Pourier v. Commissioner Social Security Administration, No. 2:2014cv00478 - Document 18 (D. Or. 2015)

Court Description: OPINION AND ORDER. The Commissioner's decision is AFFIRMED and this case is DISMISSED. See formal OPINION AND ORDER. Signed on 7/22/2015 by Chief Judge Ann L. Aiken. (rh)

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Pourier v. Commissioner Social Security Administration Doc. 18 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JAMIE ELAINE POURIER, Case No. 2:14-cv-00478-AA OPINION AND ORDER Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. Nancy J. Meserow Law Office of Nancy J. Meserow 7540 S.W. 51st Avenue Portland, Oregon 97219 Attorney for plaintiff Billy Williams Ronald K. Silver United States Attorney's Office 1000 S.W. 3rd Avenue, Suite 600 Portland, Oregon 97201 Nancy A. Mishalanie Social Security Administration Office of General Counsel 701 5th Avenue, Suite 2900 M/S 221A Seattle, Washington 98104 Attorneys for defendant Page 1 - OPINION AND ORDER Dockets.Justia.com AIKEN, Chief Judge: Plaintiff Jamie Pourier brings this action pursuant to the Social Security Act ("Act") to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiff's disability insurance benefits below, application for Title II ("DIB"). For the reasons set forth the Commissioner's decision is affirmed and this case is dismissed. PROCEDURAL BACKGROUND On September 6, 2010, plaintiff applied for DIB. Tr. 150-51. After her application was denied initially and upon reconsideration, plaintiff appeared and testified at a hearing on July 23, 2012, before an Administrative Law Judge ("ALJ"). Tr. 4278, 102-06. On November 8, 2012, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 24-37. After the Appeals Council declined her request, plaintiff filed a complaint in this Court. Tr. 6-8. STATEMENT OF FACTS Born on September 4, 1957, plaintiff was 52 years old on the alleged onset date of disability and 54 years old at the time of the hearing. Tr. 53. She graduated from high school and attended three college, years of ultimately obtaining degree. Tr. 54. She is a registered nurse with her associate's working in hospital emergency rooms and rehabilitation centers. Tr. Plaintiff due alleges disability as of August 23, 2010, 55. to depression, anxiety, dizziness, colitis, arthritis, and neck, back, Page 2 - OPINION AND ORDER shoulder, hand, and hip pain. Tr. 179. STANDARD OF REVIEW The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. scintilla. 1989) Substantial evidence is "more than a mere It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted) . The court must weigh "both the evidence that supports and detracts Heckler, from 807 the [Commissioner's] F.2d 771, 772 conclusions." (9th Cir. 1986) Martinez v. (citation omitted). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) The initial burden of proof rests upon the claimant to establish disability. 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 last for a continuous period of not less than 12 months." 42 U.S.C. The process Commissioner. has § 423 (d) (1) (A). established a five-step sequential for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. Commissioner determines Page 3 - OPINION AND ORDER whether a § Bowen v. 404.1520. First, the claimant is engaged in usubstantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. At step two, the Commissioner evaluates whether the claimant has a umedically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; ·20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment, she is not disabled. At step three, the claimant's impairments, uone equal of [Commissioner] a § determines whether the either singly or in combination, meet or number of acknowledges substantial gainful C.F.R. Commissioner listed are so impairments severe activity." Yuckert, 404.1520(d). If so, the 482 as U.S. claimant is that to the preclude at 140-41; 20 presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. At step four, the Commissioner resolves whether the claimant can still perform upast relevant work." 20 C.F.R. § 404.1520(f). If the claimant can work, she is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national and local economy. Yuckert, 482 u.s. at 141-42; 20 C.F.R. § 404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566. THE ALJ'S FINDINGS At step one of the five-step process outlined above, the ALJ found that plaintiff had Page 4 - OPINION AND ORDER not engaged in substantial gainful activity since the alleged onset date, although she "worked at substantial gainful activity levels after her alleged onset date," earning "$44,044.63 for the calendar year of 2010 and $23,256.00 for the calendar year of 2011." Tr. 26. At step two, the ALJ determined that plaintiff had the following severe impairments: "collagenous colitis, unknown etiology with fecal incontinence; and lumbar degenerative disb disease with loss of disc height and facet arthropathy at L5-S1." Id. At step three, the ALJ found that plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 29. As such, the ALJ continued the sequential evaluation process to determine how plaintiff's impairments affected her ability to work. The ALJ concluded that plaintiff had the residual functional capacity ("RFC") to perform "light work" except that she "requires a restroom nearby," "is limited to occasional postural and should "exposure avoid to climbing hazards such ladders, as ropes, or scaffolds, and moving machinery and unprotected heights." Id. At step four, the ALJ concluded that plaintiff could not perform her past relevant work. Tr. 35. At step five, the ALJ found, based on the testimony of a vocational expert ("VE"), that plaintiff could perform a significant number of jobs existing in the national and local 'economy despite her impairments, office nurse. Tr. 3 6. Accordingly, the ALJ found plaintiff not disabled within the meaning of the Act. Id. Page 5 - OPINION AND ORDER such as DISCUSSION Plaintiff argues that the ALJ erred by: fully credible; Jennifer joint (3) pain, disorder finding her not rejecting the opinion of nurse practitioner Armstrong; headaches, stress ( 2) (1) neglecting adjustment ( "PTSD") as to include disorder, medically her arthritis, and post-traumatic determinable, severe impairments at step two; and (4) failing to account for all of her impairments in the RFC, rendering the step five finding invalid. I. Credibility Plaintiff contends that the ALJ failed to provide a clear and convincing reason, supported by substantial evidence, for rejecting her subjective symptom testimony concerning the severity of her impairments. The ALJ's reasons for rejecting the claimant's testimony must be clear and convincing, unless there is affirmative evidence of malingering. Burch, 400 F.3d at 680. A general assertion that the claimant is not credible is insufficient; the testimony is not credible and what ALJ must "state which evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (citation omitted). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did discredit the claimant's testimony." Orteza v. 748, 750 (9th Cir. 1995) (citation omitted). not arbitrarily Shalala, If the 50 F.3d "ALJ' s credibility finding is supported by substantial evidence in the record, [the court] may not engage in secohd-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) Page 6- OPINION'AND ORDER (citation omitted). At the hearing, plaintiff testified that she is unable to work as a result of incontinence, pain, and depression. Tr. Plaintiff explained that coli tis necessitates frequent breaks or causes her to have accidents that she finds and distracting." Tr. 62-63. She stated 60-63. restroom that colitis medication has been unhelpful and that she does not want "to deal with a colostomy bag." Tr. 66. Plaintiff testified further that her muscle and joint pain is "debilitating" and off work, the time [she's] [she's] in severe pain." Tr. 60. Plaintiff also attested to depression and anxiety, medications, for which she has taken prescription but has not "see[n] anyone on a regular basis" for treatment. Tr. 64. After summarizing her hearing testimony, that plaintiff's medically the ALJ determined determinable impairments could reasonably be expected to produce some degree of symptoms, but her statements concerning the extent of these symptoms were not fully credible due to her inconsistent statements, activities of daily living, and receipt of unemployment benefits, as well as the lack of corroboiating medical evidence. Tr. 31-34. Notably, the ALJ found plaintiff's daily activities, including her continued part-time employment in a physically demanding nursing job, inconsistent with her allegations of debilitating pain and incontinence. Tr. 32. An ability to work "with a fair amount of success" can render a claimant's testimony less credible. Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992); see also Molina v. Astrue, 674 F.3d 1104, 1112-13 Page 7 - OPINION AND ORDER (9th Cir. 2012) (daily activities may be used to discredit a claimant where they are either "transferable to a work settingd or "contradict claims of a totally debilitating impairment"). Here, plaintiff's supervisor reported that her current job requires "considerable physical exertion," including walking long hallways, bending, stooping, reaching, and lifting objects and residents. Tr. 32, 245. Other evidence in the record reflects that plaintiff leaves her house every day; grocery shops; cooks; performs regular household chores and yard work, such as mowing the lawn and weeding; takes care of her dog; maintains hobbies such as walking, beading, fishing, and playing games; and socializes with.others. Tr. 197-199, 2Q4-07. The ALJ also gave less weight to plaintiff's testimony because she received unemployment benefits after her alleged onset date of disability. Tr. 33. Receiving unemployment benefits "casts doubt on a claim of disability, as it shows that an applicant holds himself out as capable of working." Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (citation omitted). The record demonstrates that plaintiff collected unemployment benefits since September 2010, despite alleging that she became disabled in August 2010. Tr. 15354. Thus, the ALJ provided clear and convincing reasons, supported by substantial evidence, for rejecting plaintiff's subjective symptom statements. As a result, this Court need not discuss all of the reasons provided by the ALJ because at sufficient reason exists. Carmickle v. Comm'r, 533 F. 3d 1155, 1162-63 (9th Cir. Page 8 - OPINION AND ORDER 2008). least Soc. The ALJ' s one legally Sec. Admin., credibility determination is affirmed. II. Medical Evidence Plaintiff asserts that the ALJ failed to a legally sufficient reason, supported by substantial evidence, for rejecting the opinion of Ms. Armstrong. While an "other source" can provide an opinion about the severity of an impairment and how it affects the claimant's ability to work, only "acceptable medical sources" can diagnose and establish that a medical impairment exists. Garrison v. Colvin,759 F.3d 995, 1013-14 (9th Cir. 2014). The ALJ must provide "reasons that are germane" to the witness in order to discount the opinion of an other or lay source. Dodrill, 12 F.3d at 919. In January 2011, Ms. Armstrong completed a check-the-box form prepared by plaintiff's attorney. Tr. 295-302. Ms. Armstrong listed plaintiff's diagnoses as "ulcerative colitis, arthritis, back pain, and arthralgia." Tr. 295. Ms. Armstrong recommended that plaintiff not sit or stand for more than an hour per eight hour day, never lift or carry more than ten pounds, range not reach due to a deceased motion, and limit her grasping or manipulating. Tr. 297-99. Ms. Armstrong checked the box indicating that plaintiff is "incapable "worsens estimated [her] work of [tolerating] coli tis." absences Tr. as even 300. a low stress" With result of respect her jobs to as stress plaintiff's impairments, Ms. Armstrong checked the box for "more than three times a month." Tr. 301. The ALJ gave Ms. Armstrong's opinion "no weight" because "the Page 9 - OPINION AND ORDER record simply does not support [it]." Tr. 34. Specifically, the ALJ noted that Ms. Armstrong's opinion was inconsistent with plaintiff's current part-time job, activities of daily living, and the report of examining doctor Mike Henderson, M.D. Tr. 34-35. An inconsistency with the record is a germane reason to discount the opinion of a non-acceptable medical source. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). An ALJ may also afford greater weight to the opinion of an acceptable medical source over that of an other source. SSR 06-03p, available at 2006 WL 2329939. In direct opposition to Ms. Armstrong's report, Dr. Henderson opined that plaintiff has "no particular limitations with sitting, standing, walking or carrying." Tr. plaintiff's fecal 278. sole physical barrier as incontinence while at work." In fact, he identified "intermittent episodes of Id. Nevertheless, plaintiff remarked to Dr. Henderson that medicine "significantly improved her [colitis] symptoms," occasion." Tr. 27 6. such The that ALJ she only assigned Dr. "loses control· on Henderson's opinion "significant weight" and plaintiff does not now challenge that finding on appeal. Tr. plaintiff in engages 34. a Further, wide slate as discussed in section I, of daily contravene the limitations assessed by Ms. activities Armstrong. that The ALJ's evaluation of Ms. Armstrong's opinion is upheld. III. Step Two Finding Plaintiff argues that the ALJ failed to include her arthritis, headaches, joint pain, adjustment disorder, and PTSD at step two. At step two, the ALJ determines Page 10 - OPINION AND ORDER whether the claimant has an ·impairment, or combination of impairments, that is both medically determinable and severe. 20 C.F.R. § 404.1520(c). An impairment is medically determinable if it is diagnosed by an acceptable medical source and based upon acceptable medical evidence, such as "signs, symptoms, and laboratory findings"; "under no circumstances may the existence of an impairment be established on the basis of symptoms alone." SSR 96-4p, 404.1513(a). An significantly available impairment limit the at is 1996 not claimant's WL 374187; severe if ability to 20 it do C.F.R. does basic § not work activities. 20 C.F.R. § 404.1521; Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). The step two threshold is low and described by the Ninth Circuit as a "de minimus screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation omitted). Plaintiff's symptoms of joint pain and headaches may relate to her colitis and/or degenerative disc disease, impairments that the ALJ listed as medically-determinable and severe. In any event, the ALJ found that plaintiff's shoulder, hip, neck, and hand pain were not medically-determinable because any diagnoses related thereto were based Further, these exclusively on plaintiff's self-reports. Tr. 33. the ALJ noted that any objective evidence relating to symptoms impairment. Id. did In not reveal addition, no abnormalities acceptable or any medical signs source of has diagnosed plaintiff with headaches. See, e.g., Tr. 368, 376. The record before the Court contains multiple references to plaintiff's arthritis; however, her examining and treating doctors Page 11 - OPINION AND ORDER differ as to its cause and impact. Carpenter, M.D., diagnosing See, plaintiff e.g., in Tr. 24 7 November (Richard 2008 with inflammatory osteoarthropathy) , 327 (Donald Maher, M.D., diagnosing plaintiff in February 2011 with what "may be an inflammatory bowel associated arthritis/arthralgia condition"), 278 versus a separate arthritic (Dr. Henderson diagnosing plaintiff in December 2012 with arthritis, but stating that she has "excellent range of motion" and is "not severely impair[ed]"). this evidence and rationally concluded The ALJ acknowledged that, for the reasons discussed in section I, plaintiff's arthritis was non-severe as it imposed "no more than a minimal effect on the ability to do basic work activities." 20 C.F.R. § 404.1521(a); SSR 96-3p, available at 1996 WL 374181; Tr. 27. Likewise, the ALJ acknowledged plaintiff's diagnoses of PTSD and adjustment disorder, medically determinable. but Tr. found 27-28, them 33-34. non-severe and Specifically, non- the ALJ observed that plaintiff had not sought mental health treatment and had discontinued medications for depression and anxiety. Tr. 33. The ALJ also noted plaintiff's ability to others on a regular basis spend time and significant activities 28, with of daily living. Tr. 27. Although plaintiff's supervisor noted plaintiff's reports of "abdominal and/or joint pain," she did not describe any impairment in relation to plaintiff's mental functioning. Tr. 245. Finally, the ALJ found the state agency consulting sources' opinions that plaintiff's mental impairments were non-severe to be persuasive evidence that they· did Page 12 - OPINION AND ORDER not significantly limit her ability to do basic work activities. Tr. 27, 33-34, 83-84. Regardless, even if the ALJ erred by not designating certain impairments at step two, it did not prejudice plaintiff because the ALJ resolved this step in her favor and considered these conditions in formulating the RFC. Tr. 29-35; Gray v. Comm'r Soc. Sec. Admin., 365 Fed.Appx. 60, 61 (9th Cir. 2010); see also Mondragon v. Astrue, 364 Fed.Appx. step two 346, was 348 (9th Cir. harmless 2010) because step (" [a]ny alleged error at two was decided in [the claimant's] favor with regard to other ailments"). The ALJ's step two finding is affirmed. IV. RFC and Step Five Finding Plaintiff asserts that the ALJ's RFC and step five finding were inadequate because they failed to account for all of the limitations described in her testimony and the lay statement of Ms. Armstrong, mental as well impairments. as the The combined effect RFC is the maximum a despite her limitations. 20 C.F.R. RFC, the claimant's evaluate ALJ must consider impairments, "all of the even § those claimant and can do 404.1545. In determining the limitations relevant of her physical that medical imposed are and by not other all severe, of a and evidence," including the claimant's testimony. SSR 96-8p, available at 1996 WL 374184. Only limitations supported by substantial evidence must be incorporated into the RFC and, by extension, the dispositive hypothetical question posed to the VE. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). As addressed herein, the ALJ properly discredited plaintiff Page 13 - OPINION AND ORDER and Ms. Armstrong, evidence, that and there is no indication, plaintiff suffered from beyond those outlined in the RFC. outside of this functional Additionally, limitations the under lying decision clearly demonstrates that the ALJ considered the combined effect of plaintiff's physical and mental impairments. Tr. 26-35; see also Samples v. Comm'r Soc. Sec. Admin., 466 Fed.Appx. 584, 586 (9th Cir. 2012) impairments in (although an ALJ must combination, an consider the explicit claimant's discussion of "the interaction between . . . physical [and] mental impairments" is not required) (citation omitted). Accordingly, plaintiff's arguments, which are contingent upon a finding of harmful error in regard to the aforementioned issues, are without merit. Bayliss, 427 F.3d at 1217 18; Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). The ALJ's RFC and step five finding are upheld. CONCLUSION The Commissioner's decision is AFFIRMED DISMISSED. IT IS SO ORDERED. Dated this day of July 2015. Ann Aiken United States District Judge Page 14 - OPINION AND ORDER and this case is

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