Desantis v. Commissioner Social Security Administration, No. 6:2013cv01408 - Document 15 (D. Or. 2014)
Court Description: OPINION AND ORDER. Signed on 09/05/2014 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRIC'l' OF OREGON CARMA L. DESANTIS, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. ROBYN M. REBERS P.O. Box 3530 Wilsonville, Oregon 97070 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 JOHN C. LAMONT Social Security Administration Office of the General Counsel 7~1 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER 6:13-cv-01408-MA OPINION AND ORDER MARSH, Judge Plaintiff, Carma L. Desantis, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her application for supplemental security income (SSI) disability benefits under Title XVI of the Act. §§ See 42 U.S.C. 401-434, jurisdiction pursuant to 42 U.S.C. forth below, 1381-1383f. § 405(g). This Court has For the reasons set I affirm the final decision of the Commissioner. PROCEDURAL BACKGROUND Plaintiff protectively filed the instant application for SS! on December 8, 2009, alleging disability due to fibromyalgia, irritable bowel syndrome (IBS), bronchitis, acid reflux, and "sleep problems.n Tr. 167. upon reconsideration. Plaintiff's claim was denied initially and An Administrative Law Judge (ALJ) presided over a hearing on February 22, 2012, at which Plaintiff testified and was represented by counsel. Tr. 25-57. On February 29, 2012, the ALJ issued a decision denying Plaintiff's claim. Council declined review and Plaintiff The Appeals timely appealed to this Court. FACTUAL BACKGROUND Born on October 20, 1965, Plaintiff was 36 years old on the alleged onset date of disability and 46 years old on the date of the hearing. Tr. 163. 2 - OPINION AND ORDER Plaintiff has a 10'" grade education and no past relevant work. Tr. 19, 168. became disabling on May 1, 2002. Plaintiff alleges her conditions Tr. 163. In addition to her hearing testimony, Plaintiff submitted an Adult Function Report. Tr. 186-93. Plaintiff's husband, Robert Desantis, submitted a 'l'h.i. rd Party Function Report. 84. Samuel Tr. 177- On March 13, 2010, Patrick Radecki, M.D., conducted a physical examination and submitted an opinion as to Plaintiff's physical impairments. Psy. D., Tr. 237-42. conducted a On. July 17, psychological 2010, Robert A. evaluation opinion as to Plaintiff's mental impairments. April 2, 2010, J. Scott Pritchard, D.O., and Kruger, submitted an 269-73. On Tr. reviewed Plaintiff's medical records and submitted an opinion as to Plaintiff's physical residual functional capacity. E. Berner, opinion as M. D., to Tr. 62-63. reviewed Plaintiff's Plaintiff's physical On August 9, 2010, Neal records and submitted an limitations. Tr. 75-76. Finally, on August 3, 2010, Dorothy Anderson, Ph.D., reviewed the medical record and submitted an opinion as to Plaintiff's mental limitations. Tr. 73-74. TijE ALJ' S DISABII,ITY ANALYSIS The Commissioner has established a five-step process for determining whether a person is disabled. )'.uckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. (v). § sequential Bowen v. 416.920(a) (4) (i)- Eacl1 step is potentially dispositive. The claimant bears the burden of proof at Steps One through Four. Tackett v. Apfel, 180 3 - OPINION AND ORDER F.3d 1094, 1098 (9th Cir. 1999). The burden shifts to the Commissioner at Step Five to show that a significant number of jobs exist in the national economy that the claimant can perform. See Yuckert, 482 U.S. at 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined Plaintiff has not engaged in substantial gainful activity since the application date, December 8, 2009. See 20 C.F.R. §§ 416.920(b), 416.971 et seq.; 'l'r. 13. At Step Two, the ALJ determined Plaintiff's chronic bronchitis is a severe impairment. See 20 C.F.R. § 416.920(c); Tr. 13-15. At Step Three, the ALJ determined Plaintiff does not have an impairment or combination of impairments that meet or medically equal any listed impairment. See 20 C.F.R. §§ 416.920(d), 416.925, 416.926; Tr. 15. The ALJ found Plaintiff has the residual functional capacity (RFC) to perform a full range of work at all exertional levels, but that Plaintiff should avoid exposure to dust, odors, and gases due to her chronic bronchitis. At Step Four, work. the ALJ found Plaintiff has no past relevant See 20 C.F.R. At Step Five, § Clerk. including 416.965; Tr. 19. however, significant numbers perform, Tr. 16-19. the ALJ found that jobs in the national economy that Mail See 20 C.F.R. 4 - OPINION AND ORDER §§ Clerk, Office Helper, exist in Plaintiff can and Information 416.969, 416.969(a); Tr. 19-20. Accordingly, the ALJ found Plaintiff is not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff raises two assignments of error on appeal. Plaintiff Second, argues Plaintiff the ALJ improperly asserts the ALJ' s rejected RFC was her not First, testimony. supported by substantial record evidence. STANDARD OF REVIEW The court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 405(g); Andrews v. 1039 Shalala, 53 E'.3d 1035, 42 U.S. C. (9th Cir. § 1995). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." court must weigh all of the evidence, whether detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). to more than one rational decision must be upheld. supports The or Martinez v. Heckler, If the evidence is susceptible interpretation, Andrews, it Id. the Commissioner's 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; ''the court may not substitute its judgment for that of the Commissioner." 1156 (9th Cir. 2001). 5 - OPINION /\ND ORDER Edlund v. Massanari, 253 F.3d 1152, DISCUSSION I. Plaintiff's Credibility Plaintiff first argues the ALJ improperly rejected Claimant's In testimony. deciding whether to accept subjective symptom ., testimony, an ALJ must perform two stages of analysis. § 404.1529. evidence First, of an 20 C.F.R. the claimant must produce objective medical underlying impairment that expected to produce the symptoms alleged. F.3d 1273, 1281--82 (9th Cir. 1996). could reasonably Smolen v. Chater, be 80 Second, absent a finding of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, convincing reasons for do.ing so. for rejecting a claimant's Id. at 1281. testimony substantial evidence in the record. Sec. an and The ALJ' s reasons be supported by See Carmickle v. Comm'r Soc. 533 F.3d 1155, 1161 (9th Cir. 2008). Admi1~, If must clear, ALJ finds the claimant's subjective symptoms unreliable, regarding her the "ALJ must make a credibility determination citing unpersuasive." Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) . the testimony reasons In doing so, why the testimony is the ALJ must identify which testimony is credible and which testimony undermines the claimant's complaints, and make "findings sufficiently specific to permit the court to concl.ude that the ALJ did not arbitrarily claimant's testimony." 6 - OPINION AND ORDE:R d~scredit [the) Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 'l'he 2002). ALJ credibility evaluation may in rely upon weighing the ordinary techniques claimant's of credibility. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the hearing, Plaintiff testified she can only sit for approximately twenty minutes and can lift a gallon of milk, but will usually be in pain afterward. Tr. 34. Plaintiff reported that she can stand or walk for between fifteen and twenty minutes at a time, but that she lays down on the couch for approximately half of the day. Tr. Plaintiff testified that her IBS 44-45. causes her to experience alternating diarrhea and constipation, and that she spends considerable time each morning in the restroom. Tr. Plaintiff testified that she has developed memory 40, -46. problems that have led her to stop driving, but that she did not have any other mental health problems. testified, cause however, her to fibromyalgia Tr. 41. Plaintiff later that she also experiences panic attacks that lose consciousness. symptoms, Plaintiff throughout her body. Tr. 42. Tr. reported 46-47. she As to experiences her pain Plaintiff reported that swelling in her feet and ankles forces her to elevate and ice her feet multiple times per day. Tr. 43-44. As to her daily activities, Plaintiff reported that she can shower and do laundry, but that her husband does the cooking and she only goes to the store to ride along with her husband and get out of the house. Tr. 34-35. 7 - OPINION AND ORDER Plaintiff reported that she has not worked much in her life because she stayed home raising her children and by the time they grew up her medical conditions had deteriorated to unsuccessful. the point that her to work Function Report, Plaintiff reported that her daily activities consist of waking up, the restroom, taking medicine and using and attempting to control her pain with a heating lee packs, and medicine. Tr. 186. Plaintiff reported that most days are "extremely bad" and that she cannot do much. 186. were Tr. 39. In her Adult pad, attempts Tr. Plaintiff noted that her pain causes her difficulty sleeping through the night. Tr. 187. eating "causes massive pain." In addition, 'fr. 187. Plaintiff noted that As to housework, Plaintiff reported that she does laundry and cleans the bedroom, but that she can no longer perform yard work. Tr. 188. Plaintiff noted that her conditions cause her to stay home much of the time. Tr. 190. Plaintiff checked that her conditions affect her abilities to lift, squat, see, remember, 191. bend, stand, reach, walk, complete tasks, sit, kneel, climb stairs, concentrate, and understand. Tr. Plaintiff reported that she can walk one-quarter of a mile before needing to rest "until [her] legs stop burning." Tr. 191. As to her abilities to pay attention and understand instructions, Plaintiff noted that she becomes disoriented when her pain is bad, t and that stress triggers greater pain. 8 - OPINION AND ORDER Tr. 191-92. The ALJ rejected Plaintiff's testimony because Plaintiff demonstrated a "tendency to overstate her complaints,n gave poor· effort in her psychological evaluation with Dr. Kruger, has a poor work history, and Plaintiff's alleged activities of daily livi~g are inconsistent with her report of caring for her late-mother. Tr. 17-18. I conclude these reasons, taken together, constitute clear and convincing reasons to reject Plaintiff's testimony. The ALJ's primary reason for rejecting Plaintiff's testimony was Plaintiff's exaggeration of her complaints to treating and examining medical sources. physician who examined Tr. 17. Plaintiff, Indeed, found that, Dr. in Radecki, his opinion, Plaintiff had "too much tendernessn for testing to be valid. 240. the Tr. Accordingly, Dr. Radecki assigned no functional limitations other than environmental bronchitis. Tr. 241-42. limitations on account of Plaintiff's Similarly, Dr. Kruger, the psychological evaluating source, found that Plaintiff's "performance on the [Test of Memory Malingering] revealed scores that are considerably below expectation, raising concerns as to whether she was putting forth her best effort in responding to this examiner's questions and tasks during today's interview.n Moreover, as the ALJ Tr. 272. noted, Plaintiff's very significant complaints were not supported by proportional objective findings. See Tr. 233, 267, 313. Finally, Plaintiff presented to the emergency room in October of 2011 asking to be tested for "'all 9 - OPINION AND ORDER forms of cancer,' leukemia, lymphoma, lupus, rheumatoid arthritis, and thyroid disorder," but the attending physician found Plaintiff "medically stable" and that possible nor appropriate. such extensive testing was neither Tr. 287. When informed that she would not receive the testing she requested, Plaintiff threatened the attending physician, began "yelling very loudly," and necessitated the intervention of security. Tr. 287-89. Accordingly, the ALJ's rejection of Plaintiff's testimony because Plaintiff exaggerated her complaints is a compelling reason to reject Plaintiff's testimony and is supported by considerable record evidence. The ALJ's next reason for rejecting Plaintiff's testimony poor effort in her examination with Dr. Kruger - is related to the ALJ's first reason, but is nonetheless also a proper reason to reject Plaintiff's testimony. See Tonapetyan v. Halter, 242 F.3d 1144, 1147-48 (9th Cir. 2001) (finding that a plaintiff's "lack of cooperation during consultative examinations" was a proper reason to reject the plaintiff's testimony). As noted, Dr. Kruger expressed "concerns as to whether [Plaintiff) was putting forth her best effort" in exam. Tr. 272. The ALJ also found Plaintiff's testimony as to her activities of daily living inconsistent with her report to Dr. Kruger that she was caring February 22, for her 2011, care for her cats. ailing mother. Tr. 269. Indeed, at the hearing Plaintiff reported that she does not Tr. 10 - OPINION AND ORDER 36. The ALJ could reasonably find this report inconsistent with Plaintiff's report on July 17, 2010, that Plaintiff was taking care of her mother who was in "poor healthn and had just "'broken her shoulder.'n Tr. 269. In sum, I conclude the above reasons readily amount to clear and convincing reasons, supported by substantial record evidence, to reject Plaintiff's subjective testimony. The ALJ properly weighed Plaintiff's testimony. II. Sufficiency of the RFC Plaintiff next argues the RF"C is insufficient because the ALJ failed to include limitations based on Plaintiff's fibromyalgia, IBS, and adjustment disorder.' As noted, the RFC is sufficient if it is supported by substantial evidence in the record. Barnhart, '127 F.3d 1211, 1217 (9th Cir .. 2005). Bayliss v. When the ALJ properly rejects a Plaintiff's testimony, the RFC must account for 1 Plaintiff's argument in this respect is difficult to characterize. At times it appears Plaintiff argues the ALJ failed to list f.i.bromyalgia, I13S, and adjustment disorder as a severe or medically determinable impairment at Step Two, but Plaintiff specifically disavowed this argument in her Reply Memorandum. Pl.'s Reply at 2. At other times it appears Plaintiff argues the ALJ erroneously weighed medical testimony, but Plaintiff does not directly raise this argument or cite the applicable legal standarc!s. Accordingly, I do not consider such arguments because Plaintiff failed to specifically and distinctly raise them in her opening brief. See Carmickle, 533 F.3d at 1161 n.2; Boyer v. Comm'r Soc. Sec. Admin., No. 3:12-cv-00392-SI, 2013 WL 3333060, at *10 (D. Or. July 1, 2013). Therefore, I interpret Plaintiff's assignment of error as a more generalized argument that the RFC was not based on a reasonable interpretation of the record evidence and therefore is not supported by subst?ntial evidence because the RFC does not include limitations based on Plaintiff's fibromyalgia, IBS, and adjustment disorder. 11 - OPINION AND ORDER "those limitations for which there was record support that did not depend on [the claimant's) subjective complaints." Id. As to Plaintiff's physical conditions, the ALJ considered the evidence concerning Plaintiff's fibromyalgia and IBS in the RFC portion of the opinion, but ultimately gave "significant weight" to Dr. Radecki's opinion standing, walking, 11.ght the of that sitting, ALJ's Plaintiff lifting, rejection of had no limitations Tr. or carrying. Plaintiff's to Plaintiff's findings in the fibromyalgia record that and IBS, establish there the 18. testimony, determination was supported by substantial evidence. are in In this With respect no diagnoses objective of these conditions or their resulting limitations. Plaintiff's IBS first appears in the medical record in June of 2008 as part of her self-reported medical history. Tr. 220. Objective gastrointestinal examinations at that time were largely unremarkable and Plaintiff did not seek any more IBS treatment for two years. Tr. 223. Plaintiff presented with gastrointestinal complaints again in 2010, largely unremarkable, the but after objective exams were again default diagnosis Plaintiff's self-reported history persisted. of IBS based Tr. 229, 232-34. on Dr. Radecki found that Plaintiff's IBS was "well-controlled," and did not assign any functional limitations on that basis. Tr. 2'11. Thus, the ALJ's refusal to incorporate any functional .limitations based on IBS was supported by substantial evidence in light of the 12 - OPINION AND ORDER subjective nature of the diagnosis, the ALJ's rejection of Plaintiff's testimony, and Dr. Radecki's findings. As to fibromyalgia, that while number of the ALJ relied on Dr. Radecki's finding Plaintiff demonstrated tenderness over a fibromyalgia trigger points, the test sufficient results were invalid on account of Plaintiff endorsing tenderness "practically everywhere." ALJ Tr. 241. assigned functional any fibromyalgia. Accordingly, neither Dr. Radecki nor the The medical limitations record contains to l:L t tle Plaintiff's evidence of fibromyalgia more reliable than that which Dr. Radecki rejected. While Douglas D. Eliason, D.O., found on January 15, 2010, that Plaintiff had "multiple tender trigger points," he noted in May of that year that fibromyalgia." Plaintiff Tr. 247, "kind 249. of self-diagnosed Fibromyalgia is not a primary concern throughout the remainder of the medical record and, even where fibromyalgia is discussed, it is often discussed as a default diagnosis for otherwise unexplained subjective symptoms. 314-15, based 317' 319-21, limitations 324. from Tr. 309, The ALJ's exclusion of fibromyalgia- the RFC was Supported by substantial evidence. Finally, as to Plaintiff's adjustment disorder, the only medical evidence in the record concerning mental health issues was Dr. Kruger's evaluation. Tr. 269-73. The ALJ discussed Dr. Kruger's findings, including that Dr. Kruger voiced concerns about 13 - OPINION AND ORDER whether Plaintiff had given best effort on exam. Tr. 273. Dr. Kruger accordingly warned that "the reader is to be cautious in interpreting her performance." Tr. 272. Otherwise, Dr. Kruger noted that Plaintiff's "overall attention ability and capability of sustaining her attention on brief, basic, routine, repetitive tasks that are commensurate with her abilities were seen as fair," memory was grossly intact, intelligence fell within the low-average range, albeit with reports of signs and symptoms of a "mild depressive" disposition. Tr. 273. Considering Dr. Kruger's concerns Plaintiff's about performance and the absence of any other mental health records, I find the ALJ's refusal to include functional limitations based on Plaintiff's mental health concerns was supported by substantial evidence. problems Notably, Plaintiff testified that her only mental health were poor memory and panic at tacks. Tr. 41, 47. Plaintiff does not appear to have reported the panic attacks to Dr. Kruger, however, and Dr. Kruger expressly found that Plaintiff's memory was "grossly intact." Tr. 272. Accordingly, the ALJ did not err by refusing to include any mental health limitations in the RFC. Finally, even if the ALJ should have included Dr. Kruger's arguable limitation of Plaintiff to "brief, basic, routine, repetitive tasks," such error would be harmless because the VE testified that the jobs cited by the ALJ would also be available to somebody additionally limited to simple, routine work. 14 - OPINION AND ORDER Tr .. 52-53, 273; ;;)ee Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (ALJ error is harmless if it is "inconsequential to the ultimate nondisabil.i.ty determination."). The ALJ's RFC assessment was supported by substantial evidence. CONCLUSION For the foregoing reasons, the decision of the ALJ AFFIRMED. IT IS SO ORDERED. DATED this O day of September, 2014. ~-~-m~ Malcolm F. Marsh United States District Judge 15 - OPINION AND ORDER is
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