The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ELIZABETH ANN S.,1 2:19-cv-00822-BR
Plaintiff, OPINION AND ORDER
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
KEVIN S. KERR
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, OR 97293
(503) 255-9092
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 In the interest of privacy this Court uses only the first
name and the initial of the last name of the nongovernmental
party in this case. Where applicable, this Court uses the same
designation for the nongovernmental party's immediate family
member.
1 - OPINION AND ORDER
MICHAEL W. PILE
Acting Regional Chief Counsel
KATHRYN A. MILLER
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2240
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Elizabeth Ann S. 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
On January 5, 2015, Plaintiff protectively filed her
application for DIB benefits, and on January 8, 2015,
protectively filed her application for SSI benefits. Tr. 15,
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199-207.2 Plaintiff alleges a disability onset date of July 7,
2014. Tr. 15, 199, 202. Plaintiff=s application was denied
initially and on reconsideration. An Administrative Law Judge
(ALJ) held a hearing on December 21, 2017. Tr. 15, 32-67.
Plaintiff, a medical expert (ME), and a vocational expert (VE)
testified at the hearing. Plaintiff was represented by an
attorney at the hearing.
On April 30, 2018, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits. Tr. 15-23. Plaintiff requested review by the
Appeals Council. On March 22, 2019, 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 May 28, 2019, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner=s decision.
BACKGROUND
Plaintiff was born on December 12, 1964. Tr. 199, 202.
2 Citations to the official Transcript of Record (#10)
filed by the Commissioner on November 26, 2019, are referred to
as "Tr."
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Plaintiff was 49 years old on her alleged disability onset date.
Tr. 79. Plaintiff has at least a high-school education.
Tr. 226. Plaintiff has past relevant work experience as an
apartment-house manager, commercial cleaner, kitchen supervisor,
cook, and cook helper. Tr. 22-23.
Plaintiff alleges disability due to fibromyalgia;
neuropathy in hands and feet; diabetes; depression; anxiety;
mitral valve prolapse; and knee, back, and shoulder surgeries.
Tr. 20, 225.
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. 20-22.
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 her 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
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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, 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. 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
"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. Vasquez v. Astrue, 572 F.3d 586, 591
(9th Cir. 2009). 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
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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
Commissioner determines the claimant is engaged in substantial
gainful activity (SGA). 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 impairment or combination of impairments. 20 C.F.R.
§§ 404.1509, 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 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
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listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 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, he 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 her limitations. 20 C.F.R.
§§ 404.1520(e), 416.920(e). 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 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 she 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.
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If the Commissioner reaches Step Five, he 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),
416.920(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. 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 July 7, 2014, Plaintiff's
alleged disability onset date. Tr. 17.
At Step Two the ALJ found Plaintiff has the severe
impairments of "degenerative joint disease of the left knee,
status-post total knee arthroplasty, and degenerative disc
disease of the lumbar spine, status-post laminectomies."
8 - OPINION AND ORDER
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 and must be allowed to alternate between
sitting and standing every 30 minutes while on task. Plaintiff
cannot crouch, crawl, or climb ladders or scaffolds, but she can
occasionally stoop, kneel, and climb ramps and stairs.
Plaintiff should avoid all exposure to excessive vibrations and
unprotected heights. Tr. 19.
At Step Four the ALJ concluded Plaintiff is able to perform
her past relevant work as an apartment-house manager. Tr. 22.
Accordingly, the ALJ found Plaintiff is not disabled.
Tr. 23.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) failed to
provide clear and convincing reasons for discounting the opinion
of Michael Henderson, M.D., a consulting physician, and (2)
failed to provide germane reasons for discounting the statements
of lay witnesses regarding Plaintiff's symptoms and limitations.
9 - OPINION AND ORDER
I. The ALJ properly discounted the opinion of Dr. Henderson
and provided legally sufficient reasons for doing so.
Plaintiff contends the ALJ erred when he improperly
rejected Dr. Henderson's opinion regarding Plaintiff's
limitations.
A. Standards
"In disability benefits cases . . . physicians may
render medical, clinical opinions, or they may render opinions
on the ultimate issue of disability -- the claimant's ability to
perform work." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
2014). "In conjunction with the relevant regulations, [courts]
have . . . developed standards that guide [the] analysis of an
ALJ's weighing of medical evidence." Ryan v. Comm'r of Soc.
Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
"If a treating or examining doctor's opinion is
contradicted by another doctor's opinion, an ALJ may only reject
it by providing specific and legitimate reasons that are
supported by substantial evidence." Id. An ALJ can satisfy the
"substantial evidence" requirement by "setting out a detailed
and thorough summary of the facts and conflicting clinical
evidence, stating his interpretation thereof, and making
findings." Reddick, 157 F.3d at 725. "The ALJ must do more
than state conclusions. He must set forth his own
10 - OPINION AND ORDER
interpretations and explain why they, rather than the doctors',
are correct." Id. (citation omitted).
B. Analysis
Plaintiff contends Dr. Henderson's finding that
Plaintiff had "no severe limitations" related only to
Plaintiff's back pain, and Dr. Henderson's finding of other
limitations was related to Plaintiff's left-knee arthroplasty
supported by his own examination of Plaintiff.
In response the Commissioner contends the ALJ's
evaluation of Plaintiff's limitations is supported by other
medical evidence in the record, and, therefore, the ALJ properly
discounted Dr. Henderson's opinion.
On February 15, 2018, Dr. Henderson, a consultative
physician, performed an independent medical examination of
Plaintiff. Tr. 737-46. Dr. Henderson noted Plaintiff had
limited ability to stand, to squat, and to walk due to left-knee
pain and was limited to walking one block at a time at a
relatively slow pace. Tr. 739. He also noted Plaintiff's
complaint of back pain, but he stated this seemed to be "less
than severe and mechanical in nature" and he did not recommend
any functional limitation in this regard. Id. Dr. Henderson
also completed a capacity assessment in conjunction with his
11 - OPINION AND ORDER
examination and indicated Plaintiff could lift and/or carry up
to 50 pounds; could only stand for one hour at a time for a
total of three hours; could walk only five minutes at a time for
a total of 45 minutes; could never climb stairs, ramps, ladders,
or scaffolds; and could never kneel, crouch, or crawl.
Tr. 741-42, 744.
Dr. Henderson stated the following in his assessment
of Plaintiff's back pain:
Although she does complain of back pain, the history
is nonspecific and is not supported or correlate to
the imaging findings. Exam also did not show any
neurologic findings consistent with the imaging
findings. Therefore the pain seems to be less than
sever and mechanical in nature. Therefore no
functional limitations can be recommended as the
findings are not severe. There was weakness with the
left hip flexors, but no corroborating evidence is
available to interpret the effects.
Tr. 739. Dr. Henderson's reference to "no[] severe" findings
related to Plaintiff's back pain. On the check-the-box section
of the evaluation form, Dr. Henderson indicated Plaintiff's
lifting/carrying and postural limitations related to her "left
knee arthroplasty" and "left knee." Tr. 741, 744.
Dr. Henderson noted Plaintiff exhibited pain in her left knee,
she had left-sided antalgia when walking, exhibited weakness on
her entire left lower extremity more proximally than distally,
and exhibited mild difficulty when walking. Tr. 738-39.
12 - OPINION AND ORDER
Dr. Henderson also noted an MRI of Plaintiff's lumbar spine in
December 2016 showed impingement of the right L4 and L5 nerve
root. Tr. 737, 727. Thus, Dr. Henderson's assessment of
Plaintiff's limitations is supported by medical evidence in the
record together with his own clinical findings.
The ALJ gave Dr. Henderson's opinion "partial weight"
on the grounds that Dr. Henderson did not recommend any
functional limitations because "there were no severe findings"
and there was not any evidence to support Dr. Henderson's
assessed limitations on Plaintiff's standing or walking capacity
or her inability to perform postural activities. Tr. 22. The
ALJ also rejected Dr. Henderson's 50-pound lifting limitation
and instead imposed a limitation of lifting 10/20 pounds more
consistent with light work. Tr. 22.
The ALJ relied on the opinions of Susan Moner, M.D.,
and Neal Berner, M.D., state-agency consultants, who found
Plaintiff could perform light level work with certain postural
and environmental limitations. Tr. 21, 68-89, 92-115. The ALJ
gave the opinions of Drs. Moner and Berner "substantial weight,"
but he included in his assessment of Plaintiff's RFC the added
limitation to alternate between sitting and standing/walking
every 30 minutes. Tr. 21.
13 - OPINION AND ORDER
The ALJ also relied on the opinion of Lynne Jahnke,
M.D., the ME who testified at Plaintiff's hearing. Dr. Jahnke
stated although Plaintiff had a history of knee surgeries, there
was not a record of ongoing treatment for the two years before
the hearing. Tr. 39-40. Dr. Jahnke also noted Plaintiff had
some degenerative disc disease of the spine in January 2016, but
there was not any indication of associated treatment in the
record. Id.
On this record the Court concludes the ALJ properly
discounted the opinion of Dr. Henderson and provided legally
sufficient reasons supported by substantial evidence in the
record for doing so.
II. The ALJ properly discounted the lay-witness statements and
provided legally sufficient reasons for doing so.
Plaintiff contends the ALJ erred when he discounted the
lay-witness statements of Joe D., Plaintiff's husband; Ashley
M., Plaintiff's daughter; and Lisa McCoy, Plaintiff's long-time
friend.
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." Lewis v. Apfel,
14 - OPINION AND ORDER
236 F.3d 503, 511 (9th Cir. 2001). 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). Germane reasons for discrediting a lay-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. Bayliss v. Barnhart, 427
F.3d 1211, 1218 (9th Cir. 2005). See also Williams v. Astrue,
493 F. App'x 866 (9th Cir. 2012).
The ALJ is not required, however, "to discuss every
witness's testimony on a[n] individualized, witness-by-witness
basis. Rather, 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).
B. Analysis
On February 21, 2015, Joe D., Plaintiff's husband,
completed a Third-Party Function Report in which he stated,
among other things, that Plaintiff "can't walk or stand a long
time." Tr. 256. In an undated letter, Ashley M., Plaintiff's
daughter, stated Plaintiff can "barely walk around from the pain
15 - OPINION AND ORDER
she is in." Tr. 326. In another undated letter, Lisa McCoy,
Plaintiff's friend, stated Plaintiff is unable to get out of bed
or leave her house some days. Tr. 327.
The ALJ discounted these statements on the grounds
that they were "not particularly informative" and not supported
by the medical records. Tr. 21. For example, the ALJ noted Joe
D.'s statements "simply added or recited [Plaintiff's]3 assertion
of disrupted sleep, chronic pain, and instability to walk or
stand," which the ALJ had already found were not supported by
"significant reports or objective findings." Id.
On this record the Court concludes the ALJ properly
discounted the lay-witness testimony and provided germane
reasons for doing so.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
3 The Court notes Plaintiff did not challenge the ALJ's
determination regarding Plaintiff's testimony.
16 - OPINION AND ORDER
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 20th day of May, 2020.
/s/ Anna J. Brown
______________________________________
ANNA J. BROWN
United States Senior District Judge
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