Hall v. Commissioner Social Security Administration
Filing
19
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 12/11/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KELLY H.,1
6:17-cv-01705-BR
Plaintiff,
OPINION AND ORDER
v.
Commissioner, Social
Security Administration,
Defendant.
KATHERINE EITENMILLER
MARK A. MANNING
Harder Wells Baron & Manning
474 Willamette Street
Eugene, OR 97401
(541) 686-1969
Attorneys for Plaintiff
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 family members named in this case.
1
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
HEATHER L. GRIFFITH
Social Security Administration
Office of the General Counsel
701 Fifth Avenue
Suite 2900 M/S 221A
Seattle, WA 98104-7075
(206) 615-3709
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Kelly H. seeks judicial review of a final decision
of the Commissioner of the Social Security Administration (SSA) in
which she denied Plaintiff's applications for Supplemental Security
Income (SSI) and Disability Insurance Benefits (DIB) under Titles
XVI and II of the Social Security Act.
For the reasons that follow, the Court DENIES Plaintiff=s Motion
for Remand, AFFIRMS the decision of the Commissioner, and DISMISSES
this matter.
ADMINISTRATIVE HISTORY
Plaintiff filed applications for DIB and SSI on August 10, 2012,
alleging a disability onset date of January 31, 2010.
2 - OPINION AND ORDER
Tr. 156-59.2
The applications were denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a hearing
on March 17, 2016.
Tr. 33-62.
At the hearing Plaintiff was
represented by an non-attorney representative.
Plaintiff and a
vocational expert (VE) testified at the hearing.
The ALJ issued a decision on May 6, 2016, in which he found
Plaintiff is not disabled and, therefore, is not entitled to benefits.
Tr. 20-32.
Pursuant to 20 C.F.R. § 404.984(d) that decision became
the final decision of the Commissioner on September 12, 2017, when
the Appeals Council denied Plaintiff's request for review.
Tr. 1-6.
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
BACKGROUND
Plaintiff was born on May 2, 1979, and was 37 years old at the
time of the hearing.
Tr. 159.
education.
Plaintiff has past relevant work experience
Tr. 191.
Plaintiff has a high-school
as a mobile-home utility worker, carpet-layer, and courtesy clerk.
Tr. 56.
Plaintiff alleges disability due to Asevere back muscle spasms.@
Tr. 71.
Except when noted, Plaintiff does not challenge the ALJ=s summary
of the medical evidence.
After carefully reviewing the medical
Citations to the official transcript of record filed by the
Commissioner on May 22, 2018, are referred to as "Tr."
2
3 - OPINION AND ORDER
records, this Court adopts the ALJ=s summary of the medical evidence.
See Tr. 24-26.
STANDARDS
The initial burden of proof rests on the claimant to establish
disability.
Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).
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."
42 U.S.C. § 423(d)(1)(A).
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, 459B60 (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.
42 U.S.C. § 405(g).
See also
Brewes v. Comm=r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir.
2012).
Substantial evidence is Arelevant 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."
4 - OPINION AND ORDER
Id. (citing Valentine,
574 F.3d at 690).
The ALJ is responsible for determining
credibility, 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.
v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
Ludwig
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 Commissioner
determines the claimant is engaged in substantial gainful activity.
20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(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 impairments or combination of impairments.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
at 724.
5 - OPINION AND ORDER
20 C.F.R.
See also Keyser, 648 F.3d
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 regular and
continuing basis despite his limitations.
416.920(e).
20 C.F.R. §§ 404.1520(e),
See also Social Security Ruling (SSR) 96-8p.
AA
'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 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), 416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
6 - OPINION AND ORDER
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
set forth in the regulations at 20 C.F.R. part 404, subpart P, appendix
2.
If the Commissioner meets this burden, the claimant is not
disabled.
20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since his January 31, 2010, alleged
onset date.
Tr. 22.
At Step Two the ALJ found Plaintiff has the severe impairments
of degenerative disc disease of his lumbar spine and asthma.
Tr. 22.
The ALJ found Plaintiff=s impairment of left-lateral
epicondylitis is not severe.
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.
7 - OPINION AND ORDER
Tr. 23.
The ALJ found Plaintiff has the RFC to perform sedentary
work except Apostural activities would be performed at a frequent
level, and no concentrated exposure to airborne irritants such as
dust, fumes, gasses, and odors.@
Tr. 23.
At Step Four the ALJ concluded Plaintiff cannot perform his
past relevant work.
Tr. 27.
At Step Five the ALJ found Plaintiff can perform jobs that exist
in significant numbers in the national economy.
Tr. 27.
Accordingly, the ALJ found Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) partially rejected
Plaintiff=s testimony and (2) gave Apartial weight@ to the opinion
of examining physician Christopher Carey, D.O.
I.
The ALJ did not err when he partially rejected Plaintiff=s
testimony.
Plaintiff alleges the ALJ erred when he failed 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
8 - OPINION AND ORDER
symptom.
Cotton, 799 F.2d 1403 (9th Cir. 1986), aff'd in Bunnell
v. Sullivan, 947 F.2d 341 (9th Cir. 1991).
The claimant, however,
need not produce objective medical evidence of the actual symptoms
or their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not any
affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and convincing
reasons for doing so.
Parra v. Astrue, 481 F.3d 742, 750 (9th Cir.
2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).
General assertions that the claimant's testimony is not credible
are insufficient.
Id.
The ALJ must identify "what testimony is
not credible and what evidence undermines the claimant's complaints."
Id. (quoting Lester, 81 F.3d at 834).
At the hearing Plaintiff testified he was unable to work due
to severe back pain and spasms.
Plaintiff stated “lately” he has
been having “particularly bad” back spasms twice per week.
Tr. 42.
Plaintiff noted he takes only Flexeril for his back pain
and spasms because he has a “weak stomach [and] none [of the other
medications he has tried] agree[] with” his stomach.
Tr. 43.
Plaintiff also uses a “tens” unit that “relaxes [his] nerves” but
does not “touch[] that dull, sharp pain that’s right in [his] lower
back.”
Tr. 43.
Plaintiff also has “pain radiating down [his] left
leg into [his] calf” that feels like a “burning sensation like someone
. . . has a lighter on [his] calf.”
9 - OPINION AND ORDER
Tr. 43.
Plaintiff explained
his insurance will not cover a “nerve root shot” to treat his pain
nor will it cover surgery for his back pain.
Tr. 44.
Plaintiff
also noted, however, that his neurosurgeon did not recommend surgery
for Plaintiff’s condition.
Plaintiff rated his pain on a good day as a seven on a scale
of one-to-ten and on a bad day as a ten.
On a good day Plaintiff’s
pain limits his ability to kneel, to lift, to walk, or to stand for
“long periods.”
Specifically, on a good day Plaintiff can walk for
30 minutes, stand for 20 minutes, and lift a gallon of milk.
a bad day Plaintiff cannot do anything.
On
For example, on a bad day
Plaintiff cannot lift a gallon of milk because he is “all seized
up.”
Tr. 53.
day.”
Plaintiff has bad days “almost daily, every other
Tr. 48.
Plaintiff stated his spasms occur randomly and have been brought
on in the past by things such as bending over to brush his teeth,
doing dishes, sneezing, and getting up and down off the toilet.
Tr. 47.
Plaintiff also noted he does not sleep well due to his pain
level.
Plaintiff sleeps for “a couple hours” and then has to get
out of bed and move to a chair.
Tr. 50.
Plaintiff testified he is still able to drive a car, but
sometimes his father has to help him drive and grocery shop because
Plaintiff gets “rummy” and is afraid to drive when he takes Flexeril.
Tr. 51.
Plaintiff stated he did not believe he could do a job that
10- OPINION AND ORDER
required him to put shoes in shoeboxes for eight hours a day with
two 15-minute breaks and a 30-minute lunch even if he was permitted
to sit and to stand throughout the day because his back would hurt
“worse and worse” as the day went on.
Tr. 52.
Plaintiff noted he
might be able to perform such a job for one day, but then he would
experience pain and would be off the job for two days.
The ALJ found Plaintiff’s “medically determinable impairments
could reasonably be expected to cause [his] alleged symptoms,” but
Plaintiff’s “statements concerning the intensity, persistence and
limiting effects of [his] symptoms are not entirely consistent” with
the evidence.
Tr. 24.
Specifically, the ALJ noted Plaintiff
alleged his disability began in January 2010, but the record does
not reflect any significant reports of back pain until October 2010.
On October 27, 2010, Plaintiff reported he began to suffer back
pain after he did some yard work and debris cleanup.
Adnan Misellati,
M.D., recommended physical therapy and prescribed a muscle relaxer.
Tr. 274.
Plaintiff, however, did not follow up with a physical
therapist and did not report back pain to any physician on record
until October 2011.
In fact, Plaintiff was seen for a possible UTI
in May 2011, and at that time Plaintiff reported pain at level 0
on a scale of 0-10.
Tr. 267.
On October 4, 2011, Plaintiff reported to Steven Yoder, M.D.,
with back spasms and pain related to laying carpet.
Tr. 264.
Plaintiff stated he had tried Flexeril, but it did not help and medical
11- OPINION AND ORDER
marijuana seemed to work best.
Dr. Yoder noted Plaintiff “can flex
his back really well, almost can curl into a ball.
normally.
There is no stiffness at all.”
Tr. 264.
He can extend
Dr. Yoder noted
Plaintiff had “some mild tenderness in the lower lumbar and sacroiliac
areas,” but he had “good strength in both lower extremities [and]
his gait is normal.”
Tr. 264.
In February 2012 Plaintiff reported experiencing lower-back
pain and exhibited some decreased range of motion, but his
lower-extremity muscle strength remained at 5/5 bilaterally.
Tr. 261.
In March 2012 Plaintiff reported experiencing pain in his
left elbow and noted he “may have overdone it weight lifting.”
Tr. 258.
The record does not contain any record of Plaintiff reporting
back pain until September 2012 when he told Mark Lyon, M.D., that
he was suffering chronic, recurrent low-back pain with spasms.
Plaintiff stated he was feeling pain at a level of 7 out of 10.
Dr. Lyon noted Plaintiff’s range of motion was fair, and he had 5/5
lower-extremity strength, “symmetrical 3+ reflexes,” and “no red
flag symptoms.”
Tr. 255.
Dr. Lyon noted he would check Plaintiff’s
x-ray, but “suspects it will not be too bad.”
Dr. Lyon recommended
an anti-inflammatory and declined to prescribe oxycodone because
Plaintiff was using medical marijuana.
In December 2012 Plaintiff reported to Dr. Yoder that he was
experiencing lower-back pain at level 5 out of 10, but the pain did
12- OPINION AND ORDER
not radiate into his legs.
to be in a lot of pain.
almost 90 degrees.
feet.
Dr. Yoder noted Plaintiff did “not appear
He easily [got] up from a chair, can bend
He has good plantarflexion, dorsiflexion of his
Gait is normal.”
Tr. 247.
The record does not contain any significant treatment for back
pain in 2013.
In January 2014 Plaintiff reported to urgent care with mid-back
pain that began after Plaintiff lifted “a heavy flowerpot.”
Tr. 297.
Plaintiff noted his pain was worse when he bent or lifted,
but he did not have pain radiating down his legs.
The urgent-care
doctor prescribed stretching, avoiding heavy lifting, ibuprofen for
two weeks, and 10 tablets of oxycodone.
In July 2014 Plaintiff reported to Dr. Yoder that he had been
experiencing lower-back pain at a level of 5 out of 10 for a month.
Plaintiff advised Dr. Yoder that ibuprofen and medical marijuana
did not help.
Dr. Yoder noted Plaintiff had decreased range of
motion, but he had normal strength, reflexes, and gait.
In April 2015 Plaintiff reported to Dr. Yoder with “continued
left leg pain that radiates from his lower back down to the left
lateral calf and has been present for 4-5 months and is getting
progressively worse.”
Tr. 306.
Dr. Yoder noted Plaintiff had
slight tenderness in his left lower back and straight-leg raising
causes low-back pain and some pain going down Plaintiff’s left leg.
Tr. 307.
Plaintiff had normal plantar flexion and dorsiflexion of
13- OPINION AND ORDER
his feet.
In December 2014 Plaintiff reported “worsening symptoms of left
lower back pain and leg pain.
Tr. 309.
Worse in last 4 weeks.”
Plaintiff stated he had new “burning pain of left leg and
into his left calf.”
Tr. 309.
Plaintiff stated he was not
experiencing pain relief with Flexeril or medical marijuana.
The
nurse practitioner recommended physical therapy and stretching.
In June 2015 Plaintiff had an MRI that indicated mild
degenerative changes of the lower lumbar spine, right foraminal
narrowing at L4-L5, and mild bilateral lateral recess narrowing at
L5-S1.
Erik Hauck, M.D., noted Plaintiff did not have major disc
herniation or focal weakness.
Dr. Hauck noted Plaintiff has “some
disc degenerative changes at L5-S1 and mode changes consistent with
arthritis,” but Plaintiff was not “a candidate for surgical
intervention.”
Tr. 324.
Dr. Hauck recommended steroid injections,
but Plaintiff’s insurance has not approved them.
Plaintiff was seen by a physical therapist in August 2015 and
again in October 2015.
In October, however, the physical therapist
noted Plaintiff was discontinuing physical therapy even though he
still reported experiencing back pain.
The physical therapist
stated “[p]hysical exam reveals no obvious pathology” to explain
Plaintiff’s continued symptoms.
Tr. 343-44.
On this record the Court finds the ALJ did not err when he
partially rejected Plaintiff's testimony because the ALJ provided
14- OPINION AND ORDER
clear and convincing reasons supported by substantial evidence in
the record for doing so.
II.
The ALJ did not err when he partially rejected Dr. Carey=s
opinion.
Plaintiff asserts the ALJ erred when he partially rejected
Dr. Carey=s June 2014 opinion.
An ALJ may reject an examining physician's opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes "findings setting forth specific,
legitimate reasons for doing so that are based on substantial evidence
in the record."
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
2002)(quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).
When the medical opinion of a treating physician is uncontroverted,
however, the ALJ must give "clear and convincing reasons" for
rejecting it.
Thomas, 278 F.3d at 957.
See also Lester v. Chater,
81 F.3d 821, 830-32 (9th Cir. 1996).
On June 5, 2014, Dr. Carey conducted a musculoskeletal
consultative examination of Plaintiff.
Dr. Carey reviewed the notes
of Plaintiff’s office visits with Drs. Yoder, Gabrielle, and Bellen
and conducted a physical examination of Plaintiff.
Dr. Carey noted
Plaintiff was able to walk into the examination room, transfer from
a seated to standing position, and transfer to the examination table
without difficulty.
Tr. 289.
Plaintiff showed “some hypertonic
paraspinal muscles in the T7 through L2 region of the right side
15- OPINION AND ORDER
of his back.”
Tr. 289.
Dr. Carey, however, did not note any
significant atrophy, and “ROM testing reveal[ed] normal flexion,
extension and side bending.”
Tr. 289. Dr. Carey concluded “[t]he
severity of [Plaintiff’s] pain is not consistent with objective
findings on exam, although the reported complaints are episodic and
[Plaintiff] does not seem to be in an episode currently.”
Tr. 289.
Dr. Carey concluded Plaintiff does not have any limitations in
standing, sitting, walking, reaching, handling, or fingering;
Plaintiff is able to climb, balance, stoop, kneel, crouch, and crawl
frequently; and Plaintiff is able to lift 50 pounds occasionally
and 25 pounds frequently “unless having a . . . spasm, which would
[limit Plaintiff to lifting or carrying] less than 10 pounds if he
is able to function at all.”
Tr. 289-90.
The ALJ gave partial weight to Dr. Carey’s opinion.
Specifically, the ALJ rejected the portion of Dr. Carey’s opinion
in which he found Plaintiff’s “back pain symptoms would sometimes
be incapacitating or would limit lifting to less than 10 pounds.”
Tr. 26.
The ALJ noted Dr. Carey failed to indicate “any frequency
for the incapacitating episodes of back pain, which limits the weight
given to this portion of [his] opinion.”
Tr. 26.
In addition, the
ALJ noted the record reflects heavy lifting such as moving a heavy
flower pot, overdoing it with weights, and laying carpet exacerbates
Plaintiff’s back pain, and, therefore, “it can be inferred that if
[Plaintiff] was limited in lifting and carrying it would be unlikely
16- OPINION AND ORDER
that he would experience persistent exacerbations in back pain to
the extent that it would completely disrupt his ability to maintain
fulltime employment.”
Tr. 26.
The Court concludes on this record that the ALJ did not err
when he partially rejected Dr. Carey=s opinion because he 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 11th day of December, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
17- OPINION AND ORDER
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