Brien v. Commissioner Social Security Administration, No. 3:2011cv01223 - Document 18 (D. Or. 2013)
Court Description: Opinion and Order. The Commissioner's decision is affirmed. Signed on 6/15/2013 by Chief Judge Ann L. Aiken. (lg)
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Brien v. Commissioner Social Security Administration Doc. 18 UNITED STATES DISTRICT COURT DISTRICT OF OREGON DANYA H. BRIEN, Plaintiff, Case No. 3:11-cv-01223-AA OPINION AND ORDER v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. George J. Wall 1336 E. Burnside St., Suite 130 Portland, OR 97214 Attorney for plaintiff S. Amanda Marshall United States Attorney Adrian L. Brown Assistant United States Attorney 1000 S.W. Third Ave., Suite 600 Portland, OR 97204 Mathew W. Pile Special Assistant United States Attorney Social Security Administration 701 Fifth Ave., Suite 2900 M/S 221A Seattle, WA 98104-7075 Attorneys for defendant 1 - OPINION AND ORDER Dockets.Justia.com AIKEN, Chief Judge: Plaintiff brings this action seeking judicial review of a final decision of the Commissioner denying her applications for disability income insurance benefits ( SSI) benefits under (DIB) Titles and II supplemental and XVI of security 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 August 21, 2009, plaintiff protectively filed applications for DIB and SSI. Tr. 140-53. Plaintiff's applications were denied initially and on reconsideration. Tr. 80-94, 95-99. On November 29, 2010, plaintiff, her mother, and a vocational expert (VE) appeared and testified before an administrative law judge (ALJ). Tr. 39-79. On January 5, 2011, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 16-38. On August 12, 2011, the Appeals Council denied review, rendering the ALJ's decision as the final agency decision. Tr. 1-4. Plaintiff now seeks judicial review. Plaintiff was thirty years old at the time of the ALJ' s decision, with an high school education, some college course work, and past relevant work as a telemarketer, childcare worker, and production line worker. Tr. 45, 47-49, 197, 214. Plaintiff alleges disability since August 5, 2009 due to various physical and mental limitations, including 2 - OPINION AND ORDER effects of influenza, depression, post- traumatic stress disorder (PTSD), anxiety, thyroid issues, sleep apnea and numbness in her hands. Tr. 174, 237. STANDARD OF REVIEW This court must affirm the Commissioner's decision if it is supported by substantial evidence in the record and the correct application of the law. Valentine v. Comm'r Soc. Sec. Admin, 574 F.2d 685, 690 (9th Cir. 2009). "'Substantial evidence' means more than a mere scintilla, but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Desrosiers v. Servs., 846 F.2d 573, 576 (9th Cir. 1988) Sec' y of Health & Human (internal quotation marks and citations omitted). In determining whether substantial evidence supports the decision, the court must weigh "both the evidence that supports and detracts from the [Commissioner] 's Martinez v. Heckler, 807 F.2d 771, 772 conclusions." (9th Cir. 1986). Where the evidence "is susceptible to more than one rational interpretation," the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). COMMISSIONER'S DECISION 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, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which 3 - OPINION AND ORDER can be expected . . . to last for a continuous period of not less than 12 months The ALJ 42 U.S.C. II evaluated 423(d) (1) (A). § plaintiff's allegation of disability pursuant to the relevant sequential process. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that plaintiff had not engaged in "substantial gainful activity" during the period of alleged disability. Tr. 21; 20 C.F.R. At §§ step determinable failure, 404.1520(b), 416.920(b). two, the ALJ impairments found of that morbid plaintiff obesity, had medically history of renal sleep apnea, history of back surgery, sensory neuropathy in left upper extremity, PTSD, adjustment disorder with depressed mood, personality disorder, and a history of polysubstance abuse. Tr. 21; 20 C.F.R. §§ 404.1520(c), 416.920(c). However, at step three, the ALJ found that these impairments did not meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude gainful activity." Tr. 14; 20 C.F.R. At step §§ 404.1520(d), 416.920(d). four, the ALJ determined plaintiff's residual functional capacity (RFC) and found that plaintiff retained the RFC to perform light work with occasional climbing, balancing, stooping kneeling, crouching and crawling, and frequent handling with her left upper extremity. The ALJ also found that plaintiff must avoid exposure to hazards 4 - OPINION AND ORDER and vibrations and was limited to simple, routine work with no public interaction. 404.1520 (e), 416.920 (e). Based on this Tr. RFC 24; 20 C.F.R. assessment and §§ the testimony of the VE, the ALJ found that plaintiff could perform her past relevant work as a production line worker. Tr. 31; 20 C.F.R. §§ 404.1520(f), 416.920(f). Alternatively, at step five, the ALJ found that plaintiff was capable of performing other light and unskilled work. Tr. 32; 20 C.F.R. §§ 404.1520(g), 416.920(g). Therefore, the ALJ found plaintiff not disabled under the meaning of the Act. Tr. 32. DISCUSSION Plaintiff asserts that the ALJ erred by failing to find that she has a severe impairment of "ongoing" degeneration in her lumbar spine, improperly evaluating the effects of plaintiff's obesity and sleep apnea on her ability to work, could perform her past relevant work. and finding that plaintiff 1 A. Step Two Findings Plaintiff maintains that the ALJ erred at step two by failing to find that she has a medically severe impairment of degeneration in her lumbar spine. At step two, the ALJ determines if the claimant has a "severe" impairment that "significantly limits [the claimant's] physical or 1 Plaintiff also assigns error to the ALJ's step five findings, in that the ALJ failed to identify specific jobs in the national economy that plaintiff could perform. However, the Commissioner does not rely on the ALJ's alternative step five findings to support the disability determination. 5 - OPINION AND ORDER mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe impairment cannot be established on the basis of symptoms alone; it must be supported by a medical diagnosis. Ukolov v. Barnhart, 420 F. 3d 1002, 1005 (9th Cir. 2005); 20 C.F.R. §§ impairments 404.1508, can be 416.908. found "An impairment or combination of not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Smolen v. Chater, F.3d 1273, 1290 (9th Cir. citations omitted). 1996) "Step two, (internal then, is quotation marks 80 and 'a de minimis screening device [used] to dispose of groundless claims,' and an ALJ may find that a claimant lacks a medically severe impairment or combination of impairments only when his conclusion is 'clearly established by medical evidence."' Webb v. Barnhart, 433 F.3d 683, 687 2005) (9th Cir. (quoting Smolen, 80 F.3d at 1290 and S.S.R. 85-28). Here, I find plaintiff's argument to be a question of semantics. Although the ALJ did not identify "ongoing degeneration" of plaintiff's lumbar spine as a severe impairment, the ALJ did find plaintiff's history of back surgery as severe. Moreover, the ALJ considered the effects of plaintiff's back impairments and pain when determining her RFC. Tr. 27, 31; see Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (any error at step two is considered harmless if the ALJ considered the effects of impairments deemed non-severe in assessing a claimant's RFC); see also 20 C.F.R. 6 - OPINION AND ORDER §§ 404.1545 (a) (2), 416.945 (a) (2) ("We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not 'severe' when we assess your residual functional capacity."). Plaintiff nonetheless contends that the ALJ failed to "grasp the severity" of plaintiff's back impairments and suggests the ALJ improperly rejected plaintiff's testimony regarding back pain. As explained below, the ALJ gave clear and convincing reasons support the rejection of plaintiff's testimony. to With respect to plaintiff's back pain, the ALJ noted that in 2009, plaintiff denied severe back pain or sciatic pain radiation, and in 2010, after reports of chronic back pain, plaintiff reported improvement with medication and treatment. Tr. 27, 31, 720, 868-69. Accordingly, I find no error at step two. B. RFC Findings Next, plaintiff argues that the ALJ failed to consider the effects of her obesity and sleep apnea when determining plaintiff's RFC and ability to work. With respect to sleep apnea, plaintiff argues that the ALJ improperly rejected her complaints of fatigue by incorrectly finding that plaintiff would not use a continuous positive airway pressure (CPAP) machine to help her apnea, when plaintiff tried but could not tolerate the CPAP machine. Tr. 30. Plaintiff plaintiff's also argues obesity 7 - OPINION AND ORDER that because the she ALJ failed improperly to lose discounted weight as recommended by medical care providers. Tr. 30. I find no error. Plaintiff testified that her ability to work was limited by "extreme" fatigue related to her sleep apnea and by her lower back pain. Tr. 54-57. The ALJ found plaintiff's complaints not fully credible due to the medical record and plaintiff's improvement with treatment, plaintiff's daily activities, and plaintiff's failure to "avail herself of all treatment modalities," including recommended weight loss Specifically, and the use of ALJ the noted CPAP that machine. medical Tr. 23-27, reports 30-31. reflected improvement with plaintiff's sleep apnea after use of the CPAP machine, and that plaintiff's back pain improved after surgery and responded well to treatment and medication afterward. Tr. 27, 3031. The ALJ further noted that a medical provider reported that plaintiff "will not use" the CPAP machine. Tr. 30, 781. Regardless of plaintiff's aversion to the CPAP machine, it was recommended by medical care providers to improve her sleep apnea, and plaintiff's doctor and therapist reported efforts to assist her in becoming Additionally, comfortable the record improved with surgery, with the reflects treatment, machine. that Tr. 785, plaintiff's and medication. Tr. 789-90. back pain 720, 855, 868; Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008). The ALJ also noted plaintiff's daily activities, sporadic work history and the fact that plaintiff had lost jobs due to lay offs and tardiness rather than disability. Tr. 25, 30, 622; see Thomas 8 - OPINION AND ORDER v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Finally, the ALJ noted that no physician opined that plaintiff could not work and instead recommended increased physical activity. Tr. 25, 644, 78586, 868-69, 897. Upon review of the record, the ALJ's findings are clear, convincing and supported by evidence in the record, and they support the ALJ's credibility findings and assessment of plaintiff's complaints. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008) present in the record, the (unless evidence of malingering is ALJ must base adverse credibility finding on clear and convincing reasons). C. Step Four Finding Plaintiff perform past testimony Titles, next argues relevant that that, work, conflicts the with in finding plaintiff ALJ erroneously the Dictionary of able relied to on VE Occupational (DOT) . 2 Specifically, plaintiff argues (4th ed. rev. 1991) that the DOT requirements for the job of production line worker exceed her RFC. The description of production line worker contained in the DOT includes a General Educational Development (GED) reasoning level of 2, DOT 706.687-010, defined as the ability to "[a] pply understanding commonsense to carry uninvolved written or oral instructions [and] involving a few concrete situations." DOT, Appx. C, 2 variables § in or out detailed [d]eal with problems from standardized III. Plaintiff maintains that a GED Available at http://www.oalj.dol.gov/libdot.htm. 9 - OPINION AND ORDER but level of 2 exceeds her RFC limitation of "simple, routine work." The VE did not identify or explain any conflicts between the DOT's definition of production line worker and plaintiff's RFC. Thus, plaintiff argues that the ALJ erred by failing to inquire into the unresolved inconsistency between the VE's testimony that plaintiff could perform the duties of production line worker and the DOT's requirements for that position. See Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007); S.S.R. 00-4p. I find no inconsistency, as a GED reasoning level 2 is generally consistent with the ability to perform simple, routine tasks. 2005) See Hackett v. Barnhart, 395 F.3d 1168, 1176 (lOth Cir. (reasoning level two is consistent with simple and routine tasks); Meissl v. Barnhart, 403 F. Supp. 2d 981, 983-85 (C.D. Cal. 2005) (reasoning level 2 did not conflict with the ALJ's prescribed limitation of work involving "simple, repetitive" tasks); Tracer v. Astrue, 2011 WL 2710271, at *10 (D. Or. July 12, 2011) (reasoning level two does not contradict limitation to simple tasks); Koch v. Astrue, 2009 WL 1743680 at *17 (D. Or. June 15, 2009) (level two reasoning is consistent with simple, routine tasks). Regardless, the tasks contemplated in the DOT description for production line worker are consistent with plaintiff's RFC; nothing in the description contemplates detailed and complex instructions or tasks beyond plaintiff's RFC. See DOT 706.687-010. Thus, because the ALJ's RFC determination was supported by 10 - OPINION AND ORDER substantial evidence and the VE testified that the production worker was consistent with plaintiff's RFC, reliance on the VE' s testimony was not erroneous. job of the ALJ's Tr. 7 6-7 7. Accordingly, I find that the ALJ did not err in finding the duties of a production line worker to be consistent with plaintiff's RFC. CONCLUSION The ALJ's finding that plaintiff was not disabled under the Act is supported by substantial evidence in Accordingly, the Commissioner's decision is AFFIRMED. IT IS SO ORDERED. DATED this of June, 2013. Ann Aiken United States District Judge 11 - OPINION AND ORDER the record.
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