Robinson v. Commissioner Social Security Administration, No. 3:2009cv03083 - Document 24 (D. Or. 2011)

Court Description: OPINION AND ORDER: The decision of the Commissioner is affirmed. Signed on 3/31/11 by Magistrate Judge Dennis J. Hubel. (kb)

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Robinson v. Commissioner Social Security Administration Doc. 24 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF OREGON 9 PORTLAND DIVISION 10 11 THERESA ROBINSON, an individual, 12 13 14 15 16 Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) v. MICHAEL ASTRUE Commissioner of Social Security, Defendant. No. CV-09-3083-HU OPINION AND ORDER 17 18 19 20 Arthur Wilber Stevens , III BLACK CHAPMAN WEBBER & STEVENS 221 Stewart Avenue, Suite 209 Medford, OR 97501 Attorneys for Plaintiff 21 22 23 24 25 26 27 Adrian Brown U.S. ATTORNEY'S OFFICE District of Oregon 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204 Gerald Hill SOCIAL SECURITY ADMINISTRATION Office of the General Counsel 701 Fifth Avenue, Suite 2900, M/S 221A Seattle, WA 98104 Attorneys for Defendants 28 Dockets.Justia.com 1 2 HUBEL, Magistrate Judge: Plaintiff Theresa Robinson brings this action pursuant to 3 section 405(g) of the Social Security Act (the "Act") to obtain 4 judicial review of a final decision of the Commissioner denying 5 her application for disability insurance benefits ("DIB") and 6 supplemental security income ("SSI"). 7 the Commissioner. DISABILITY ANALYSIS 8 9 I affirm the decision of The Social Security Act (the "Act") provides for payment of 10 disability insurance benefits 11 the Social Security program and who suffer from a physical or 12 mental disability. 13 Act, supplemental security income benefits may be available to 14 individuals who are age 65 or over, blind, or disabled, but who do 15 not have insured status under the Act. 16 to people who have contributed to 42 U.S.C. § 423(a)(1). In addition, under the 42 U.S.C. § 1382(a). The claimant must demonstrate an inability to engage in any 17 substantial 18 determinable physical or mental impairment which can be expected to 19 cause death or to last for a continuous period of at least twelve 20 months. 21 individual will be determined to be disabled only if his physical 22 or mental impairments are of such severity that he is not only 23 unable to do his previous work but cannot, considering his age, 24 education, kind of 25 substantial gainful work which exists in the national economy. 42 26 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B). 27 28 The gainful 42 U.S.C. and work Commissioner activity §§ by reason 423(d)(1)(A) experience, has and engage established of medically 1382c(a)(3)(A). in a any any other five-step An sequential evaluation process for determining if a person is eligible for OPINION AND ORDER 2 1 either DIB or SSI due to disability. The claimant has the burden 2 of proof on the first four steps. 3 746 (9th Cir. 2007), cert. 4 20 C.F.R. §§ 404.1520 and 5 determines whether the claimant is engaged in "substantial gainful 6 activity." If the claimant is engaged in such activity, disability 7 benefits are denied. 8 two and determines whether the claimant has a medically severe 9 impairment or combination of impairments. Parra v. Astrue, 481 F.3d 742, denied, 128 416.920. S. First, Ct. the 1068 (2008); Commissioner Otherwise, the Commissioner proceeds to step A severe impairment is 10 one "which significantly limits [the claimant s] physical or mental 11 ability to do basic work activities." 20 C.F.R. §§ 404.1520(c) and 12 416.920(c). 13 combination of impairments, disability benefits are denied. If the claimant does not have a severe impairment or 14 If the impairment is severe, the Commissioner proceeds to the 15 third step to determine whether the impairment is equivalent to one 16 of 17 acknowledges are so severe as to preclude substantial gainful 18 activity. 19 impairment meets or equals one of the listed impairments, the 20 claimant 21 impairment is not one that is presumed to be disabling, the 22 Commissioner proceeds to the fourth step to determine whether the 23 impairment prevents the claimant from performing work which the 24 claimant performed in the past. 25 work which he or she performed in the past, a finding of "not 26 disabled" is made and disability benefits are denied. 27 §§ 404.1520(e) and 416.920(e). 28 a number of listed impairments that the Commissioner 20 C.F.R. §§ 404.1520(d) and 416.920(d). is conclusively presumed to be disabled. If the If the If the claimant is able to perform 20 C.F.R. If the claimant is unable to perform work performed in the OPINION AND ORDER 3 1 past, the Commissioner proceeds to the fifth and final step to 2 determine if the claimant can perform other work in the national 3 economy in light of his or her age, education, and work experience. 4 The burden shifts to the Commissioner to show what gainful work 5 activities are within the claimant s capabilities. Parra, 481 F.3d 6 at 746. The claimant is entitled to disability benefits only if he 7 or she is not able to perform other work. 8 and 416.920(f). 20 C.F.R. §§ 404.1520(f) STANDARD OF REVIEW 9 10 The court must affirm a denial of benefits if the denial is 11 supported by substantial evidence and is based on correct legal 12 standards. 13 2005). Substantial evidence is more than a "mere scintilla" of the 14 evidence but less than a preponderance. Id. "[T]he commissioner s 15 findings are upheld if supported by inferences reasonably drawn 16 from the record, and if evidence exists to support more than one 17 rational 18 decision." Batson v. Barnhart, 359 F.3d 1190, 1193 (9th Cir. 2003) 19 (internal citations omitted). 20 is not whether the Commissioner reasonably could have reached a 21 different outcome, but whether the Commissioner's final decision is 22 supported by substantial evidence. 23 F.2d 747, 750 (9th Cir. 1989). Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. interpretation, we must defer to the Commissioner s Thus, the question before the court See Magallanes v. Bowen, 881 THE ALJ S DECISION 24 25 The Administrative Law Judge ("ALJ") found that Robinson 26 suffered from the severe impairments of myofascial pain syndrome, 27 mild left knee osteoarthritis with Baker's cyst, bilateral lower 28 extremity varicose veins, depression, and cognitive disorder NOS. OPINION AND ORDER 4 1 The ALJ found that Robinson had the residual functional capacity 2 ("RFC") to perform light work as defined in 20 CFR 404.1567(b) and 3 416.967(b) with the following limitations: Robinson needs the 4 option to alternate between sitting and standing at will; she 5 should only occasionally climb ramps or stairs, bend, crouch, 6 stoop, 7 ladders/ropes/scaffolds; she should avoid hazards due to narcotic 8 use; she should have no public contact; and she should perform 9 tasks limited to 1 to 3 steps which are consistent with entry level or balance; she should never crawl or climb 10 work in the Dictionary of Occupational Titles ("DOT"). 11 the above limitations the ALJ concluded that Robinson could work as 12 a garment sorter, an office helper, or a table worker. FACTS 13 14 Based on Theresa Robinson was 40-years-old at the time of her alleged 15 onset of disability, on July 1, 1999. 16 and roughly 190 lb. 17 373, and has worked as a candy striper, kitchen worker, fast food 18 worker, finance collector, and as a cashier. Tr. 157, 374. 19 has two adult daughters and a granddaughter. Tr. 373. 20 moved to the Grants Pass area of Oregon from Tulsa, Oklahoma in May 21 of 2003. 22 loss, and back, arms, shoulder, neck, and hand problems. 23 Tr. 338. Tr. 155. Tr. 55. Robinson is 5'2", She has a 10th grade education, Tr. She Robinson She alleges disability due to short term memory Tr. 156. Throughout the period of alleged disability, Robinson has 24 raised her granddaughter. 25 otherwise runs her own household, with some help from a daughter 26 who lives next door. 27 during the period of disabiity worked intermittently at Goodwill, 28 Salvation Army, Credit Counseling, and a furniture store. Tr. 352. OPINION AND ORDER 5 Tr. 352. Tr. 352. She drives, shops, and She can move heavy furniture and 1 In February 2001, Robinson reported to Dr. Christopher Chow 2 that she had pain in her back that was "10/10 intensity." Tr. 192. 3 Dr. Chow gave her Percocet, and encouraged her to get a back 4 support brace. 5 arm or hand at that time, 6 from October 2000 to January 2003. 7 obtain a back brace. 8 9 Tr. 192. She did not mention any pain in her left Tr. 192, nor in any of her other visits Tr. 190-212. Nor did she ever Tr. 193. On July 10, 2003, Robinson established care with Dr. Eric Perry, an internist, as her primary care physician. 10 complained of neck and 11 on her narcotics." 12 Perry 13 inflammatories, 14 narcotics," past surgeries of a hysterectomy in 1990, one ovary 15 removed in 1995, tubal ligations in 1983, cholecystectomy and 16 appendectomy in 1999, as well as current medications of Paxil 40 17 mg, hydrocodone 7.5/500 mg, Vioxx 50 mg, and Zanaflex. On November 18 14, 2003, Robinson presented to Dr. Perry complaining of pain "all 19 over my body. 20 scream with pain." Tr. 225. She sought pain medication. Tr. 225. 21 On December 22, 2003, Robinson came into Dr. Perry's office with a 22 toe injury, and stated she had been "going through more of her 23 Vicodin1 because of it." 24 Perry noted that Robinson "has had narcotic-seeking behavior the 25 last several months. included: back pain. Tr. 228. That day, she She sought "a refill Tr. 228. Robinson's reported history to Dr. "intolerance muscle to relaxants all and nonsteroidal gets relief anti- only on She states there is not an area on her that does not Tr. 223. On January 29, 2004, Dr. From one pharmacy, she has had multiple 26 27 28 1 Robinson's providers refer to Vicodin and hydrocodone interchangeably, as Vicodin is a brand name for the narcotic pain reliever hydrocodone. OPINION AND ORDER 6 1 providers prescribing Percocet, Lorazepam, Vicodin, and Flexeril." 2 Tr. 224. 3 behavior and the red flags that have been drawn up because of this 4 and the fact she does not have any identifiable pain syndrome." 5 Tr. 222. Dr. Perry "confronted her regarding narcotic-seeking 6 On February 26, 2004, Robinson called Dr. Perry's office 7 several times stating she "is going to contact with a lawyer [sic] 8 stating that she is going to be withdrawing from narcotics because 9 I will not refill her hydrocodone." Tr. 221. Dr. Perry noted that 10 when he most recently saw Robinson less than one month earlier, she 11 had "stated that she had lost all of her medications down either a 12 toilet or a sink." 13 "exhibiting 14 behavior." 15 very Tr. 221. Dr. Perry concluded the Robinson was alarming symptoms of narcotic drug-seeking Tr. 221. On August 3, 2004, Robinson returned to Dr. Bruce Perry 16 complaining of left shoulder pain. 17 Robinson's left shoulder, ordered imaging studies, and wrote, 18 "Three views of the left shoulder demonstrate no fracture or bony 19 lesion of the humerus. The glenohumeral relationship is preserved. 20 There 21 acromioclavicular joint. 22 Impression: degenerative change at the AC joint." 23 opined that Robinson had "probably myofascial pain syndrome." Tr. 24 338. 25 her left shoulder. 26 not see any evidence of rotator cuff impingement or significant 27 tendinitis 28 techniques to the trigger points and discourage long term use of is moderate degenerative Tr. 331. change with Dr. Perry examined spurring at the No soft tissue calcifications are seen. Tr. 331. He He also wrote that, "Narcotic treatment is not advised for today. OPINION AND ORDER 7 I see no reason to further . . . I recommend a study her as I do trial of myofascial 1 narcotics or tranquilizer type medications for this." 2 On September 30, 2004, Robinson visited Dr. Tr. 338-39. Perry and 3 complained of diffuse pain in her lumbar spine, stating she "would 4 like to change her dose of hydrocodone to allow her to take more." 5 Tr. 216. At that visit she also complained of "pain radiating down 6 her left arm." 7 allegedly for depression.2 8 Perry wrote that Robinson "has been taking more of Vicodin than 9 written for. . . . She wanted to have oxycodone or something Tr. 216. Tr. 216. On October 22, 2004, Dr. 10 stronger." 11 instructed her to make her medications last a full month instead of 12 running out early and getting a refill. 13 letter terminating his relationship as her primary care physician 14 on December 14, 2004. Tr. 214. 15 in the 16 relationship is not explained. the 17 Tr. 215. It was noted she was also taking Prozac, record, and Dr. Perry refilled the prescription, but Dr. Perry sent Robinson a The letter itself, however, is not doctor's reason for terminating the On February 3, 2005, Robinson established care with Siskiyou 18 and Joseph Patton, P.A. 19 principal complaints were depression, chronic left shoulder pain, 20 and hot flashes. 21 Vicodin. 22 Tr. 322. Tr. 328. In the intake interview her She was given a prescription for Tr. 328. On February 24, 2005, Robinson saw internist Dr. Kristin 23 Miller at Siskiyou. Dr. Miller noted that Robinson had come in 24 "because of bilateral upper extremity pain worse on the left." Tr. 25 322. Dr. Miller noted that she was taking 7-8 Vicodin per day, but 26 27 2 28 I note Robinson denied ever using Prozac on March 18, 2005, six months later. OPINION AND ORDER 8 1 that it wasn't enough to control her pain, and "She requests a 2 prescription for a muscle relaxer." Tr. 322. Dr. Miller wrote that 3 Robinson had "uncertain diagnoses" and that she had a "history of 4 chronic narcotic use." 5 Tr. 322. On March 18, 2005, Robinson reported to Physician's Assistant 6 Patton, "she did not like the Effexor that she tried last month. 7 She was switched to Lexapro and she liked that even less and 8 switched back to Effexor until now. 9 is attracted to the reasonable price and wants to try that." She has never tried Prozac and Tr. 10 318. 11 that "her midback pain . . . started from moving furniture on March 12 7." 13 On March 25, 2005, Robinson went to see Patton and told him Tr. 315. On March 28, 2005, Robinson had an ultrasound of her abdomen, 14 which Dr. David Oehling, a surgeon at Grants Pass Surgical 15 Associates, characterized as "normal" and "unremarkable." Tr. 241. 16 On April 11, 2005, Robinson saw Joseph Patton again, who 17 advised Robinson that "I want her to wean herself off narcotics for 18 pain relief, but [she] insists that what she needs for comfort on 19 a daily basis is 7.5 of Vicodin three times a day." 20 same day, April 11, 2005, Dr. Oehling evaluated Robinson due to her 21 complaint "of months blending into years now of abdominal pain." 22 Tr. 239. Tr. 312. The 23 On April 25, 2005, the Oregon Department of Human Services 24 referred Robinson to Katherine Greene, a psychologist, for a 25 neuropsychological evaluation. 26 Greene that she had a history of attempting suicide twice in her 27 life both times related to relationships ending, but denied any 28 current suicidal ideation. Tr. 376. She "reported some depression OPINION AND ORDER 9 Tr. 373. Robinson reported to Dr. 1 and loss of energy and is currently being treated with medication 2 for depression." 3 dates and is forgetful." 4 Greene that she "has a history of substance abuse starting with 5 drinking at age 22. 6 drinking 2-3 beers at night to unwind and sleep. . . . She said she 7 stopped doing drugs after her accident in 1993." 8 record of the period of alleged disability, however, establishes 9 that although Robinson may have abandoned illegal drugs, she 10 Tr. 376. She reported that she "is bad with Tr. 376. Robinson also reported to Dr. She reported doing speed for a few months and Tr. 375. The maintained constant efforts to obtain prescription narcotics. 11 Dr. Greene noted, Concentration, organization skills and 12 memory are reported to be intermittently problematic. This may not 13 affect her overall general day-to-day activities but would likely 14 affect her ability to function in a job setting. 15 Greene opined that perhaps Robinson had diffuse brain damage from 16 an accident involving a three-wheeler in 1993. 17 Greene performed testing on Robinson 18 memory skills would be considered low average overall." Tr. 377. 19 She wrote, Personality assessment indicates Mild to Moderate 20 levels of interpersonal sensitivity and depression. Her symptoms of 21 depression 22 continue with medication treatment. 23 diagnosed Robinson with an unspecified cognitive disorder, an 24 unspecified depression disorder, and ADHD in remission. seem to be helped with Tr. 378. Tr. 378. Dr. Dr. and found her "learning and medication and Tr. 379. she should Dr. Greene Tr. 379. 25 On May 4, 2005, Robinson saw Dr. Mark Deatherage M.D., a 26 surgeon and partner of Dr. Oehling at the Grants Pass Surgery 27 Center, for an esophagogastroduodenoscopy to evaluate her abdominal 28 pain. Tr. 336. Dr. Deatherage's conclusion was that Robinson had OPINION AND ORDER 10 1 an "essentially normal appearing upper GI endoscopy." 2 biopsy from this exam was interpreted by Dr. Byron Arndt, M.D., a 3 pathologist at Three Rivers Community Hospital, on May 5, 2005, as 4 "mild chronic gastritis most consistent with chemical gastritis." 5 Tr. 330. 6 Tr. 336. A The same day, May 5, 2005, Robinson consulted with another 7 physician's 8 regarding left neck and shoulder pain. 9 an extensive evaluation, Price concluded "findings on exam are for assistant, shoulder Joan Price pathology at Greentree Tr. 237. except After undergoing 10 negative 11 changes noted at the AC joint." 12 Foreman, an orthopedist at the same clinic presumably, Price noted 13 that imaging studies showed, "Generally the findings are consistent 14 with early degenerative disk and degenerative joint disease." 15 238. Tr. 234. for Orthopedics, some degenerative In conjunction with Dr. Tr. 16 On May 12, 2005, Robinson went to Siskiyou and indicated to 17 Nurse Roxanda Radomsky that "Prozac [was] working really, really 18 well." 19 to 3 and 1/2 times per day. 20 called Siskiyou complaining of severe constipation and "for relief 21 for severe, stabbing stomach pains," and she was told to minimize 22 narcotics as they make constipation worse. Tr. 309. She indicated 23 she was taking Vicodin for the pain. 24 Tr. 307. She was also noted to be taking Vicodin 750 mg 3 Tr. 307. On May 18, 2005, Robinson Tr. 309. On May 19, 2005, Robinson appeared at Siskiyou indicating she 25 "needs more pain relief." 26 drugs early. 27 Tr. 304. 28 Tr. 304. Robinson was noted to out of The clinic refilled her hydrocodone prescription. On May 25, 2005, Robinson had imaging studies of her spine OPINION AND ORDER 11 1 done, which revealed an "unremarkable C spine series." Tr. 335. 2 On May 26, 2005, Dr. Oehling did an upper GI series test on 3 Robinson, and noted that "it looks as normal as anything could 4 look." 5 pain. 6 Tr. 242. On May 28, He could not make a diagnosis about her abdominal 2005, Robinson cancelled her appointment at 7 Siskiyou citing pain, but asked if the clinic could refill her 8 hydrocodone prescription until the next appointment, which the 9 clinic did, less than two weeks after doing so on May 19, 2005. 10 Tr. 302. 11 On May 31, 2005, Robinson underwent a neurological exam with 12 neurologist Dr. Yung Kho M.D. to assess back pain. 13 impression was that Robinson might have myofascial pain syndrome. 14 Tr. 245. 15 Dr. Kho's On June 9, 2005, Robinson returned to the Siskiyou Community 16 Health Center "for followup on neck pain and depression." Tr. 299. 17 She 18 neck still hurt. Joseph Patton P.A. noted that "she moves easily," 19 but continued her hydrocodone prescription. reported that her abdomen was feeling better, but that her Tr. 299. 20 On June 20, 2005, Robinson had an MRI done on her back. 21 300. The MRI results do not appear directly in the record, but are 22 referenced by other medical records, below. 23 Tr. Tr. 290. On July 7, 2005, Robinson went to Siskiyou and complained she 24 was "sick of hurting." 25 arms, feet, knee, neck, and shoulder. 26 discussed the use of a "long-actinging opiate i.e. methadone." Tr. 27 293. 28 Tr. 293. She complained of pain in her She and nurse Radomsky On July 21, 2005, Robinson went to Siskiyou for a chronic pain OPINION AND ORDER 12 1 management visit and indicated to a nurse that she was experiencing 2 more pain, and needed a higher dose of her pain medication or a 3 different pain medication. 4 Chua, the doctor "sa[id] cervical MRI was normal- don't give more 5 narcotics for neck pain." Tr. 290. When the nurse called Dr. Tr. 290. 6 On August 2, 2005, Robinson called the Siskiyou Community 7 Health Center and told them she wanted a different muscle relaxer 8 and she needed an early refill of her hydrocodone in order to 9 overcome her pain to make it to the appointment the following day. 10 Tr. 288. The clinic did not refill the prescription early. Tr. 11 288. 12 of pain in her legs and feet, and Nurse Roxanda Radomsky refilled 13 her prescription for Vicodin. 14 was suggested. On August 4, 2005, Robinson returned to Siskiyou complaining A pain contract on the next visit Tr. 289. 15 On August 18, 2005, Robinson went in for a chronic pain 16 management visit and complained of pain in her left knee, right 17 foot, and her back. 18 Radomsky that she was taking Vicodin daily for her pain, and the 19 nurse refilled her Vicodin prescription. 20 told the nurse that the Prozac she was taking made her angry and 21 she wanted to try Cymbalta. Tr. 286. She indicated to nurse Roxanda Tr. 286. Robinson also Tr. 286. 22 On September 15, 2005, Robinson attended a chronic pain 23 management visit at Siskiyou and complained that her pain had 24 worsened in the mid-thoracic and post cervical spine, and in her 25 left knee. 26 Tr. 280. On October 27, 2005, Robinson went to Siskiyou complaining of 27 knee pain. Tr. 271. 28 alleged onset of disability, she told Nurse Radomsky that she was OPINION AND ORDER 13 On this date, more than six years after her 1 working as a cashier at Bi-mart, where she spent 8 hours standing 2 each day. 3 Tr. 271. On December 12, 2005, Robinson appeared at the Siskiyou 4 Community Health Center 5 depression. 6 knee pain but her back between her shoulder blades and lower lumbar 7 area are bothering her frequently." Tr. 264. 8 complain of left arm pain. She stated that she "is not 9 in the right job for her back." Tr. 264. to follow up on chronic pain and "She sa[id] her main complaint is her left Tr. 264. Robinson did not Tr. 266. 10 On February 23, 2006, Robinson appeared at Siskiyou and saw 11 Physician's Assistant Patton. Patton noted that Robinson no longer 12 wanted Percocet, but wanted to try Methadone. 13 Percocet may stem from Dr. Chow's February 2001 prescription. 14 March 16, 2006, Robinson reported to Siskiyou for a chronic pain 15 management visit complaining of pain in her wrists, feet, and 16 ankles, and asked to try methadone. 17 that day that she had realized her constipation was really caused 18 by consuming many pretzels. Tr. 407. Tr. 252. The On Robinson reported Tr. 399. 19 On April 14, 2006, nonexamining consulting psychologist Paul 20 Rethinger, Ph.D reviewed Robinson's records and diagnosed her with 21 an affective disorder. 22 disorder 23 functioning and a mild difficulty in maintaining concentration, 24 persistence, or pace. 25 restriction in the activities of daily living. 26 Rethinger, after reviewing her entire medical record, wrote, 27 It is readily apparent to providers and this DA that [Robinson]'s most significant barrier to steady employment is the interplay between her chronic 28 created a OPINION AND ORDER 14 Tr. 340. mild He opined that her affective difficulty Tr. 350. in maintaining social He opined Robinson had no Tr 350. Dr. 1 2 3 widespread, unsubstantiated pain complaints, extensive drug-seeking behavior, switching and manipulation of her past PCPs, the engagement of medical specialists to work-up pain w/o severe or explainable pathology and her constant self-regulation of both psychotropic, analgesics and opioids. 4 Tr. 352. In discussing her alleged depression, he noted that she 5 has never been to counseling, never been referred for counseling, 6 never had mental problems related to work, and never been 7 psychiatrically hospitalized. Tr. 352. He also pointed out that 8 doctors consistently described her as "pleasant," even when she 9 said she was in extreme somatic pain, which was often. "Given the 10 evidence in file," he continued, "there is no support for a 11 pathology that would lead to disabling memory loss." Tr. 352. He 12 concluded, "Mental allegations are not well-supported, credibility 13 is limited by reported function and lack of objective signs of 14 severe depression." Tr. 352. 15 By April 19, 2006, Robinson was taking methadone and 16 hydrocodone together everyday. Tr. 397. She continued to present 17 to Siskiyou frequently complaining of pain, and seeking refills on 18 a very regular basis. Tr. 389-397. On August 22, 2006, Robinson 19 called Siskiyou, saying that she had taken a trip to Portland and 20 her suitcases with her medications had been stolen, but she didn t 21 make a police report. Tr. 389. She wanted an early refill of 22 hydrocodone and methadone. Tr. 389. The records are not clear 23 whether her prescription was refilled. See Tr. 389. 24 There is a gap in the medical records from September of 2006 25 through May of 2008. By May of 2008, Robinson had established care 26 with internist Dr. Timothy Roberts, M.D. in Grants Pass Tr. 429. 27 On May 20, 2008, Robinson complained to Dr. Roberts that "the 28 OPINION AND ORDER 15 1 biggest problem at the moment is her left knee." 2 noted she had "chronic back and knee pain," and that she was still 3 taking methadone and hydrocodone on a daily basis. 4 June 10, 2008, Robinson went to see Dr. Roberts again. 5 The "pretense for the visit was left arm discomfort, but it quickly 6 becomes apparent that although she has had some arm discomfort and 7 weakness, she is actually out of her methadone now 10 days early." 8 Tr. 428. 9 agreement 10 Tr. 429. Tr. 429. He On Tr. 428. Dr. Roberts advised her that she was in "violation of our and any such further termination from this clinic." violations will lead to her Tr. 428. 11 On June 19, 2008, she appeared to address pain in her left 12 elbow and left knee. Tr. 427. Dr. Roberts expressed frustration at 13 still not having received Robinson's medical records from the 14 Siskiyou Community Health Clinic. 15 Robinson saw Dr. Roberts to follow up on chronic pain. 16 supposed to bring in all of her medications for Dr. Roberts to 17 review, 18 appointment, but she failed to bring them in. 19 22, 2008, she saw Dr. Roberts again. 20 had chronic neck and back pain, depression, and knee pain. 21 the last medical visit documented in the record. 22 23 and she was reminded Tr. 427. to do so On August 15, 2008, on the day Tr. 426. She was of the On October At that time he assessed she This is A social security hearing before an administrative law judge was held on October 24, 2008. 24 Robinson's daughter Tawni did not testify at the hearing 25 before the ALJ, but on November 17, 2008, she sent an email 26 detailing that "some days she can't walk without help all day long. 27 She has to prop her left leg often during the day for long periods 28 due to cysts that have caused large knots and severe pain." OPINION AND ORDER 16 Tr. 1 187. Robinson's daughter wrote that Robinson "doesn't comprehend 2 basic 3 progressively worse since her accident years ago." social interactions anymore, and this has gotten Tr. 187. 4 Nonexamining consulting physician Dr. Neal Berner was asked to 5 review the entire medical record and express his opinions about 6 Robinson's physical limitations. 7 constant insistence about her pain, there were few objective 8 findings to support it, 9 10 11 12 13 14 He noted that despite Robinson's Physically, her lumbar films show mild DJD w/o stenosis or listhesis, her B/L knee films show mild OA, her left shoulder films x 2 are normal except for a calcified A/C, her EMG was negative for median nn entrapment bilaterally, her B/L ankle films are normal, her AP pelvis is normal. On serial exams including PCPs and orthopaedics her left shoulder is limited d/t pain and minimal spasm, no impingement. See Perry, MD ORTHO and his PA for extremely detailed left shoulder and cervical assessment and his discussion regarding the lack of specific dx and severity. 15 Tr. 361. He concluded that the "physical allegations are not 16 well-supported, 17 inconsistencies, objective findings on serial exams/imaging and 18 reported function. 19 posturals." 20 "well known to manipulate her medical providers." credibility is limited by the aforementioned Capable of S&W 6/8, unlimited sit, L&C 10/20, Tr. 361. Dr. Berner also wrote that Robinson was Tr. 366. DISCUSSION 21 22 Robinson argues that the ALJ erred by (1) failing to properly 23 credit the testimony of Dr. Greene; (2) failing to properly credit 24 Robinson's subjective symptom testimony; (3) failing to properly 25 credit the lay witness testimony of Robinson's daughter; (4) 26 failing to consider the combined effect of her impairments; and (5) 27 giving an incomplete hypothetical to the vocational expert ("VE") 28 and failing to properly credit the VE's testimony. OPINION AND ORDER 17 1 2 3 I address each assignment of error in turn. I. Examining Physician Testimony The weight given to the opinion of a physician depends on 4 whether 5 physician, or a nonexamining physician. 6 the opinion of a treating physician because the person has a 7 greater 8 individual. 9 a treating or examining physician s opinion is not contradicted by 10 another physician, the ALJ may only reject it for clear and 11 convincing reasons. Id. (treating physician); Widmark v. Barnhart, 12 454 F.3d 1063, 1067 (9th Cir. 2006) (examining physician). Even if 13 it is contradicted by another physician, the ALJ may not reject the 14 opinion without providing specific and legitimate reasons supported 15 by substantial evidence in the record. 16 Widmark, 17 physician, by itself, is insufficient to constitute substantial 18 evidence 19 physician. 20 nonexamining, testifying medical advisor may serve as substantial 21 evidence when they are supported by and are consistent with other 22 evidence in the record. 23 Administration, 169 F.3d 595, 600 (9th Cir. 1999). 24 the physician opportunity an examining More weight is given to If reject According to 1066. the Widmark, and physician, Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). at know treating an F.3d to a as 454 to is 454 observe The opinion F.3d at a 1066 patient Orn, 495 F.3d at 632; opinion of the of a treating n.2. nonexamining or examining Opinions of a Morgan v. Commissioner of Social Security Robinson, the ALJ erred by (1) improperly 25 rejecting the opinions of Dr. Katherine Greene, a psychologist, not 26 a physician, and (2) improperly substituting her own opinion for 27 the opinions of Robinson's treating and examining physicians. 28 A. Dr. Greene OPINION AND ORDER 18 1 According to Robinson, the ALJ failed to properly credit 2 Greene's conclusions about Robinson's mental abilities. Dr. Greene 3 is an examining psychologist. 4 physician. 5 reported concentration, organizational skills, and memory problems 6 "may not affect her overall general day-to-day activities but would 7 likely affect her ability to function in a job setting. Tr. 378. 8 Dr. cognitive 9 disorder, 10 remission. 11 She is not a treater, nor is she a As noted above, Greene related that Robinson's self- Greene diagnosed an Robinson unspecified with an depression unspecified disorder, and ADHD in Tr. 379. The ALJ discussed Dr. Greene's testing and conclusions at 12 length. 13 ALJ 14 impairments. Tr. 55. Moreover, she included limitations for these 15 concerns 16 precluded contact with the public, and which limited Robinson to 1 17 to 3 step tasks which are consistent with entry level work in the 18 Dictionary of Occupational Titles ("DOT"). 19 ALJ did not reject, but rather adopted, the findings of Dr. Greene. 20 Tr. 62. found After considering Dr. Greene's depression in and Robinson's a cognitive residual testimony, the disorder functional to be capacity, severe which Tr. 57. Therefore, the Robinson does not identify exactly what the ALJ should have 21 credited, but did not. 22 opined what restriction(s) Robinson might have in a job setting, 23 she simply concluded Robinson's self-reported 24 likely affect her ability to function in a job setting." 25 any specific finding by Dr. Greene, there is no reversible error 26 here. 27 28 This is not surprising as Dr. Greene never symptoms "would Without Other evidence in the record also supports affirming the Commissioner. Dr. Rethinger noted, and the record supports, that OPINION AND ORDER 19 1 despite Robinson's reports of mental problems, she has never been 2 to counseling, never had mental problems related to work, her 3 doctors consistently described her as "pleasant," and she never 4 exhibited any objective signs of severe depression. 5 "[s]he said [to Dr. Greene] her memory has not improved in that she 6 still forgets to take her medication, needs to be reminded about 7 her appointments," Tr. 369, the medical record shows that she went 8 to appointments very consistently and that her first priority was 9 her medications. Although There is no significant evidence of missed 10 appointments. It's difficult to believe she "forgets to take her 11 medication," yet runs out of her prescriptions early on such a 12 regular basis. 13 relied heavily on Robinson's self reports about her condition. She 14 did not evaluate the medical record. 15 most apparent in Dr. Greene's unawareness of Robinson's drug 16 seeking behavior and doctor shopping. 17 evaluation of Dr. Greene's opinions. Dr. Greene evaluated Robinson just twice, and Tr. 373. This is perhaps The ALJ did not err in the 18 B. Other treating and examining physicians 19 Robinson alleges that the ALJ "attributed Plaintiff's painful 20 left arm symptoms 21 question the medical bases for Plaintiff's complaints of numbness 22 and tingling in her left hand, asserting there is 'no diagnosis of 23 the cause of such symptoms.'" 24 error to the ALJ's acceptance of myofascial pain syndrome as a 25 severe 26 "undiagnosed upper extremity pain is nonsevere." impairment, to myofascial but pain syndrome Pl.'s Br. at 26. simultaneous finding and seemed to Robinson assigns that Robinson's Id. 27 Robinson's less than clear assignment of error seems to allege 28 that the ALJ erred by failing to credit medical evidence that OPINION AND ORDER 20 1 purportedly shows Robinson, in addition to having the severe 2 impairment of myofascial pain syndrome in her left arm, also has 3 another severe impairment in her left arm. 4 without merit. 5 The sole imaging study done to try This argument is and find objective 6 verification of a problem with Robinson's left arm was ordered by 7 Dr. Bruce Perry on August 3, 2004. 8 summarized 9 demonstrate no fracture or bony lesion of the humerus. the images: "Three of preserved. the left degenerative change with spurring at the acromioclavicular joint. 12 No soft tissue calcifications are seen. 13 change at the AC joint." 14 "probably [had] myofascial 15 no "evidence of rotator cuff impingement or significant tendinitis 16 today," 17 sufficiently inconsequential that it didn't merit narcotics to 18 treat it. 19 restrictions in Robinson's activities. left arm moderate Impression: degenerative He opined that Robinson pain syndrome." whatever is The 11 Tr. 331. There shoulder glenohumeral found is views 10 and relationship After looking at her films, he Tr. 338. problem He also saw existed to be Again this doctor offered no information regarding 20 Robinson's extreme drug seeking behavior overshadows all of 21 her reports of pain, including her reports related to her left arm, 22 which were sporadic. For example, Robinson did not report any pain 23 pertaining to her left arm or hand to Dr. Chow during any of her 24 visits with him between October 2000 and January 2003. 25 212. 26 visits complaining only of her back, or another symptom, with no 27 mention her left arm. 28 complained to Dr. Roberts that "the biggest problem at the moment Tr. 190- From 2004-2006, many times Robinson would appear for medical OPINION AND ORDER 21 As recently as May 20, 2008, Robinson 1 is her left knee." Tr. 429. On June 10, 2008, when Robinson saw 2 Dr. Roberts, the "pretense for the visit was left arm discomfort, 3 but it quickly becomes apparent that although she has had some arm 4 discomfort and weakness, she is actually out of her methadone now 5 10 days early." Tr. 428. (emphasis added). 6 When Dr. Berner reviewed the entire medical record, it gave 7 him an advantage of a longitudinal look at the situation compared 8 to a 9 that there was a "lack of specific dx and severity" with regard to sporadic treating doctor or examiner. Tr. 361. His conclusion was 10 Robinson's left arm. 11 allegations are not well-supported, credibility is limited by the 12 aforementioned 13 exams/imaging and reported function. Capable of S&W 6/8, unlimited 14 sit, L&C 10/20, posturals." inconsistencies, He opined that the "physical objective findings on serial Tr. 361. 15 Perhaps most importantly, there is absolutely nothing in the 16 record indicating that Robinson's left arm condition, whatever it 17 might be, limits her ability to work. 18 in failing to include an additional impairment related to the left 19 arm, or with respect to the evaluation of Robinson's myofascial 20 pain syndrome. 21 II. 22 I find the ALJ did not err Subjective Symptom Testimony When deciding whether to accept the subjective symptom 23 testimony of a claimant, the ALJ must perform a two-stage analysis. 24 In the first stage, the claimant must produce objective medical 25 evidence of one or more impairments which could reasonably be 26 expected to produce some degree of symptom. 27 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). 28 required to show that the impairment could reasonably be expected OPINION AND ORDER 22 Lingenfelter v. The claimant is not 1 to cause the severity of the symptom, but only to show that it 2 could reasonably have caused some degree of the symptom. 3 second stage of the analysis, the ALJ must assess the credibility 4 of the claimant s testimony regarding the severity of the symptoms. 5 If there is no affirmative evidence of malingering, the ALJ may 6 reject the claimant s testimony only by offering specific, clear 7 and 8 malingering, however, by itself, is enough to discredit a claimant. 9 Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040. convincing reasons for doing so. Id. In the Evidence of 10 The ALJ found that Robinson's "frequent requests for early 11 narcotic refills and non-compliance with dosing schedules highlight 12 the discrepancy between her pain complaints and the almost total 13 lack of objective findings to support any pain complaint at all." 14 Tr. 63. 15 disabled lifestyle is not consistent with her actual physical 16 condition or the recommendations of treating sources." Tr. 63. On 17 this basis, the ALJ concluded that "Ms. Robinson's medically 18 determinable impairments could reasonably be expected to cause the 19 alleged symptoms; however, Ms. Robinson's statements concerning 20 intensity, persistence, and limiting effects of these symptoms are 21 not credible 22 residual functional capacity assessment." The ALJ continued, "Ms. Robinson's choice to adopt a to the extent they are inconsistent with above Tr. 58. 23 There is no doubt that the record has ample evidence to 24 support the ALJ's specific, clear and convincing reasons to accord 25 little weight to Robinson's subjective symptom testimony. 26 On January 29, 2004, Dr. Perry noted that Robinson "has had 27 narcotic-seeking behavior the last several months. 28 pharmacy, she has had multiple providers prescribing Percocet, OPINION AND ORDER 23 From one 1 Lorazepam, Vicodin, and Flexeril." Tr. 224. On February 26, 2004, 2 Dr. Perry noted that Robinson was still "exhibiting very alarming 3 symptoms of narcotic drug-seeking behavior." Tr. 221. As recently 4 as June 2008, Robinson's most recent primary care physician, Dr. 5 Timothy Roberts, noted that her visit alleging arm discomfort was 6 a "pretense" for getting an early methadone prescription refill. 7 Tr. 428. 8 This coupled with the stomach complaints of pain with 9 extensive testing that revealed no bases for a pain complaint, left 10 arm pain complaints with minimal objective findings and treating 11 doctors opining that no prescription medications were appropriate 12 for the arm and refusal by the doctors to prescribe them, and Dr. 13 Rethinger's opinions above, are specific, clear and convincing 14 reason to accord little weight to Robinson's subjective symptom 15 testimony. 16 These incidents, combined with the absence of objective 17 findings to support many of Robinson's pain complaints give the ALJ 18 ample reasons to question Robinson's credibility. The ALJ did not, 19 therefore, err in according little weight to Robinson's subjective 20 symptom testimony. 21 III. Lay Witness Testimony 22 Lay testimony about a claimant s symptoms is competent 23 evidence which the ALJ must take into account unless she gives 24 reasons for the rejection that are germane to each witness. 25 v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). 26 A medical diagnosis, however, is beyond the competence of lay 27 witnesses. 28 A legitimate reason to discount lay testimony is that it conflicts Stout Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). OPINION AND ORDER 24 1 with medical evidence. 2 Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 3 Robinson alleges the ALJ failed to state germane reasons for 4 rejecting the lay testimony of Tawni Robinson, the claimant's 5 daughter. 6 I find this argument unpersuasive. In her report, the ALJ discussed the younger Robinson's 7 testimony at length. Tr. 59. After discussing it, the ALJ 8 explained why she accorded the testimony "little weight." Tr. 59. 9 The ALJ noted that Tawni had testified that her mother "has to prop 10 her left leg often during the day for long periods due to cysts 11 that have caused large knots and severe pain." 12 characterized this an an "obvious overstatement of a single Baker's 13 cyst," and explained, "Using that a benchmark, one can reasonably 14 assume the balance of the statement is similarly inflated." 15 59. Tr. 187. The ALJ Tr. 16 I find the ALJ gave a germane, legitimate reason to accord 17 little weight to the testimony of Tawni Robinson, and she did not 18 err in this regard. 19 IV. Combined Effect of Impairments 20 Robinson alleges that "The ALJ did not properly consider the 21 combined effect of Plaintiff's multiple impairments, severe and 22 non-severe, as to whether the combined effect should be regarded to 23 be of sufficient severity, without regard to whether any impairment 24 considered separately would be of sufficient severity to result in 25 limitations of disabling severity or limitations equal in severity 26 to those specified in the Listings." Pl.'s Br. at 6. 27 Robinson appears to allege, therefore, that the ALJ did not 28 consider the combined effects of Robinson's impairments in deciding OPINION AND ORDER 25 1 if she was disabled. This argument, too, has no merit. 2 The ALJ's decision begins by citing many different applicable 3 laws and regulations pertaining to the claimant's "combination of 4 impairments." 5 Robinson's non-severe and severe impairments3 were considered in 6 combination in arriving at the residual functional capacity set 7 forth 8 impairments, severe and non-severe, 9 singularly and in combination, are not accompanied by the findings 10 specified for any impairment or combination of impairments included 11 in any section of the listings." 12 in the opinion by the ALJ's formulation of the RFC, which, by its 13 nature, 14 combination of limitations was presented to the VE, who found that 15 Robinson's combination of limitations does not preclude her from 16 working. 17 See Tr. 53-54. below." lists Tr. a 57. The combination The ALJ was specific, "All of Ms. ALJ continued, of limitations. V. In turn, the The ALJ did not err in this regard. 19 claimant's Tr. 57. This language is followed This argument, therefore, is without merit. 18 "the 20 Vocational Expert Hypothetical questions posed to a vocational expert must 21 specify all of the limitations and restrictions of the claimant. 22 Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001). 23 hypothetical that includes a residual functional capacity which A 24 3 25 26 27 28 The ALJ found that Robinson had the following severe impairments: myofascial pain syndrome, mild left knee osteoarthritis with Baker's cyst, bilateral lower extremity varicose veins, depression, and cognitive disorder NOS. See Tr. 55. The ALJ did not specify the non-severe impairments she considered, but generally discussed all of the impairments that Robinson complained of throughout the medical record. OPINION AND ORDER 26 1 incorporates the limitations and restrictions of the claimant, 2 established by the record, is sufficient. 3 See id. Robinson's final assignment of error alleges that the ALJ gave 4 the vocational expert 5 "disregarded 6 concerning 7 record." 8 argument section of her brief pertaining to this assignment of 9 error. the ("VE") vocational Plaintiff's incomplete expert's actual Pl.'s Br. at 6. an hypothetical answer condition as when and questioned evidenced by the Robinson does not have a separate Her only mention of the vocational expert in the argument 10 section of her brief relates to Tawni Robinson's testimony. 11 argues that Tawni Robinson's testimony that her mother needs to lie 12 down at least an hour and a half in the middle of the day should 13 have been accepted. Pl.'s Br. at 28. 14 limitation were accepted, then, according to the VE's testimony, 15 Robinson would have been disabled. 16 She She points out if this See Pl.'s Br. at 28. The ALJ did question the VE on this topic. At one point in 17 the October 24, 2008 hearing, the ALJ asked the VE, "At any 18 exertional level, if an individual required the opportunity to lie 19 down for an hour and a half in the middle of the day, would there 20 be work?" 21 eliminate competitive employment." 22 Tr. 42. The VE answered, "No, ma'am. That would Tr. 42. The ALJ did not, however, ultimately include this limitation 23 in the residual functional capacity. Aside from the testimony of 24 Tawni Robinson, there is no other support in the record for this 25 limitation. 26 err in according little weight to Tawni Robinson's testimony. 27 Having not credited this testimony, there is no reason why the ALJ 28 must include this limitation in her formulation of the RFC. I have already discussed, above, why the ALJ did not OPINION AND ORDER 27 The 1 ALJ did not err in this regard. 2 In her Reply, Robinson raises for the first time the argument 3 that if the ALJ had properly credited the testimony of Dr. Greene, 4 she would have found that Robinson would be off task for a third of 5 each work day, which would preclude competitive employment. 6 argument is similar to the argument related to Tawni Robinson, and 7 is equally without merit. This 8 At the hearing, Robinson's attorney tried to equate Dr. 9 Greene's comment about "intermittent organizational and memory 10 skills" to a diagnosis that Robinson would be distracted from her 11 work tasks for a third of each day. 12 that if a person were not able to maintain their production pace or 13 stay on task a third of each day, they would not be competitively 14 employable. 15 Tr. 43-44. The VE testified Tr. 44. There are multiple problems with this alleged error. First 16 and foremost, Dr. Greene did not opine the Robinson would be off 17 task for a third of each day. 18 individual with such a limitation is of no consequence. 19 did not err in failing to add this limitation to the RFC, or by 20 ignoring the 21 limitation. 22 did not err in assigning only partial weight to the testimony of 23 Dr. Greene. 24 /// 25 /// 26 /// 27 /// 28 /// VE's testimony Thus, the VE's testimony about an about an individual with The ALJ such a Second, I have already discussed, above, why the ALJ OPINION AND ORDER 28 CONCLUSION 1 2 Accordingly, based 3 the record, the decision of the Commissioner is affirmed. 4 on IT IS SO ORDERED. 5 Dated this 31 day of March, 2011. 6 7 /s/ Dennis J. Hubel 8 Dennis James Hubel United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OPINION AND ORDER 29

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