The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
WADE N.,1
Plaintiff, Civ. No 6:19−cv−00605−CL
v. OPINION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________
MARK D. CLARKE, Magistrate Judge.
Plaintiff Wade N. seeks judicial review of the final decision of the Commissioner of the
Social Security Administration denying his claim for disability insurance benefits (DIB) and
supplemental security income (SSI). Full consent to Magistrate jurisdiction was entered on May
28, 2019. (#4). For the reasons below, the Commissioner’s decision is AFFIRMED.
BACKGROUND2
Plaintiff was born on September 28, 1970 and is considered a younger individual. He
alleges disability due lumbar disc degeneration and stenosis, a bulging lumbar disc, obesity,
arthritis and numbness in his right leg. Tr. 249.
1In 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, and any relations, in this case.
2 The following recitation constitutes a summary of the pertinent evidence within the Administrative
Record and does not reflect any independent finding of fact by the Court. Citations to “Tr.” refer to the
page(s) indicated in the official transcript of the administrative record filed herein as Docket No. 14.
Plaintiff protectively filed applications for Social Security Disability benefits and
Supplemental Security Income benefits on 11/21/14 and was found not disabled by the
Administrative Law Judge (ALJ) in a decision dated 4/19/18. Tr. 12-15. The Appeals Council
declined review of that decision on 3/24/2019. Tr. 1. Plaintiff timely appealed the final decision
of the Commissioner to the United States District Court.
DISABILITY ANALYSIS
A claimant is disabled if he or she is unable 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). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially
dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks
the following series of questions:
1. Is the claimant performing “substantial gainful activity”? 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay or
profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such
work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless
expected to result in death, an impairment is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or
must be expected to last for a continuous period of at least 12 months. 20
C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe
impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii);
416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis
proceeds to step three.
3. Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then
the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii);
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds to the “residual functional
capacity” (“RFC”) assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess
and determine the claimant’s RFC. This is an assessment of work-
related activities that the claimant may still perform on a regular and
continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e);
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the
analysis proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform his
or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c);
416.960(c). If the claimant cannot perform such work, he or she is disabled.
Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 954. The
Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing “work
which exists in the national economy”). If the Commissioner fails to meet this burden, the
claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the
Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55;
Tackett, 180 F.3d at 1099.
THE ALJ’S FINDINGS
Applying the above analysis, the ALJ made the following findings:
1. Plaintiff meets the insured status requirements of the Social Security Act through
December 31, 2016.
2. Plaintiff has not engaged in substantial gainful activity since September 28, 2011 the
application date.
3. Plaintiff has the following severe impairments: Status Post Right Knee Surgeries and
Degenerative Joint Disease (DJD), Lumbar Spine Degenerative Disc Disease (DDD)
and DJD.
4. Plaintiff does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments.
5. Plaintiff has the residual functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) and 416.967(a) except he cannot climb ladders, ropes, or
scaffolds. He can occasionally climb stairs and ramps. He cannot crawl. He can only
occasionally balance, stoop, kneel, and crouch. He can occasionally use foot controls
with his right foot. He can only have occasional exposure to vibration, extreme cold
temperatures, and hazards such as open flame, open water, open heights, and open
machinery. He must use a cane to ambulate.
6. Plaintiff is unable to perform any past relevant work.
7. Plaintiff was born on September 28, 1970, and was 41 years old, which is defined as a
younger individual age 18-44, on the alleged onset date. He subsequently changed
age categories to a younger individual aged 45-49.
8. Plaintiff has a high school education (GED) and is able to communicate in English.
9. Transferability of job skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that he is “not
disabled” whether or not he has transferable job skills.
10. Considering Plaintiff’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that
the Plaintiff can perform.
Consequently, the ALJ concluded that Plaintiff is not disabled as defined by the Social
Security Act. Tr. 30.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the legal findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). ‘“Substantial evidence’ means
‘more than a mere scintilla but less than a preponderance,’ or more clearly stated, ‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Bray v.
Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53
F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner’s alleged errors, this Court
must weigh “both the evidence that supports and detracts from the [Commissioner’s]
conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations
of the evidence are insignificant if the Commissioner’s interpretation is rational. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
Where the evidence before the ALJ is subject to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d
at 1041). “However, a reviewing court must consider the entire record as a whole and may not
affirm simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a
reviewing court “cannot affirm the [Commissioner’s] decision on a ground that the
[Administration] did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 454
F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse an ALJ’s
decision on account of an error that is harmless. Id. at 1055-56. “[T]he burden of showing that
an error is harmful normally falls upon the party attacking the agency’s determination.” Shinseki
v. Sanders, 556 U.S. 396, 409 (2009).
Even where findings are supported by substantial evidence, “the decision should be set
aside if the proper legal standards were not applied in weighing the evidence and making the
decision.” Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42
U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript
record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or
without remanding the case for a rehearing.
DISCUSSION
Plaintiff presents the following issues:
1. Did the ALJ properly evaluate the medical opinion of Dr. Baculi?
2. Did the ALJ properly evaluate Plaintiff’s subjective symptom testimony?
3. Did the ALJ properly assess the lay witness statement?
4. Did the ALJ properly formulate the RFC?
The Court finds that the ALJ properly evaluated the evidence, including Dr. Baculi’s
opinion, Plaintiff’s subjective symptom testimony, and the lay witness statement. The RFC was
properly formulated and included all of Plaintiff’s limitations that were based on substantial
evidence. The ALJ’s decision is affirmed.
I. The ALJ properly evaluated Dr. Baculi’s opinion.
Plaintiff was referred to Dr. Raymond M. Baculi, M.D., by his treating provider, Esther
Brown, FNP, for a functional capacity evaluation. Tr. 44, 690. Since Dr. Baculi conducted an in-
person evaluation, he is an examining physician and the ALJ must consider that as a factor under
the regulations. 20 C.F.R. §§ 404.1527 (c)(1)-(6); 416.927(c)(1)-(6). Dr. Baculi's examining
physician opinion was contradicted by the State agency consultants and as such, the ALJ must
provide specific and legitimate reasons in order to discount his opinion. Lester v. Chater, 81 F.3d
821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). Under SSA regulations, the more a
medical source “presents relevant evidence to support an opinion,” and “[t]he better an
explanation a source provides for an opinion, the more weight we will give that opinion.” 20
C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). Thus, ALJs may permissibly reject check-off reports
that do not contain adequate explanation of the bases of their conclusions. Molina v. Astrue, 674
F.3d 1110, 1111 (9th Cir. 2012).
Dr. Baculi completed a check-box form assessing Plaintiff’s limitations. He opined that
Plaintiff could sit about 6 hours in an 8 hour day but needed to be able to recline as needed;
needed to alternate sitting and lying down; was limited to standing/walking less than two hours a
day; could not lift more than 10 pounds; would need one mini-break of 5 to 10 minutes per hour
in excess of normal breaks; and would have occasional (from 1/2 to 2½ hours per day) decreased
functioning in his attention and concentration, attendance/tardiness, and ability to work at a
constant pace without needing extra breaks. Tr. 690-93. He indicated that his assessment was
supported by patient report, imaging studies and evaluation by specialists. Tr. 691-92.
The ALJ assigned little weight to Dr. Baculi's opinion on the grounds that there were no
accompanying medical records of him treating claimant; he indicated his assessments were
supported by the claimant's report, imaging studies and evaluations by specialists yet he did not
indicate which records he was referring to; and the objective medical evidence did not support
the limitations he identified. Tr. 28.
Dr. Baculi is a doctor at the same medical clinic as Plaintiff's primary care provider. As a
result, he had access to Plaintiff's medical chart including the imaging and specialist reports. Tr.
396-97, 450. However, he did not cite the specific records on which he relied to formulate his
opinion. This is a specific and legitimate reason to discount his opinion. An ALJ may reject a
medical opinion that is brief, conclusory, and inadequately supported by clinical findings.
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
Moreover, the ALJ noted Dr. Baculi did not explain his medical and/or clinical findings
in his assessment of Plaintiff’s level of functioning. Tr. 28, 493. The regulations specify that the
more a medical source “presents relevant evidence to support an opinion,” and “[t]he better an
explanation a source provides for an opinion, the more weight we will give that opinion.” 20
C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). Thus, the ALJ permissibly rejected Dr. Baculi’s check-
off report, which did not contain an adequate explanation of the bases of his conclusions.
The ALJ also indicated that Dr. Baculi's opinion was not supported by objective medical
evidence. In support, he cited Plaintiff's physical exams showing normal range of motion,
reflexes, muscle tone and coordination. Tr. 28. Plaintiff argues that the ALJ failed to
acknowledge the numerous supportive clinical findings including Plaintiff's consistently
abnormal gait, limited range of motion, decreased muscle strength and muscle spasms. See, e.g.,
tr. 391, 420, 523, 634, 700. The court will uphold the ALJ's conclusion when the evidence is
susceptible to more than one rational interpretation. Tommasetti v. Astrue, 533 F.3d 1035, 1038
(9th Cir. 2008). This is particularly true when the medical evidence is conflicting, as it is within
the ALJ’s purview to reconcile such conflicts. Plaintiff argues for a different weighing of the
medical evidence, which was thoroughly discussed by the ALJ, and an alternative, more severe
determination of Plaintiff’s limitations. Plaintiff’s interpretation of the evidence is reasonable,
but so is the ALJ’s interpretation. The ALJ interpreted all the evidence rationally and gave
several valid reasons supporting his analysis. He cited to Plaintiff’s treating, examining, and
reviewing practitioners to articulate an RFC assessment based on substantial evidence within the
record. Thus, substantial evidence supports the ALJ’s assessment regarding Plaintiff limitations
and his decision should be upheld.
II. The ALJ properly evaluated Plaintiff’s subjective symptom testimony.
When deciding whether to accept the subjective symptom testimony of a claimant, the
ALJ must perform a two-stage analysis. In the first stage, the claimant must produce objective
medical evidence of one or more impairments which could reasonably be expected to produce
some degree of symptom. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The
claimant is not required to show that the impairment could reasonably be expected to cause the
severity of the symptom, but only to show that it could reasonably have caused some degree of
the symptom. Id.
In the second stage of the analysis, the ALJ must consider the intensity, persistence, and
limiting effects of the alleged symptoms based on the entire record. SSR 16-3p at *7-8. The ALJ
will consider the “[l]ocation, duration, frequency, and intensity of pain or other symptoms”
reported by the claimant, any medical sources, and any non-medical sources. Id. The ALJ’s
decision must contain “specific reasons for the weight given to the individual’s symptoms, be
consistent with and support by the evidence, and be clearly articulated so the individual and any
subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms.” Id.
Additionally, the evidence upon which the ALJ relies must be substantial. See Holohan v.
Massinari, 246 F.3d 1195, 1208 (9th Cir. 2001); Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991).
In rejecting claimant’s testimony about the severity of her symptoms, the ALJ must give
“specific, clear and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487,
493 (9th Cir. 2015).
Plaintiff alleges an inability to work due to degenerative disc disease, obesity, numbness
in his right leg, constant lower back pain and right knee pain. The ALJ determined that Plaintiff's
testimony was not supported by the objective medical evidence and that his daily activities
suggested a level of functioning greater than he alleged. Tr. 22, 27. In finding that the objective
evidence undermined Plaintiff's complaints, the ALJ provided a summary of the medical
evidence. Tr. 22-27.
Courts may draw reasonable inferences from an ALJ’s discussion of the evidence.
Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). The ALJ did not make specific
findings as to what testimony he intended to reject based on his summary, but the summary
included multiple instances where Plaintiff made claims of severe pain symptoms that were not
supported by clinical observations or physical abnormalities. The ALJ noted multiple instances
where Plaintiff’s treating providers recommended conservative treatment options such as
physical therapy, water therapy, weight loss, and smoking cessation, and where providers
recommended treatment options that Plaintiff did not pursue or follow through with, such as
palliative injections. Tr. 26-27. The ALJ also noted that, despite his reports of back pain,
Plaintiff performed well during physical examinations. Tr. 25. In support, the ALJ cited normal
muscle strength and normal electrodiagnostic tests. Tr. 25. Based on these citations and
discussion of the evidence, the Court can infer that the ALJ reasonably determined that
Plaintiff’s limitations are not as severe as his subjective symptom complaints.
Additionally, the ALJ reasonably found that Plaintiff’s daily activities were inconsistent
with his subjective complaints and claimed limitations. An ALJ may discredit a Plaintiff’s
subjective complaints by identifying inconsistencies between his complaints and activities of
daily living. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005); Orteza v. Shalala, 50 F.3d
748, 750 (9th Cir. 1995). The ALJ found that Plaintiff’s abilities to clean around his home, cook,
do the laundry, go grocery shopping, and mow the lawn were consistent with an ability “at least
perform work at the sedentary level and are inconsistent with the disabling levels of symptoms
alleged… they suggest a level of functioning greater than what he has alleged in his application
and testimony.” Tr. 27. This is specific, clear and convincing reason to discount the alleged
severity of Plaintiff’s impairments.
Finally, the ALJ raised multiple other reasons to discount the alleged severity of
Plaintiff’s subjective complaints, including a conservative treatment history and evidence of
significant medical improvement with treatment, among others. The ALJ properly evaluated
Plaintiff’s subjective symptom testimony and determined that the severity of his limitations and
impairments were not supported by the record.
III. The ALJ properly evaluated the lay witness statement.
It is well-established that an ALJ must consider testimony from lay witnesses submitted
on behalf of a claimant. 20 C.F.R. §§ 416.929(c)(3), 416.945(a)(3). The Commissioner’s
regulations do not require any explicit discussion of lay witness testimony in the ALJ’s decision.
See SSR 06-03p (recognizing that “there is a distinction between what an adjudicator must
consider and what the adjudicator must explain in the disability determination or decision”).
However, within the Ninth Circuit, lay witness testimony cannot be disregarded without
comment. Molina v. Astrue, 674 F.3d 1110, 1114 (9th Cir. 2012) (citing Nguyen v. Chater, 100
F.3d 1462, 1467 (9th Cir. 1996)). “Other source” opinion evidence may be discounted by an ALJ
if the ALJ “gives reasons germane to each witness for doing so.” Turner v. Comm’r of Soc. Sec.,
613 F.3d 1217, 1224 (9th Cir. 2010).
The ALJ specifically reviewed the written evidence from Ms. Wilcox, Plaintiff’s
girlfriend and roommate, and accorded it little weight. Tr. 28. In so doing, the ALJ noted Ms.
Wilcox did not go into detailed specifications of Plaintiff’s physical capacities or mental
capacities and restrictions. Tr. 28, 290- 97. The ALJ stated that since Ms. Wilcox was not
medically trained to make exacting observations as to dates, frequencies, types and degrees of
medical signs and symptoms, or of the frequency or intensity of unusual moods or mannerisms,
the accuracy of her statements was questionable. Finally, the statements were given little weight
because they, like Plaintiff’s statements, were simply not consistent with the preponderance of
the opinions and observations by the medical doctors in this case.
Lack of medical training is not a germane reason to discount the statements of a lay
witness, which by its nature will never be based on such training. However, the lack of detail
and specificity as to Plaintiff’s capacities and limitations is a germane reason, and
“[i]nconsistency with medical evidence” is a germane reason for discounting lay witness
testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Accordingly, the ALJ
provided germane reasons for rejecting Ms. Wilcox’s lay witness statements.
IV. The ALJ properly formulated the RFC.
Plaintiff’s argument regarding the formulation of the RFC and step five determination are
entirely dependent on the previous arguments regarding Dr. Baculi’s opinion and the subjective
symptom testimony. Therefore, because that evidence was properly evaluated, the Court finds
no reason to overturn or revaluate the RFC and the ALJ’s determination at steps four and five.
ORDER
Based on the foregoing, the decision of the Commissioner is AFFIRMED and this case is
dismissed.
24
It is so ORDERED and DATED this ______day of March, 2021.
MARK D. CLARKE
United States Magistrate Judge