Boytz v. Commissioner Social Security Administration
Filing
22
Opinion and Order. The decision of the Commissioner is affirmed; case dismissed. Signed on 11/8/19 by Judge Robert E. Jones. (kf)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION
JOHNB. 1
Plaintiff,
Case No . 6: 18-cv-00235-JO
V.
OPINION AND ORDER
COMMISSIONER,
Social Security Administration,
Defendant.
JONES, Judge:
John B. (Plaintiff) seeks judicial review of the final decision by the Commissioner of
Social Security (Commissioner) denying his application for disability insurance benefits under
Title II of the Social Security Act (the Act) . This court has jurisdiction to review the
1
In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name
of the non-governmental party or parties in this case. Where applicable, this opinion uses the same
designation for a non-governmental party's immediate family member(s).
1 -OPINION AND ORDER
Commissioner' s decision pursuant to 42 U.S.C. § 405(g). I AFFIRM the Commissioner's
decision.
BACKGROUND
Plaintiff was born in 1985 . On July 4, 2014, Plaintiff drove an all-terrain vehicle at high
speed while intoxicated and collided with a tree. Tr. 256, Tr. 294. The impact threw Plaintiff,
who was not wearing a helmet, twenty feet and fractured both femurs, left forearm, cervical spine,
and facial bones, and caused a traumatic brain injury. Tr. 294, Tr. 601. Plaintiff underwent
multiple surgeries and was hospitalized until August 25 , 2014. Tr. 305.
In August 2014, Plaintiff applied for disability insurance benefits, alleging disability
because of chronic pain and cognitive problems. After the agency denied Plaintiffs claim,
Plaintiff received a hearing before an Administrative Law Judge (ALJ) in March 2017. In June
2017, the ALJ issued his decision, finding Plaintiff not disabled. Tr. 13-27. After the Appeals
Council denied Plaintiffs request for review, Plaintiff timely filed this action seeking judicial
review of the denial of benefits.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on proper legal
standards and supported by substantial evidence in the record. 42 U.S.C. § 405(g); Lewis v.
Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and
detracts from the ALJ's conclusion and '"may not affirm simply by isolating a specific quantum
of supporting evidence."' Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). When the evidence is susceptible to
more than one rational interpretation, the court must uphold the Commissioner' s decision if it is
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"supported by inferences reasonably drawn from the record." Tommasetti v. Astrue, 533 F.3d
1035, 1038 (9th Cir. 2008) (citation omitted).
THE ALJ'S FINDINGS ON THE FIVE-STEP SEQUENTIAL INQUIRY
The Act defines "disability" as the "inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be expected to
result in death or 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)(l)(A). To determine whether a claimant is disabled, the
ALJ uses a five -step sequential inquiry. See 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v.
Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).
Here, at step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since July 2014, the alleged onset date. Tr.15.
At step two, the ALJ found Plaintiff had the following severe impairments: "fractures
(legs, arm and cervical spine), organic brain syndrome and chemical dependency." Tr. 15.
At step three, the ALJ found Plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listed impairment. Tr. 16. The ALJ then assessed
Plaintiffs residual functional capacity (RFC), finding that Plaintiff could "perform the full range
oflight work as defined in 20 C.F.R. § 404.967(b) except the claimant can stand and walk four
hours in an eight-hour workday, and sit for six hours in an eight-hour workday. The claimant can
perform simple, routine tasks requiring a reasoning level of 1 or 2." Tr. 18.
At step four, the ALJ found Plaintiff could not perform any past relevant work. Tr. 25.
At step five, the burden of production shifts to the Commissioner to show that the
claimant can perform other work that exists in significant numbers in the national economy,
considering the claimant's RFC, age, education, and work experience. Bustamante v. Massanari,
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262 F.3d 949, 953-54 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). Here,
based on the testimony of a vocational expert, the ALJ found Plaintiff could perform jobs that
exist in significant numbers in the national economy, including the representative occupations of
photocopy machine operator; office helper; and assembler, small products I. Tr. 26. The ALJ
therefore found Plaintiff had not been disabled from July 2014 until June 2017, the date of the
ALJ's decision.
DISCUSSION
Plaintiff argues that the ALJ erred in (1) not giving proper weight to the medical opinions
of Sushanth Nayak, M .D., and William McConochie, Ph.D.; and (2) failing to provide clear and
convincing reasons for rejecting Plaintiffs subjective symptom testimony.
I. The ALJ's Evaluation of Medical Evidence
The ALJ is responsible for resolving ambiguities and conflicts in the medical testimony.
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ must provide clear and
convincing reasons for rejecting the uncontradicted medical opinion of a treating or examining
physician, and must provide specific and legitimate reasons for rejecting contradicted medical
opinions. Bayliss v. Barnhart, 427 F.3d 1211 , 1216 (9th Cir. 2005). "'The ALJ can meet this
burden by setting out a detailed and thorough summary of the facts and conflicting clinical
evidence, stating his interpretation thereof, and making findings." ' Magallanes , 8 81 F .2d at 7 51
(quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)).
A. Dr. Nayak's Responses to the Medical Evaluation Questionnaire
On July 13, 2015, Dr. Nayak completed a Medical Evaluation questionnaire sent by
Plaintiffs counsel. Tr. 614-18. Dr. Nayak had seen Plaintiff three times, first on April 27, 2015.
Tr. 24; Tr. 637-45 . The ALJ gave little weight to Dr. Nayak's questionnaire responses, although
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the ALJ discussed and generally accepted Dr. Nayak's progress notes on Plaintiff's treatment
from April until December 2015. Tr. 20.
In his responses to the questionnaire, Dr. Nayak stated that he diagnosed chronic neck,
leg, and jaw pain, and knee arthritis. Tr. 614. He stated that Plaintiff "has to lie down and rest for
at least 10 to 15 min every hour." Tr. 615 . Dr. Nayak also stated that Plaintiff would need
unscheduled ten- to fifteen-minute breaks during an eight-hour workday "at least every couple of
hrs." Tr. 617. Dr. Nayak indicated that Plaintiff could sit for thirty minutes at a time and walk or
stand ten minutes at a time, for a total of six hours of sitting and two hours of standing or walking
during an eight-hour day. Tr. 616.
The ALJ found that Dr. Nayak's questionnaire responses were "unsupported with
explanations or objective evidence" and "internally inconsistent." Tr. 24. An ALJ may reject a
physician' s opinions based on internal inconsistencies or inconsistencies between the opinions
and other evidence in the record, or on other factors the ALJ deems material to resolving
ambiguities. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601 -02 (9th Cir. 1999).· An
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 ."' Chaudhry v. Astrue, 688
F.3d 661 , 671 (9th Cir. 2012) (quoting Bray v. Comm 'r, 554 F.3d 1219, 1228 (9th Cir. 2009)).
I agree with the Commissioner that the ALJ reasonably found that Dr. Nayak's progress
notes "show medical management and do not contain detailed clinical examinations or findings"
on Plaintiff's limitations. Def. 's Br. 6, ECF No. 19. Dr. Nayak's progress notes generally repeat
Plaintiff's complaints of unspecified leg pain, without providing clinical findings indicating why
Plaintiff would need to take fifteen-minute breaks every hour.
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As to Plaintiffs right knee pain, Dr. Nayak: diagnosed early onset osteoarthritis, which he
treated with steroid injections. Tr. 641-42 (June 2015 steroid injection); Tr. 666 (December 2015
steroid injection). The injections reduced Plaintiffs pain. Tr. 643 (July 13, 2015 report by Dr.
Nayak: indicating right knee pain "seems to be improved"); Tr. 645 (August 3, 2015 report by Dr.
Nayak: noting Plaintiff said he benefitted from steroid injection). Dr. Nayak recommended
continued physical therapy to treat Plaintiff s right knee pain.
I conclude that the ALJ reasonably relied on discrepancies between Dr. Nayak' s
questionnaire responses and Dr. Nayak' s own progress notes as specific and legitimate reasons
for rejecting Dr. Nayak' s medical opinion. "A conflict between treatment notes and a treating
provider' s opinions may constitute an adequate reason to discredit the opinions of a treating
physician or another treating provider." Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014);
Tommasetti, 533 F.3d at 1041 ("The incongruity between Dr. Nachenberg' s Questionnaire
responses and her medical records provides an additional specific and legitimate reason for
rejecting Dr. Nachenberg's opinion of Tommasetti ' s limitations.").
The ALJ also cited internal inconsistency as a reason to discount Dr. Nayak:' s
questionnaire responses. The ALJ referred to Dr. Nayak's response that Plaintiffs impairments
would "never" interfere with his ability to complete eight-hour workday, with Dr. Nayak adding
the phrase "because of chronic pain" in a handwritten note. Tr. 618 . The ALJ understandably
found Dr. Nayak' s response "internally inconsistent with the rest of the evaluation." Tr. 24.
Plaintiff argues that Dr. Nayak misread the question and meant to answer that Plaintiff would
never be capable of working an eight-hour day because of chronic pain. Pl.'s Br. 11-12, ECF No.
16. The Commissioner responds that Dr. Nayak:' s meaning is "contextually clear," and that in
any event Plaintiffs counsel provided the questionnaire and failed to ask Dr. Nayak to clarify his
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response. Def.' s Br. 7. The ALJ did not err in relying on this internal inconsistency as one reason
to discount Dr. Nayak' s responses .
The ALJ also found that Dr. Nayak' s questionnaire responses relied primarily on
Plaintiffs own reports rather than on independent clinical findings. Tr. 24. Because the ALJ
reasonably discounted Plaintiffs subjective symptom testimony, as discussed below, this is an
additional reason supporting the ALJ's rejection of Dr. Nayak's questionnaire responses.
Tommasetti, 533 F.3d at 1041 (" An ALJ may reject a treating physician's opinion if it is based 'to
a large extent' on a claimant' s self-reports that have been properly discounted as incredible."). I
conclude that clear and convincing evidence in the record supports the ALJ's decision to give
little weight to Dr. Nayak' s questionnaire responses.
B. Dr. McConochie's Neuropsychological Evaluation
On a referral from Disability Determination Services, Dr. McConochie performed a
neuropsychological evaluation of Plaintiff in January 2015. Tr. 601-08. Dr. McConochie found
that Plaintiff "had good attention and concentration for test and interview tasks." Tr. 603.
Plaintiff's test scores indicated an average full-scale IQ, "commensurate with his history of
success in high school and at the community college level." Tr. 605 . Dr. McConochie found that
Plaintiffs memory functioning was "in the mild intellectual disability range." Tr. 605.
The ALJ generally accepted Dr. McConochie's evaluation, finding that "mild to moderate
limitations due to memory deficits are consistent with the record." Tr. 23. However, the ALJ did
not accept Dr. McConochie's assessment of '" significant' brain damage affecting memory to a
'significant' degree," finding that this assessment was "contrary to the memory function testing
which, according to Dr. McConochie, was in the mild intellectual disability range, his average
intellectual functioning, and Trails Testing, which was not suggestive of a serious brain injury."
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Tr. 23 . The ALJ also noted that Dr. McConochie did not "explicitly list a residual functional
capacity, addressing the claimant's behavior and frequency of his problems, making it of limited
value in terms of functional disabilities." Tr. 23.
Plaintiff contends that the ALJ failed to explain how the results of the overall IQ testing
and the Trail Making Test "could contradict the results of the WMS-IV, which tests memory
functioning." Pl. Br. 15. However, the ALJ did describe why he found Dr. McConochie's
findings on Plaintiff's memory deficits to be contradictory. Tr. 23. The ALJ noted that Dr.
McConochie found that because Plaintiff's auditory and delayed memory scores were in the mild
to moderate intellectual disability range, despite his overall average score, there was a "strong
suggestion in his scores of significant brain damage affecting memory to a clinically significant
degree." Tr. 606. In contrast, Dr. McConochie also found that Plaintiff's performance on the
Trail Making Test and Aphasia Screening Test was "not suggestive of serious brain injury." Tr.
606.
The ALJ is responsible for resolving ambiguities and conflicts in the medical testimony.
Andrews v. Shala/a, 53 F.3d 1035, 1039 (9th Cir. 1995). Here, the ALJ based his resolution of
the conflict on an accurate summary of Dr. McConochie's evaluation. This court must affirm an
ALJ's reasonable resolution of a conflict in the medical evidence, even if a contrary resolution
would also be reasonable. See id. (the court may not substitute its judgment for the ALJ's when
evidence could reasonably support affirming or reversing a decision).
The ALJ's findings on the medical opinions of Drs. Na yak and McConochie were based
on substantial evidence in the record. I conclude that the ALJ did not err in his assessment of the
medical evidence.
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II. The ALJ's Assessment of Plaintiff' s Testimony
A. Legal Standards for Evalu ating a Claimant's Testimony
Because there is no affirmative evidence of malingering here, the ALJ may discount
Plaintiffs testimony about his symptoms "only by offering specific, clear and convincing reasons
for doing so." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). Under
Social Security Ruling (SSR) 16-3p, "subjective symptom evaluation is not an examination of an
individual's character," and the ALJ must consider all evidence in the record when evaluating the
intensity and persistence of symptoms. SSR 16-3p, available at 2016 WL 1119029, at *1-2. The
ALJ must examine "the entire case record, including the objective medical evidence; an
individual's statements about the intensity, persistence, and limiting effects of symptoms;
statements and other information provided by medical sources and other persons; and any other
relevant evidence in the individual's case record." Id. at *4. The ALJ may consider evidence
such as inconsistent statements, testimony that appears less than candid, and an unexplained
failure to follow a prescribed course of treatment. Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th
Cir. 1991); Fair v. Bowen, 885 F.2d 587, 602-04 (9th Cir. 1989).
B. Plaintiff's Statements About His Limitations
The ALJ found Plaintiffs "medically determinable impairments could reasonably be
expected" to cause some of his alleged symptoms, but also found Plaintiffs statements
"concerning the intensity, persistence and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record." Tr. 19. I conclude that
substantial evidence supports the ALJ' s findings.
Plaintiff submitted a Function Report dated September 1, 2014. Tr. 189-96. The ALJ
found that Plaintiffs 2014 Function Report was not relevant to determining disability because the
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Report described Plaintiffs limitations while he was undergoing rehabilitation less than eight
weeks after his accident. The ALJ found that the medical record showed Plaintiffs condition had
improved significantly since September 2014 as he recovered from his severe injuries. Tr. 19-20.
I conclude that substantial evidence supports the ALJ's finding that the 2014 Function Report
does not reflect the extent of Plaintiffs impairments as of the hearing date.
The ALJ cited Plaintiffs daily activities in his evaluation of Plaintiffs subjective
symptom testimony, finding Plaintiff could "perform a full range of daily activities." Tr. 22. The
ALJ noted that Plaintiff, who had moved out of state in 2015, testified "he was driving without
any difficulty," "worked on small projects," "could perform household chores, such as loading the
dishwasher or vacuuming," and "could ride the bus to medical appointments." Tr. 22. Plaintiff
also testified that he "does a lot of reading," and used a computer, cell phone, and social media.
Tr. 48 , Tr. 57-58.
I conclude that the ALJ adequately explained why he found that Plaintiffs assertions
about his limitations were undermined by his testimony about his daily activities. Rollins v.
Massanari, 261 F.3d 853 , 857 (9th Cir. 2001). Although "the ALJ's interpretation of [Plaintiffs]
testimony may not be the only reasonable one," it is reasonable and supported by substantial
evidence. Id. Therefore this court should not second-guess the ALJ's interpretation. Id.
Plaintiff argues that the ALJ improperly rejected his testimony on his cognitive deficits.
Pl. ' s Br. 19-20. Plaintiff cites medical reports showing that he suffered from deficits in safety
awareness, insight, and short-term memory. Pl. ' s Br. 19 (citing, inter alia, Tr. 247, 418 , 419,424,
452). However, almost all of the reports cited by Plaintiff describe his mental condition during
the weeks immediately following the accident. 2 I agree with the Commissioner that although
2
Plaintiff also cited Dr. McConochie' s evaluation, which is di scussed above.
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Plaintiff undoubtedly suffered from cognitive problems during his inpatient hospital and
rehabilitation treatment, Plaintiff "fails to acknowledge the distinction between [his] summer
2014 functioning and his subsequent improvement between fall 2014 and January 2017, when the
record closes." Def. ' s Br. 14. The record shows that Plaintiffs mental and physical functioning
improved significantly as he recovered from his injuries.
Plaintiff contends that the ALJ erred in finding that Plaintiffs subjective complaints about
his limitations in sitting and standing were "not reasonably consistent with the medical evidence."
Tr. 19. The ALJ cited medical reports indicating that in October 2014, Plaintiff was discharged in
"good/stable condition" from an assisted care facility ; in January 2015, Plaintiff had "'graduated'
from outpatient therapy"; in April 2015, an orthopedic examination showed that Plaintiff "walked
without a significant limp and his knee motion was excellent"; and in February 2016, Plaintiff did
not exhibit pain behavior, and was smiling and comfortable. Tr. 20. I conclude that the ALJ
reasonably relied on these examination findings, along with other evidence, as specific, clear, and
convincing reasons for finding Plaintiffs subjective symptom testimony was contradicted by the
medical record.
Plaintiff argues that the ALJ improperly characterized his treatment as "conservative,"
Pl.'s Br. 19, citing the ALJ's finding that " [a]s of November/December 2014, physical and
occupational therapy to work on conditioning and strength was advised, conservative care." Tr.
20. The ALJ was specifically describing Plaintiff's treatment during late 2014 as conservative.
Regardless, the ALJ's reference to conservative care does not affect the legal analysis.
Plaintiff contends that the ALJ improperly focused on Plaintiffs truthfulness in reporting
prior drug and alcohol use to medical providers. The ALJ noted that Plaintiff denied "any" drug
use during 2014 hospital visits, but in 2016 told medical providers that he had used
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methamphetarnine twice a week "for most of his life." Tr. 21 . The ALJ also noted that during
Plaintiffs evaluation by Dr. McConochie, he "denied ever having a serious alcohol problem but
failed to mention that he was drinking at the time of his accident." Tr. 21. The ALJ' s findings
are supported by the record. See Tr. 494 (Plaintiff denied "any drug use" when he sought narcotic
painkillers during a November 2014 emergency room visit); Tr. 691 (September 2016 report from
Serenity Lane faci lity noting Plaintiff stated he had been using metharnphetarnine once or twice
per week); Tr. 603 (Dr. McConochie reported that Plaintiff "did not mention that he was drinking
when he had his accident").
In evaluating a claimant's subjective statements, the ALJ may consider evidentiary
inconsistencies, including "conflicts between [the claimant' s] statements and the rest of the
evidence." 20 C.F.R. § 404.1529(c)(4). "Contradiction with the medical record is a sufficient
basis for rejecting the claimant's subjective testimony." Carmickle v. Comm 'r, 533 F.3d 1155,
1161 (9th Cir.2008). The Ninth Circuit has specifically held that an ALJ may reject subjective
symptom testimony based on the claimant's "lack of candor" about the use of drugs and alcohol.
Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (ALJ properly discounted the claimant's
testimony based in part on her unreliable statements about her drug and alcohol use); Verduzzco v.
Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (ALJ may use claimant's inconsistent statements
about alcohol use to discount testimony). Although Plaintiff argues that SSR 16-3p precludes the
ALJ's reliance on this evidence, "an ALJ retains the power under SSR 16-3p to consider evidence
that a plaintiff is exaggerating her symptoms." Dukes v. Berryhill, No. 3:16-cv-0502-AA, 2017
WL 2292274, at *5 (D. Or. May 24, 2017) (citations omitted). I conclude that ALJ reasonably
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relied on inconsistent statements about drug and alcohol use in discounting Plaintiffs statements
about his symptoms. 3
If the "ALJ's credibility finding is supported by substantial evidence in the record, [the
court] may not engage in second-guessing." Thomas, 278 F.3d at 959. Here, the ALJ's findings
are supported by substantial evidence in the record and are sufficiently specific to satisfy me that
the ALJ did not arbitrarily reject Plaintiffs subjective statements. The ALJ's reasoning is clear
and convincing. Accordingly, the ALJ's findings on Plaintiffs subjective symptom testimony are
not erroneous. Tommasetti, 533 F.3d at 1039; Carmickle, 533 F.3d at 1160.
I conclude that the ALJ properly evaluated the evidence, including Plaintiffs subjective
symptom testimony and the medical reports of Drs.
ayak and McConochie. The ALJ's
conclusion that Plaintiff is not disabled is supported by substantial evidence in the record.
CONCLUSION
The decision of the Commissioner is AFFIRMED and this case is dismissed.
IT IS SO ORDERED.
DATED November '
, 2019.
R~
United States District Judge
3
The ALJ did not consider whether Plaintiffs drug or alcohol use was material to his alleged disability,
which could preclude benefits. See 42 U.S.C § 423(d)(2)(C); Chavez v. Colvin, No.: 3:14-cv-01178-JE,
2016 WL 8731796, at *5 (D. Or. July 25, 2016). Because I conclude that the ALJ's finding on disability
was supported by substantial evidence, I need not address this issue.
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