dr. Banerjee noted although Plaintiff’s chest pain had not
increased in frequency or severity, “[i]t occurs whenever he
gardens with moderate exertion, improves with rest.”

Tr. 644.

In July 2015 Dr. Banerjee reported Plaintiff was bothered by
increased fatigue due to the heat, and he continued to have chest
pain and pressure and to feel “winded” when he did “strenuous

12 - OPINION AND ORDER

activities such as mowing the lawn and . . . gardening.”
Tr. 674.
The record, however, also contains repeated references to
the fact that Plaintiff was advised to stop smoking and drinking,
but he declined to do so.

See, e.g., Tr. 423, 457, 648, 674.

In

addition, DeWayde Perry, M.D., conducted a consultative
examination of Plaintiff on October 11, 2012, and concluded
Plaintiff did not have any limitation on sitting; could stand
and/or walk six hours in an eight-hour work day; could carry 50
pounds occasionally and 25 pounds frequently; could frequently
climb, stoop, kneel, crouch, and crawl; and did not have any
limitations on reaching, handling, fingering, or feeling.
Tr. 460.

In August 2015 Nadine Williams, M.D., conducted a

consultative examination of Plaintiff and concluded Plaintiff
could stand and/or walk four hours in an eight-hour work day and
sit for four hours in an eight-hour work day.

Tr. 697.

Dr. Williams noted “[t]hese things exacerbate his symptoms of
weakness, so anything longer would exacerbate his symptoms of
lack of strength as it pertains to physical activity.”

Tr. 697.

Dr. Williams also noted Plaintiff can lift, carry, push, and pull
20 pounds occasionally and 10 pounds frequently; frequently
stoop, kneel, crouch, crawl, and handle “things in bilateral
upper extremities”; occasionally reach overhead and reach
forward; and climb steps, stairs, ladders, scaffolds, and ropes

13 - OPINION AND ORDER

frequently.

Tr. 697.

The Court concludes on this record that the ALJ did not err
when she partially rejected Plaintiff’s testimony because she
provided clear and convincing reasons supported by substantial
evidence in the record for doing so.
II.

The ALJ did not err when she concluded the lay-witness
statement of Lois Holmes was consistent with Plaintiff’s
RFC.
Plaintiff alleges the ALJ erred when she concluded the lay-

witness statement of Lois Holmes was consistent with Plaintiff’s
RFC.
Lay testimony regarding a claimant's symptoms is competent
evidence that the ALJ must consider unless she “expressly
determines to disregard such testimony and gives reasons germane
to each witness for doing so.”
(9th Cir. 2001).

Lewis v. Apfel, 236 F.3d 503, 511

See also Merrill ex rel. Merrill v. Apfel, 224

F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a
claimant's disability, must give full consideration to the
testimony of friends and family members.").

The ALJ's reasons

for rejecting lay-witness testimony must also be "specific."
Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006).

When "the

ALJ's error lies in a failure to properly discuss competent lay
testimony favorable to the claimant, a reviewing court cannot
consider the error harmless unless it can confidently conclude
that no reasonable ALJ, when fully crediting the testimony, could
14 - OPINION AND ORDER

have reached a different disability determination."

Stout, 454

F.3d at 1056.
Plaintiff’s mother, Lois Holmes, submitted a statement on
May 25, 2015, in which she reported Plaintiff suffered multiple
head injuries as a child that affected him psychologically.
Tr. 394-95.

Lois Holmes indicated Plaintiff has struggled with

deteriorating health since his 2001 heart attack.

Tr. 394.

Lois

Holmes noted “[w]ith frequent rest breaks [Plaintiff] is capable
of cooking, washing dishes and grocery shopping.

His heart

problems keep him from most physical activity and the depression
and pain keep him down in spite of the medications he takes.”
Tr. 395.
The ALJ considered Lois Holmes’s letter and concluded her
description of Plaintiff’s activities and condition was
“consistent with an individual capable of [the] light physical
exertional capacity [set out by the ALJ] above.”

Tr. 25.

Specifically, the ALJ limited Plaintiff to standing and/or
walking in combination up to four hours in an eight-hour work day
and to sitting up to four hours in an eight-hour work day.
The Court concludes on this record that the ALJ did not err
when she concluded the lay-witness statement of Lois Holmes was
consistent with Plaintiff’s RFC because the ALJ provided specific
reasons germane to the witness for doing so.

15 - OPINION AND ORDER

III. The ALJ did not err when she excluded in her evaluation of
Plaintiff’s RFC the reaching limitations assessed by
Dr. Williams.
Plaintiff asserts the ALJ erred when she excluded in her
evaluation of Plaintiff’s RFC the reaching limitations assessed
by Dr. Williams.
As noted, Dr. Williams concluded Plaintiff could stand
and/or walk four hours in an eight-hour work day and sit for four
hours in an eight-hour work day.

Tr. 697.

Dr. Williams also

noted Plaintiff can lift, carry, push, and pull 20 pounds
occasionally and 10 pounds frequently; frequently stoop, kneel,
crouch, crawl, and handle “things in bilateral upper
extremities”; occasionally reach overhead and reach forward; and
climb steps, stairs, ladders, scaffolds, and ropes frequently.
Tr. 697.

The ALJ gave Dr. Williams’s opinion “great, but not

controlling weight” because it was “generally consistent with
[Plaintiff’s] longitudinal record and reported activities.”
Tr. 24.

The ALJ, however, did not include Dr. Williams’s

limitations on Plaintiff’s ability to reach overhead and forward
because Dr. Williams noted in her report with respect to the
reaching limitations that she was “not sure about [Plaintiff’s]
level of effort for this [portion of the] examination.”

Tr. 697.

In addition, the ALJ noted the record lacked objective or
clinical findings to support pain or weakness when reaching
overhead or forward.
16 - OPINION AND ORDER

The Ninth Circuit has made clear that when “‘evidence is
susceptible to more than one rational interpretation, it is the
ALJ's conclusion that must be upheld.’”

Fennell v. Berryhill,

No. 16-35051 2018 WL 328141, at *1 (9th Cir. Jan. 9, 2018)
(quoting Burch v. Barnhart, 400 F.3d 676, 682–83 (9th Cir.
2005)).

In addition, an ALJ need not adopt a doctor’s opinions

that are “inconsistent with the longitudinal medical record.”
Fennell, 2018 WL 328141, at *1.
On this record the Court concludes the ALJ did not err when
she did not include in Plaintiff’s RFC the reaching limitations
assessed by Dr. Williams because she provided legally sufficient
reasons supported by substantial evidence in the record for doing
so.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 28th day of February, 2018.

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

17 - OPINION AND ORDER