Wilborn v. Commissioner Social Security Administration, No. 3:2014cv00245 - Document 24 (D. Or. 2015)
Court Description: OPINION AND ORDER. The Commissioner's decision is AFFIRMED. See formal OPINION AND ORDER. Signed on 5/18/2015 by Chief Judge Ann L. Aiken. (rh)
Download PDF
<![CDATA[
Wilborn v. Commissioner Social Security Administration Doc. 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON CHRISTINA J. WILBORN, Case No. 3:14-cv-00245-AA Plaintiff, OPINION AND ORDER v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. Alan R. Unkeles 3000 N.W. Stucki Place, No. 230 Hillsboro, OR 97124 Attorney for plaintiff S. Amanda Marshall United States Attorney Ronald K. Silver Assistant United States Attorney 1000 S.W. Third Ave., Suite 600 Portland, OR 97201 Thomas M. Elsberry 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 Security Act decision of denying and brings (Act) the her this to action obtain Commissioner application disability for insurance of pursuant judicial Social review (DIB) the of Security supplemental benefits to the final (Commissioner) security under Social income the (SSI) Act. The Commissioner's decision is affirmed and this case is dismissed. DISCUSSION Plaintiff argues consider that her that the ALJ impairments met erred the by: 1) failing listing for inflammatory arthritis at step three of the evaluation process; 2) provide his substantial Functional evidence Capacity (RFC) finding; testimony regarding her past resolve Occupational Titles characterization of (DOT) her 3) of failing to failing to Residual consider her relevant work and also failing inconsistencies the support in to between and past the Dictionary the vocational relevant work; accept the opinion of her treating physician. to and of (VE) expert's 4) failing to Pl.'s Br. 19. The Court must affirm the Commissioner's decision if it is based on proper by substantial F.2d 498, than a 501 mere legal standards evidence (9th Cir. scintilla. 2 - OPINION AND ORDER in the and the record. 1989). It means findings Hammock v. Substantial such are supported Bowen, evidence relevant is evidence 879 "more as a mind reasonable might accept Richardson v. conclusion." ( citation and internal that supports conclusions." quotations and 402 to U.S. support 389, In omitted) . 401 a (1971) reviewing the this Court must weigh "both the detracts Martinez v. Heckler, Variable 198 6) . adequate Perales, Commissioner's alleged errors, evidence as from the [Commissioner's] 807 F.2d 771, of interpretations 772 the (9th Cir. evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). I. Consideration of Plaintiff's Impairments at Step Three Plaintiff failing argues that consider to the erred she whether ALJ at met step listing three by 14.09 for inflammatory arthritis from December 2009 through December 2011. Plaintiff makes two assertions in support of her argument. First, plaintiff argues that she suffers from inflammatory bowel disease (Crohn' s peripheral disease) joints may and "inflammatory arthritis involving be associated inflammatory bowel disease." Second, for that she meets Specifically, 14.09. disorders such as Pl.'s Br. 11-12. plaintiff argues Listing with the plaintiff two criteria argues that treatment notes following a surgery she had on her right thigh in December Listing 2009 14. 0 9, show which 3 - OPINION AND ORDER that is a she meets "deformity the of a first criteria peripheral of weight bearing joint." P1. ' s Br. 11. Moreover, plaintiff argues that she meets the second criteria of listing 14.09 because "physical therapy notes effectively 2011." show until that [she] discharge was not from physical able to therapy ambulate in December Id. Step three requires the ALJ to consider the severity of the claimant's impairment listed in C.F.R. Part specific Appendix severe comparing of I the Subpt. impairments "considered gainful 404, by of activity." P, 20 to impairment Regulations App. each enough the I. major C.F.R. The body prevent (the a those listings). listings system, person 20 describe which are doing from 404.1525 (a), §§ to any 416.925 (a). Because the listings are "designed to operate as a presumption of disability that makes further inquiry unnecessary Secretary explicitly has listed impairments at statutory standard." ( 1990) . Specifically, work experience, a higher "the of v. of Zelby, regardless of severity 493 define [her] U.S. impairments Id. 4 - OPINION AND ORDER Id. are that the 521, 531, impairments that age, education, from performing any gainful activity, these result in death." level listings substantial gainful activity." Most the set the medical criteria defining the Sullivan would prevent an adult, . or not just (internal citation omitted). "permanent or expected to "For all others, the evidence must show that the impairment has lasted or is expected continuous period of at least 12 months." For listing, Zelby, of claimant it must 493 U.S. those See a show meet the matter Security Ruling must bearing cause an inability to her of the very joints; how (SSR) seriously initiate, and inability ability to sustain, a medical severely, ( 2) (1) to the criteria. the not suffer from persistent or more peripheral an deformity ability or complete activities. Id. extreme impairment individual's or effectively. "means an qualify. found disabled inflammation ambulate such as does To be 83-19. effectively walk, with a matches impairment specified a claimant must ambulate for Id. inflammation or persistent deformity of one weight last An impairment that manifests only some no under Listing 14.09, that all at 531. criteria, Social to to limitation that to 20 The interferes independently pt . C . F. R. 4 0 4, s ubpt . 1 § 14 . 0 0 (C) ( 6) . Here, was in the record remission reveals during Specifically, in Dr. Lietzke, Jennifer January that of 2012, M.D., plaintiff's the relevant plaintiff's wrote Crohn' s that 1013. physician, Thus, plaintiff's 5 - OPINION AND ORDER according Crohn' s to period. physician, plaintiff's two plaintiff's disease was time treating disease was previously very active until about Tr. disease no "Crohn's years own longer ago." treating active in January 2010. Moreover, the record reveals that the ALJ also considered plaintiff's Crohn's disease, but similarly found that it was "in remission." reveals evidence remission, or January 2010, failing to Tr. that at "no Court consider Consequently, plaintiff's least this 20. longer finds whether Crohn's very that disease active," the plaintiff because ALJ met the was in beginning did not Listing err 14.09 in by for inflammatory arthritis from December 2009 through December 2011 because her Crohn's disease. I also reject plaintiff's second argument the two criteria for listing 14.09. that she meets Specifically, the treatment notes from December 2009 that plaintiff relies on in support of her argument that she meets the first criteria of listing 14.09, fail to weight demonstrate bearing effectively Critically, that joint for a or she has that continuous a she period deformity was of of a unable at peripheral to least ambulate 12 months. the treatment notes plaintiff relies on reveal that she was diagnosed with a "soft tissue infection" in her leg and not a deformity of a peripheral weight bearing joint. Moreover, surgery on hospital, tissue the same treatment plaintiff's leg, notes and Dr. Lyle Bruce Ham, M.D., infection was 6 - OPINION AND ORDER "improved," reveal upon that Tr; following discharge from 680. the the opined that plaintiff's soft that "physical therapy had worked with her to ambulate," and that plaintiff's only physical restrictions were from lifting heavy objects weighing over ten pounds for six weeks. In addition plaintiff's Tr. 680-681. to Dr. assertion inflammatory Ham's that arthritis, findings that she was relevant time she several period. medical report of able meets example, without difficulty." Tr. 846. 2010, Dr. Michael J. Munly, able to ambulate and doctors January Watters, 8, M.D., M.D., demonstrated because reveals progression Koval, M.D., "[plaintiff] is ambulating without difficulty." Consequently, 2010, the that observed that plaintiff "was George Dr. similar Three months later, on April 25, On 2010, for lot and climbing stairs and mobility tasks." 15, 14.09 made independence with most ADLs October contradicts effectively during the on "walking a that listing other Jennifer M. plaintiff told her she was above to ambulate For Dr. finding the record reveals toward Tr. 757-58. opined that Tr. 884. that plaintiff suffered from a soft tissue infection rather than a deformity of a peripheral weight bearing joint, that she was able and multiple doctors opined to ambulate effectively during the relevant time period, this Court finds that plaintiff failed to proffer a plausible theory remission for as most to of 7 - OPINION AND ORDER how the her Crohn's relevant time disease that period, or was her in soft tissue infection in her leg meet the criteria of Listing 14.09 Accordingly, for inflammatory arthritis. this Court finds that the ALJ did not err at step three. II. Evidence to Support the RFC argues Plaintiff and, substantial that the therefore, Br. plaintiff can perform light work, sit stand or intervals for alternately five Tr. remain on task." the to reader at 12. but The she thirty ten minutes, 22. RFC forty-five during which reasonably states time Plaintiff also argues that minute she can plaintiff argues that grasp the meaning 'thirty to forty-five minutes for five to ten minutes, ' finding is unintelligible." is be allowed to to Specifically, cannot finding RFC cannot reasonably be a base for Pl.'s evidence." ALJ' s of the RFC Pl.'s Reply Br. 4. that although meaning [of the is clear if the reader refers to her testimony that her leg RFC] goes numb if she stands or sits for five to ten minutes, the agency left [this] out of its decision at the administrative level" and was required to draft its decisions without the help of a reviewing court. Pl.'s Reply Br. 3. Plaintiff further argues that "although plausible, the Commissioner asks the Court to add meaning and reason that the and a reviewing court 8 - OPINION AND ORDER is [ALJ's] constrained decision leaves out" affirming the decision of an agency on a ground that the agency did not invoke in making its decision." The RFC is the See limitations. determining the RFC, by all severe, of a and evidence," Id. at 2-3. maximum 20 a C.F.R. claimant can do 404.1545, §§ despite her In 416.945. the ALJ must consider limitations imposed claimant's impairments, evaluate "all including of the the even relevant claimant's a v a i 1 ab 1 e at 19 9 6 WL 3 7 418 4 . those that medical testimony. are and SSR not other 96-8p, A reviewing court is constrained from affirming the decision of an agency on a ground that the agency did Massanari, not invoke 249 F.3d 840, susceptible to more in making 847 than its (9th Cir. one decision. 2001). rational decision of the ALJ must be upheld." Pinto v. "If evidence is interpretation, Lewis v. Astrue, the 498 F.3d 909, 911 (9th Cir. 2007). Here, the Court finds plaintiff's above argument flawed for two First, reasons. plaintiff's argument that the ALJ's statement "thirty to forty-five minutes for five to ten minutes" in the RFC is unintelligible misquotes the RFC. Critically, plaintiff's citation of the RFC omits the words "alternately at" and "intervals." When the words plaintiff omitted from the RFC are added back in, and the RFC is read as the ALJ wrote it, that plaintiff must be allowed to sit or stand alternately at thirty 9 - OPINION AND ORDER to forty-five minute intervals for five to ten minutes, it becomes clear that plaintiff is limited to light duty work and that every thirty to forty-five minutes, she must be allowed to alternate between the sitting and standing positions for five to ten minutes. Second, the record reveals that the ALJ considered plaintiff's testimony about her leg pain when he formulated the RFC. during his examination of the evidence used to develop the RFC, the ALJ noted that "[plaintiff's] right leg hurts and becomes numb all the time, whether she sits or stands, [however,] the numbness is relieved temporarily by stretching or massaging." testimony 2012, is] Tr. during 24. the This language administrative mirror's hearing November 30, when she told the ALJ that her leg "goes numb when [she sitting down for a long period of time or standing up," but by standing up and stretching for "maybe five she can relieve the numbness. Consequently, as ALJ the regarding her when [or] ten minutes" Tr. 4 7. in addition to the RFC being clear when read the ALJ wrote it, statements the on plaintiff's formulating record also reveals leg pain were the RFC. that plaintiff's properly considered by Accordingly, plaintiff's argument, which is contingent upon a finding of harmful error in regard to the aforementioned issues, 10 - OPINION AND ORDER is without merit. Bayliss v. Barnhart, 427 Danielson v. F.3d 1211, Astrue, 539 1217-18 F.3d (9th 1169, Cir. 1175-76 2005); (9th Stubbs- Cir. 2008). Thus, the ALJ's RFC is upheld. III. ALJ's Consideration of Plaintiff's Past Relevant Work Plaintiff argues that the ALJ erred at step four by finding that she could return to her past relevant work as an employment Pl.'s specialist. Br. 13. Plaintiff the relevant ALJ work without bears the testimony does ignoring comment her and specific testimony instead about relied her the on past VE' s Second, plaintiff asserts that "no entry in the Id. testimony. DOT erred by two First, plaintiff asserts assertions in support of her argument. that makes title not employment state for training the specialist" record the and VE task elements of Pl.'s Br. 14. that occupation. AVE's testimony can be useful, but is not required at step four. "The Matthews v. [VE] merely Shalala, has to continue his or her past 845. claimant "The is 10 F.3d 678, find that relevant the a 681 claimant work." primary (9th Cir. can Pinto, source or 249 of 2001). cannot F. 3d at vocational documentation and statements by the claimant regarding past work are generally sufficient 11 - OPINION AND ORDER for determining the skill level, exertional demands, and nonexertional demands of such work." SSR 82-92, available at 1982 WL 31386. Here, record the plaintiff's reveals testimony Specifically, the that the her past regarding transcript of the ALJ considered relevant administrative work. hearing on November 30, 2012 reveals that the ALJ asked plaintiff about her past work at Portland Community College (PCC) provided the ALJ with details encompassed in terms of the same hearing, "appear [ed] "everything that [her] duties." Tr. 57. that Then, job later in the ALJ asked the VE to describe plaintiff's previously described work at it about and that plaintiff as though PCC in "vocational terms" because [she] has past the ALJ's relevant experience." Tr. 65. The VE responded plaintiff's job at to PCC could be request classified by as stating an that employment training specialist with a light exertional level and an SVP of 6. TR. 65-66. plaintiff's performed economy." readily could Critically, limitations it or Tr. as to generally job "either as performed in the she national When asked by the ALJ if there were "any transferrable transfer could perform this it's 67. the VE opined that a person with skills sedentary 12 - OPINION AND ORDER from a without position like significant that that vocational adjustment," the VE stated that the skills from that occupation transfer to a job development specialist, job with an SVP of 5. Consequently, perform the TR. 66. because duties which is a sedentary of the her VE opined previous that job at plaintiff PCC as could. plaintiff described them during the hearing, and because the VE noted that plaintiff's skills could development specialist, transfer an to occupation the occupation title of plaintiff a job did not challenge as missing from the DOT, and because a job development specialist has an SVP that is lower than the job the VE opined plaintiff could actually perform, this Court finds it immaterial that no entry in the specialist. DOT bears the title employment training Consequently, this Court finds that the ALJ did not err at step four by finding that plaintiff could return to her past relevant work. Moreover, four, the exists ALJ also in the national TR. 28-30, the assuming VE's 67-69. the established economy that at the step that ALJ five plaintiff erred step other that at work could perform. Specifically, after consideration of the RFC, testimony, experience, arguendo and ALJ plaintiff's found duties of an office helper, 13 - OPINION AND ORDER that age, plaintiff education, could and work perform the storage facility rental clerk, and counter clerk. plaintiff not 29. Tr. disabled As such, at step five, because any the error at ALJ found step four would be harmless. 1 IV. Weight Given to Plaintiff's Doctor's Opinion Plaintiff argues that the Commissioner failed to give clear and convincing reasons to reject the opinion of Dr. Lietzke, treating physician. argues that Pl.'s Reply Br. 5. her Specifically, plaintiff inconsistencies with other medical evidence do not provide a reasonable basis to give little weight to the opinion her treating doctor. Pl.'s Br. 16. Moreover, plaintiff that the ALJ removed her activities of daily living argues (ADL) from context when discrediting the opinion of her treating doctor and "nothing logical or reasonable make [ s] [the] with treating physician's disabled and not able to work." In January 2010, not engage other 1 than Dr. opinion facts that inconsistent plaintiff is Pl.'s Reply Br. 7-8. Lietzke opined that in any manual labor, as needed essential for these including plaintiff standing daily tasks and or should walking should not Plaintiff makes a cursory assertion of error at step five in her conclusion and premises her argument on a presupposition that the ALJ erred by rejecting the opinion of her treating physician. Pl.'s Br. 19. However, as the following section reveals, the ALJ did not err by rejecting the opinion of plaintiff's treating physician. 14 - OPINION AND ORDER work or do volunteer work due to the risk of falls and injuries. Tr. 27, On 1077. January 23, 2012, plaintiff was unable to work for Dr. Lietzke opined that the past several years. Tr. 27, 1013. The ALJ evaluated Dr. was not entitled inconsistent to Lietzke's "inconsistent with her weight controlling "robust" plaintiff's with opinion and held that own treatment notes walking fifteen to twenty minutes daily." There security are three those cases: examining doctors. 1995) . types of from Lester v. Chater, it and ADL's showing was was [plaintiff] Tr. 27-28. medical treating, because it opinions in and examining, 81 F.3d 821, social 830 non- (9th Cir. The medical opinion of a claimant's treating physician is entitled to "special weight" because she "is employed to cure and has a greater opportunity to know and observe the patient as an individual." 1989) (citation reserved for 416.927(e) (1) Rodriguez v. Bowen, 876 F.2d 759, 761 omitted). the Commissioner. capable of any work, Massanari, 20 opinions, C.F.R. §§ however, are 404.1527(e) (1); Physicians may, however, provide opinions on the ultimate issue of disability, v. Disability (9th Cir. for example, whether a claimant is given the claimant's limitations. 246 F.3d 1195, 15 - OPINION AND ORDER 1202 (9th Cir. 2001). Holohan The ALJ is not bound by disability, the uncontroverted 725 for doing so. (9th Cir. disability, specific of physicians on but cannot reject them without presenting clear and convincing reasons 715, opinions even and 1998) if Chater, A treating physician's controverted, legitimate evidence in the record. non-treating Reddick v. can reasons Id. be by F. 3d opinion on rejected supported 157 only with substantial Although the contrary opinion of a medical expert does specific, legitimate reason for examining physician's opinion, not alone rejecting it may constitute a treating or a constitute substantial evidence when it is consistent with other independent evidence in the record. Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989) . Additionally, while an ALJ cannot reject the severity of subjective complaints solely on the lack of objective evidence, the ALJ may nonetheless look See Mo v. inconsistencies. F.3d 595, treating 599-600 doctor's (9th Cir. opinion to the medical Comm'r of Soc. 1999). and her for Sec. Admin., Discrepancies clinical record notes 169 between and a other observations and opinions regarding the claimant's capabilities provide a clear and convincing doctor's opinion. reason for Bayliss, 427 F.3d at 1216. 16 - OPINION AND ORDER not relying on the Here, the record disability was contradicted Tr. consultants. reveals by opinion Specifically, the was Dr. the opinions of the opinion state of agency specific and The record also reveals that Dr. inconsistent ALJ Lietzke's Consequently, 100-19. legitimate standard applies. Lietzke's that found that with plaintiff's plaintiff's ADL's ADL's. included "caring for her minor children, driving them to school and back, attending school functions/sporting events, walking a dog, cooking, cleaning, using a computer, and going to the store with friends." Tr. discrepancies 27, between Dr. notes weeks prior Lietzke's regarding plaintiff's to the plaintiff should not Moreover, 321-25. the opinion capabilities. issuance of Dr. stand or walk, record and clinical Specifically, Lietzke's her her reveals three opinion treatment notes that state that plaintiff was walking fifteen to twenty minutes daily. Tr. 1079. Consequently, because Dr. Lietzke's opinion of disability was contradicted and the ALJ pointed to specific and legitimate examples of plaintiff's Dr. Lietzke's ADL' s, as well her own treatment notes, discredited Dr. as being specific inconsistent inconsistencies with within this Court finds that the ALJ properly Lietzke's 17 - OPINION AND ORDER opinion opinion by providing specific and legitimate record. reasons supported by substantial evidence in As such, the ALJ's credibility finding is affirmed. CONCLUSION For the foregoing reasons, the Commissioner's decision is AFFIRMED. IT IS SO ORDERED. DATED this Jgf;t; of May 2015. Ann Aiken United States District Judge 18 - OPINION AND ORDER the
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
