Frost v. Commissioner Social Security Administration

Filing 20

OPINION AND ORDER: For the reasons set forth herein, the Commissioner's decision is AFFIRMED, and this case is DISMISSED. Signed on 1/23/2019 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

RONALDF.,

1

Case No. 6:17-CV-00824-AA
OPINION AND ORDER

Plaintiff,

v.
COMMISSIONER OF SOCIAL SECURITY, 2
Defendant.

AIKEN, District Judge:
Plaintiff Ronald F. brings this action for judicial review of the Commissioner of Social
Security's ("Commissioner") final decision denying his application for disability insurance
benefits ("DIB").

The Commissioner determined that while plaintiff suffered from severe

1

In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental paity or parties in this case. Where applicable, this opinion uses
the same designation for a non-governmental party's immediate family member.
2

Nancy A. Berryhill's term as the Acting Commissioner of the Social Security
Administration (SSA) ended on November 17, 2017, and a new Commissioner has not been
appointed. The official title of the head of the SSA is the "Commissioner of Social Security."
42 U.S.C. § 902(a)(I). 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.
Page 1 - OPINION AND ORDER

impaim1ents, he did not meet the disability requirements under the Social Security Act ("Act").
For the reasons set forth below, the Commissioner's decision is affirmed and this case is
dismissed.
BACKGROUND

On June 6, 2013, plaintiff filed an application for DIB with an alleged disability onset
date of December 25, 2011. Tr. 15. The claim was initially denied on October 15, 2013, and it
was denied again on reconsideration on April 29, 2014. Id. Plaintiff filed a written request for
an administrative hearing which was held on January 26, 2016. Id. Plaintiff was represented by
counsel. Plaintiff and a Vocational Expert ("VE") testified at the hearing. Prior to the hearing,
plaintiff amended his alleged disability onset date to December 28, 2011. Id. On March 8, 2016,
the Administrative Law Judge ("ALJ") issued an order finding that plaintiff was not under
disability for the requisite 12 months and was therefore not eligible for DIB. Tr. 28.
Plaintiff was 57 years old at the time of his alleged onset date and 61 years old at the time
of his hearing. Pl. 's Br. at 3. He completed some college coursework and was previously
employed as an insurance salesman and a support teclmician. Id.; Tr. 60.
STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if it is based upon proper
legal standards and the findings are supp01ied by substantial evidence in the record. 42 U.S.C. §
405(g); Ben)' v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than
a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to supp01i a conclusion." Gutierrez v. Comm 'r Soc. Sec., 740 F.3d
519,522 (9th Cir. 2014) (citation and quotation marks omitted). The court must weigh "both the
evidence that supp01is and the evidence that detracts from the ALJ' s conclusion." 1\1ayes v.

Page 2 - OPINION AND ORDER

1\1assanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one
interpretation but the Conm1issioner' s decision is rational, "the court may not substitute its
judgment for that of the Commissioner" and the decision must be affirmed.

Edlund v.

lvfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION

The initial burden of proof rests upon the plaintiff to establish disability. Howard v.

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986).

To meet this burden, the plaintiff must

demonstrate an "inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected ... to last for a continuous
period of not less than 12 months[.]" 42 U.S.C. § 423(d)(l)(A).
The Conm1issioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4);

id. § 416.920(a)(4). As a threshold matter, the ALJ determined that plaintiff met the insured
status requirement. Tr. 17. Proceeding to step one, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since the alleged disability onset date of December 28,
2011. Id.; 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id. §§ 416.920(a)(4)(i), (b). At step two, the ALJ
determined that plaintiff had several severe impairments: "history of longstanding lumbar
degenerative disk disease with failed laminectomy syndrome, left hand trigger finger, and
peripheral neuropathy." Id. 20 C.F.R. §§ 404.1520(a)(4)(ii), (c); id. §§ 416.920(a)(4)(ii), (c).
The ALJ found that the plaintiff's "medically determinable mental impainnents of anxiety
disorder and depressive disorder, considered singly and in combination, do not cause more than
minimal limitations" and were not severe. Tr. 19-20.
At step three, the ALJ determined that plaintiff's impairments, whether considered singly

Page 3 - OPINION AND ORDER

or collectively, did not meet or equal one of the listed impairments in 20 C.F.R. §§ 404.1520(d),
404.1525, and 404.1526 that Commissioner acknowledges are so severe as to preclude
substantial gainful activity. Tr. 20.
Next, the ALJ assessed plaintiffs residual functional capacity ("RFC"). 20 C.F.R. §
404.1520(e); id. § 416.920(e). The ALJ found that plaintiff had the RFC to perform light work
with the following limitations:
[C]laimant is limited to not more than occasional stooping, kneeling, balancing, or
crouching. He can never crawl or climb ladders, ropes, or scaffolds, and he is
limited to no more than frequent climbing of stairs and ramps. The claimant can
also only frequently handle, grasp, or finger with his left hand and he would need
to avoid concentration exposure to heights, moving machinery, and similar
hazards.
Tr. 21. In making this determination, the ALJ noted that the "[plaintiffs] significant
activities of daily living" suggested that he was capable of performing fairly significant work
activities. Tr. 24.
At step four, the ALJ found that plaintiff was capable of performing past relevant work as
an insurance salesperson and support technician. Tr. 27; 20 C.F.R. §§ 404.1520(a)(4)(iv), (f).
The ALJ relied upon the testimony of a vocational expert in reaching this decision. Because
plaintiff could perform past relevant work, the ALJ did not proceed to step five.
Accordingly, the ALJ concluded that the plaintiff was not under a disability as defined by
the Act and denied his application for benefits. Tr. 28; 20 C.F.R. § 404.1520(f).
DISCUSSION

Plaintiff alleges that the ALJ committed harmful error in four ways. He asserts that the
ALJ (1) failed to account for mental limitations when determining the plaintiffs RFC and in so
doing improperly discounted the opinions of psychologist Manuel Gomes, Ph.D. and therapist
Gayle Annstrong, L.I.S.W.-C.P; (2) improperly discredited plaintiffs subjective symptom
Page 4 - OPINION AND ORDER

testimony; (3) failed to provide legally sufficient reasons for discounting the opinion of treating
physician Tony Owens, M.D.; and (4) failed to provide specific, germane reasons for discounting
the lay witness testimony of plaintiffs sister. I address each issue in tum.
I.

Plaintiff's 1\1ental Limitations
Plaintiff argues that while the ALJ's determination at step two, that plaintiff did not have

severe mental limitations was harmless error, the ALJ's failure to consider mental limitations
during the step four RFC analysis was harmful e1Tor because the ALJ assessed "a flawed,
incomplete residual functional capacity." Pl.'s at 7-8.
During step two, the ALJ considered the four broad fonctional areas set out by regulation
for evaluating mental disorders: daily living; social fonctioning; concentration, persistence, pace;
and decompensation. 20 C.F.R. § 404, Subpaii B, Appendix 1 ("paragraph B" criteria); Tr. 5.
The ALJ found that claimant experienced no more than mild limitations in the first three
categories and no episodes of decompensation. Tr. 6. This led the ALJ to detem1ine that the
claimant's mental limitations were non-severe. Id
The ALJ relied upon medical opinions in coming to this conclusion and to later find no
mental limitations in the RFC. "[W]ith rare exception, examining physicians have repeatedly
rep01ied evidence of intact cognitive functioning." Tr. 19. The ALJ relied upon findings from
two reviewing physicians and one treating physician to supp01i this conclusion. Id The ALJ
found that these opinions were consistent with the preponderance of the evidence in the record
and claimant's own reports of his activities. Id The ALJ relied upon the opinion of claimant's
treating physician, Joseph Gabriel, M.D. who treated plaintiff for anxiety and reported that
"claimant's mental condition cause only slight limitations to his ability to function." Tr. 20.
In determining that claimant's RFC did not include any mental limitations, the ALJ gave

Page 5 - OPINION AND ORDER

little weight to the opinions of examiner Manuel Gomes, Ph.D., and treating counselor Gayle
Armstrong LISW-CP. Tr. 25. Plaintiff asserts that this was in error.
Examining and treating physician's opinions may be rejected by an ALJ with specific and
legitimate reasons that are suppo1ted by substantial evidence. Garrison v. Colvin, 759 F.3d 995,
1012 (9th Cir. 2014). "The ALJ need not accept the opinion of any physician, including a
treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical
findings." Chaudl11y v. Astrue, 688 F.3d 661,671 (9th Cir. 2012).
In this case, the ALJ assigned little value to examining physician Gomes's opm1on
because he found Gomes's opinion to be
fairly vague and provides little insight into the specific work activities that might
be affected by the claimant's low moderate impairment or the frequency or degree
to which such activities might be limited by the claimant's mental impairments.
Moreover, as described above, the almost uniformly benign objective findings
relating to the claimant's mental disorders suggest that they would cause only
minimal deficits in the workplace.
Tr. 25. Gomes's evaluation indicated both that plaintiff "does not seem to have any
psychological barriers to ensuring his ability to maintain regular workplace attendance," and
Gomes asserted that plaintiffs pain prevented him from performing at a higher level. Tr. 473.
The ALJ assigned little weight to this opinion because it is "fairly vague and provides little
insight into specific work activities" that could be affected by claimant's mental impairments,
and because this assertion was contradicted by "almost uniformly benign objective findings
relating to the claimant's mental disorders." Tr. 25. In this case, the ALJ determined that
Gomes's opinion was brief and conclusory and contradicted by other objective evidence in the
record. The ALJ had previously completed the paragraph B analysis and found no more than
mild limitations in three categories and no limitations in another. Tr. 18-20. By referencing
other findings in the record, including Gomes's reports in his opinion, the ALJ provided specific
Page 6 - OPINION AND ORDER

and legitimate reasons to disregard Gomes' s opinion regarding claimant's mental limitations.
As to Armstrong, the treating counselor, the ALJ gave little weight to her opinion
because she did not indicate that plaintiff would be unable to work for the requisite 12 months.
Tr. 25. The ALJ noted that since Armstrong's report, plaintiff had been responsive to treatment
and the record "routinely demonstrated no more than moderate objective abno1malities related to
any of his conditions." Tr. 25-26.
Plaintiff argues that while Armstrong did not directly state that he would be unable to
work for 12 months, the record indicates that he received treatment from her for 13 months from
February of2012 to March of 2013. Tr. 359-60, 295-96. While it is "en·or for an ALJ to pick
out a few isolated instances of improvement over a period of months ... and treat them as a basis
for concluding a claimant is capable of working," here, the ALJ correctly examined the entire
record and determined that the claimant routinely denied feelings of depression that would
inhibit his ability to work. Tr. 19, 26. Simply receiving treatment for 12 months does not
indicate that claimant had a severe impairment lasting for that amount of time sufficient to give
rise to a disability. While other interpretations of the evidence may be asse1ted, the ALJ's
interpretation is rational and must be upheld.
The ALJ provided specific and germane reasons to discount the opinions of Gomes and
Armstrong and did not err in not excluding mental limitations in the RFC.
II.

Subjective Symptom Testimony

Plaintiff challenges the ALJ's finding that his subjective symptom statements were not
entirely credible. Tr. 22. If an ALJ determines that a claimant's subjective testimony is not
credible, the ALJ must make specific findings, suppmted by substantial evidence, to support this
conclusion. Rollins v. lvfassanari, 261 F.3d 853, 857-57 (9th Cir. 2001). Plaintiffasse1ts that the

Page 7 - OPINION AND ORDER

ALJ failed to provide specific, clear, and convincing reasons supp01ied by substantial evidence
to discredit his subjective testimony.
The ALJ determined that "the claimant's statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely credible[.]" Tr. 22. Essentially, the ALJ
determined that plaintiffs testimony was inconsistent with the medical evidence in the record.

Bunnell v. Sullivan, 947 F.2d 341,346 (9th Cir. 2001) (en bane). He stated that,
Since the amended alleged onset date, the claimant's treatment notes and
examination reports have generally failed to include evidence of any more than
moderate objective deficits or dysfunction and these records indicate that his
conditions have responded fairly well to treatment. These routinely modest
findings are inconsistent with the degree of limitation the claimant has alleged and
suggest that he has retained the capacity for a fairly broad range of physical work
activities.

Id. The ALJ noted that over the course of treatment the plaintiff described "feeling better than he
had in a long time." Tr. 22-23. Plaintiff had a spinal stimulator implanted in July 2012, and
treatment notes indicate that this reduced plaintiffs symptoms by "as much as 90%." Tr. 23.
Plaintiff also assetis that the ALJ improperly relied upon his daily activities to discredit
his testimony. The ALJ determined that plaintiffs disability allegations were inconsistent with
the daily activities that he undertook when using his medications. The ALJ noted that "the
claimant reported engaging in a wide array of chores when using his medications including
mowing the lawn, laundry, and light housekeeping." Tr. 24. The ALJ referenced plaintiffs
rep01i that he could drive for up to an hour, walk up to half a mile, and go fishing in the ocean.

Id. "Ultimately, the claimant has generally failed to exhibit any more than moderate objective
musculoskeletal or neurological deficits ... taken with the largely successful treatment he has
received and his ability to engage in a fairly wide range of physically demanding daily activities,
the undersigned does not find that the claimant's allegations are entirely persuasive." Tr. 24.

Page 8 - OPINION AND ORDER

The Court finds that the ALJ provided sufficiently specific reasons to discredit plaintiffs
subjective testimony that was inconsistent with medical evidence in the record.

III.

1vfedical Opinion a/Treating Physician Tony Owens.

Plaintiff next asserts that the ALJ erred in disregarding the testimony of treating
physician Tony Owens, M.D. "As a general rule, more weight should be given to the opinion of
a treating source than to the opinion of doctors who do not treat the claimant." Lester v. Charter,
81 F.3d 821, 830 (9th Cir. 1995). However, "the ALJ need not accept the opinion of any
physician, including a treating physician, if that opinion is brief, conclusory, and inadequately
supported by clinical findings." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th
Cir. 2009). Again, a treating physician's opinions may be rejected by an ALJ with specific and
legitimate reasons that are suppo1ted by substantial evidence. Garrison v. Colvin, 759 F.3d 995,
1012 (9th Cir. 2014).
Dr. Owens stated in July 2012 that the claimant would be unable to work until sometime
after his spinal stimulator was implanted. Owens did not assert that claimant would be unable to
work for the requisite 12-month period to wanant a disability finding. 42 U.S.C. §423(d)(l)(A).
The ALJ gave little weight to Owen's statement for this reason, coupled with the fact the record
revealed that Owens was "extremely responsive to treatment" (the spinal stimulator), and
"routinely demonstrated no more than moderate objective abnormalities related to any of his
conditions." Tr. 26.
These reasons are specific to Owens' medical report and contradicted by medical records
of plaintiffs successful treatment following the implant of his spinal stimulator. Thus, the
reasons given by the ALJ are adequate to support his decision to assign Owens' opinion little
weight.

Page 9 - OPINION AND ORDER

IV.

Lay Witness Testimony.
Finally, plaintiff argues that the ALJ ened in discounting the lay testimony of his sister

Jacquelyn F. Lay witness testimony regarding the severity of a claimant's symptoms or how an
impairment affects a claimant's ability to work is competent evidence that an ALJ must consider.

Nguyen v. Chafer, 100 F.3d 1462, 1467 (9th Cir. 1996) (citing Dodrill v. Shalala, 12 F.3d 915,
918-19 (9th Cir. 1993). An ALJ must present specific and germane reasons to reject a lay
witness's testimony. Bruce v. As/rue, 557 F.3d 1113, 1116 (9th Cir. 2009). Reasons that are at
least germane in which an ALJ may discount lay witness testimony include (I) inconsistencies or
contradictions with medical evidence, Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001), and (2)
internal inconsistencies in a statement. Robinson v. Benyhill, 690 Fed.Appx. 520, 524 (9th Cir.
2017); see also Oregon v. Barnhart, 26 Fed.Appx. 691, 693 (9th Cir. 2002) (internal
inconsistencies between statements is a clear and convincing reason to discount credibility).
Clear and convincing reasons to discount lay witness credibility also constitute germane
reasons. Kha! v. Benyhill, 690 Fed.Appx. 499, 502 (9th Cir. 2017).
In this case, the ALJ rejected a function report completed by claimant's sister.

In

rejecting her testimony, the ALJ noted that she was not medically trained to make "exacting
observations;" by virtue of her relationship to claimant, she was not a "disinterested third party
witness;" and "most importantly, significant weight cannot be given to this opinion because it,
like the claimant's allegations, is simply not consistent with the preponderance of the opinions
and observations of medical doctors in this case." Tr. 26.
The ALJ ened in discounting this testimony simply because plaintiffs sister did not have
medical training. Nguyen, 100 F.3d at 1467 ("lay witness testimony as to claimant's symptoms
or how an impairment affects ability to work is competent evidence ... and therefore cannot be

Page 10- OPINION AND ORDER

disregarded without comment."). The ALJ also erred in discounting Jacquelyn F.'s testimony
because she had a close relationship with claimant. Dale v. Colvin, 823, F.3d 941, 944-45 (9th
Cir. 2016) (claims of bias in the abstract are inadequate to reject lay witness testimony).
However, these errors are harmless because the ALJ also rested his decision on the
inconsistencies between plaintiffs testimony and the medical evidence, which is an appropriate
and germane reason to discount plaintiffs testimony. Lewis v. Apfel, 236 F.3d 503,511 (9th Cir.
2001). The ALJ also appropriately pointed to the similarities between the plaintiffs discredited
testimony and his sister which is another germane reason to discount lay testimony. Valentine v.

Comm 'r Social Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). Thus, the ALJ did not commit
hannful error regarding this issue.
CONCLUSION

For the reasons set fo11h herein, the Commissioner's decision is AFFIRMED, and this
case is DISMISSED.
IT IS SO ORDERED.
Dated this

J Q_day January of 2019.

Ann Aiken
United States District Judge

Page 11 - OPINION AND ORDER