Arthurs v. Commissioner Social Security Administration, No. 3:2013cv00817 - Document 17 (D. Or. 2014)
Court Description: OPINION AND ORDER. Signed on 05/27/2014 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON 3:13-cv-00817-MA JEFF ARTHURS, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. MERRILL SCHNEIDER Schneider Kerr & Gibney Law Offices P.O. Box 14490 Portland, Oregon 97293 Attorneys for Plaintiff S. AMANDA MARSHALL United States Attorney RONALD K. SILVER Assistant United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 LARS J. NELSON 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, Jeff Arthurs, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his application for disability insurance benefits (DIE) under Title II of the Social Security Act (the Act). See 42 U.S.C. 42 U.S.C. § §§ 401-434. 405(g). This court has jurisdiction pursuant to For the reasons set forth below, I affirm the final decision of the Commissioner. PROCEDURAL BACKGROUND Plaintiff protectively filed an application for DIE on June 29, 2009, alleging disability beginning June 15, 2008, caused by back pain and associated arm and shoulder limitations. Tr. 173. Plaintiff's claim was denied initially and upon reconsideration. An Administrative Law Judge (ALJ) held a hearing on February 25, 2011, at which Plaintiff testified and was represented by counsel. Tr. 35-48. Joselyn E. Bailey, M.D., and testified at the hearing. expert Nancy testified. On Bloom was reviewed the medical record Tr. 48-51. present In addition, vocational throughout the hearing and Tr. 52-57. March 24, 2011, Plaintiff's application. the ALJ Tr. 20-27. issued a decision The Appeals Council declined review and Plaintiff timely appealed to this court. Ill Ill 2 - OPINION AND ORDER denying Tr. 1-3. FACTUAL BACKGROUND Born on April 12, 1956, Plaintiff was 52 years old on the year~ alleged onset date of disability and 54 the hearing. Tr. 169. old on the date of Plaintiff has a high school equivalency and past relevant work as a Machinist, Office Equipment Repairer, Printer Repair Technician and Assembly Worker, Welder and Fabricator, and R.V. Repairer. Maintenance Worker, Tr. 26, 178. In addition to his hearing testimony, Plaintiff submitted an Adult Function Report, a Pain and Fatigue Questionnaire, and a Work History Report. Tr. 180-97. Amy Henninger, M.D., Plaintiff's primary care provider, submitted an opinion and Physical Residual Functional Capacity Assessment. reviewed the medical Tr. 316-20. record and Functional Capacity Assessment. Neal E. Berner, M.D., submitted a Physical Residual Tr. 286-93. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 404.1520(a) (4) (i)-(v), Cir. 1999). show that (1987); 416.920(a) (4) (i)-(v). potentially dispositive. Steps One through Four. 140-42 20 Bowen v. C.F.R. Each step §§ is The claimant bears the burden of proof at Tackett v. Apfel, 180 F.3d 1094, 1098 (9th The burden shifts to the Commissioner at Step Five to a significant 3 - OPINION AND ORDER number of jobs exist in the national economy that the claimant can perform. See Yuckert, 482 U.S. at 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined that Plaintiff engaged in substantial gainful activity between the alleged onset date, June 15, 2008, and his date last insured, December 31, such work constituted an unsuccessful work attempt evidence of special work accommodations, unsatisfactory work. See 20 C.F.R. §§ 2013, but that frequent despite no absences, or 404.1571 et 404.1520(b), seq.; Tr. 22. At Step Two, the ALJ determined that Plaintiff's back pain was a severe impairment. See 20 C.F.R. § 404.1520(c); Tr. 22. At Step Three, the ALJ determined that 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; Tr. 23. The ALJ found capacity (RFC) that Plaintiff has the residual functional to perform light work as defined in 20 C.F.R. § 404.1567(b), except that Plaintiff is further limited in that he can only lift 20 pounds occasionally and 10 pounds frequently; push or pull up to 20 pounds, but for not more than five minutes at one time; walk on a level surface for approximately two blocks at one time; stand for 30 minutes at one time, with an allowance for some shuffling; sit for 45 minutes at one time; and climb six stair- steps using a handrail. 4 - OPINION AND ORDER In addition, the ALJ found Plaintiff has complete loss of hearing in his left ear, but fully functional hearing in his right ear; a slight impairment in short-term memory; and a moderate impairment of his ability to maintain focus and attention on account of interruption by pain. At Step Four, the ALJ found that Tr. 23-26. Plaintiff is capable of performing his past relevant work as a Printer Repair Technician and Office Equipment Repairer as it was actually performed and as is generally performed in the national economy. See 20 C.F.R. § 404.1565; Tr. 26. Accordingly, the ALJ found that Plaintiff was not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff raises argues the ALJ four issues on appeal. Plaintiff testimony. improperly discredited his First, Second, Plaintiff maintains the ALJ improperly rejected Dr. opinion. Third, Plaintiff asserts the ALJ's RFC findings did not prescribe walking Henninger's sufficiently and attention limitations. limitations limitations, standing specific hearing Finally, as to loss, Plaintiff's or memory and Plaintiff argues the ALJ made erroneous findings at Step Four by concluding that Plaintiff could perform past relevant work as actually and generally performed. STANDARD OF REVIEW The court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are 5 - OPINION AND ORDER supported by substantial evidence 405(g); Andrews v. Shalala, in the 53 F.3d 1035, record. 1039 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." 53 F.3d at 1039. The court must weigh all of the evidence, whether it supports or detracts from the Commissioner's decision. v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). susceptible to Commissioner's 1039-40. Andrews, more than one decision must be rational upheld. Martinez If the evidence is interpretation, Andrews, 53 F. 3d the at 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. First, 20 C.F.R. § 404.1529. the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Cir. 1996). Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Second, absent a finding of malingering, the ALJ can reject the claimant's testimony about the severity of his symptoms 6 - OPINION AND ORDER only by offering specific, clear, and convincing reasons for doing so. Id. at 1281. If an ALJ finds that the claimant's testimony regarding his subjective symptoms is unreliable, the "ALJ must make a credibility determination citing unpersuasive." Morgan v. Comm'r Soc. Sec: Admin., 599 (9th Cir. 1999). the reasons In doing so, why the testimony is 169 F.3d 595, the ALJ must identify what testimony is credible and what 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). credibility The ALJ evaluation Thomas v. Barnhart, 278 F.3d 947, 958 (9th may rely upon in weighing the ordinary techniques claimant's of credibility. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Plaintiff almost constant testified at and is the hearing that his aggravated by many activities living including mowing the lawn, washing dishes, Tr. 38. back pain is of daily and vacuuming. Plaintiff reported that he experiences numbness in his feet, problems with his hands, and pain in his neck as a result of his back problems. from a pounds. 1995 Tr. 40. Plaintiff stated these problems stem injury after which he was Tr. 40. limited to lifting five Since the injury, Plaintiff reported his symptoms have consistently worsened and that he can still only lift five pounds or less. Tr. 41. 7 - OPINION AND ORDER Plaintiff indicated that he can stand for 15 to 20 minutes at one time and can only sit for approximately 30 minuies at a time. Tr. 41. As to reaching limitations, Plaintiff testified that he cannot hold his arms straight out or above his shoulders. Plaintiff reported that he worked full-time as a machinist from July of 2010 until January of 2011. Tr. 35. Plaintiff testified that in this work he stood for eight to ten hours per day, bent over, and loaded and unloaded machines. Tr. 36. Plaintiff reported that he had to take extensive pain medication to get through the day and was "dismissed" because he "couldn't take the pain of doing the job anymore." Tr. 36-37. In his Adult Function Report dated July 26, 2009, Plaintiff reported his daily activities are to wake up, drink coffee, for employment, that he cannot and mow the lawn. bend, squat, run, Tr. 180. stand, look Plaintiff reported or sit. Tr. 181. Plaintiff indicated that he performs some household repairs, mows the lawn, and washes the dishes, although he cannot stand for long periods of time and some of these usual. Tr. 182. use his hands, take longer than Plaintiff checked that his impairments affect his abilities to lift, climb stairs, activities squat, remember, bend, stand, complete tasks, reach, walk, concentrate, and get along with others. Tr. sit, kneel, understand, 185. As to his ability to walk, Plaintiff specified that he can walk approximately one-half of a mile before requiring 15 minutes of rest. 8 - OPINION AND ORDER Tr. 185. As to his previous work, Plaintiff noted that he left his prior job because his supervisor would not give him a raise. Tr. 186. The ALJ partially discounted Plaintiff's testimony because the extent of his alleged limitations was inconsistent with reports of his activities of daily living as well as the performance physically demanding work during the period of disability. addition, the ALJ rejected the severity of of In Plaintiff's alleged symptoms because they were inconsistent with the medical record and because Plaintiff did not follow through with prescribed treatment. I conclude these reasons, convincing reasons to taken together, reject the full constitute clear and extent of Plaintiff's testimony. The ALJ reasonably discredited Plaintiff's testimony because it was inconsistent with Plaintiff's work as a machinist during the alleged period of disability, between July of 2010 and January of 2011. Indeed, Plaintiff's own report that this work consisted of " [ e] ight to ten hours a day standing and loading machines and unloading machines, bent over," is inconsistent with the allegation in his Function Report, which was completed before he performed this work, that he cannot bend or stand for extended periods. 36, 181. Indeed, Tr. Plaintiff's testimony about the performance of this work is internally inconsistent with other portions of his hearing testimony in which he alleged he cannot lift more than five pounds or stand for more than 15 to 20 minutes. 9 - OPINION AND ORDER Tr. 41. The ALJ also reasonably found that.the medical record does not support Plaintiff's employment due allegation to back pain. that he Al though left his most recent Plaintiff continued to report back pain throughout this period of employment, the medical records most closely preceding the end of Plaintiff's employment suggest Plaintiff left his job for reasons other than back pain. On September 1, 2010, Plaintiff reported that while the work was hard on his back because he was standing a lot, he was in go9d spirits and hoping he could be hired on a more permanent basis. Tr. 352. Throughout the course reported continued back pain, of this employment, and noted instances Plaintiff in which he thought it was exacerbated by the physical demands of his job, but also occasionally expressed optimism about the work and a desire to work more hours and on a permanent basis. Tr. 340-52. By December 30, 2010, however, Plaintiff reported that he no longer enjoyed the job, and the next week stated that he was dissatisfied with his pay and the lack of intellectual challenge at work. Tr. 335-37. On January 18, 2011, the same month Plaintiff testified he left his work, Plaintiff stated he was worried because he would "no longer be able to get overtime" and "plan [ned] to look for another job." Tr. 334. While Plaintiff did report using pain medication to help his back pain, the ALJ reasonably found that the medical record does not support Plaintiff's allegation that he left 10 - OPINION AND ORDER his work during rhe alleged period of disability because he could not tolerate the physical demands of the job. In sum, physically the ALJ's citation to Plaintiff's recent work at a demanding Plaintiff's testimony. job is a compelling reason to discount Notably, the ALJ did not entirely reject Plaintiff's symptom testimony, but instead found that "evidence supports the conclusion that while the claimant does suffer from back pain, it does not prevent him from being able to perform all work activities." Tr. 25. The records concerning Plaintiff's work activity amply support this conclusion. The ALJ because the also reasonably objective medical discounted Plaintiff's record did not extent of Plaintiff's alleged limitations. support testimony the full On December 28, 2007, one of Plaintiff's treating physicians noted that Plaintiff's pain complaints were "out of proportion to exam." Tr. 249. In addition, the only specific reference in the record to imaging of Plaintiff's back contained generally mild findings. Tr. 320. Finally, the ALJ reasonably found that Plaintiff's resistance to Dr. Henninger's recommendation that Plaintiff work on core muscle strengthening to help his back pain suggested that Plaintiff's back pain is not as severe as alleged. Tr. 234. I conclude the above reasons, taken together, constitute clear and convincing reasons to partially discredit Plaintiff's symptom allegations. The ALJ properly weighed Plaintiff's testimony. 11 - OPINION AND ORDER II. Dr. Henninger's Opinion The Commissioner must provide clear and convincing reasons to reject the physician. uncontradicted opinion of a treating or examining Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Where a physician's opinion is contradicted by that of another physician, the ALJ may reject the physician's opinion by providing specific and legitimate reasons supported by substantial evidence in the record. physician, brief, Id. "'The ALJ need not accept the opinion of any including a conclusory, findings.'" treating physician, and inadequately if that supported opinion by is clinical Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (quoting Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)). "'Where evidence, the the ALJ is record contains Id. F. 3d 1030, 1040 (9th Cir. 2003)). translating the claimant's is "consistent testimony." On June (quoting Benton v. medical Barnhart, 331 The ALJ is responsible· for conditions into functional See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). it medical charged with determining credibility and resolving the conflict.'" limitations in the RFC. conflicting Ultimately, the RFC is sufficient if with restrictions identified in the medical Id. 30, 2010, Dr. Henninger submitted an opinion and Physical Residual Functional Capacity Assessment. 12 - OPINION AND ORDER Dr. Henninger reported that Plaintiff has severe back pain that prevents him from staying in one position for a long period of time. Tr. 316. Dr. Henninger opined that Plaintiff can lift 25 pounds occasionally and 10 pounds frequently, can stand or walk for 30 minutes at a time and a total of four hours in a workday, can sit for 45 minutes at a time for a total of four hours in a workday, but can never climb, balance, stoop or bend, kneel, crouch, or crawl. Tr. 317. Dr. Henninger reported that Plaintiff frequently suffers from pain and fatigue and occasionally suffered weakness. Tr. 318. As to Plaintiff's mental limitations, Dr. Henninger opined that Plaintiff is moderately impaired in concentration, persistence, or pace. due to his pain. Tr. 318. As to absences from work, Dr. Henninger stated that Plaintiff would miss two or more days of work per month on account of Plaintiff's "frequent severe back pain.a Tr. 319. Dr. Henninger's opinion was contradicted by the opinion of Dr. Berner, the reviewing physician who opined Plaintiff could sit, stand, and walk for a total of six hours in an eight-hour workday, and could occasionally climb, frequently balance and kneel. stoop, crouch, Tr. 286-93. and crawl, and Accordingly, the ALJ was required to cite specific and legitimate reasons to reject Dr. Henninger's opinion. Lester, 81 F.3d at 830-31. The ALJ gave Dr. Henninger's opinion only limited weight, but nonetheless incorporated the majority of Dr. limitations into the.RFC. 13 - OPINION AND ORDER Henninger's opined The ALJ rejected the portions of Dr. Henninger's opinion inconsistent with the RFC because the opinion was inconsistent with Plaintiff's subsequent work record. Dr. Henninger' s opinion that Plaintiff would miss Indeed, two or more workdays per month on account of his back pain is inconsistent with Plaintiff's record of working more than full-time for seven months, beginning the month after Dr. Henninger submitted her opinion. Moreover, Dr. Henninger's opinion that Plaintiff could only sit and stand for four hours per day, respectively, is inconsistent with Plaintiff's testimony that he stood for 8 to 10 hours per day in his subsequent work as a machinist. Tr. 36. Thus, the ALJ readily cited specific and legitimate reasons for the limited extent to which he rejected Dr. Henninger' s opinion. I conclude the ALJ properly weighed the medical testimony. III. Sufficiency of the RFC Plaintiff argues the ALJ's RFC findings were not sufficiently specific because the ALJ failed to explicitly set maximum limits for the amount Plaintiff could stand and walk in an eight-hour workday, and failed to include limitations based on Plaintiff's hearing loss and concentration limitations in the RFC. Plaintiff's arguments are without merit. Contrary maximum limits limited to Plaintiff's for Plaintiff exceptions further suggestion, the ALJ walking and standing in the to a range limiting 14 - OPINION AND ORDER of light Plaintiff, work did RFC. with including a include The ALJ series of Plaintiff's ability to stand or walk at one time. As to the maximum amount Plaintiff can walk in a full workday, however, the definition of "light work" provides that "the full range of light work requires standing or walking, hours off and on, in an 8-hour workday." 31251, at *6. Thus, for a total of approximately 6 SSE 83-10, available at 1983 WL the ALJ's limitation of Plaintiff to light work implicitly limited Plaintiff to standing or walking a maximum of six hours in an eight-hour day. Within that limitation, the ALJ further limited Plaintiff to walking no more that two blocks, or standing with allowance for shuffling for 30 minutes, at one time. The RFC was sufficiently specific as to Plaintiff's standing and walking limitations. Plaintiff next argues that the ALJ failed to specify limitations with respect Plaintiff's hearing loss or concentration deficits. The ALJ, however, included a "complete loss of hearing in his left ear," and a "moderate impairment" in the ability to "maintain focus [or] attention" in the RFC. Tr. 23-24. With respect to the limitation in maintaining focus or attention, the ALJ simply included Dr. Henninger's opinion that Plaintiff would be moderately limited in concentration, persistence, or pace in the RFC. Tr. impairment 318. Thus, in ability the the to ALJ' s inclusion maintain focus of the moderate or attention is appropriate because it is clearly "consistent with restrictions 15 - OPINION AND ORDER identified in the medical testimony." 1 F.3d at 1174. See Stubbs-Danielson, 539 Similarly, the limitation regarding Plaintiff's loss of hearing in his left ear is consistent with the record evidence concerning Plaintiff's left ear limitations. Accordingly, I conclude the ALJ's RFC set forth sufficiently specific limitations based on substantial evidence in the record. IV. Step Four Finding At Step Four, "the claimant has the burden to prove that he cannot perform his prior relevant work 'either as actually performed or as generally performed in the national economy.'" Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) (quoting Lewis v. 2002)). Barnhart, 281 F.3d 1081, 1083 (9th Cir. The ALJ found Plaintiff is capable of performing his past relevant work as a Printer Repair Technician and Office Equipment Repairer as both actually and generally performed. Tr. 26. Plaintiff's only argument with respect to the "generally performed" finding is that the finding is erroneous based on the errors in the RFC discussed above. Because I have rejected Plaintiff's arguments with respect to the ALJ's consideration of Plaintiff's testimony, Dr. Henninger's opinion, and specificity of 1 Dr. Henninger's check-the-box notation that Plaintiff is moderately limited in this respect is the most specific discussion of Plaintiff's concentration limitations in the medical record. Tr. 318. Accordingly, Plaintiff's argument that the ALJ should have been more specific in his discussion of Plaintiff's concentration limitations in the RFC is without merit. 16 - OPINION AND ORDER the RFC, I also conclude that the ALJ's Step Four finding with respect to whether Plaintiff can perform past relevant work as generally performed was not in error. Because the ALJ properly found Plaintiff can perform his past relevant work as generally performed in the national economy, any error in his consideration of whether Plaintiff can perform his past relevant work as actually performed would be harmless. Rodgers ex rel. Rodgers v. Astrue, No. 11-cv-0095-TC, 2012 WL 681624, at *3 (D. Or. Jan. 25, 2012); See also Carmickle, 533 F.3d at 1166. Accordingly, I conclude the ALJ did not commit harmful error at Step Four. CONCLUSION For the foregoing reasons, the decision of the ALJ AFFIRMED. IT rs so DATED ORDERED. this~ day of May, 2014. Malcolm F. Marsh United States District Judge 17 - OPINION AND ORDER is
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