Black v. Commissioner Social Security Administration, No. 2:2012cv00972 - Document 36 (D. Or. 2013)
Court Description: OPINION and ORDER . The Commissioner's decision is Affirmed. Signed on 9/24/2013 by Chief Judge Ann L. Aiken. (lg)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JEFFERY D. BLACK, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. BRUCE W. BREWER 419 5th St. Oregon City, OR 97045 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon ADRIAN L. BROWN Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, OR 97201-2902 GERALD J. HILL Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Ave, Suite 2900 M/S 221A Seattle, WA 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER Civ. No. 2:12-cv-00972-AA OPINION AND ORDER AIKEN, Chief Judge: Plaintiff brings this action seeking judicial review of a final decision of the Commissioner denying Plaintiff's application for disability insurance benefits under Title II of the Social Security Act (the Act). This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c) (3). The Commissioner's decision is affirmed. BACKGROUND On April 1, 2009, Plaintiff protectively filed a Title II application for disability and disability insurance benefits. Tr. 76-79. After Plaintiff's application was denied, vocational expert (VE) appeared and Plaintiff and a testified before an Administrative Law Judge (ALJ) on November 23, 2010. Tr. 34-75. On December 6, 2010, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. Tr. 15-33. 2012, the Appeals Council denied review, On March 30, rendering the ALJ's decision the final agency decision. Tr. 1-3. Plaintiff now seeks judicial review of that decision. Plaintiff was forty-two years old on the date last insured (December 31, 2008), with a high school education and past work in construction and remodeling. Tr. 27. Plaintiff alleges a period of disability resulting from a skateboarding accident which occurred on May 28, 2007. Tr. 21. The accident resulted in a traumatic brain injury, leaving Plaintiff in a coma for almost two months necessitating excavation surgery of the skull. Tr. 2 - OPINION AND ORDER 21. and Following the accident, Plaintiff suffered from cognitive problems, fatigue, hearing loss in one ear, and double vision. Tr. 21. STANDARD OF REVIEW This court must affirm the Commissioner's decision if it contains no errors of law and is supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. (1971) Perales, 402 U.S. 389, 401 (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). In considering whether the Commissioner's findings are supported by substantial evidence in the record, weigh "both the evidence that supports and the court must detracts from the [Commissioner] 's conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Where the evidence is susceptible to more than one rational interpretation, Burch v. questions the Barnhart, of testimony are Commissioner's conclusion 400 679 credibility functions F.3d and 676, (9th resolutions solely of the of must Cir. be 2005). conflicts Commissioner, upheld. While in the Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999), any negative credibility findings must be supported by findings on the record and supported by substantial evidence. Cequerra v .. Sec'y of Health & Human Servs., 933 F.2d 735, 738 3 - OPINION AND ORDER (9th Cir. 1991). COMMISSIONER'S DECISION The establish initial burden di~ability. of proof rests upon the claimant to Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last months. n The for a continuous period of 42 U.S.C. ALJ evaluated not less than 12 423(d) (1) (A). § Plaintiff's allegation of disability pursuant to the relevant five-step sequential process. Tr. 19; See Bowen v. Yuckert, At step one, the 482 U.S. 137, 140 (1987); 20 C.F.R. ALJ found that Plaintiff did § not 404.1520. engage in ''substantial gainful activity" during the period of time beginning May 28, 2007 and ending June 10, 2010. Tr. 20; 20 C.F.R. § 404.1520 (b). At step two, the ALJ found that Plaintiff suffered from severe impairments including traumatic brain injury with residual cognitive problems, fatigue, and hearing loss in one ear, as well as from non-severe double vision. Tr. 21; 20 C.F.R. § 404.1520(c). These impairments were found not to meet or medically equal one of several listed impairments that qualify an applicant for disability without consideration of age, education, and work experience. Tr. 22; 20 C.F.R. § 404.1520(d). 4 - OPINION AND ORDER At step four, the ALJ determined that Plaintiff's residual functional capacity (RFC) enabled Plaintiff to perform less than the full range of light work as defined in 20 C.F.R. Tr. 23; 20 C.F.R. §§ 404.1520(e), 404.1545. 404.1567(b). § The ALJ found that Plaintiff can lift and carry 10 pounds frequently and 20 pounds occasionally, can sit, stand, and walk for up to 6-hours each in an 8-hour workday with normal breaks, and can do simple, routine tasks when shown how to do them. Tr. 23. The ALJ also found that Plaintiff should not work at unprotected heights, climb ladders, or work around machinery with exposed moving parts, and would require a job that could be done by an individual who hears only out of one ear. Tr. 23. The ALJ therefore found that Plaintiff was unable to perform any past relevant work. Tr. 27; 20 C.F.R. 404.1520(f), §§ 404.1565. At step five, the ALJ found that, considering Plaintiff's age, education, work experience, performing other national economy, work. Tr. jobs and existing RFC, in Plaintiff was significant capable numbers in of the including assembly production and packing line 28; 20 C.F.R. §§ 404.1520(g), 404.1566. Therefore, the ALJ found Plaintiff not disabled under the meaning of the Act. Tr. 28. DISCUSSION Plaintiff asserts that the ALJ opinions of three medical providers, 5 - OPINION AND ORDER improperly rejected the as well as Plaintiff's own statements concerning his limitations. Plaintiff also asserts that the Appeals Council erred by failing to consider or credit a statement from Plaintiff's examining physician. A. The ALJ's Rejection of Medical Source Statements Plaintiff claims that the ALJ erred in rejecting the opinions of three doctors: a treating physician and two examining physicians. This court finds no error. First, the ALJ did not err in rejecting the medical opinions of Dr. David Farley, Plaintiff's treating physician. examined Plaintiff on six occasions: 8/20/07, Dr. 11/7/07, Farley 1/24/08, 8/25/09, 11/19/09 and 9/10/10. 1 An ALJ generally affords the opinions of treating physicians more weight than other opinion evidence. 20 u.s.c. § 404.1527 (c) (2). However, the ALJ is not obliged to credit opinions of treating physicians. Id. A treating physician's medical opinion may be disregarded for specific, legitimate reasons supported by the record. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). If an ALJ rejects an uncontroverted medical opinion, the ALJ's evidentiary support must rise to the level of 1 The ALJ's opinion mistakenly refers to Dr. Farley as treating Plaintiff in August of 2008. Tr. 21. This is a typographical error, as the ALJ correctly referenced Plaintiff's August 2007 date of treatment. Tr. 21, 516-22. Plaintiff's brief appears to assume that the ALJ's reference to August 2008 was not in error, and therefore attributes the symptoms noted in 2007 to Plaintiff in 2008. Pl.'s Br. 7. However, Plaintiff's brief also notes the six dates that Dr. Farley treated Plaintiff: none of those dates fall within August of 2008. Pl.'s Br. 6. 6 - OPINION AND ORDER clear and convincing. Id. Here, the ALJ did not reject Dr. Farley's reports from August 2007 through January 2008. Rather, the ALJ determined that Plaintiff made significant steps towards recovery after his January 2008 appointment. In his chart notes for Plaintiff's January 24 visit, Dr. Farley noted that "[Plaintiff] wonders about his ability to get back obviously driving and, even anything not until his that vision is on the improves, table." that Tr. is 519. However, by April of 2008, the ALJ noted that Plaintiff was able to drive, was working with a vocational rehabilitation counselor, and had also started some construction projects building decks to earn money. 2 Tr. 21, 22, 586. The ALJ did, however, reject Dr. Farley's later opinions. On November 19, 2009, Dr. Farley opined that "[c]learly [Plaintiff] is not able to hold down a job." Tr. 650. The ALJ rejected this opinion for numerous specific and legitimate reasons, including the fact that this opinion is inconsistent with Dr. Farley's earlier opinions. Plaintiff For example, on August 25, 2009, "has improved a lot and Dr. Farley noted that functionally he is doing remarkably well." Tr. 26, 647. Plaintiff argues 2 that this comment should be considered During the administrative hearing, Plaintiff claimed that he did this work for free, while reports from the vocational counselors indicate that this work was compensated. Tr. 22, 43. 7 - OPINION AND ORDER against the backdrop that, shortly after his accident, could of not However, mean even take care his own basic the ALJ reasonably interpreted Dr. that Plaintiff's progress was Plaintiff bodily functions. Farley's comment to remarkable and he was functioning well; the ALJ did not stray beyond her authority in determining that Dr. Farley's opinions were inconsistent. Further, opinion only as the ALJ noted, after security income, seeking Plaintiff applications. Farley gave his disability brought up the topic of social during a period of time in which Plaintiff was generate to Dr. Tr. 26. medical records Much of Dr. for his disability Farley's opinion is based on Plaintiff's subjective claims about his symptoms and limitations, which the ALJ found not credible. Tr. 2 6. Diagnoses based on unreliable self reporting can properly be accorded less weight. Andrews v. Shalala, Additionally, assessments Dr. 53 F.3d 1035, 1042-43 Farley's assessment of other professionals. is (9th Cir. 1995). inconsistent with the Most notably, Dr. Farley's assessment that Plaintiff's ability to interact appropriately with the public was "markedly limited" contrasts starkly with a vocational rehabilitation counselor's assessment of Plaintiff as having great people skills. Tr. 26, 556, 673. Further, in September of 2010, Dr. Farley indicated that Plaintiff's condition was improving, noting that "it is appropriate for [Plaintiff] to return to work on a trial basis." Tr. 8 - OPINION AND ORDER 652. However, on November 22, 2010, Dr. Farley rendered a residual functional capacity assessment that found Plaintiff incapable of doing even sedentary work. Tr. 672-675. As the ALJ notes, this opinion was produced during a period of time in which Plaintiff was engaging full-time in medium exertion work, albeit with accommodations. Tr. 26, 42, 68. The ALJ found that Plaintiff's ability to perform such work conflicts with Dr. Farley's assessment. Tr. 26. For these reasons, the ALJ's findings are sufficient to validly reject Dr. Farley's testimony. Next, Plaintiff claims that the ALJ erred in rejecting the opinion of examining psychologist Dr. Alana Raber, who examined Plaintiff on January 7, 2008. However, the ALJ did not, in fact, reject this opinion. Dr. Raber recommended that Plaintiff undergo treatment at the Brain Injury Plaintiff proceeded to undergo. notes, Rehabilitation Tr. 540. As Center, the ALJ' s which opinion Plaintiff made substantial strides towards recovery after this time. Tr. 21. Further, account when the limitations the ALJ Dr. determined Raber found Plaintiff's were RFC. taken Tr. into 23. For example, Dr. Raber found that Plaintiff presented "mildly impaired memory skills, mildly reduced complex attention skills . . and reduced These cognitive and physical endurance." Tr. 541. limitations are respected by the ALJ's determination that Plaintiff can do less than the full range of light work, 9 - OPINION AND ORDER and only simple routine tasks. Tr. 23. r~jected Plaintiff also argues that the ALJ erroneously some of Dr. Laurence Binder's opinion. Dr. Binder determined Plaintiff to have indicated a global that difficulties. assessment Plaintiff Tr. 2 6. Dr. of functioning might score experience Binder also of 45, severe indicated that and social Plaintiff would need job coaching in order to work. However, Dr. Binder also stated that "[h]e will need less job coaching if my speculative generalities about the social problems injuries prove untrue for him . . of people with similar " Tr 529. As noted by the ALJ, vocational counselors indicated that Plaintiff had excellent social functionality. Tr. 26, 556. Further, Dr. Binder's opinion is from March of 2008, during the period in which the ALJ determined Plaintiff to be rapidly recovering, with Plaintiff still undergoing physical and speech therapy at that time. Tr. 26. These reasons represent specific and legitimate reasons that the ALJ rejected Dr. Binder's assessment. In sum, the ALJ's rejection of medical source statements was n0t in error. B. The ALJ's Determination of Plaintiff's Credibility Plaintiff claims that the ALJ improperly discredited his own statements about the limiting effects of his condition. This court finds no error. The ALJ accepted that the symptoms Plaintiff described could 10 - OPINION AND ORDER reasonably conditions, be but expected to rejected result from Plaintiff's Plaintiff's claims medical regarding the intensity, persistence, and limiting effects of those symptoms. Tr. 24. An ALJ is free to reject such testimony only for specific, clear, and convincing reasons. Tr. 23; Cotton v. Bowen, 1403, 1407 799 F.2d (9th Cir. 1986); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Plaintiff testified that he had difficulties performing his job because of depth perception problems. Tr. 24. The ALJ correctly notes that Plaintiff never complained about depth perception until the administrative hearing. Tr. 24 Rather, Plaintiff was described as suffering from double vision - a problem which was completely cured through the use of prism lenses, which Plaintiff stated are no longer even necessary. Tr. 24. The ALJ noted that Plaintiff drives as well, apparently without needing the prism lenses. Tr. 24. Plaintiff also complained of fatigue. Tr. 43. During the time period that the administrative hearing took place, Plaintiff was working in an accommodated work position building crates, a job which the VE at semi- the administrative hearing described as skilled with medium exertional requirements. Tr. 68. To deal with his fatigue, Plaintiff was given permission to go home and take naps during the day. Tr. 23. While, as recognized by the ALJ, this is not consistent with competitive work, the ALJ could reasonably 11 - OPINION AND ORDER infer that performing fatigue light or issues would not sedentary work. prevent Tr. 26. Plaintiff Further, the from ALJ validly considered Plaintiff's refusal to consider entry level job leads when working with vocational counselors. Tr. 24. Plaintiff "expressed no interest in security guard or home depot work." Tr. 587. These reasons are sufficiently appropriate and specific justification for the ALJ to reject Plaintiff's testimony. C. The Appeals Council's Decision After the ALJ issued her decision, Plaintiff submitted a statement from Dr. Binder for consideration by the Appeals Council. This statement, a letter written on February 27, 2012, proffers Dr. Binder's opinion that Plaintiff is disabled, stating, "I do not see him capable of receives competitive working full-time accommodations work environment." in that Tr. any are 686. capacity, not unless consistent The Appeals with he a Council declined to reconsider without explicit reference to this letter, stating only that the newly submitted information did not "provide a basis for changing the Administrative Law Judge's decision." Tr. 2. Plaintiff contends that the Appeals Council's rejection of an examining physician's opinion without a specific reason supported by substantial evidence in the record is a legal error. This court disagrees. While an ALJ must provide a specific reason supported by substantial evidence 12 - OPINION AND ORDER when rejecting an examining physician's opinion, Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995), this same requirement is not placed on the Appeals Council when asked to review evidence in the record. Rather, the Appeals Council is tasked to "evaluate the entire record including the new and material evidence submitted . . . . It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record." 20 C.F.R. § 404.970. Even had the Appeals Council erred in some way, such error would not be reviewable by this court. An Appeals Council denial is a non-final agency action not subject to judicial review. Rather, the denial renders the ALJ's decision the final decision of the commissioner. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011); 20 C.F.R. § 404.981; 42 U.S.C. § 405(g). Rather than reviewing the Appeals Council for error, this court is instead tasked with much the same responsibility as the Appeals Council was: the court must review the entire record, including the evidence submitted, and determine if the ALJ's decision is supported by substantial evidence. Even considering the evidence represented by Dr. Binder's February 27 letter, this court finds that the ALJ's conclusions are not contrary to the weight of evidence in the record. The ALJ rejected Plaintiff's medical source statements for the specific and legitimate reasons already mentioned. 13 - OPINION AND ORDER Dr. Binder's February 27 letter makes more viable neither Dr. Binder's medical opinion nor Plaintiff's claims. CONCLUSION For the foregoing reasons, the ALJ's finding that Plaintiff was not disabled under the Act is supported by substantial evidence in the record and was not based upon legal error. Accordingly, the Commissioner's decision is AFFIRMED. IT IS SO ORDERED. DATED this ~day of September, 2013. Ann Aiken United States District Court Judge 14 - OPINION AND ORDER
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