Dalton v. Commissioner Social Security Administration, No. 3:2011cv06154 - Document 26 (D. Or. 2013)
Court Description: OPINION and ORDER . The Commissioner's decision is AFFIRMED and this case is dismissed. Signed on 10/23/2013 by Chief Judge Ann L. Aiken. (lg)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JERRY L. DALTON, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. Kathryn Tassinari Brent Wells Harder, Wells, Baron & Manning, P.C. 474 Willamette, Suite 200 Eugene, Oregon 97401 Attorneys for plaintiff S. Amanda Marshall United States Attorney Adrian L. Brown Assistant United States Attorney 1000 S.W. Third Ave., Suite 600 Portland, Oregon 97204 PAGE 1 - OPINION AND ORDER Case No. 3:11-cv-06154-AA OPINION AND ORDER Lars J. Nelson Special Assistant United States Attorney Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104 Attorneys for defendant AIKEN, Judge: Plaintiff Jerry Dalton brings Social Security Act ("Act") this action pursuant to the to obtain judicial review of a final decision of the Commissioner denying his application for Title II disability insurance benefits ("DIB"). below, For the reasons set forth the Commissioner's decision is affirmed and this case is dismissed. PROCEDURAL BACKGROUND On November 1, 2007, plaintiff filed an application for DIB, alleging disability as of June 15, 2007 due to difficulty lifting heavy objects, an inability to sit or stand for prolonged periods, and chronic neck., Plaintiff's shoulder, application reconsideration. and back. pain. was Tr. 104, 112. denied Tr. 232, initially 256, and 262. upon On November 2, 2009, after timely requesting a hearing, plaintiff, along with a medical expert and a vocational expert, appeared and testified before an administrative law judge ("ALJ"). Tr. 28-68. On January 20, 2010, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 11-22. The Appeals Council initially granted plaintiff's request for review because a proper transcript of the November 2, 2009 hearirig could not be produced due to an inaudible recording. PAGE 2 - OPINION AND ORDER Tr. A sufficient transcript was later produced and the 96-98. parties stipulated that the case be reopened. at 2. See Mot. to Reopen Plaintiff now seeks judicial review. FACTS Born on October 6, 1966, plaintiff was forty years old on the alleged onset date and forty-three years old at the time of the ALJ's decision. Tr. 298. Plaintiff graduated from high school and has past relevant work as a motor coach service provider and wire harness builder. Tr. 48, 263. STANDARD OF REVIEW The court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence in the record. 498, 501 (9th Cir. mere scintilla. Hammock v. Bowen, 879 F.2d Substantial evidence is "more than a 1989). It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." v. Perales, NLRB, 402 U.S. 389, 401 (1971) 3 0 5 U. S. 19 7, 2 2 9 ( 19 3 8) ) . evidence that conclusions." 1986). supports and Martinez v. Richardson (quoting Consol. Edison v. The court must weigh "both the detracts . from Heckler, the [Commissioner's] 807 F.2d 771, 772 (9th Cir. Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion Sample v. Schweiker, 694 F.2d 639, 642 The Commissioner has PAGE 3 - OPINION AND ORDER must be upheld. (9th Cir. 1982). established a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140 the determines Commissioner "substantial gainful C.F.R. § (1987); 20 C.F.R. whether activity." 404.1520(a) (4) (i). a § 404.1520. claimant Yuckert, 482 Bowen v. is First, engaged at U.S. in 20 140; If so, the claimant is not disabled. At step two, the Commissioner determines whether the claimant has a "medically severe Yuckert, 482 U.S. impairment or combination of impairments." at 140-41; 20 C.F.R. § 404.1520(a) (4) (ii). If not, the claimant is not disabled. At step three, the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." C.F.R. § 404.1520(a) (4) (iii). Yuckert, 482 U.S. at 140-41; 20 If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. At step four, the Commissioner determines whether the claimant can still perform 404.1520 (a) (4) (iv). "past relevant work." 20 C.F.R. § If the claimant can work, he is not disabled. If he 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 that exists in the national and local economy. 404.1520 (a) (4) (v). Yuckert, 482 U.S. at 141-42; 20 C.F.R. If the Commissioner; meets this burden, PAGE 4 - OPINION AND ORDER § the claimant is not disabled. 20 C.F.R. § 404.1520(a) (4). THE ALJ'S DECISION At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. At step two, Tr. 13. the ALJ found that plaintiff had the following severe impairments: cervical disc disease, lumbar degenerative disc disease, obesity, and hypertension. Id. At step three, the ALJ found that plaintiff did not have an impairment that meets or equals a listed impairment. The ALJ continued the sequential Tr. 14. evaluation process to determine how plaintiff's impairment affected his ability to work. The ALJ capacity found that to perform plaintiff a retained the limited range of residual light functional work. Id. Specifically, the ALJ found that plaintiff could lift and carry ten pounds frequently and twenty pounds occasionally, and that he could sit or stand for roughly six hours in an eight-hour workday with the option to change positions hourly. Id. The ALJ also noted that plaintiff could perform unlimited pushing and pulling, but is prohibited from reaching upwards while doing so. The ALJ found that plaintiff was precluded from heavy industrial driving and climbing ladders, ropes, or scaffolds, but could occasionally stoop, kneel, or crouch. plaintiff could Id. ~understand, Finally, the ALJ determined that remember, and carry out detailed, but not complex tasks and perform simple, routine, repetitive tasks." I d. PAGE 5 - OPINION AND ORDER At step four, the ALJ found that plaintiff could not perform his past relevant work. Tr. 20. At step five, the ALJ found that plaintiff was able to perform other work that exists in significant numbers in the national and local economy, such as a semi-conductor, bonder, dowel inspector, and call out operator. Tr. 20-21. Therefore, the ALJ found that plaintiff is not disabled within the meaning of the Act. DISCUSSION Plaintiff argues that the ALJ erred by: clear and convincing reasons for rejecting (1) failing to give his testimony; improperly discrediting plaintiff's treating physician; and ( 2) ( 3) failing to meet his step five burden of proving that plaintiff retains the ability to perform other work in the national economy. I. Credibility Determination Plaintiff argues that the ALJ failed to provide clear and convincing reasons to discount his testimony regarding his pain and discomfort. When a plaintiff produces objective medical. evidence of an impairment that could reasonably be expected to produce some degree of the symptoms complained of, "the ALJ may reject the claimant's testimony regarding the severity of symptoms only if he makes specific findings stating clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). A general assertion that plaintiff is not credible is insufficient; the ALJ "must state which [subjective symptom] credible and what evidence PAGE 6 - OPINION AND ORDER suggests the testimony is not complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." 748, 750 (9th Cir. 1995) Orteza v. Shalala, (citation omitted). If, 50 F.3d however, the "ALJ's credibility finding is supported by substantial evidence in the record, we may not engage in second-guessing." Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) Plaintiff testified at the hearing chronic pain in his back, neck, legs, also sitting stated he has difficulty Thomas v. (citation omitted). that he Tr. and arms. and suffers 48-56. standing for periods, which precludes his ability to concentrate and focus. 57-58. from He long Tr. Plaintiff testified that he has symptoms of depression including irritation, detachment, and weight gain. Tr. 54. He explained that he sought physical therapy, which was unsuccessful in treating his pain. Tr. 57. Finally, plaintiff testified to difficulties with his part-time college program due to discomfort from sitting for prolonged periods. Tr. 52-53, 57-58. The ALJ found that plaintiff's subjective symptom statements were not fully credible for three reasons. First, the ALJ found plaintiff's statements were inconsistent regarding the chronology of his alleged impairments, his daily activities, and his need to use an assistive device. Tr. that plaintiff left his last alleged disability. Tr. 15. PAGE 7 - OPINION AND ORDER 15-16, 18. job for Second, reasons the ALJ found unrelated to his Third, the ALJ found that plaintiff was not entirely compliant with his prescribed medical treatment. Tr. 16. Notably, the ALJ found that plaintiff was laid off for reasons other than his medical condition. Tr. 15. The record supports the ALJ's conclusion; plaintiff stated that he quit working because "he could no longer do the job" due to his disability, yet the record reflects that Compare Tr. he 262, stopped with Tr. working 589-90. because Where, he was as here, "laid off." a claimant's work history undercuts his assertions, the ALJ may rely on that contradiction to discredit the claimant. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). The ALJ also listed several inconsistencies in the record that belie plaintiff's subjective symptom statements. the ALJ observed, For instance, as plaintiff's injuries were present at the same level of severity prior to the alleged onset date, yet his work persisted relatively unimpeded until he was laid off in May 2007. Tr. 15, 588, 592. Additionally, a variety of post-surgery orders from plaintiff's neurosurgeon released him to sedentary or light exertion work with his allegedly disabling impairments. Tr. 565. Further, See, e.g., the record demonstrates that plaintiff made inconsistent statements regarding his need to use an assisti ve device; in his function report, plaintiff indicated that he needs a cane "all the time," yet plaintiff denied using an assistive device at the hearing. Tr. 57, 293. Moreover, the ALJ found plaintiff's activities of daily living PAGE 8 - OPINION AND ORDER contradicted his subjective symptom testimony. Tr. 15, 18. Inconsistencies in a claimant's testimony, including those between daily activities and the alleged symptoms, can serve as a basis for discrediting said testimony. 680 (9th Cir. 2005); See Burch v. Barnhart, 400 F.3d 676, see also Molina v. 1112-13 (9th Cir. 2012). Astrue, 674 F.3d 1104, The record indicates that plaintiff takes care of his grooming, prepares his meals, grocery shops, cares for his pet cat, and performs home maintenance, vacuum [ ing] , [and] laundry, dusting, raking leaves." Tr. little 287-94. including "cleaning, repairs (leaks) , mowing, Plaintiff also commutes to school four days per week, which entails a 40-minute drive each way and walking to and from his car to classes; Wednesdays he is in class for three hours, plaintiff stated that his pain Mondays and and on Tuesdays and Thursdays he is at school from 9:30am until 2pm. While on Tr. 49-51, 55-58. interferes with his concentration, the evidence of record reveals that he attended at least four terms of college, during which he either carried a fulltime class load or a nearly full-time class load, and delivered an average academic performance. Id. As the ALJ concluded, these rather extensive activities of daily living indicate that plaintiff is capable of performing a limited range of light exertion work. Tr. 14. The ALJ provided a number of clear and convincing reasons, supported by substantial credible. As such, this Court need not discuss all of the reasons PAGE 9 - OPINION AND ORDER evidence, for finding plaintiff not provided by the ALJ since at least one legally sufficient reason exists. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). Thus, the ALJ's credibility finding is affirmed. II. Plaintiff's Treating Physician Plaintiff next argues that the ALJ improperly rejected the opinion of his treating physician, reject the uncontradicted Dr. opinion Jones, M.D. of a treating The ALJ may or examining physician by providing clear and convincing reasons supported by substantial evidence in the record. 821, 830-31 (9th Cir. 1996). See Lester v. Chater, 81 F.3d If contradicted, the ALJ may reject the physician's opinion only with specific and legitimate reasons. Andrews v. Shalala, 53 F. 3d 1035, 1043 (9th Cir. 1995). Here, the ALJ properly found that Dr. Jones's opinion was contradicted by Dr. Weillepp, the independent medical expert, and Dr. Hacker, plaintiff's treating neurosurgeon. 552 (Dr. Hacker). Jones), The with Tr. ALJ's 38-39 rejection Tr. 19; compare Tr. (Dr. Weillepp) of Dr. and Tr. Jones's 565 testimony (Dr. must therefore be supported by specific and legitimate reasons based on substantial evidence in the record. Dr. Jones treated plaintiff November 5, 2004. completed a application. Andrews, 53 F.3d at 1043. on See Tr. 571-95. check-the-box Tr. 552. form a monthly basis beginning On January 20, 2009, Dr. Jones in support of plaintiff's DIB Dr. Jones stated that plaintiff was unable to sustain work due to chronic pain and depression. PAGE 10 - OPINION AND ORDER Id. Dr. Jones attributed plaintiff's disabling condition to a diagnosis of posterior neck and bilateral medial scapula pain, chronic low back pain radiating to plaintiff's knees, and depression. Tr. 551. The ALJ rejected Dr. Jones's opinion in its entirety because it was inconsistent with the other medical opinion evidence and his own chart notes . Tr. 19. An ALJ "need not accept the opinion of . a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings." at 957. Thomas, 278 F.3d Additionally, an ALJ may "permissibly reject . check- off reports that [do] not contain any explanation of the bases of their conclusions." Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); see also Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) ("the regulations give more weight to opinions that are explained than to those that are not"). Here, Dr. Jones's check-off opinion is brief, conclusory, and not accompanied by reference to any objective findings. Tr. 551. The only narrative descriptions are fragmented sentences written in the margins of a questionnaire. Tr. 551-52. found, support Dr. Jones's opinion in of Further, as the ALJ plaintiff's disabled status contradicts his own prior chart notes. Tr. 18, 585, 586-89. For that instance, Dr. Jones repeatedly capable of light duty work. Jones' chart statements; plaintiff, Dr. notes largely Tr. opined 568, reflect 585-89. plaintiff was Moreover, Dr. plaintiff's subjective Jones performed only cursory objective tests on which revealed results within the normal range. PAGE 11 - OPINION AND ORDER Tr. 585-592. Accordingly, Dr. Jones's opinion is inadequately supported by his own chart notes and objective clinical findings. In sum, the ALJ provided specific and legitimate reasons, supported by substantial evidence, Jones. to reject the opinion of Dr. The ALJ's decision is therefore affirmed in this regard. III. Step Five Finding Lastly, plaintiff argues that the testimony provided by the vocational expert in support of his ability to perform "other workn in the national economy was insufficient to meet the Commissioner's burden of proof at step five. argues that his subjective Tr. 60-61. symptom Specifically, plaintiff testimony and Dr. Jones's opinion, if properly credited, support a finding of disability. As discussed above, however, both sources were properly discredited by the ALJ. Because the Court is affirming the ALJ's decision on both of these bases, plaintiff's contingent argument is invalid. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. See 2005). Therefore, the Court finds no error with respect to this issue. CONCLUSION The Commissioner's decision is supported by substantial evidence and based on the proper legal standards, therefore it is AFFIRMED and this case is DISMISSED. PAGE 12 - OPINION AND ORDER IT IS SO ORDERED. Dated this day of October 2013. Ann Aiken United States District Judge PAGE 13 - OPINION AND ORDER
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