Patterson v. Commissioner, Social Security Administration, No. 1:2012cv01053 - Document 18 (D. Or. 2013)
Court Description: OPINION AND ORDER. For the foregoing reasons, the decision of the ALJ is AFFIRMED. IT IS SO ORDERED. Signed on 08/09/2013 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DONALD C. PATTERSON, Plaintiff, v. COfvlfvliSSIONER SOCIAL SECURITY ADfvliNISTRATION, Defendant. KATHRYN TASSINARI Harder, . Wells, Baron & Nanning, P. C. 474 Willamette Street, ~uite 200 Eugene, Oregon. 97401 Attorney for Plaintiff S. AfvlANDA fvlARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 ERIN F. HIGHLAND Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900, fvl/S 221A Seattle, Washington 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER 1:12-cv-01053-fvlA OPINION AND .ORDER MARSH, Judge Plaintiff, Donald C. Patterson, 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 (DIB) under Title II of the Social Security Act (the Act). See 42 U.S.C. pursuant to 42 U.S.C. § §§ 401-434. 405(g). This court has jurisdiction For the reasons set forth below, I affirm the final decision of the Commissioner. PROCEDURAL BACKGROUND Plaintiff filed a prior application for DIB in April of 2008, alleging disability beginning October 13, 2006. denied initially and, upon reconsideration. on March 13, 2009, That claim was Plaintiff did not seek further review of that decision. Plaintiff then protectively filed the instant application for DIB on June 14, 2009, alleging the same onset date and disability due to: Back injury, Neck injury, Numbness in leg, Numbness in arm 5 to 6 ruptured or bulging disks, that give a constant pain and discomfort. Cannot sit stand or lay for an extended amount of time. I pain 24-7. Some days are worse than others. A lot of back spasms and numbness through out the extremities. Neck and back illness[.] Tr. 143 (errors in original). The claim was denied initially and upon reconsideration. A hearing was held before an Administrative Law July Judge (ALJ) on 27, 2011, represented by counsel and testified. 2 - OPINION AND ORDER at which plaintiff In addition, was vocational expert (VE) Glee Ann L. Kehr was present throughout the hearing and testified. On Tr. 27-44. August 10, 2011, plaintiff's application. the ALJ issued a decision denying After the Appeals Council denied review, plaintiff timely appealed. FACTUAL BACKGROUND Born on January 14, 1964, plaintiff was 42 years old on the alleged onset date of disability and 47 years old on the date of Plaintiff has a the hearing. tenth grade education, and past relevant work as a truck driver. Plaintiff alleges his disabilities became disabling on October 13, 2006. In addition to his submitted an Adult Function Report. hearing testimony, Tr. 154-61. plaintiff Plaintiff's wife, Brenda Lee Patterson, submitted a Third Party Function Report. Tr. 162-69. As relevant to this case, Robin Rose, M.D., examined plaintiff and submitted an evaluation. nurse practitioner that Tr. 521-35. was one of providers, also submitted a letter. Mary L. Hagood, a family plaintiff's primary care Tr. 489. 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), 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 potentially dispositive. Steps One through Four. The burden shifts to the Commissioner at Step Five to Cir. 1999). significant a show that Tackett v. Apfel, 180 F.3d 1094, 1098 (9th number of exist jobs in the 482 U.S. at See Yuckert, economy that the claimant can perform. national 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined that plaintiff has not engaged in substantial gainful activity since the date of the previous disability March determination, C.F.R. 20 See 2009. 13, §§ 404.1571 et seq.; Tr. 12. At Step Two, the ALJ determined that plaintiff's degenarative disc disease of the lumbar and cervical spine, status post hernia repair surgery, and chronic pain syndrome are severe impairments. See 20 C.F.R. § 404.1520(c); Tr. 12. At Step Three, the ALJ determined that plaintiff does not have an impairment or combination of impairments that meet or medically equal any impairment. listed 20 See C.F.R. §§ 404.1520(d), 404.1525, 404.1526; Tr. 12. The ALJ capacity only (RFC) balancing, crawling; ropes, and climb stairs scaffolds'! or occasional can have the plaintiff has to perform light work, occasionally ladders, that found or except that plaintiff can ramps can stooping, do no and can more kneeling, no exposure to hazards 4 - OPINION AND ORDER functional residual never than climb frequent crouching, such as or unprotected heights or dangerous moving machinery; and can engage in no more Tr. 13-16. than occasional overhead reaching bilaterally. the ALJ found Four, Step At See 20 C.F.R. perform any past relevant 1'/ork. At § unable is to 404.1565; Tr. 16. that the ALJ found hol'lever, Five, Step plaintiff that jobs exist in significant numbers in the national economy that plaintiff can See perform, including Machine Feeder, Office Helper, and Cashier. 20 C.F.R. §§ 404.1569, 404.1569(a); Tr. 17-18. Accordingly, the ALJ found that plaintiff Has not disabled Hithin the meaning of the Act. ISSUES ON REVIEW four Plaintiff raises issues on appeal. plaintiff First, argues that the ALJ improperly discredited his testimony. plaintiff asserts evaluation. rejecting the practitioner. silently that Third, the ALJ improperly plaintiff maintains opinion Fourth, rejecting Ms. of iVls. Hagood, rejected Dr. Rose's that the ALJ erred in plaintiff's plaintiff argues that Patterson's Second, family nurse the ALJ erred in lay opinion. Accordingly, plaintiff concludes that the ALJ failed to carry his burden of demonstrating plaintiff is capable of performing other Hork at Step Five. 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 record. 53 F.3d 1035, 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. 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. 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 why reasons the testimony the determination citing unpersuasive." Morgan v. Comm'r Soc. Sec. Admin., 599 (9th Cir. 1999). In doing so, 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.'' 2002). Cir. The ALJ credibility evaluation Thomas v. Barnhart, 278 F.3d 947, 958 (9th may in rely weighing upon the ordinary techniques claimant's of credibility. Tommasetti v. Astrue, 533 F. 3d 1035, 1039 (9th Cir. 2008). At the hearing, plaintiff testified that his disabilities were originally caused by two workplace motor vehicle accidents. 30-31. Tr. Plaintiff reported that he has significant side effects from his pain medication, including confusion and nausea. Tr. 35. Plaintiff testified that the pain in his back and chest sometimes causes difficulty walking. Tr. 36. Plaintiff estimated that he has good days with less pain only one or two days out of every ten. Id. On good days, plaintiff reported trying to walk and help with chores around the house. Tr. 36-37. On bad days, however, plaintiff testified that he spends much of his time lying down in 7 - OPINION AND ORDER his bedroom. Tr. Plaintiff additionally stated that he 37-38. gets leg cramps at night, and that walking for five or ten minutes Tr. 38-39. can cause leg pain. Plaintiff reported that two weeks before the hearing he took his children fishing and sat by the car Tr. 39-40. while they fished from a river bank. In his Adult plaintiff reported that his Function Report, daily routine is to wake up, take pain medication, and wait for it Tr. 154. to take effect. Plaintiff will then try to get dressed and drink a cup of coffee before watching the news on television. Id. Depending on his level of pain, plaintiff will try to take a short ¢,;alk and help around the house. Id. Plaintiff has to lay down throughout the day and must occasionally change positions for Id. comfort. Plaintiff reported that he only gets around four hours of sleep per night between doses of pain medication, it takes him an hour to get dressed, and he sometimes needs help bathing. Plaintiff wrote that when going out, he can walk, drive, Tr. 155. or ride in a car, and can usually do so alone. Tr. 157. Plaintiff stated that he goes grocery shopping for thirty minutes once or twice per month, and that his children usually accompany him. Id. As for his hobbies, plaintiff reported that he used to enjoy fishing, hunting, baseball, cooking, and camping, but that his conditions substantially interfere with his ability to participate in those activities. makes him "moody" and 8 - OPINION AND ORDER Tr. 158. Plaintiff stated that his pain interferes with his social life. Id. Plaintiff checked that his conditions affect his abilities to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, complete tasks, concentrate, 159. follow instructions, and use his hands. Tr. Plaintiff reported he can only walk 100 feet before needing rest. Id. The ALJ rejected plaintiff's testimony because his activities of daily living are inconsistent with his allegations of disabling limitations, and plaintiff's alleged limitations were inconsistent with medical evidence. I conclude that these reasons, taken together, constitute clear and convincing reasons for discrediting plaintiff's testimony. The ALJ's finding that plaintiff's daily activities are inconsistent with his alleged limitations is amply supported by the record. Significantly, and as the ALJ noted, on July 7, 2010, plaintiff told Dr. Mark M. Huth, a cardiologist, that "[h]e is very physically active and still continues to work on his ranch." 447. Plaintiff made this problems with Dr. Huth. report despite discussing his Tr. back The high level of physical activity plaintiff reported to Dr. Huth is irreconcilable with the sedentary lifestyle plaintiff described in his testimony and provides compelling support for the ALJ' s credibility determination. addition, In the ALJ reasonably noted that plaintiff's testimony of sitting while accompanying his children on a fishing trip and watching his family on regular bowling outings is inconsistent with 9 - OPINION AND ORDER Tr. 14, his report that he is limited in the amount he can sit. The ALJ properly discredited plaintiff's testimony 39-40, 158-59. because reported his are activities inconsistent his with allegations of severe limitations. The ALJ' s finding that the medical record is inconsistent with plaintiff's alleged limitations is also supported by the record in First, Dr. Coehlo reviewed plaintiff's back MRis several respects. from 2007 and 2009, and concluded that they were Tr. 443. appropriate." and cervical, lumbar Indeed, the MRis of plaintiff's thoracic, spine on August taken findings that were largely normal, mild-to-moderate and age ~normal Tr. findings. 19, 2009 produced with only occasional mild or Although 397-99. plaintiff reported decreased sensitivity to pinprick in the back of his left arm, pinky, ring finger, and right big toe to Physician Assistant Chenelle McCaskill on July 30, 2008, a follow up nerve conduction study a week later revealed, other than an ~absent sural sensory study, there were no other findings to substantiate the presence of Tr. 354-55. a diffuse polyneuropathy." In addition, plaintiff's physicians consistently made conservative treatment recommendations, including physical therapy and medication, pain plaintiff's evaluation ~nothing back that never but problems. included more an extensive Steven Nagelberg, After MRis, aggressive treatment of neurological M.D., found here that suggests the need for surgical intervention," 10 - OPINION AND ORDER and a recommen ded Coehlo Dr. 312-13. Tr. acupunc ture. pain managem ent chronic program as well recommen ded also as that plaintif f "become involved in a chronic behavio ral pain program with a goal of self-man agement through conserv ative means." Tr. Finally, as the ALJ noted, Dr. Coehlo and Robert Patterso n, 444. recomme nded that plaintif f avoid or decrease his use of P.A.C., narcotic pain medicat ions. medical the contains record consiste nt treatmen t On the whole, See Tr. 419-21, 441-45. with no conside ration of severe plainti ff's aggressi ve limitati on allegati ons. The medical record also contains instance s of medical provide rs question ing the accuracy of plainti ff's reportin g. his evaluati on, historia n." Tr. Dr. Nagelbe rg noted that plainti ff "is a 295. Dr. As the ALJ noted, In poor Coehlo was more forceful , stating that "I feel that [plainti ff] and his spouse are in a vicious loop of pursuing medical diagnos is in hopes of a 'home run.' However, I think unfortun ately this is becoming a fool's errand and I explaine d this to both the patient and his spouse." Tr. 444. Ultimate ly, the ALJ's finding that the medical record is inconsis tent with plainti ff's allegati ons of severe limitati ons caused by back problems is reasonab le. I conclude that these reasons, taken together , constitu te clear and convinci ng reasons to reject plainti ff's testimon y. Ill 11 - OPINION AND ORDER II. Rejection of Dr. Rose's Opinion Plaintiff next argues that the ALJ erroneously weighed the medical testimony. convincing reasons The to Commissioner reject treating or examining physician. the must provide uncontradicted clear opinion Lester, 81 F. 3d at 830-31. and of a 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. "'The physician, brief, ALJ including a conclusory, findings.'" need not accept treating physician, and inadequately the opinion if that supported of opinion by any 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)). evidence, "'Where . . . the record contains conflicting medical the ALJ is charged with determining credibility and resolving the conflict.'" Id. F.3d 1030, 1040 (9th Cir. 2003)). translating the claimant's limitations in the RFC. is "consistent with testimony." 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 (quoting Benton v. Ultimately, the RFC is sufficient if restrictions identified in the medical Id. After examining plaintiff and reviewing his medical records, Robin Rose, M.D. opined that plaintiff could only stand and walk 12 - OPINION AND ORDER for two hours out of an eight-hour workday with breaks every 15 minutes, and sit for three hours out of an eight-hour workday with breaks every 30 minutes for position change. Dr. Rose Tr. 533. opined that plaintiff could lift five pounds frequently and 10 pounds occasionally; could occasionally climb stairs and ramps, but never ropes, ladders, or scaffolds; and had "compromised" ability to balance, could rarely stoop, and never kneel, crouch, or crawl. Tr. 533-34. Dr. Rose found several manipulative limitations based on the radiculopathy associated with plaintiff's chronic back pain. Tr. Finally, 534. Dr. Rose described several environmental limitations based on plaintiff's prior exposure to chemicals and narcotic pain medication. Id. Dr. Rose's opinion was inconsistent with those of reviewing physicians Drs. Pritchard and Westfall. Thus, the ALJ was required to cite specific and legitimate reasons, supported by substantial record evidence to reject Dr. Rose's opinion. 830-31. The ALJ rejected Dr. Rose's Lester, 81 F.3d at opinion because it was inconsistent with the remainder of the medical record and because plaintiff was referred to Dr. Rose by her attorney. I conclude that the ALJ's citation of inconsistency with the medical record is a specific and legitimate reason, supported by substantial evidence, to reject Dr. Rose's opinion. Dr. Rose's opinion is inconsistent with the medical record in a number of respects. 13 - OPINION AND ORDER First, as the ALJ noted, Dr. Rose's findings of reduced strength in plaintiff's extremities and limitations in gross and fine motor skills are inconsistent with the findings of Andrew Nemecek, M.D. Compare Tr. 435-37 with tr. 531-32. Although Dr. Nemecek's examination took place approximately one year before Dr. Rose's, there is little in the intervening medical record to explain the difference in their findings. Hagood noted that plaintiff neurological sensation. On October 25, 2010, Ms. full had strength and normal On January 4, 2011, plaintiff Tr. 454. reported to Ms. Hagood that his back and chronic pain feel better as a Tr. result of weight loss. 451. On March 15, 2011, in discussing plaintiff's back and radicular pain, Harvey H'tJang, M.D., reported that "we do know that TENS unit." In Tr. 483. addition, [plaintiff] has done better on a The ALJ reasonably cited this inconsistency. Dr. Rose does not explain her findings of "diffuse pain in all areas" and significant radiculopathy in light of Dr. Boggs's abnormalities sided lumbar radiculopathy." finding that there were "no electromyographic . discovered to support the presence of rightradiculopathy Compare Tr. or left-sided 529-34 with Tr. 355. cervical Nor does Dr. Rose's opinion account for the generally modest findings in the imaging of plaintiff's back. See Tr. 397 -·99. Finally, Dr. Rose's findings and conclusions are irreconcilable with plaintiff's July 7, 2010 report to Dr. Huth that he is "very physically active and still continues to work 14 - OPINION AND ORDER on his ranch." Tr. 4 4 7. The ALJ' s rejection medical of Dr. Rose's record is opinion due supported by to inconsistency with substantial evidence, the and is a specific and legitimate reason to discredit her opinion.' III. Ms. Hagood's Opinion Mary L. Hagood, a family nurse practitioner, also submitted a letter on plaintiff's behalf. As a nurse practitioner, Ms. Hagood is an "other source" whose opinion may only be rejected if the ALJ cites reasons germane to the witness. See 20 C.F.R. § 404.1513(d); Molina v. Astrue, 674 F. 3d 1104, 1111 (9th Cir. 2012). I conclude that the ALJ did so. Ms. Hagood submitted a letter on March 29, 2011, stating that plaintiff is frequently uncomfortable during visits presents some level of restlessness due to pain. and always Tr. 489. Ms. Hagood stated that plaintiff's condition is "capable of causing all of these symptoms, and his symptoms support the objective medical findings." Id. While acknowledging that disability was not her specialty, Ms. Hagood opined that plaintiff could not "sustain any type of job." Id. The ALJ rejected Ms. Hagood's opinion because other treatment providers disagreed with her course of treatment, and Ms. Hagood's opinion did not identify 1 any clinical findings upon which it Because I find the ALJ's first reason for rejecting Dr. Rose's opinion sufficient, I need not consider the ALJ's citation to the fact that Dr. Rose was retained by plaintiff's counsel. 15 - OPINION AND ORDER relied. Tr. As the ALJ noted, 15-16. both Dr. Coehlo and Mr. Patterson recommended that plaintiff be treated without narcotic pain medication. Tr. 419-21, Nonetheless, 444-45. Ms. Hagood consistently treated plaintiff with narcotic pain medication. 452, 455, 458, 459-60, 462, 464, 468, 473. reason is even more convincing. Tr. The ALJ's second cited The ALJ was correct that Ms. Hagood did not support her findings with any particular clinical findings. Ms. Hagood's failure to cite to clinical findings in her opinion is especially important in light of the inconsistencies in the medical record discussed above, including that plaintiff's imaging consistently revealed normal or modest objective findings. See Tr. 355, 397-99. I conclude that these are reasons germane to Ms. Hagood to reject her opinion. IV. Brenda Lee Patterson's Opinion Lay testimony regarding a claimant's symptoms or how an impairment affects her ability to work is competent evidence that an ALJ must take into account. Molina v. Astrue, 674 F. 3d at 1114. To discount lay witness testimony, the ALJ must give reasons that are germane to the witness. Id. Party Function Report was almost plaintiff submitted. 2 that Ms. Patterson submitted a Third that Compare Tr. 162-69 with Tr. 154-61. did not discuss Ms. Patterson's opinion. 2 identical to ¢t~hich The ALJ This error was harmless, I note both forms were completed by Ms. Patterson. Tr. 161, 169. Substantial portions of the two forms are identical. 16 - OPINION AND ORDER however, because the functional limitations Patterson were materially identical Patterson's Adult Function Report. to described by Ms. those described in Mr. As discussed above, gave proper reasons for rejecting Mr. the ALJ Patterson's testimony, and those reasons apply with equal force to Ms. Patterson's materially identical testimony. Accordingly, the ALJ's error in failing to discuss Ms. Patterson's opinion was harmless. See Molina, 674 F.3d at 1114-22. Because I find that the ALJ properly discredited plaintiff's testimony, the opinions of Dr. Rose and Ms. Hagood, and Ms. Patterson's testimony, I reject plaintiff's argument that the ALJ failed to carry his burden at Step Five. CONCLUSION For the foregoing reasons, the decision of the ALJ AFFIRI"JED. IT IS SO ORDERED. DATED this <t day of July, 2013. Malcolm F. Marsh United States District Judge 17 - OPINION AND ORDER is
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