Johansen v. Commissioner Social Security Administration
Filing
21
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. IT IS SO ORDERED. See attached order for details. Signed on 6/13/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Stephen E. J.,1
Plaintiff,
6:17-cv-00879-BR
OPINION AND ORDER
v.
COMMISSIONER OF SOCIAL
SECURITY,2
Defendant.
JOHN E. HAAPALA, JR.
401 E. 10th Ave.
Eugene, OR 97401
(541) 345-8474
Attorney for Plaintiff
1
In the interest of privacy and pursuant to the
recommendation of the Judicial Conference of the United States,
this Opinion and Order uses only the first name and the initial
of the last name of the nongovernmental parties. The same
designation will be used to identify nongovernmental parties'
family members if named in this case.
2
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
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
MICHAEL W. PILE
Acting Regional Chief Counsel
RYAN 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 Stephen E. J. seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which the Commissioner denied Plaintiff's
application for Disability Insurance Benefits (DIB) under Title
II 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 initial application for DIB
2 - OPINION AND ORDER
benefits on January 6, 2012.
Tr. 152.3
Plaintiff alleged a
disability onset date of November 19, 2007.
Plaintiff’s
application was denied initially and on reconsideration.
An
Administrative Law Judge (ALJ) held a hearing on November 13,
2013.
Tr. 57-110.
testified.
Plaintiff and a vocational expert (VE)
Plaintiff was represented by an attorney at the
hearing.
On December 5, 2015, the ALJ issued an opinion in which he
found Plaintiff was not disabled for the period of November 2007
through March 2013 and, therefore, is not entitled to benefits.
Tr. 152-60.
On December 26, 2013, Plaintiff requested review by the
Appeals Council.
Tr. 234-36.
On May 7, 2015, the Appeals Council vacated the ALJ’s
decision on the ground that the ALJ had incorrectly determined
the final date for Plaintiff’s insured status.
The Appeals
Council remanded the case to the ALJ to reassess Plaintiff’s
claim based on the correct disability period of November 19,
2007, to September 30, 2014.
The Appeals Council directed the
ALJ to obtain additional evidence concerning the Plaintiff’s
impairment in order to complete the administrative record; to
consider the evidence or record through the relevant period at
3
Citations to the official transcript of record filed by
the Commissioner on November 28, 2017, are referred to as "Tr."
3 - OPINION AND ORDER
issue; to “offer” the Plaintiff an opportunity for an evidentiary
hearing; and to issue a new decision.
Tr. 169-70.
On November 5, 2015, the ALJ held another hearing.
55.
Tr. 34-
Plaintiff testified and was represented by an attorney.
On January 8, 2016, the ALJ issued a second opinion in which
he again found Plaintiff was not disabled for the period of
November 2007 through September 2014 and, therefore, is not
entitled to benefits.
Tr. 16-25.
On January 11, 2016, Plaintiff again requested review of the
ALJ’s decision by the Appeals Council.
Tr. 11-12.
On April 7,
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. 1-3.
See Sims v. Apfel, 530
U.S. 103, 106-07 (2000).
On June 23, 2017, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner’s decision.
BACKGROUND
Plaintiff was born on August 28, 1960.
Tr. 24.
was 54 years old on the date he was last insured.
Plaintiff has a high-school education.
Tr. 24.
Plaintiff
Tr. 24.
The ALJ found
Plaintiff has past relevant work as an HVAC installer.
Tr. 24.
Plaintiff alleges disability due to a right-knee injury,
ruptures in his neck, degenerative disc disease of the lumbar
4 - OPINION AND ORDER
spine with disc herniation, obesity, and two hernias with radial
myopathy.
Tr. 218.
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. 35-42.
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.,
5 - OPINION AND ORDER
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).
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commis-
6 - OPINION AND ORDER
sioner determines the claimant is engaged in substantial
gainful activity (SGA).
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).
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).
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 his limitations.
§ 404.1520(e).
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
7 - OPINION AND ORDER
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.
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.
20 C.F.R. § 404.1520(a)(4)(v).
Keyser, 648 F.3d at 724-25.
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. § 404.1520(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since February 2, 2012, his alleged
date of disability onset.
8 - OPINION AND ORDER
Tr. 33.
At Step Two the ALJ found Plaintiff has the severe
impairments of “status-post right knee surgery, degenerative disk
disease of the cervical spine (status-post fusion), degenerative
disk disease of the lumbar spine with disk herniation, and
obesity.”
Tr. 33.
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. 34.
The ALJ found Plaintiff has the RFC to
perform sedentary work.
The ALJ also found Plaintiff requires a
sit/stand option that allows him to alternate sitting and
standing positions throughout the day.
The ALJ also found
Plaintiff can frequently climb ramps or stairs, frequently stoop,
and occasionally kneel and crouch.
The ALJ found Plaintiff
cannot climb ladders, ropes, or scaffold; cannot crawl; can
occasionally push and pull with both arms; cannot reach overhead
or above shoulder level; must avoid concentrated exposure to
nonweather-related extreme cold; and must avoid exposure to
excessive vibration, unprotected heights, and hazardous
machinery.
Tr. 35.
At Step Four the ALJ concluded Plaintiff is able to perform
his past relevant work.
Tr. 43.
At Step Five the ALJ found Plaintiff could also perform
other work in the national economy in light of Plaintiff’s age,
9 - OPINION AND ORDER
education, work experience, and RFC.
Tr. 43-44.
The ALJ cited
three examples of such work that were identified by the VE:
call-out operator, charge-account clerk, and semiconductor
bonder.
Tr. 44.
Thus, the ALJ concluded Plaintiff is not
disabled and, therefore, is not entitled to benefits.
Tr. 44-45.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) failed to
follow the order issued by the Appeals Council and (2) improperly
discounted Plaintiff’s symptom testimony.
I.
The ALJ complied with the Appeals Council’s Order.
Plaintiff contends the ALJ erred “in all ways other than
granting [P]laintiff an additional hearing.”
Specifically,
Plaintiff argues the ALJ refused to consider Plaintiff’s
testimony at the hearing on remand and failed to obtain
additional evidence to complete the record concerning Plaintiff’s
impairments.
Defendant, however, contends the ALJ fully complied with the
Appeals Council’s order.
According to Defendant, even if the ALJ
failed to comply, such failure is not a proper basis to reverse
the ALJ’s decision.
A.
The Law
The Social Security Regulations provide the ALJ “shall
take any action that is ordered by the Appeals Council and may
10 - OPINION AND ORDER
take any additional action that is not inconsistent with the
Appeals Council’s remand order.”
20 C.F.R. § 416.1477(b).
The
ALJ’s failure to follow a remand order, however, is not a proper
basis for the reviewing court to reverse or to remand the ALJ’s
final decision regarding a claimant’s disability.
Strauss v.
Comm’r of Soc. Sec. Admin., 635 F.3d 1135, 1136-38 (9th Cir.
2011)(district court erred when it awarded benefits to the
plaintiff based on the ALJ’s failure to follow remand order
without first ascertaining whether the claimant was disabled).
“The ALJ’s errors are relevant only as they affect [the
disability] analysis on the merits.”
Id. at 1138.
See also
Scothern v. Colvin, No. 6:13-cv-01889-HZ, 2015 WL 1038885, at *3
(D. Or. Mar. 10, 2015).
B.
Analysis
As noted, on remand the Appeals Council directed the
ALJ to do the following:
(1) obtain additional evidence
concerning the Plaintiff’s impairment in order to complete the
administrative record, (2) consider the evidence of record
through the relevant period at issue, (3) “offer” the Plaintiff
an opportunity for an evidentiary hearing, and (4) issue a new
decision.
Tr. 169-70.
On November 5, 2015, the ALJ held a further hearing on
remand.
Although the ALJ stated he did not have any questions,
Plaintiff was questioned by his attorney and testified at the
11 - OPINION AND ORDER
hearing.
Tr. 46-53.
The ALJ inquired about obtaining additional
treatment records for Plaintiff “since the prior hearing decision
and also that predates the date last insured.”
Tr. 42.
Subsequent to the hearing Plaintiff submitted his own
statement dated November 24, 2015, (Tr. 441-42); an undated
statement by Dan Willis, a friend (Tr. 440); and additional
medical records from Loren E. Bigley, M.D., Plaintiff’s treating
physician, dated July 2014 through September 2015 (Tr. 790-99).
The ALJ considered all of these records in his January 2016
decision.
Tr. 23-24.
To the extent that the ALJ “ignored” or failed to
comply strictly with the requirements of the Appeals Council’s
Order, Plaintiff has not shown that such error resulted in an
erroneous determination by the ALJ as to Plaintiff’s disability.
On this record the Court concludes the ALJ fulfilled
the underlying requirements of the Appeals Council’s Order and
did not err.
II.
The ALJ did not err when he found Plaintiff’s testimony was
not fully credible.
Plaintiff contends the ALJ erred when he failed to provide
clear and convincing reasons for discounting Plaintiff’s symptom
testimony.
A.
Standards
The ALJ engages in a two-step analysis to determine
whether a claimant's testimony regarding subjective pain or
12 - OPINION AND ORDER
symptoms is credible.
“First, the ALJ must determine whether the
claimant has presented objective medical evidence of an
underlying impairment ‘which could reasonably be expected to
produce the pain or other symptoms alleged.’”
Garrison v.
Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)(quoting Lingenfelter
v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)).
The claimant
is not required to show that “her impairment could reasonably be
expected to cause the severity of the symptom she has alleged;
she need only show that it could reasonably have caused some
degree of the symptom.”
Garrison, 759 F.3d at 1014 (quoting
Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).
A
claimant is not required to produce “objective medical evidence
of the pain or fatigue itself, or the severity thereof.”
Id.
If the claimant satisfies the first step of this
analysis and there is not any affirmative evidence of
malingering, “the ALJ can reject the claimant's testimony about
the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so.”
Garrison, 759 F.3d at 1014-15.
See also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir.
2006)(“[U]nless an ALJ makes a finding of malingering based on
affirmative evidence thereof, he or she may only find an
applicant not credible by making specific findings as to
credibility and stating clear and convincing reasons for each.”).
General assertions that the claimant's testimony is not credible
13 - OPINION AND ORDER
are insufficient.
2007).
Parra v. Astrue, 481 F.3d 742, 750 (9th Cir.
The ALJ must identify "what testimony is not credible and
what evidence undermines the claimant's complaints."
Id.
(quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).
B.
Analysis
The ALJ discounted Plaintiff’s testimony regarding his
symptoms on the grounds that it was inconsistent with the medical
evidence, the medical opinions in the record, and Plaintiff’s
daily activities.
Plaintiff alleges he is disabled based on the effects
of Stage 4 squamous cell carcinoma that “messed up” his thyroid
gland and caused weight gain, hearing loss, short-term memory
issues, “a drainage and allergy condition,” sleeplessness, dry
mouth, and “hydration problems.”
Tr. 20, 309.
Plaintiff
asserted these conditions are so severe that he has difficulty
performing “most activities.”
Tr. 401.
At the hearing in
November 2013 Plaintiff also testified the radiation therapy
causes him to experience numbness in his arms and fingers as well
as pain in his neck.
Tr. 20, 66-67.
Despite these alleged symptoms, the ALJ noted Plaintiff
denied any problems managing his personal care; preparing “soft”
foods for himself daily; performing household repairs; weeding
the yard; going outside independently by car, bicycle, or public
transportation; grocery shopping once a week; and getting along
14 - OPINION AND ORDER
with others.
Tr. 337-41.
The ALJ also noted medical providers at Oregon Health
and Science University (OHSU) indicated in their treatment
records that Plaintiff presented as a “healthy individual in no
acute distress."
Tr. 21, 610.
OHSU records from April and
August 2011 also reflect Plaintiff denied any joint pain, muscle
aches, or loss of strength.
Tr. 21, 635, 637.
The ALJ also noted “none of [Plaintiff’s] treatment
providers have endorsed the conclusion that [Plaintiff] is
physically unable to sustain activity for up to eight hours," and
“the only physical limitation cited by [Plaintiff’s] treatment
providers was a lifting restriction to 20 pounds following his
cervical surgery.”
Tr. 22, 593.
The ALJ gave great weight to
the opinions of Richard Alley, M.D., and Neal Berner, M.D.,
state-agency medical consultants, who determined after reviewing
Plaintiff’s medical records that Plaintiff could perform a range
of light work even with Plaintiff’s impairments.
Tr. 22, 131-32,
145-46.
Finally, the ALJ noted although Plaintiff alleged
numbness in his right hand, arm, and foot, he advised a treatment
provider on September 24, 2014, that he was still able to perform
yard work for a neighbor and to roller skate.
Tr. 23, 795.
On this record the Court concludes the ALJ did not err
when he discounted Plaintiff’s testimony and found it was not
15 - OPINION AND ORDER
fully credible because the ALJ provided clear and convincing
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 13th day of June, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
16 - OPINION AND ORDER
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