Mattson v. Commissioner Social Security Administration, No. 6:2012cv01347 - Document 33 (D. Or. 2013)
Court Description: OPINION and ORDER . The decision of the Commissioner is Affirmed. Signed on 9/24/2013 by Chief Judge Ann L. Aiken. (lg)
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UNITED STATE DISTRICT COURT DISTRICT OF OREGON THOMAS LEE MATTSON, Plaintiff, v. CAROLYN w. COLVIN, Acting Commissioner of Social Security, Defendant. Linda S. Ziskin P.O. Box 753833 Lake Oswego, OR 97035 Attorney for plaintiff S. Amanda Marshall United States Attorney District of Oregon Adrian L. Brown Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204-2902 Lars J. Nelson Special Assistant U.S. Attorney Social Security Administration 701 Fifth Ave., Ste. 2900 M/S 221A Seattle, WA 98104-7075 Attorneys for defendants 1 - OPINION AND ORDER Case No 6:12-cv-1347-AA OPINION AND ORDER Aiken, Chief Judge: This final action decision is of brought the to obtain Commissioner judicial of Social review Security plaintiff's claim for Disability Income Benefits Social Security reasons Act (the below, explained Act). 42 the U.S.C. of (DIB) the denying under the For the decision is plaintiff protectively filed for OBI § 405(g). Commissioner's affirmed. BACKGROUND On December 13, benefits, alleging Plaintiff was "date last disability 2006, disability insured insured" on for DIB ( DLI) , or as before of July through and that he 1, 2000. Tr. 282. 31, 2005, his December was date. required Tr. to 283. establish Plaintiff's application was denied initially and again upon reconsideration, and a hearing was held before an administrative law judge On March 21, 2008, the ALJ found the Act. Tr. 34 8-56. plaintiff not disabled under Plaintiff timely appealed the decision to the Appeals Council, (ALJ). unfavorable which denied review. Tr. 1-3. Plaintiff then sought judicial review. Pursuant to stipulation of the parties, the this Court reversed ALJ' s case proceedings. the 2 ALJ decision Tr. should 3 60. and remanded Specifically, reassess - OPINION AND ORDER the the for further the parties stipulated that opinions of physicians Douglas D. Bailey, M.D., and Richard L. Mentzer, M.D., and the statement of lay witness reassess Evelyn L. Mattson. plaintiff's The ALJ also and credibility was directed to functional residual capacity (RFC). The Appeals Council further instructions. ALJ to consider opinions Tr. 362. treating, "explain and remanded the to the ALJ, with The Appeals Council directed the examining, the case weight and non-examining given source opinion such to evidence"; consider lay witness statements; consider plaintiff's maximum RFC references RFC; and effect and to provide evidence obtain of "appropriate of record vocational the in expert rationale support testimony limitations assessed with of the "to on specific assessed" clarify the claimant's the occupational base." Tr. 365. Upon remand, a second ALJ held an administrative hearing on March 22, vocational 2012, at expert which plaintiff, testified. Tr. a medical 2 96-34 4. During plaintiff amended his onset date from July 1, 2003. Tr. 282. On April 26, 2012, the expert, ALJ the and a hearing, 2000 to June 16, issued a decision finding plaintiff not disabled under the Act. Tr. 279-291. Relying expert and on the the testimony opinion of a of plaintiff non-:-examining and the physician, medical the ALJ found that plaintiff had the RFC to perform light work; he could 3 - OPINION AND ORDER lift and carry twenty pounds occasionally and ten pounds frequently, with no limitations on his ability to stand, or sit. 286. Tr. shoulder The ALJ also found that due to back, pain, plaintiff stooping, and crouching occasional overhead directions. Lastly, was and reaching limited could and to occasional perform frequent the ALJ found that no walk, knee and bending, more than in other reaching plaintiff should avoid concentrated exposure to vibration. Tr. 286. Relying on the testimony of the vocational expert, the ALJ found that plaintiff could not perform his past relevant work, tr. but 290, that electronics worker, filler. 291, Tr. plaintiff other work rental clerk, as an and basket The ALJ therefore found plaintiff not 338-40. disabled under the Act. perform facility storage could This decision became the final decision of the Commissioner. Plaintiff again seeks judicial review. DISCUSSION Plaintiff argues that the ALJ failed to follow the Appeals Council's opinion instructions of three on remand physicians and Plaintiff also disputes the ALJ' s that he should be found Medical-Vocational Guidelines. Ill 4 - OPINION AND ORDER and improperly lay rejected witness the statements. RFC assessment and maintains presumptively disabled under the A. Review of Medical Evidence on Remand In the 2008 unfavorable decision, the first ALJ found in relevant part that plaintiff could "sit for one hour at a time, for a total of three hours, stand for one hour at time, for a total of two hours and walk for one hour at a time or one mile at a time workday. the for Tr. medical reports a 351. total The reports (though not weight." Tr. opinions of Drs. of first of Drs. their 353-54. On four hours" during ALJ based this Mentzer opinions remand, and of the Bailey and Mentzer. an finding Bailey, eight-hour in part giving disability) those "controlling second ALJ discounted Tr. 28 9. on Instead, the the ALJ assessed plaintiff's RFC based on the opinions of the testifying medical expert Dourgarian, Arthur M.D, Lorber, M.D., examining and non-examining physicians. physician Amy 234-42, 243- Tr. 50, 256, 288-90. Plaintiff remanded the plaintiff's for one argues case for that during the ALJ' s the consideration asserted need hour that argues a to change normal failure Appeals of the medical positions eight-hour to Council identify and record to workday. and asserted limitation constitutes reversible error. expressly lie and down Plaintiff consider this I disagree. Plaintiff is correct that the ALJ found that "[t]here is no indication the claimant was assessed as needing to lie down for 5 - OPINION AND ORDER one hour in an eight-hour day, as indicated in the Appeals Council's order on remand." Tr. 289. As noted by plaintiff, Drs. Bailey and Mentzer indicated that plaintiff "Must Lie Down" for one hour during an eight-hour workday. Tr. unlike the first ALJ decision in 2 0 0 8, the second ALJ did not rely on Drs. 275, 278. However, Bailey and Mentzer and instead assigned weight to the reports and opinions of Drs. non-examining physicians. Tr. Lorber and Dourgarian and the 288-90. None of these opinions suggest that plaintiff must change positions or lie down for one hour. 1 Tr. 234-42, 243-56, 317. Therefore, if the ALJ provided legally sufficient to reject the opinions of Drs. Bailey and Mentzer, reasons the ALJ did not error in failing to indicate whether plaintiff would need to change positions or lie down for one hour each workday. 1 Upon review of the medical evidence and plaintiff's testimony, Dr. Lorber opined that plaintiff could lift twenty pounds occasionally and ten pounds frequently, with occasional bending, stooping, crouching, and kneeling. Dr. Lorber found that plaintiff had no limitations in his ability to stand, walk, or sit, and that plaintiff could reach overhead only occasionally and in other directions frequently. Dr. Lorber also found that plaintiff should avoid exposure to concentrated vibration and would require no other exertional, environmental, manipulative, or positional limitations. Tr. 317. Dr. Dourgarian opined that plaintiff is not limited in his ability to stand, walk, and sit, and that he could lift and carry sixty pounds occasionally and twenty pounds frequently. She also assessed plaintiff with bending, stooping and overhead reaching limitations. Tr. 238. The opinions of the non-examining physicians were consistent with Dr. Lorber's. Tr. 243-56. 6 - OPINION AND ORDER Where a treating or examining physician's opinion is uncontradicted, the ALJ must provide "clear and convincing" reasons to reject the physician's opinion, supported by evidence in the record. See Holohan v. Massanari, 1202 (9th opinion Cir. is legitimate 2001) . If contradicted, reasons" a the Importantly, physician cannot by he " [t] or 246 F.3d 1195, examining must provide substantial opinion physician's nspecific evidence. of and Id. at nonexamining a by itself constitute substantial evidence that justifies the rejection of physician or 821, (9th Cir. 831 ALJ supported 1202-03. a treating substantial the opinion of either treating physician." Lester v. 1995) . Rather, opinions an examining Chater, of 81 F. 3d non-examining physicians may nserve as substantial evidence when the opinions are consistent with independent clinical evidence in the record." Thomas v. (9th Cir. provided 2002). valid For the reasons reasons for findings Barnhart, set the other 278 F.3d 947, forth discounting or below, 957 the opinions ALJ of Drs. stating that Mentzer and Bailey. Dr. Mentzer plaintiff 258, 261. stating higher 7 was provided disabled Similarly, that level plaintiff of two from Dr. employment" opinions performing Bailey ncan - OPINION AND ORDER letter no provided longer and nphysical do nwould an opinion even be labor." the able Tr. letter medium or to have a sedentary job." Tr. opinion of Dr. claimant's reports the The ALJ found that "[i]n light of the Lorber and the record as a whole, is given to Dr. indicate 274. regarding his including the ongoing activities, no weight Mentzer's opinion to the extent his statements claimant from physical labor is for completely gainful and permanently employment." Tr. 2 8 9. disabled The ALJ further found that Dr. Bailey's opinion "is simply not supported by Dr. Mentzer's chart notes describing the claimant's range of motion of actual physical provided his valid knees, and is activities." reasons for contradicted Tr. 289. I discounting by find the the claimant's that the opinions of ALJ Drs. Mentzer and Bailey. At the administrative hearing, plaintiff testified that he maintains his family's ranch by mowing lawns and mending fences, hauling rocks and grading the road with his tractor, and using a chainsaw to cut firewood; it with his tractor. Tr. he splits the wood by hand, 287, and hauls 310-13. As noted by the ALJ, such activities are reflected in the medical evidence of record. Tr. 287-88. In "is working doing August 2001, farm Dr. labor Bailey now," and noted in that plaintiff September 2006, Dr. Mentzer reported that plaintiff is "actually better if he stays active and continue[s] working around his farm." Tr. 263. On February 27, 2007, 8 - OPINION AND ORDER Dr. Dourgarian similarly 160, reported that plaintiff "lives on a farm and does all of his own work on the farm. He states that he is able to stay busy, what he prefers to do. He states that he cannot sit still, therefore, has to stay busy, helps pain the most." his also reported to Dr. weeks, and that is and this is what seems to be what Tr. 235. In August 2 005, question, inconsistent with plaintiff Mentzer that he was "on the road for two driving his family to Tennessee and back." Tr. Without and plaintiff's the admitted disability opinions of 287. activities daily 265, are Drs. Mentzer and Bailey and provide a legally sufficient reason to discount their opinions. See Morgan v. 595, (9th Cir. 602 Cornrn'r 1999) of Soc. Sec. Admin., (noting that physician's 169 F.3d opinion was inconsistent with claimant's ability "to work independently and be self-motivated by maintaining a one-acre garden and assisting with the restoration of an old house") The ALJ also by his supported inconsistent found that evidence with Dr. found own his chart "Dr. opinion In their Mentzer's notes, assessment." Bailey's of record. that which Tr. findings likewise ALJ with the shoulder, and foot pain interfered with his physical functioning. 274. 9 - OPINION AND ORDER However, as found by the ALJ, medical Mentzer and Bailey essentially opined that plaintiff's chronic back, 261, not The 28 9. Drs. is reflect conflicted letters, opinion Dr. knee Tr. 258, Mentzer's notes reflected only "minimal tenderness" in plaintiff's low back and "[f]airly good range of motion" in his shoulders; the notes also indicated that plaintiff was limitation." Tr. 1211, 1216 opinion 259, (9th Cir. where contradicted the 287-88; 2005) doctor's notes and Mentzer noted only diffuse tenderness motion any in both Mentzer with shoulders" noted plaintiff's stays active, 2 63. difficulty significant Barnhart, and recorded In December back pain 2005, in plaintiff back, ambulation," "both observations and knees." "is "good Tr. 2 63, "[n] o range 2 8 8. actually better among medical evidence in the of Dr. if record valid reasons to discount a medical opinion. Morgan, an Dr. he and sitting around is the worst thing for it." Tr. Inconsistencies 602-03 427 F.3d (affirming the rejection of a medical opinion). of without see Bayliss v. doctor's sign the "walking well (an ALJ may look to medical inconsistency between medical record for opinions are 169 F.3d at inconsistencies; is justification contention, the for rejecting one of them). Finally, not fully contrary reject the to plaintiff's opinions of Drs. ALJ did Bailey and Mentzer. The ALJ's RFC assessment reflects their opinions that plaintiff can lift 278, 20 pounds 286. The occasionally and 10 pounds ALJ plaintiff's ability to 10 also included their frequently. opinions Tr. 275, regarding reach and bend by limiting plaintiff to - OPINION AND ORDER only occasional bending and overhead reaching. Id. The ALJ simply rejected their opinions that plaintiff could not perform physical activity and was limited to sedentary work. In sum, reasons to the ALJ discredit provided the specific, opinions of clear Drs. and convincing Bailey and Mentzer, and those reasons are entitled to deference. B. Lay Witness Testimony Plaintiff also argues that the ALJ did not consider the lay witness statements argues that Mattson's the of Ms. ALJ statements Mattson, failed that to are plaintiff's wife. credit the supportive Plaintiff portions of of Ms. disability and provided vague reasons for discounting her statements. I find no error. The ALJ description summarized of Ms. plaintiff's Mattson's activities reports, and including reports her her that plaintiff does not need assistance with grooming or reminders to take medication or attend to personal care; "watches the play" only "when his back is not bothering him badly"; moody due to pain; and activities that affect[] 112-19, 285. finding "her generally 11 The does not involve [d) in becomes physical his back and shoulders and knees." Tr. ALJ accepted Ms. description consistent "get kids with - OPIN.ION AND ORDER of the Mattson's plaintiff's [assessed] opinion daily in part, activities residual is functional capacity," physical while rejecting that plaintiff's significantly limited as capabilities are her statement contrary to the evidence of record. Tr. 289. An ALJ may discount germane to reasons each lay witness witness. statements Molina v. by providing Astrue, 674 f.3d 1104, 1111 (9th Cir. 2012). Here, the ALJ did so. For example, standing, However, maintains Ms. walking, as his Mattson stated that plaintiff had trouble climbing noted by the family's stairs, ALJ, ranching and sitting. Tr. plaintiff testified by lawns mowing 117. that and he mending fences; hauls rocks and grades the road with his tractor; uses a chainsaw to cut firewood, with his tractor. Tr. splits the wood by hand, 287, 310-13. The ALJ and hauls it also plaintiff drove his family to Tennessee and back. An inconsistency witness's between statements reason to discredit is a a a claimant's specific, lay witness. noted 265, 287. Tr. activities germane, that and and See Carmickle v. a lay sufficient Comm' r of Soc. Sec., 533 F.3d 1155, 1163-1164 (9th Cir. 2008). Ms. squatting, Mattson bending, also reported kneeling, that and reaching. the ALJ recognized such .limitations limited 12 plaintiff to - OPINION AND ORDER occasional plaintiff in the Tr. had 117. trouble However, RFC assessment bending, stooping, and and crouching, and no more than occasional overhead reaching and frequent reaching in all other directions. Tr. 286. In sum, reasons to I find that the ALJ provided specific and germane discount the lay witness statements of Ms. Mattson regarding the severity of plaintiff's limitations. C. RFC Assessment In assessing plaintiff's RFC, the ALJ stated that plaintiff nhad no limitations on his abilities to stay and, block, or sit" Tr. 286. Plaintiff concedes that the ALJ likely meant nstand and walk or sit" but argues that he is entitled to a nproperly written decision with accurate findings." Pl.'s Opening Brief at 20. I agree with the Commissioner that the record clearly reflects that plaintiff's ability to nstand, walk, and sit" were the only relevant factors identified in the ALJ' s hypothetical to the vocational expert. Tr. 286, 339. Further, the ALJ adopted the findings of Dr. Lorber, plaintiff's ability to stand, I do not find that the who imposed no walk, or sit. Tr. ALJ's typographical limitations on 317. Therefore, error warrants reversal. D. The Medical-Vocational Guidelines Finally, plaintiff plaintiff disabled argues under the that the ALJ should have Medical-Vocational commonly known as nthe grids." See 20 C.F.R. pt. 13 - OPINION AND ORDER found Guidelines, 404, subpt. P, app. 2. The grids experience, initial and finding Tommasetti v. correlate residual of 533 (quoting Lounsburry v. 2006)). have Plaintiff found disabled Barnhart, even plaintiff or not that, 1043 at of education, n.4 an Id. ; see 1114-15 the work direct (9th Cir. minimum, his to disabled. 468 F.3d 111, plaintiff disabled as 2003, age, capacity F.3d 1035, maintains June 16, if claimant's functional either Astrue, a 2008) (9th Cir. ALJ amended onset should date of because the grids direct a finding of "disabled" is able to perform light work. However, plaintiff is mistaken. Plaintiff was required DLI on December 31, thus, old, as of 2005. December 31, as noted by the ALJ. to establish disability as of Plaintiff was born on June 16, 1953; 2005, years Tr. plaintiff 290, 321. was fifty-two Further, plaintiff has more than a high school education and can speak in English. 322. Therefore, as of December 31, 2005, approaching advanced age" and was in light of his education. §§ 202.13-.15 approaching "not (person advanced disabled," Accordingly, the is and regardless ALJ did not disabled pursuant to the grids. 14 - OPINION AND ORDER pt. limited with of a 404, to high subpt. light school transferability error by Tr. plaintiff was "closely not disabled under the 20 C.F.R. who age, his finding P, work, grids app. closely education of 2 is skills) . plaintiff not CONCLUSION For the reasons explained above, the ALJ's determination is supported by substantial evidence.in the record. Accordingly, the decision of the Commissioner is AFFIRMED. IT IS SO ORDERED. Dated this ~+ day of September, 2013. Ann Aiken United States District Judge 15 - OPINION AND ORDER
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