Huynh v. Commissioner Social Security Administration, No. 3:2012cv02325 - Document 21 (D. Or. 2014)
Court Description: OPINION AND ORDER. For the foregoing reasons, the Commissioner's decision is AFFIRMED. IT IS SO ORDERED. Signed on 04/16/2014 by Judge Malcolm F. Marsh. (pvh)
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IN' THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON 3:12-cv-02325-MA THOA VAN HUYNH, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. BRUCE W. BREWER P.O. Box 421 West Linn, Oregon 97068 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 GERALD J. HILL Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER OPINION AND ORDER MARSH, Judge Plaintiff, Thoa Van Huynh, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his applications for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act) and supplemental security income benefits under Title XVI of the Act. 1381-1383f. 405 (g) . (SSI) See 42 U.S.C. disability 401-434, §§ This Court has jurisdiction pursuant to 42 U.S.C. For the reasons set forth below, I affirm the § final decision of the Commissioner. PROCEDURAL BACKGROUND Plaintiff protectively filed the instant applications for DIB and SSI on May 6, 2010, alleging disability due to a "lower back injury,n and a "replaced disc.n Tr. 212. His applications were denied initially and upon reconsideration. before an Administrative Law Judge (ALJ) which by Plaintiff was represented A hearing was held on August 10, counsel. and 2011, at testified. Vocational Expert (VE) C. Kay Wise was also present throughout the hearing and testified. On November 17, 2011, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. After the Appeals Council declined review of the ALJ's decision, Plaintiff timely filed a complaint in this Court. 2 - OPINION AND ORDER FACTUAL BACKGROUND Born on January 1, 1969, Plaintiff was 45 years old on the alleged onset date of disability and 52 years old on the date of the hearing. eleventh Plaintiff reported at separate times having completed and twelfth grade and has past relevant work as a Blackjack Dealer, Welder, Small Products Assembler, and Electronics Assembler. Tr. 17, 33, 213. Plaintiff alleges his conditions became disabling on November 4, 2004. Tr. 182. Plaintiff testified about his limitations at the hearing and submitted an Adult Function Report and Pain and Fatigue Tr. 31-48, 228-26. In Jennifer Huynh, submitted a Questionnaire. Plaintiff's sister, Plaintiff's behalf. Tr. 248. addition, letter on Jane Wang, M.D., examined Plaintiff and submitted a Comprehensive Orthopedic Evaluation in relation to a prior application for disability. Tr. 254-58. Olga Senashova, M.D., examined Plaintiff and submitted an evaluative opinion. 357-64. Finally, John H. Ellison, submitted an evaluative opinion. M. D., Tr. examined Plaintiff and Tr. 436-46. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step process for determining whether a person is disabled. Yuckert, 482 U.S. 404.1520(a) (4) (i)-(v), potentially dispositive. 3 - OPINION AND ORDER 137, 140-42 (1987); 416. 920 (a) (4) (i)-(v). 20 Each sequential Bowen v. C.F.R. step §§ is The claimant bears the burden of proof at Steps One through Four. Cir. 1999). show that Tackett v. Apfel, 180 F.3d 1094, 1098 (9th The burden shifts to the Commissioner at Step Five to a significant number of jobs economy that the claimant can perform. exist in the See Yuckert, national 482 U.S. at 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined that Plaintiff has not engaged in substantial gainful November 4, 2004. activity since See 20 C.F.R. §§ the alleged onset 404.1571 et seq., date, 416.971 et seq.; Tr. 13. At Step Two, the ALJ found Plaintiff's "residuals from lower back injury" and headaches were severe impairments. §§ See 20 C.F.R. 404.1520(c), 416.920(c); Tr. 13. At Step Three, the ALJ determined Plaintiff does not have an impairment or combination of impairments that meet or medically equal any listed impairment. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 13. The ALJ found Plaintiff has the residual functional capacity (RFC) to perform a full range of light work, except that Plaintiff is further limited to lifting and carrying ten pounds frequently and twenty pounds occasionally; standing and walking in two-hour increments for a total of six hours in an eight-hour workday; sitting for two-hour increments for a total of six hours in an eight-hour workday; no climbing of ladders, ropes, and scaffolds; occasional stooping, 4 - OPINION AND ORDER kneeling, crouching and crawling; avoiding work involving unprotected heights, dangerous machinery, and other hazards; and understanding, and detailed, remembering, but not complex, and carrying out simple tasks or instructions typical of occupations at SVP Level One or Two. Tr. 13-17. At Step Four, the ALJ found Plaintiff is unable to perform his past relevant work as a Blackjack Dealer, Welder, and Electronics Assembler, but capable of performing his past relevant work as a Small Products Assembler. See 20 C.F.R. §§ 404.1565, 416.965; Tr. 17-18. Accordingly, the ALJ found Plaintiff was not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff raises three primary issues on review. First, Plaintiff argues the ALJ improperly rejected his subjective symptom testimony. Second, Plaintiff argues the ALJ improperly weighed the medical testimony by rejecting the opinions of Dr. Ellison and Dr. Senashova. Finally, Plaintiff argues the ALJ improperly rejected the lay testimony of Plaintiff's sister, Jennifer Huynh. 1 1 In his opening brief, Plaintiff briefly suggests the ALJ may have erred at Step Three of the sequential analysis. Plaintiff's passing reference to "arguabl[e]n Step Three error, however, does not specifically and distinctly present an assignment of error concerning the ALJ's Step Three analysis. Therefore, I decline to address Plaintiff's brief Step Three reference. See Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (2008); Boyer v. Colvin, No. 3:12-cv-00392-SI, 2013 WL 3333060, at *10 {D. Or. July 1, 2013). 5 - OPINION AND ORDER STANDARD OF REVIEW The Court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 405 (g); Andrews v. 1039 Shalala, 53 F. 3d 1035, 42 U.S.C. (9th Cir. § 1995). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Court must weigh all of the evidence, whether detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). to more than one rational decision must be upheld. supports Martinez v. The or Heckler, If the evidence is susceptible interpretatj_on, Andrews, it Id. the Commissioner's 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). DISCUSSION I. Plaintiff's Testimony In_ deciding whether to accept subjective symptom testimony, an ALJ must perform two stages of analysis. 20 C.F.R. § 404.1529. First, the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. 6 - OPINION AND ORDER Smolen, 80 F.3d at 1281-82. Second, absent a finding of malingering, testimony about the the ALJ can severity of her reject the symptoms only by offering specific, clear, and convincing reasons for doing so. If an ALJ finds the claimant's subjective symptoms unreliable, determination citing (9th Cir. 1999) . Id. at 1281. regarding her the "ALJ must make a credibility why the ~M=o~r~g~a=n~~v~·~=C=o~m=m~'-r=-~S=o~c~.~S=e~c~.~A=d~m.in. unpersuasive." 599 testimony reasons the claimant's In doing so, testimony , is 16 9 F. 3d 5 9 5, the ALJ must identify which testimony is credible and which testimony undermines the claimant's complaints, and make "findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the] claimant's testimony." Cir. 2002). The Thomas v. Barnhart, 278 F.3d 947, 958 (9th ALJ credibility evaluation may in rely upon weighing the ordinary techniques claimant's of credibility. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the hearing, Plaintiff testified that he largely stays at home and seldom drives. speak English, second language. Tr. 32-33. Plaintiff reported he can but cannot read or write because English is his Tr. 33. Plaintiff testified that he becomes numb after sitting for fifteen to twenty minutes, and he takes narcotic pain medications to help relieve back pain. result of the back pain, Tr. 36-37. As a Plaintiff testified that he cannot lift heavy objects like two gallons of milk. Tr. 41. In addition, Plaintiff reported having persistent headaches that cause pain and 7 - OPINION AND ORDER dizziness. Tr. Although it was unclear whether these were 38. related to his headaches, memory problems. Plaintiff testified he has significant Tr. 39. As to activities of daily living, Plaintiff testified that his sister does the shopping, cooking, cleaning, and laundry, and that he has a hard time reading because his vision is blurry. Plaintiff testified he did his own cooking, 42. · Tr. 40, cleaning, and laundry before he had an automobile accident that eventually forced him to have back surgery. Tr. 43. In his Adult Function Report dated May 22, 2010, Plaintiff indicated that in a normal day he takes medicine, walks a little bit, and rests. Tr. 228. Plaintiff reported sleeplessness and headaches as a result of his medication regimen. cooking, Tr. 229. As to Plaintiff noted he prepares foods such as sandwiches and noodles on a daily basis, but that he cannot perform cooking tasks that take a long time. Tr. 230. Plaintiff reported that he does his own laundry on a weekly basis and goes with his friend to the Tr. store. 230. Plaintiff reported that he has no hobbies and does not have any interest in social activities. Tr. 232. As such, Plaintiff reported he "can't do anything beside take medicine all the time[] .n Tr. 232. Plaintiff checked that his conditions affect his abilities to lift, squat, stairs, bend, stand, remember, 8 - OPINION AND ORDER reach, complete walk, sit, tasks, kneel, talk,. climb concentrate, follow instructions, and use his hands. Tr. 233. Plaintiff reported that he cannot follow either written or spoken instructions and does not get along with authority figures. Tr. 233. The ALJ rejected Plaintiff's testimony because there were inconsistencies in Plaintiff's reported activities of daily living; Plaintiff made inconsistent statements to medical providers and demonstrated drug-seeking behavior; and there is a gap in the medical record between 2008 and 2010, during the alleged period of For the reasons that follow, disability. I find these reasons, taken together, constitute clear and convincing reasons to reject Plaintiff's testimony. The ALJ reasonably found that Plaintiff made statements about his activities of daily living. inconsistent At the hearing, Plaintiff testified that he is unable to cook, clean, or do his own laundry. 2 Tr. 40, 42-43. This was contradicted by his Function Report, in which Plaintiff reported performing some limited cooking and doing his laundry on a weekly basis. 2 Tr. 230. In addition, on Plaintiff asserts the ALJ mischarachterized his hearing testimony because Plaintiff only testified that his sister performs these activities, not that he cannot perform them. This argument is meritless. Plaintiff testified that his sister does the cooking, cleaning, and laundry, and that he did these activities before his accident, strongly implying he can no longer perform these activities. Tr. 40, 42-43. In addition, Plaintiff's counsel flatly stated at the hearing that "[h]e is unable to do such tasks as cooking, buying groceries, cleaning around the house.u Tr. 29. The ALJ reasonably interpreted Plaintiff's testimony as asserting Plaintiff cannot cook, clean, or shop for groceries. 9 - OPINION AND ORDER July 26, 2010, Plaintiff reported to Dr. Senashova that he could cook and do light cleaning, but could not lift anymore. Tr. 358. The ALJ reasonably cited inconsistencies in Plaintiff's description of his capabilities in activities of daily living as a reason to discredit Plaintiff's testimqny. The ALJ also reasonably discredited Plaintiff's testimony on the basis that he made inconsistent statements to medical providers and demonstrated drug-seeking behavior. On October 25, 2010, after Plaintiff requested a prescription for Vicodin from an emergency room physician, the physician noted that Plaintiff's medical record contained "several patient says he contacts just since [2000] here. Also moved narcotic pain medication since 2000." Plaintiff's physician exaggerated pain behavior. Tr. 297. Kaiser several Tr. 421. positive noted with in which requests for On June 28, 2006, Waddell's signs and Similarly, on August 9, 2006, Plaintiff's physician noted that Plaintiff "seem[ed] to be drug seeking" and demonstrated "positive Waddell' s signs and exaggerated pain behavior." physical Tr. therapist 299. noted In that November of Plaintiff 2006, Plaintiff's exhibited presentation" with wincing and closing eyes, moaning, a "pain constant change in position, and holding his back; and described Plaintiff as "hyper-reactive to light [palpation]" on his back. addition, Plaintiff's physician noted Plaintiff had been "getting narcotic [ s] 10 - OPINION AND ORDER on June 18, Tr. 304. 2008, In that overseas from Vietnam." Tr. 318. Thus, the AI.J's citation of inconsistent statements to medical providers and drug-seeking behavior is a compelling reason to reject Plaintiff's subjective symptom testimony. Finally, the ALJ noted there was a significant gap in the medical record between 2008 and 2010, during the alleged period of disability. Al though I do not find this determinative in the credibility analysis because the above reasons are sufficient, an unexplained failure to seek medical treatment is a proper basis on which to discredit a claimant's testimony of severe pain. v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). Orteza Therefore, the ALJ properly cited the two-year gap in the medical record during the alleged period of disabling back pain as an additional reason to reject Plaintiff's testimony. In sum, I conclude and the above convincing reasons, reasons to taken reject together, constitute clear Plaintiff's testimony. The ALJ did not err in his consideration of Plaintiff's subjective symptom reports. II. Medical Testimony Plaintiff next argues the ALJ erred in his consideration of the medical testimony by improperly rejecting the opinions of Ors. Ellison and Senashova. convincing reasons to The Commissioner must provide clear and reject the treating or examining physician. 830-31 (9th Cir. 1995). 11 - OPINION AND ORDER uncontradicted Lester v. Chater, Where a physician's opinion of a 81 F.3d 821, opinion is contradicted by that of another physician, the ALJ may reject the physician's opinion by providing specific and legitimate reasons Id. supported by substantial evidence in the record. "'The 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.'" 661, 671 (9th Cir. 2012) Chaudhry v. Astrue, 688 F.3d (quoting Bray v. Comm' r Soc. Sec. Admin., 554F.3d1219, 1228 (9th Cir. 2009)). "'Where evidence, the the ALJ is record contains charged with determining resolving the conflict.'" Id. F. 3d 1030, 1040 2003)). translating the (9th Cir. claimant's limitations in the RFC. is "consistent with testimony." A. On medical credibility and (quoting Benton v. Barnhart, 331 The ALJ is responsible for medical conditions into functional See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). it conflicting Ultimately, the RFC is sufficient if restrictions identified in the medical Id. Dr. Senashova July 26, 2010, Dr. Senashova submitted an evaluative opinion. examined Plaintiff and Dr. Senashova noted Plaintiff was restless and unable to sit in the chair or on the examination table for more than five mi.nutes at a time, walked with a limp favoring his left leg, and was able to go from the. chair to the examination table while favoring his left leg. 12 - OPINION AND ORDER Tr. 357. After examination, Dr. Senashova concluded Plaintiff could stand and walk for less than two hours, could sit for less than two hours, lifting and carrying limitations. Tr. 361. but had no Dr. Senashova further limited Plaintiff to frequent climbing, balancing, and stooping; and occasional kneeling, Notably, however, crouching, and crawling. Tr. 361-62. Dr. Senashova noted all of these findings were "subjective finding[s] based on claimant's report and appearance." Tr. 361-62. Dr. Senashova' s opinion was contradicted by Dr. Wang, who found Plaintiff could stand and walk for six hours in an eight-hour workday and had no restrictions on sitting. Tr. 257. Therefore, the ALJ was required to cite specific and legitimate reasons to reject Dr. Senashova's opinion. ALJ rejected Dr. Senashova' s Lester, opinion 81 F.3d at 830-31. because it was Plaintiff's discredited subjective symptom reporting. The based on I conclude this is a specific and legitimate reason to reject Dr. Senashova's opinion. As discussed above, the ALJ properly discredited Plaintiff's subjective testimony. her opined reports. Indeed, as Dr. Senashova noted three times, limitations were based on This reason for rejecting Dr. Plaintiff's subjective Senashova's opinion is especially significant considering multiple medical providers noted Plaintiff exhibited exaggerated pain . behavior and drug-seeking 13 - OPINION AND ORDER Thus, behavior. I conclude the ALJ cited sufficient reasons for discrediting Dr. Senashova's opinion. B. Dr. Ellison After an examination, Dr. Ellison limited Plaintiff to lifting and carrying up to ten pounds frequently and up to twenty pounds occasionally. Tr. 441. Dr. Ellison opined Plaintiff could sit for six hours, stand for two hours, and walk for one hour in an eighthour workday. Tr. 442. for one hour, stand for 30 minutes, and walk for 15 minutes at a time. Tr. 442. frequently reach, Dr. Dr. Ellison noted that Plaintiff could sit Ellison also opined Plaintiff could only handle, finger, feel, push, and pull with his right hand and occasionally do so with his left hand. Tr. 443. addition, occasionally Dr. Ellison found Plaintiff could only In operate foot controls with the right foot and never with his left Tr. foot. 443. As to postural activities, Dr. Ellison opined Plaintiff could occasionally climb stairs or ramps but never climb ladders or scaffolds, balance, stoop, kneel, crouch, or crawl. 44 4. Tr. Finally, Dr. Ellison noted Plaintiff could perform activities of daily living such as shopping and cooking. Dr. Tr. 446. Ellison's opined limitations were contradicted by the findings of both Ors. Senashova and Wang, as noted above. Thus, the ALJ was required to cite specific and legitimate reasons to reject Dr. Ellison's opinion. rejected Dr. Ellison's 14 - OPINION AND ORDER Lester, 81 F.3d at 830-31. opinion because it was The ALJ unsupported by objective evidence reporting. Tr. legitimate and relied 16-17. I on Plaintiff's unreliable conclude the reasons to reject these extent of full are self- specific Dr. and Ellison's opinion. Indeed, imaging of Plaintiff's performed shortly before Dr. back, including Ellison's examination, imaging consistently revealed normal or mild findings notwithstanding the postoperative changes from Moreover, Plain ti ff' s despite back surgery. finding significant Tr. 348-49, reaching 435, and 447. handling limitations, Dr. Ellison's exam revealed normal range of motion in the shoulders, elbows, wrists, and fingers, sensory deficits in the upper extremities. and no neurologic or Tr. 438. Thus, the ALJ reasonably cited lack of objective evidence as a reason to discount Dr. Ellison's opinion of significant limitations. The ALJ's citation to lack of objective support is particularly significant in light of the ALJ' s second stated reason for rejecting Dr. Ellison's opinion; Plaintiff's subjective symptom testimony is unreliable. Indeed, Dr. Ellison's findings were based largely on Plaintiff's subjective reports of symptoms and pain. Even the examination techniques employed by' Dr. Ellison, such as straight leg raising, the sensory exam, and range of motion tests, rely on Plaintiff's subjective self-report of pain. above, As discussed the. ALJ properly discredited Plaintiff's self-reporting. Thus, the ALJ's citation to Dr. Ellison's reliance on Plaintiff's 15 - OPINION AND ORDER self-reports in combination with the lack of objective evidence supporting the full extent of opined limitations constitute specific and legitimate reasons to discredit Dr. Ellison's opinion. The ALJ properly weighed the medical testimony. III. Lay Testimony Plaintiff next asserts that the ALJ cited insufficient reasons to reject the testimony of Plaintiff's sister, Jennifer Huynh. testimony regarding a Lay claimant's symptoms or how an impairment affects her ability to work is competent evidence that an ALJ must take into account. To 2012) . Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. discount lay witness testimony, reasons that are germane to the witness. the ALJ must give Id. On August 1, 2011, Ms. Huynh submitted a letter reporting that Plaintiff's back problems Ms. cooking, shopping, and changing sheets on his bed. cleaning the bathroom, prevent him from Tr. 248. Huynh noted that Plaintiff can bathe, medicine. Tr. 248. of severe back pain, do laundry, and take Finally, Ms. Huynh noted Plaintiff complains losing sleep, medicine to control his back pain. memory problems, and lack of Tr. 248. Al though the ALJ purported to find Ms. Huynh' s statements "credible to the extent they are based on personal observations," the ALJ ultimately rejected Ms. Huynh's lay testimony for the sole reason that "objective medical alleged degree of limitation." 16 - OPINION AND ORDER evidence does Tr. There is considerable 17. not support the debate as to whether lack of objective medical evidentiary support can be properly testimony. cited as the sole reason for rejecting lay Compare Glover v. Astrue, 835 F. Supp. 2d 1003 (D. Or. 2011), '!Jith Rivera v. Colvin, No. 6:12-cv-02132-MO, 2013 WL 6002445 (D. Or. Nov. case, 12, however, 2013). I need not resolve this debate in this because the ALJ's bare citation to lack of supporting objective medical evidence without explanation is not a germane reason to reject Ms. Huynh's testimony. In her letter, Ms. Huynh simply relayed Plaintiff's subjective pain complaints and listed her own observations about the daily activities Plaintiff is capable and. incapable of performing. 'l'hus, the lack of supporting objective medical evidence bears little logical relationship to the validity of Ms. Huynh's opinion. Accordingly, I find the ALJ erred in his treatment of the lay testimony. An ALJ's failure to cite germane reasons to reject lay witness testimony, however, "is harmless where 'the same evidence that the ALJ referred to in discrediting discredits [the lay witness's] F. 3d 1104, 1122 (9th Cir. claimant's] claims also Molina v. Astrue, 674 (quoting Buckner v. As true, 64 6 claims.' 2012) F. 3d 549, 560 (8th Cir. 2011)) [the 11 (brackets in original). The ALJ' s reasons for rejecting Plaintiff's testimony apply with equal force to the portion of Ms. subjective complaints. Plaintiff's testimony, 17 - OPINION AND ORDER Huynh's letter relaying Plaintiff's Moreover, as the ALJ cited with respect to Ms. Huynh's description of Plaintiff's functional capabilities in everyday activities is inconsistent with Plaintiff's reports to Dr. Report. Compare Tr. 248 Senashova and in his Adult {Plaintiff cannot cook, Function clean the bathroom, or shop for groceries}, with Tr. 229-31 (Plaintiff can do some cooking and can shop for groceries}, and Tr. can cook and do light cleaning} . 358 (Plaintiff Thus, because "the same evidence that the ALJ referred to in discrediting [Plaintiff's) claims also discredits [Ms. Huynh's] claims, 0 the ALJ's error in consideration of Ms. Huynh's testimony was harmless. Molina, 674 F.3d at 1122. CONCLUSION. For the foregoing reasons, the Commissioner's decision AFFIRMED. IT IS SO ORDERED. DATED this /tf day of April, 2014. Malcolm F. Marsh United States District Judge 18 - OPINION AND ORDER is
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