Hartel v. Commissioner Social Security Administration
Filing
19
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter pursuant to sentence four of 42 U.S.C. § 405(g). IT IS SO ORDERED. Signed on 4/26/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JACOB H. HARTEL,
Plaintiff,
6:17-cv-00471-BR
OPINION AND ORDER
v.
COMMISSIONER OF SOCIAL
SECURITY,1
Defendant.
RICHARD F. MCGINTY
McGinty & Belcher, Attorneys
P.O. Box 12806
Salem, OR 97301
(503) 371-9636
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
(503) 727-1003
1
The official title of the head of the Social Security
Administration (SSA) is the “Commissioner of Social Security.”
42 U.S.C. § 902(a)(1). A “public officer who sues or is sued in
an official capacity may be designated by official title rather
than by name.” Fed. R. Civ. P. 17(d). This Court, therefore,
refers to Defendant only as Commissioner of Social Security.
1 - OPINION AND ORDER
MICHAEL W. PILE
Acting Regional Chief Counsel
RYAN TA LU
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2034
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Jacob H. Hartel seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which the Commissioner denied Plaintiff's
applications for Disability Insurance Benefits (DIB) under Title
II of the Social Security Act and 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 protectively filed his applications for DIB and
SSI benefits on October 31, 2012.
Tr. 14.2
disability onset date of August 15, 2008.
2
Plaintiff alleges a
Tr. 14.
Plaintiff’s
Citations to the official transcript of record filed by
the Commissioner on September 15, 2017, are referred to as "Tr."
2 - OPINION AND ORDER
applications were denied initially and on reconsideration.
An
Administrative Law Judge (ALJ) held a hearing on May 26, 2015.
Tr. 14, 34-87.
Plaintiff, a vocational expert (VE), and a
medical expert testified.
Plaintiff was represented by an
attorney at the hearing.
A supplemental hearing was held on
September 4, 2015.
Tr. 14, 106-38.
Plaintiff was present and
represented by an attorney at the supplemental hearing, and a
medical expert testified.
On September 24, 2015, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Tr. 14-27.
On October 18, 2015, Plaintiff
requested review by the Appeals Council.
Tr. 10.
On January 26,
2017, the Appeals Council denied Plaintiff’s request to review
the ALJ’s decision, and the ALJ’s decision became the final
decision of the Commissioner.
Tr. 1-5.
See Sims v. Apfel, 530
U.S. 103, 106-07 (2000).
On March 24, 2017, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner’s decision.
BACKGROUND
Plaintiff was born on May 19, 1982.
Tr. 331.
Plaintiff was
thirty-three years old at the time of the first hearing.
Plaintiff has a high-school education and one year of college.
Tr. 39.
The ALJ found Plaintiff has past relevant work
3 - OPINION AND ORDER
experience as a fast-food worker, graphic designer, kitchen
helper, and cashier.
Tr. 26-27.
Plaintiff alleges disability due to severe
neck/shoulder/back spasms, post-traumatic stress disorder (PTSD),
fibromyalgia, irritable-bowel syndrome (IBS), attention-deficit/
hyperactivity disorder (ADHD), and depression.
Tr. 365.
Except as 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. 17-26.
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)).
4 - OPINION AND ORDER
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.
Id. (citing Valentine, 574 F.3d
at 690).
The ALJ is responsible for evaluating a claimant’s
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
Cir. 2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th
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
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).
5 - OPINION AND ORDER
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commis-
sioner determines the claimant is engaged in substantial
gainful activity (SGA).
416.920(a)(4)(I).
20 C.F.R. §§ 404.1520(a)(4)(I),
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(a)(4)(ii).
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).
F.3d at 724.
20 C.F.R.
See also Keyser, 648
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
6 - OPINION AND ORDER
regular and continuing basis despite his limitations.
§§ 404.1520(e), 416.920(e).
(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 he 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
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 (or the grids) 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.
7 - OPINION AND ORDER
20 C.F.R.
§ 404.1520(g)(1), 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since August 15, 2008, Plaintiff’s
alleged disability onset date.
Tr. 17.
At Step Two the ALJ found Plaintiff has the severe
impairments of musculoskeletal complaints related to the
trapezius, left leg, and low back; fibromyalgia; gastrointestinal
issues; depression; and marijuana use.
Tr. 17.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.
Tr. 18.
The ALJ found Plaintiff has the RFC to
perform light work with the following limitations:
cannot climb
tall ladders or work near heights; cannot crawl; should not push
or pull objects above the light-exertional level of twenty
pounds; cannot perform intense twisting of the upper body; cannot
perform high-stress work; cannot work in large groups of people;
cannot perform security work; cannot be in charge of the safety
of others; and cannot perform fast-paced production work.
The
ALJ found Plaintiff is able to perform occasional postural
movements, to perform occasional overhead work, to work
independently, and to have five or ten minute interactions with
8 - OPINION AND ORDER
the general public.
The ALJ also found Plaintiff would be off-
task for six percent of the workday, would move at a low to
average pace but within the mean average, and would have to stand
and to stretch for one to three minutes every hour.
Tr. 21.
At Step Four the ALJ concluded Plaintiff is able to
perform his past relevant work as a cashier.
Tr. 26.
Thus,
the ALJ concluded Plaintiff is not disabled and, therefore,
is not entitled to benefits.
Tr. 26-27.
Accordingly,
the ALJ was not required to proceed to Step Five.
20 C.F.R.
§ 404.1520(a)(4)(iv).
DISCUSSION
Plaintiff contends the ALJ erred when he (1) discounted
Plaintiff’s subjective symptom testimony, (2) improperly rejected
the lay-witness testimony of Plaintiff’s mother, (3) improperly
evaluated the medical evidence of two examining physicians, and
(4) improperly concluded at Step Four that Plaintiff could
perform his past relevant work.
I.
The ALJ did not err when he found Plaintiff’s testimony was
not fully credible.
Plaintiff contends the ALJ erred when he failed to fully
credit Plaintiff’s symptom testimony.
A.
Standards
In Cotton v. Bowen the Ninth Circuit established two
9 - OPINION AND ORDER
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment and must show the impairment or combination of
impairments could reasonably be expected to produce some degree
of symptom.
Cotton, 799 F.2d 1403, 1407 (9th Cir. 1986).
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 testimony only if she 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).
B.
Medical Evidence
Plaintiff contends the medical opinions of David M.
Freed, Ph.D., a neuropsychologist who examined Plaintiff in June
2015, and Daniel L. Scharf, Ph.D., a clinical psychologist who
examined Plaintiff in July 2015, establish Plaintiff’s mental
disability and support Plaintiff's testimony.
On June 17, 2015, Dr. Freed examined Plaintiff at the
10 - OPINION AND ORDER
request of his attorney.
At the time of the examination
Plaintiff appeared depressed with a restricted range of affect,
but he was fully oriented and cooperative during the examination
and was persistent and motivated during testing.
Dr. Freed
opined Plaintiff struggles to remember daily work routines and
procedures, suffers from recurrent depressive and anxious
symptoms, and meets the criteria for ADHD.
Dr. Freed also
concluded Plaintiff would be distracted from eleven to twenty
percent of the work day.
Dr. Freed concluded Plaintiff
demonstrates moderate impairments in attention, concentration,
verbal fluency, memory, and executive function and mild
impairment in visuospatial abilities.
Tr. 682-92.
On June 29, 2015, Dr. Scharf examined Plaintiff at the
request of Disability Determination Services on behalf of the
Commissioner.
Dr. Scharf indicated Plaintiff has mild
limitations in his ability to understand, to remember, to carry
out complex instructions, and to make judgments on complex workrelated issues.
Dr. Scharf concluded Plaintiff is “well-
developed” in cognitive abilities in the areas of verbal
comprehension, visual spatial skills, and memory, but he
demonstrates deficits in memory and processing speed.
Dr. Scharf also diagnosed Plaintiff with ADHD.
C.
Tr. 710-20.
Analysis
The ALJ discounted Plaintiff’s testimony on the grounds
11 - OPINION AND ORDER
that his testimony was not supported by the medical record or
Plaintiff’s reported activities.
The ALJ also noted Plaintiff
failed to follow up with recommended treatment and Plaintiff’s
treating physician reported suspicions of secondary gain that
eroded Plaintiff’s credibility.
1.
Tr. 24-26.
Medical Records
Plaintiff testified he cannot work because of a
combination of physical pain and mental limitations, some of
which resulted from a severe motor accident in 2002.
43-44.
Tr. 21,
Plaintiff stated in his Function Report that he has
difficulties with memory, task completion, and concentration and
can only pay attention for 20 minutes.
He also stated he cannot
walk more than one block and has difficulty lifting more than ten
pounds.
Tr. 379.
The ALJ discounted Plaintiff's testimony regarding
his mental limitations on the ground that the “objective tests
demonstrated normal cognitive functioning and are not consistent
with the severity of the mental health impairments [Plaintiff]
has alleged.”
Tr. 24-25.
The ALJ noted Plaintiff has a full-
scale IQ score of at least 98 and obtained a score of 27/30
during mental-status testing.
The ALJ also noted Plaintiff was
able to sit through three and one-half hours of examinations
“without difficulty,” had normal affect and mood, and was
consistently oriented during the examinations.
12 - OPINION AND ORDER
The ALJ also
noted Plaintiff was able to perform “moderately complex 3-step
instruction” and easily followed instructions during clinical
tests.
Tr. 24.
The ALJ found the medical evidence contradicted
Plaintiff’s testimony regarding his alleged symptoms and
limitations.
2.
Activities of Daily Living
Plaintiff contends the ALJ erred when he
discounted Plaintiff’s symptom testimony based on Plaintiff’s
reported daily activities.
As noted, Plaintiff asserts he cannot
walk more than one block; has difficulty lifting more than ten
pounds; can only pay attention for 20 minutes; and has difficulty
with memory, task completion, and concentration.
Tr. 379.
The ALJ noted Plaintiff is able to live
independently and to perform household chores such as preparing
meals, cleaning, doing laundry, watering plants, and caring for
pets.
Plaintiff is also able to drive and to shop for groceries.
Plaintiff reported he engages in hobbies and interests such a
graphic design, 3D modeling, digital photography, history, art,
and science fiction.
Tr. 25, 375.
Plaintiff also testified he
spends “up to” nine hours a day on his computer surfing the
internet, watching YouTube videos, or playing video games.
Tr. 59.
The ALJ concluded these activities indicate “a
13 - OPINION AND ORDER
higher level of function” than Plaintiff alleges.
3.
Tr. 25.
Treatment Follow-Up and Secondary Gain
Eleanor Zawada, M.D., Plaintiff’s primary-care
physician, referred Plaintiff for physical rehabilitation related
to muscle strain, but Plaintiff did not follow through with this
referral.
On May 1, 2013, Dr. Zawada also questioned Plaintiff’s
reported increase in frequency of fibromyalgia flares and noted
“some conflict with secondary gain issues.”
Tr. 566.
The ALJ
found Dr. Zawada’s notes “erod[ed]” Plaintiff’s credibility.
Tr. 25.
Plaintiff asserts these reasons do not constitute
substantial evidence to support the ALJ's finding that
Plaintiff's testimony was not fully credible.
The Commissioner,
in response, asserts even if these are not valid reasons to
discount Plaintiff’s testimony, the ALJ has provided other valid
reasons for doing so.
In Carmickle v. Comm’r. Soc. Sec. Admin. the Ninth
Circuit held the ALJ’s reliance on invalid reasons to reject a
claimant’s allegations was harmless error when the ALJ gave other
valid reasons supported by substantial evidence for doing so.
533 F.3d 1155, 1162-63 (9th Cir. 2008).
On this record the Court concludes even if the ALJ
relied on these reasons to discount Plaintiff's testimony and
these reasons are invalid, it is harmless error because the ALJ
14 - OPINION AND ORDER
provided other valid reasons for discounting Plaintiff’s
testimony.
In summary, the Court concludes the ALJ did not err when he
discounted Plaintiff’s testimony and found it was not fully
credible because the ALJ provided clear and convincing reasons
supported by substantial evidence in the record for doing so.
II.
The ALJ gave germane reasons for discounting lay-witness
evidence.
Plaintiff contends the ALJ erred when he failed to provide
reasons that are germane to the lay-witness statements of Kathryn
Alexander, Plaintiff’s mother, regarding Plaintiff’s limitations.
The Commissioner, however, contends the ALJ properly
discounted the lay-witness statement of Alexander for the same
reasons that the ALJ found Plaintiff’s testimony was not fully
credible.
A.
Standards
Lay-witness testimony regarding a claimant's symptoms
is competent evidence that the ALJ must consider unless he
"expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so."
236 F.3d 503, 511 (9th Cir. 2001).
Lewis v. Apfel,
The ALJ's reasons for
rejecting lay-witness testimony must also be "specific."
Stout
v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).
Nevertheless, an ALJ is not required to address each lay-witness
statement or testimony on an "individualized, witness-by-witness15 - OPINION AND ORDER
basis.
If the ALJ gives germane reasons for rejecting testimony
by one witness, the ALJ need only point to those reasons when
rejecting similar testimony by a different witness."
Molina v.
Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012)(quotation omitted).
Germane reasons for discrediting a witness's testimony
include inconsistency with the medical evidence and the fact that
the testimony "generally repeat[s]" the properly discredited
testimony of a claimant.
1218 (9th Cir. 2005).
Bayliss v. Barnhart, 427 F.3d 1211,
See also Williams v. Astrue, 493 F. App'x
866 (9th Cir. 2012).
B.
Analysis
In January 2013 Alexander stated in her Third-Party
Function Report that Plaintiff is “often in too much pain to even
leave the house[,] can’t even do housework[, and] rarely goes
anywhere.”
Tr. 389.
Alexander also indicated Plaintiff “mostly
watches TV or uses his computer.”
Tr. 390.
Alexander indicated,
however, that Plaintiff “goes for a short walk around the block,”
takes “short trips of not much over ½ hour” in the car, and
“occasionally” shops for food.
Tr. 392.
She also stated
Plaintiff goes to counseling once a week, enjoys visiting her
friends who come over, and “gets along well with most people and
is always pleasant.”
Tr. 393-94.
The ALJ considered the report of Alexander regarding
Plaintiff’s activities.
16 - OPINION AND ORDER
Tr. 26.
The ALJ, however, noted
Plaintiff “reported being able to drive, grocery shop, perform
adequate self-care[,] and prepare simple meals.”
Although the
ALJ acknowledged Plaintiff has some physical and mental
limitations, the ALJ concluded “the objective medical record is
not consistent with the extent of the limitation [Plaintiff]
allege[s].”
Although the ALJ did not specifically identify the
weight he gave to Alexander’s statements, it is clear from the
ALJ’s explanation that he was at least partially rejecting her
testimony.
On this record the Court concludes the ALJ gave
“germane” reasons for discounting the lay-witness statements of
Alexander.
III. The ALJ did not err in his evaluation of the opinions of
Drs. Freed and Scharf, examining psychologists.
Plaintiff contends the ALJ did not properly evaluate the
opinions of Drs. Freed and Scharf, examining psychologists.
A.
Standards
The ALJ is responsible “for determining credibility,
resolving conflict in medical testimony, and resolving
ambiguities.”
2001).
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
The ALJ may reject a doctor’s opinion when it is
contradicted by another doctor’s opinion by providing “specific
and legitimate reasons that are supported by substantial
evidence” for doing so.
(9th Cir. 2005).
Bayliss v. Barnhart, 427 F.3d 1211, 1216
The ALJ may discount a doctor’s opinion to the
17 - OPINION AND ORDER
extent that it is unreasonable based on other evidence in the
record and incompatible with a claimant’s level of activities.
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th
Cir. 1999).
B.
Analysis
1.
Dr. Freed
Plaintiff contends the ALJ erred when he failed to
include in his evaluation of Plaintiff’s RFC the limitations
found by Dr. Freed.
On June 17, 2015, at the request of Plaintiff’s
attorney, Dr. Freed examined Plaintiff.
Dr. Freed concluded
Plaintiff’s functional limitations “reflect an average level of
functioning since August 15, 2008.”
Tr. 682.
As part of his
assessment Dr. Freed completed a Functional Assessment Form and
indicated Plaintiff was “moderately” impaired in maintaining
attention and concentration for extended periods, performing
activities within a schedule, maintaining regular attendance,
completing a normal work week, performing at a consistent pace
without an unreasonable number and length of rest periods, and
responding appropriately to changes in a work setting.
92.
Tr. 691-
The Form defined “moderate” as “able to perform designated
task or function, but has or will have noticeable difficulty
(distracted from job activity) from 11-20 percent of the work day
or work week (i.e., more than 1 hour per day but less than 1½
18 - OPINION AND ORDER
hours per day).”
Plaintiff contends the ALJ erred when he did
not include this restriction in his evaluation of Plaintiff’s
RFC.
The ALJ gave “some weight” to Dr. Freed’s opinion
as to Plaintiff’s mental status and cognitive testing, but he
gave “little weight” to Dr. Freed’s opinion that Plaintiff would
struggle to complete a regular workday and would have difficulty
sustaining attention to complete tasks due to pain.
The ALJ
concluded Plaintiff was able to perform light work with a
limitation that Plaintiff would be “off task for six percent of
the work day.”
Tr. 21.
The ALJ reasonably discounted Dr. Freed’s opinion
because it was based primarily on Plaintiff’s subjective
testimony, which the ALJ had discounted.
When a doctor’s opinion
is “based to a large extent on an applicant’s self-reports and
not on clinical evidence, and the ALJ finds the applicant not
credible, the ALJ
may discount” the opinion.
763 F.3d 1154, 1162 (9th Cir. 2014).
Ghanim v. Colvin,
The ALJ also concluded
Dr. Freed’s opinion was in contrast to Plaintiff’s “objective
performance during evaluation.”
Tr. 26.
The ALJ noted Plaintiff
obtained a score of 27 out of 30 on mental-status testing
indicative of only moderate symptoms.
Tr. 24.
On this record the Court concludes the ALJ did not
err when he discounted Dr. Freed’s opinion because the ALJ
19 - OPINION AND ORDER
provided specific and legitimate reasons based on substantial
evidence in the record for doing so.
2.
Dr. Scharf
Plaintiff contends the ALJ “cherry picked”
Dr. Scharf’s opinion, and, in addition, the ALJ erred in his
assessment of Plaintiff’s RFC when he did not include all of
Plaintiff’s limitations that were identified by Dr. Scharf.
On June 29, 2015, Plaintiff was examined by
Dr. Scharf at the request of the ALJ.
Dr. Scharf found Plaintiff
was able to understand and to remember moderately complex 3-step
instructions, was able to sustain concentration and attention,
and was likely to have difficulties with persistence in his
attention after one or two hours.
Tr. 719-20.
Although
Plaintiff asserts Dr. Scharf’s opinion is consistent with the
limitations found by Dr. Freed, Plaintiff contends the ALJ erred
when he gave Dr. Scharf’s opinion “great weight” but failed to
include Dr. Scharf’s findings as to Plaintiff’s limitations in
his evaluation of Plaintiff’s RFC.
A claimant’s RFC is “the most [he] can do despite
[his] limitations” and is based on “all relevant evidence” in the
record.
20 C.F.R. § 404.1545(a).
In Rounds v. Commissioner of
Social Security Administration the court found the ALJ did not
reject a physician’s opinion in a checkbox form that indicated
the plaintiff had moderate limitations in her ability to accept
20 - OPINION AND ORDER
instructions and to respond appropriately to criticism and that
the ALJ specifically referred to when evaluating the plaintiff’s
RFC.
807 F.3d 996, 1005 (9th Cir. 2015).
See also Smith v.
Colvin, No. 3:15-cv-00267-MC, 2016 WL 1065816, at *3 (D. Or.
March 15, 2016) (“Moreover, an ALJ’s RFC findings are not
required to address a physician’s checked-box opinion regarding a
moderate limitation, where the ALJ notes this opinion and gives
it great weight as a whole.”)(citing Rounds, 807 F.3d at 1005)).
On July 6, 2015, Dr. Scharf completed a Medical
Source Statement regarding Plaintiff’s ability to do work-related
activities.
Tr. 710-12.
Dr. Scharf indicated Plaintiff has
“mild” limitations in his ability to understand, to remember, and
to carry out complex instructions.
He also found Plaintiff is
mildly limited in his ability to make judgments on complex workrelated issues.
Tr. 710.
Dr. Scharf did not indicate any other
restrictions or limitations.
Here the ALJ reasonably interpreted Dr. Scharf’s
opinion and included in his evaluation of Plaintiff’s RFC workrelated limitations that substantially corresponded to
Dr. Scharf’s opinion.
When an ALJ’s findings are consistent with
but not identical to a physician's assessed limitations of the
claimant, those findings do not constitute a rejection of the
physician’s opinion.
Turner v. Comm’r of Soc. Sec. Admin., 613
F.3d 1217, 1222-23 (9th Cir. 2010).
21 - OPINION AND ORDER
See also Thomas v. Colvin,
No. 3:14-cv-00667-CL, 2015 WL 4603376, at *5 (D. Or. July 29,
2015).
In other words, when the ALJ evaluates a claimant's RFC,
his findings must merely be consistent with the physician’s
conclusions rather than a carbon copy of the physician’s opinion.
Smith, 2016 WL 1065816, at *3.
In summary, on this record the Court concludes the ALJ
did not err in his assessment of the opinions of Drs. Freed and
Scharf because the limitations included in the ALJ’s evaluation
of Plaintiff’s RFC were consistent with the limitations set out
in the opinions of Dr. Scharf and the ALJ provided legally
sufficient reasons supported by substantial evidence in the
record for discounting Dr. Freed’s opinions.
IV.
The ALJ did not err at Step Four.
Plaintiff contends the ALJ erred at Step Four when he
concluded Plaintiff could perform his past relevant work as a
cashier.
Here the ALJ based his conclusion on VE testimony when
he found a person of Plaintiff’s age, education, background, and
RFC could perform the occupation of cashier.
A.
Standards
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.
416.920(a)(4)(iv).
20 C.F.R. §§ 404.1520(a)(4)(iv),
See also Keyser, 648 F.3d at 724.
The plaintiff has the burden to prove that he cannot
22 - OPINION AND ORDER
perform his prior relevant work “either as actually performed or
as generally performed in the national economy.”
Carmickle, 533
F.3d at 1166.
“Past relevant work” is defined in 20 C.F.R.
§ 404.1560(b)(1) as work a claimant had done withing the past 15
years, that was substantial gainful activity, and that lasted
long enough for the claimant to learn how to do it.
B.
Analysis
Plaintiff asserts the ALJ erred at Step Four when he
found Plaintiff could perform his past relevant work as a
cashier.
Although Plaintiff does not contest his employment as a
cashier constituted substantial gainful activity, Plaintiff
points out that he only performed the occupation of cashier on a
part-time basis, and, therefore, such work should not be
considered past relevant work.
In support of his argument
Plaintiff cites to SSR 96-8p n.10, but there is not such a
footnote for that regulation.
The ALJ, however, noted Plaintiff
had worked as a cashier within the past 15 years, found
Plaintiff’s earnings were consistent with substantial gainful
activity, and concluded Plaintiff had held this job for a
sufficient length of time to learn how to do it.
Thus, the ALJ
concluded Plaintiff could perform his past relevant work as a
cashier.
Tr. 27.
23 - OPINION AND ORDER
On this record, together with Plaintiff’s acceptance
that his work as a cashier constituted substantial gainful
activity, the Court concludes the ALJ properly considered
Plaintiff’s part-time work as a cashier as past relevant work for
purposes of Step Four.
See also Hampton v. Barnhart, 184 F.
App’x 642, at *1 (9th Cir. 2006)(finding work as a movie extra
was past relevant work despite its part-time nature).
Plaintiff also contends the limitation of “five to ten
minute interactions with the general public” that the ALJ
included in his evaluation of Plaintiff’s RFC is ambiguous and
conflicts with the hypothetical presented to the VE that public
interaction was limited to five or ten minutes “per person.”
Tr. 81.
The record reflects Dr. Scharf, to whose opinion the
ALJ gave great weight, did not express any limitations on
Plaintiff’s interaction with the public.
Tr. 711.
In addition,
Dr. Freed indicated Plaintiff had only a “mild” limitation on his
interactions with the public.
Tr. 692.
Although the ALJ
expressed this limitation with less than ideal clarity, on this
record the Court concludes it is reasonable to infer that the
Plaintiff could tolerate five or ten minutes of interaction with
the public on a per-person basis.
Accordingly, the Court
concludes any ambiguity regarding the limitation on Plaintiff’s
contact with the public does not constitute error by the ALJ.
24 - OPINION AND ORDER
Plaintiff also appears to contend the ALJ’s
hypothetical posed to the VE is not supported by the record, and,
therefore, the ALJ’s reliance on the VE’s testimony does not
support the ALJ’s determination at Step Four.
Plaintiff,
however, does not point to any specific evidence to support his
contention.
To the extent that Plaintiff’s position is based on
the issues discussed above, the Court has already concluded the
ALJ did not err.
Finally, Plaintiff contends the VE’s testimony, which
was based on the ALJ’s evaluation of Plaintiff’s RFC, conflicts
with the requirements of the Dictionary of Occupational Titles
(DOT) for the occupation of cashier, but Plaintiff does not
identify any part of the VE’s testimony that allegedly
contradicts the DOT.
In addition, Plaintiff asserts the ALJ
erred when he did not identify or ask the VE to address any such
conflicts, but Plaintiff merely recites the DOT requirements and
the limitations included in Plaintiff’s RFC without identifying
any specific conflict between them.
As noted, the Plaintiff bears the burden at Step Four
to show that he is unable to perform his past relevant work.
On
this record the Court concludes Plaintiff has failed to meet his
burden and has not established the ALJ erred at Step Four.
Accordingly, the Court concludes the ALJ did not err at Step Four
because there is substantial evidence in the record to support
25 - OPINION AND ORDER
the ALJ’s determination that Plaintiff could perform his past
relevant work as a cashier.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter pursuant to sentence four
of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
DATED this 26th day of April, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
26 - OPINION AND ORDER
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