Melby v. Commissioner of Social Security, No. 2:2017cv00437 - Document 22 (E.D. Wash. 2019)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying ECF No. 13 Plaintiff's Motion for Summary Judgment; granting ECF No. 20 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (TR, Case Administrator)
Download PDF
<![CDATA[
Melby v. Commissioner of Social Security Doc. 22 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Feb 04, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 VICKI M. O/B/O MONTE H., Plaintiff, 8 vs. 9 COMMISSIONER OF SOCIAL 10 SECURITY, Defendant. 11 12 13 No. 2:17-cv-00437-MKD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 13, 20 Before the Court are the parties’ cross-motions for summary judgment. ECF Nos. 13, 20. The parties consented to proceed before a magistrate judge. ECF No. 14 4. The Court, having reviewed the administrative record and the parties’ briefing, 15 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 16 Motion, ECF No. 13, and grants Defendant’s Motion, ECF No. 20. 17 18 19 20 21 ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). 3 4 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited; the Commissioner’s decision will be disturbed “only if it is not supported 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 9 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 10 (quotation and citation omitted). Stated differently, substantial evidence equates to 11 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 12 citation omitted). In determining whether the standard has been satisfied, a 13 reviewing court must consider the entire record as a whole rather than searching 14 for supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 17 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 18 rational interpretation, [the court] must uphold the ALJ’s findings if they are 19 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 20 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 21 ORDER - 2 1 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 2 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 3 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 4 decision generally bears the burden of establishing that it was harmed. Shinseki v. 5 Sanders, 556 U.S. 396, 409-10 (2009). 6 7 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 13 “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy.” 42 U.S.C. § 16 423(d)(2)(A). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 19 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 20 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 21 ORDER - 3 1 “substantial gainful activity,” the Commissioner must find that the claimant is not 2 disabled. 20 C.F.R. § 404.1520(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 6 from “any impairment or combination of impairments which significantly limits 7 [his or her] physical or mental ability to do basic work activities,” the analysis 8 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 9 does not satisfy this severity threshold, however, the Commissioner must find that 10 the claimant is not disabled. 20 C.F.R. § 404.1520(c). 11 At step three, the Commissioner compares the claimant’s impairment to 12 severe impairments recognized by the Commissioner to be so severe as to preclude 13 a person from engaging in substantial gainful activity. 20 C.F.R. § 14 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 15 enumerated impairments, the Commissioner must find the claimant disabled and 16 award benefits. 20 C.F.R. § 404.1520(d). 17 If the severity of the claimant’s impairment does not meet or exceed the 18 severity of the enumerated impairments, the Commissioner must pause to assess 19 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 20 defined generally as the claimant’s ability to perform physical and mental work 21 ORDER - 4 1 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 2 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in 5 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 6 capable of performing past relevant work, the Commissioner must find that the 7 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 8 performing such work, the analysis proceeds to step five. 9 At step five, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing other work in the national economy. 11 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 12 must also consider vocational factors such as the claimant’s age, education and 13 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 14 adjusting to other work, the Commissioner must find that the claimant is not 15 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to 16 other work, analysis concludes with a finding that the claimant is disabled and is 17 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 18 The claimant bears the burden of proof at steps one through four above. 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 20 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 21 ORDER - 5 1 capable of performing other work; and (2) such work “exists in significant 2 numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 3 700 F.3d 386, 389 (9th Cir. 2012). ALJ’S FINDINGS 4 On May 1, 2014, Plaintiff1 filed an application for Title II disability 5 6 insurance benefits, alleging an amended onset date of January 1, 2010. Tr. 68, 7 154-57. The application was denied initially, Tr. 100-02, and on reconsideration, 8 Tr. 104-05. Plaintiff appeared at a hearing before an administrative law judge 9 (ALJ) on September 2, 2016. Tr. 48-76. On November 9, 2016, the ALJ denied 10 Plaintiff’s claim. Tr. 29-47. 11 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 12 activity during the period from his alleged onset date of January 1, 2010, through 13 his date last insured of December 31, 2014. Tr. 34. At step two, the ALJ found 14 Plaintiff had the following severe impairments: status post above the left knee 15 amputation and obesity. Tr. 35. At step three, the ALJ found Plaintiff did not have 16 an impairment or combination of impairments that meets or medically equals the 17 18 19 1 The claimant died on November 28, 2016. ECF No. 13 at 2. This opinion will 20 refer to the claimant as Plaintiff. 21 ORDER - 6 1 severity of a listed impairment. Tr. 35. The ALJ then concluded that Plaintiff had 2 the RFC to perform sedentary work with the following limitations: 3 4 5 6 7 8 [Plaintiff] is able to lift and/or carry fifteen pounds occasionally and ten pounds frequently. He is able to sit for up to six hours in an eight-hour workday with normal breaks. He is able to stand and/or walk for two hours each in an eight-hour workday with normal breaks. He requires the opportunity to change positions every thirty minutes. He is able to walk no more than one block without resting. He is never able to crawl, crouch, kneel, stoop, or climb ladders, ropes, or scaffolds. He is able to perform work limited to occasional climbing of ramps or stairs. He is able to perform work that does not include exposure to uneven surfaces or unprotected heights. He is able to perform work that does not require functional use of the left leg. 9 Tr. 36. 10 At step four, the ALJ found Plaintiff was unable to perform any past relevant 11 work. Tr. 41. At step five, the ALJ found that, considering Plaintiff’s age, 12 education, work experience, RFC, and testimony from a vocational expert, there 13 were other jobs that existed in significant numbers in the national economy that 14 Plaintiff could perform, such as order clerk, telephone solicitor, or final assembler. 15 Tr. 41-42. The ALJ concluded Plaintiff was not under a disability, as defined in 16 the Social Security Act, from January 1, 2010, through December 31, 2014, the 17 date last insured. Tr. 42. 18 On November 22, 2017, the Appeals Council denied review, Tr. 1-6, making 19 the ALJ’s decision the Commissioner’s final decision for purposes of judicial 20 review. See 42 U.S.C. § 1383(c)(3). 21 ORDER - 7 1 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 2 3 him disability income benefits under Title II of the Social Security Act. ECF No. 4 13. Plaintiff raises the following issues for this Court’s review: 5 1. Whether the ALJ properly weighed Plaintiff’s symptom claims; 6 2. Whether the ALJ properly weighed the lay opinion evidence; 7 3. Whether the ALJ properly incorporated the evidence into the RFC; and 8 4. Whether the ALJ properly evaluated the vocational expert’s testimony at 9 step five. 10 ECF No. 13 at 4-18. 11 DISCUSSION A. Plaintiff’s Symptom Claims 12 13 Plaintiff faults the ALJ for failing to rely on reasons that were clear and 14 convincing in discrediting his subjective symptom claims. ECF No. 13 at 7-11. 15 An ALJ engages in a two-step analysis to determine whether to discount a 16 claimant’s testimony regarding subjective symptoms.2 SSR 16-3p, 2016 WL 17 18 2 At the time of the ALJ’s decision in November 2016, the regulation that governed 19 the evaluation of symptom claims was SSR 16-3p, which superseded SSR 96-7p 20 effective March 24, 2016. SSR 16-3p; Titles II and XVI: Evaluation of Symptoms 21 ORDER - 8 1 1119029, at *2. “First, the ALJ must determine whether there is objective medical 2 evidence of an underlying impairment which could reasonably be expected to 3 produce the pain or other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation 4 marks omitted). “The claimant is not required to show that [his] impairment could 5 reasonably be expected to cause the severity of the symptom []he has alleged; []he 6 need only show that it could reasonably have caused some degree of the 7 symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 8 Second, “[i]f the claimant meets the first test and there is no evidence of 9 malingering, the ALJ can only reject the claimant’s testimony about the severity of 10 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 11 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 12 omitted). General findings are insufficient; rather, the ALJ must identify what 13 symptom claims are being discounted and what evidence undermines these claims. 14 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 15 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 16 17 in Disability Claims, 81 Fed. Reg. 15776, 15776 (Mar. 24, 2016). The ALJ’s 18 decision did not cite SSR 16-3p, but cited SSR 96-4p, which was rescinded 19 effective June 14, 2018, in favor of the more comprehensive SSR 16-3p. Neither 20 party argued any error in this regard. 21 ORDER - 9 1 explain why it discounted claimant’s symptom claims). “The clear and convincing 2 [evidence] standard is the most demanding required in Social Security cases.” 3 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r 4 of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 5 Factors to be considered in evaluating the intensity, persistence, and limiting 6 effects of an individual’s symptoms include: 1) daily activities; 2) the location, 7 duration, frequency, and intensity of pain or other symptoms; 3) factors that 8 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 9 side effects of any medication an individual takes or has taken to alleviate pain or 10 other symptoms; 5) treatment, other than medication, an individual receives or has 11 received for relief of pain or other symptoms; 6) any measures other than treatment 12 an individual uses or has used to relieve pain or other symptoms; and 7) any other 13 factors concerning an individual’s functional limitations and restrictions due to 14 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 15 404.1529(c)(1)-(3). The ALJ is instructed to “consider all of the evidence in an 16 individual’s record,” “to determine how symptoms limit ability to perform work17 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 18 The ALJ found that Plaintiff’s medically determinable impairments could 19 reasonably be expected to cause the alleged symptoms, but that Plaintiff’s 20 21 ORDER - 10 1 statements concerning the intensity, persistence, and limiting effects of his 2 symptoms were not entirely consistent with the evidence. Tr. 37. 3 1. Lack of Supporting Medical Evidence 4 The ALJ found the severity of Plaintiff’s symptom complaints was not 5 supported by the medical evidence. Tr. 37-38. An ALJ may not discredit a 6 claimant’s symptom testimony and deny benefits solely because the degree of the 7 symptoms alleged is not supported by objective medical evidence. Rollins v. 8 Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 9 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). 10 However, the medical evidence is a relevant factor in determining the severity of a 11 claimant’s pain and its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 12 404.1529(c)(2). Minimal objective evidence is a factor which may be relied upon 13 to discount a claimant’s testimony, although it may not be the only factor. Burch 14 v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 15 The ALJ found Plaintiff’s allegations of chronic daily pain were not 16 supported by the objective evidence in the record. Tr. 37-38. The record contains 17 minimal evidence from the relevant period in this case. In a July 2010 18 appointment with his prosthetic fitter, the provider observed that Plaintiff’s new 19 socket had a very good seal, that Plaintiff was able to walk in the bars, and that 20 Plaintiff reported that it felt good. Tr. 351. In September 2014, a consultative 21 ORDER - 11 1 examiner observed Plaintiff appeared somewhat uncomfortable but seemed to 2 move fairly fluidly between the chair and exam table and found Plaintiff had 3 normal muscle bulk and tone, full motor strength, some difficulty with forward 4 bending, inability to walk forward on toes, backwards on heels, squat, or rise due 5 to amputation/prosthetic left leg, and minimal decreased range of motion in the 6 right knee only. Tr. 353-56. Plaintiff received 10 chiropractic treatments over the 7 course of four years during the period between his onset date and his date last 8 insured. Tr. 358-59. In April 2016,3 Plaintiff complained of severe back pain after 9 lifting weights two days earlier. Tr. 357. Plaintiff’s chiropractor noted a positive 10 straight leg test on the left side, performed an adjustment, and recommended 11 follow-up treatment on an as needed basis. Id. The ALJ reasonably concluded that 12 these minimal findings did not corroborate the severe disabling pain symptoms 13 Plaintiff alleged. 14 2. Daily Activities 15 The ALJ found Plaintiff’s daily activities were inconsistent with the level of 16 impairment he alleged. Tr. 34-35, 37-38. A claimant’s reported daily activities 17 can form the basis for an adverse credibility determination if they consist of 18 19 3 The ALJ incorrectly described this treatment note as being from April 2014, prior 20 to Plaintiff’s date last insured. Tr. 37-38. 21 ORDER - 12 1 activities that contradict the claimant’s “other testimony” or if those activities are 2 transferable to a work setting. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); 3 see also Fair, 885 F.2d at 603 (daily activities may be grounds for an adverse 4 credibility finding “if a claimant is able to spend a substantial part of his day 5 engaged in pursuits involving the performance of physical functions that are 6 transferable to a work setting.”). “While a claimant need not vegetate in a dark 7 room in order to be eligible for benefits, the ALJ may discredit a claimant’s 8 testimony when the claimant reports participation in everyday activities indicating 9 capacities that are transferable to a work setting” or when activities “contradict 10 claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112-13 (internal 11 quotation marks and citations omitted). 12 Here, the ALJ noted that Plaintiff alleged that he was unable to sit for 13 prolonged periods, that he could not walk for more than two hours total in a day, 14 and that chronic daily pain caused him to lie down four to five times per day for 15 twenty minutes at a time at unpredictable intervals. Tr. 36-37; see Tr. 59-61. The 16 ALJ then summarized Plaintiff’s robust daily activities, including caring for four 17 children, preparing three meals a day for up to an hour at a time without needing to 18 take breaks or sit down, performing light housework, picking up his children from 19 school, grocery shopping for one hour on a regular weekly basis, and attending 20 weekly barbeque dinners with friends. Tr. 35-38; see Tr. 61-63, 206-09. The ALJ 21 ORDER - 13 1 also noted that Plaintiff reported purchasing several condominiums and receiving 2 rental income from them, but that Plaintiff’s tax documents did not reflect Plaintiff 3 having employees and Plaintiff did not testify that he received help managing the 4 condominiums. Tr. 34; see Tr. 64, 169-93. The ALJ reasonably inferred that 5 Plaintiff managed these condominiums alone, which the ALJ found to be another 6 activity inconsistent with complete disability. Tr. 34-35. The ALJ’s finding that 7 the sum of Plaintiff’s daily activities was inconsistent with Plaintiff’s specific 8 alleged limitations is supported by substantial evidence. 9 10 3. Inconsistent Symptom Reporting The ALJ found that Plaintiff’s symptom testimony was undermined by his 11 inconsistent reporting in the record. Tr. 38-39. In evaluating a claimant’s 12 symptom claims, an ALJ may consider the consistency of an individual’s own 13 statements made in connection with the disability review process with any other 14 existing statements or conduct made under other circumstances. Smolen v. Chater, 15 80 F.3d 1273, 1284 (9th Cir. 1996); Thomas, 278 F.3d at 958-59. Additionally, 16 “[t]he failure to report symptoms to treatment providers is a legitimate 17 consideration in determining the credibility of those complaints.” Lesher v. 18 Comm’r of Soc. Sec., No. 2:15-cv-00237-SMJ, 2018 WL 314819, at *4 (E.D. 19 Wash. Jan. 5, 2018) (citing Greger v. Barnhart, 464 F.3d 972, 972 (9th Cir. 2006)). 20 Here, the ALJ noted that Plaintiff’s statement in his function report that he wakes 21 ORDER - 14 1 up several times per night due to nerve pain was inconsistent with Plaintiff’s report 2 to Dr. Currigan that he sleeps for six to eight hours per night without problems. Tr. 3 38; compare Tr. 206 with Tr. 352. The ALJ also noted that despite Plaintiff’s 4 hearing testimony that his pain was so severe that it caused him to lay down four to 5 five times per day, the record contains no documentation of Plaintiff ever reporting 6 this limitation to a medical provider, including the consultative examiner. Tr. 38; 7 see Tr. 61. The ALJ reasonably concluded that Plaintiff’s inconsistent symptom 8 reporting undermined the credibility of these reports. 9 Plaintiff argues that Plaintiff’s statements were not inconsistent, identifying 10 Plaintiff’s endorsement of insomnia during the review of symptoms during the 11 consultative examination. ECF No. 13 at 9; see Tr. 353. Plaintiff’s endorsement 12 of insomnia occurred during the same examination where Plaintiff reported 13 sleeping six to eight hours per night without issue. Tr. 352. Even where the 14 “evidence is susceptible to more than one rational interpretation, the ALJ’s 15 decision should be upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 16 (9th Cir. 2008) (internal quotation marks omitted). The ALJ reasonably concluded 17 that Plaintiff’s symptom reporting was inconsistent. This finding is supported by 18 substantial evidence. 19 20 21 ORDER - 15 1 4. Minimal Treatment 2 The ALJ found Plaintiff’s symptom allegations were inconsistent with the 3 minimal treatment he received. Tr. 37-38. An unexplained, or inadequately 4 explained, failure to seek treatment or follow a prescribed course of treatment may 5 be considered when evaluating the claimant’s subjective symptoms. Orn, 495 F.3d 6 at 638. Evidence of a claimant’s self-limitation and lack of motivation to seek 7 treatment are appropriate considerations in determining the credibility of a 8 claimant’s subjective symptom reports. Osenbrock v. Apfel, 240 F.3d 1157, 11659 66 (9th Cir. 2001); Bell-Shier v. Astrue, 312 F. App’x 45, 49 (9th Cir. 2009) 10 (unpublished) (considering why plaintiff was not seeking treatment). Here, the 11 ALJ noted that the record reflected “very little treatment” for Plaintiff’s symptoms. 12 Tr. 37. The record from the five-year period between Plaintiff’s onset date and 13 date last insured reflects only ten chiropractic appointments, three interactions with 14 Plaintiff’s prosthetic fitter, and the consultative examination. Tr. 341-61. 15 Plaintiff argues that he had “good reason” for not seeking further treatment. 16 ECF No. 13 at 8-9; see Smolen, 80 F.3d at 1284 (ALJ may discredit a claimant’s 17 symptom complaints if the clamant fails to show good reason for failing to follow 18 treatment recommendations). Plaintiff testified that he does not take pain 19 medication because he does not want to become addicted and because it did not 20 “solve [his] issues.” Tr. 62-63. Plaintiff further testified that he “[doesn’t] go to a 21 ORDER - 16 1 doctor” because “they just want to give you pain pills.” Tr. 65. Declining to take 2 prescription narcotics for fear of addiction can be a good reason to fail to follow a 3 treatment recommendation. See Trevizo v. Berryhill, 871 F.3d 664, 680 n.8 (9th 4 Cir. 2017). However, this does not provide “good reason” for Plaintiff’s failure to 5 seek medical treatment in general. The record does not contain any medical 6 evidence to support Plaintiff’s assertion that the only medical treatment available 7 to him was prescription painkillers. Additionally, the record does not reflect 8 Plaintiff seeking alternative treatments from medical providers. At most, Plaintiff 9 received occasional chiropractic adjustments. Tr. 358-61. Plaintiff bears the 10 burden of proof at steps one through four of the sequential evaluation. Tackett, 11 180 F.3d at 1098. The ALJ reasonably concluded that Plaintiff’s lack of medical 12 treatment during the relevant period was inconsistent with his allegations of totally 13 disabling pain. Tr. 37. 14 In sum, the ALJ provided clear and convincing reasons supported by 15 substantial evidence in the record for discrediting Plaintiff’s symptom complaints. 16 17 B. Lay Opinion Evidence Plaintiff challenges the ALJ’s evaluation of lay opinion evidence from 18 Plaintiff’s friends Alan Herdon, Lloyd Herdon, and Tonya Keller. ECF No. 13 at 19 12-16. An ALJ must consider the statement of lay witnesses in determining 20 whether a claimant is disabled. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 21 ORDER - 17 1 1053 (9th Cir. 2006). Lay witness evidence cannot establish the existence of 2 medically determinable impairments, but lay witness evidence is “competent 3 evidence” as to “how an impairment affects [a claimant’s] ability to work.” Id.; 20 4 C.F.R. § 404.1513; see also Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) 5 (“[F]riends and family members in a position to observe a claimant's symptoms 6 and daily activities are competent to testify as to her condition.”). If a lay witness 7 statement is rejected, the ALJ “‘must give reasons that are germane to each 8 witness.’” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citing Dodrill, 9 12 F.3d at 919). 10 Alan Herdon submitted a statement that he had known Plaintiff for over 17 11 years, that Plaintiff was an active person before the loss of his leg, that Plaintiff 12 was able to work around his property and engage in outdoors activities with his 13 children before the loss of his leg, that since the loss of his leg Plaintiff needed 14 help standing and engaging in activities that require walking or standing, that 15 Plaintiff was often in pain even when sitting, that Plaintiff had fallen in front of 16 Mr. Herdon and needed help on uneven ground, that Plaintiff had open sores and 17 swelling on his leg, that Plaintiff’s energy levels were low, and that Plaintiff 18 seemed depressed and anxious. Tr. 253-54. 19 Lloyd Herdon submitted a statement that he had known Plaintiff for 16-17 20 years, that Plaintiff was a self-sufficient person prior to losing his leg, that since 21 ORDER - 18 1 the loss of his leg Plaintiff became “100% dependent” on others, that Plaintiff 2 needed to stop frequently and rest when riding in cars, that Plaintiff could no 3 longer walk to fish and had to fish sitting in a boat or on a dock, that Plaintiff could 4 no longer walk miles in the woods to hunt, that Plaintiff could no longer 5 snowmobile, that Plaintiff could engage in prior activities only by sitting, that 6 Plaintiff had low motivation and seemed depressed, and that Mr. Herdon had 7 observed sores on Plaintiff’s leg. Tr. 256-59. 8 Tonya Keller submitted a statement that she had known Plaintiff since junior 9 high school, that Plaintiff had always been active in sports and outdoor activities, 10 that Plaintiff’s injury has caused him to become a bystander due to his inability to 11 participate in activities, that Plaintiff’s injury caused him to be unable to do many 12 daily chores and outdoor activities, that Plaintiff complained to Ms. Keller on 13 many occasions about his pain, that Plaintiff had to take medications and visit 14 doctors frequently, and that Plaintiff had to depend on the help of others. Tr. 26115 62. 16 The ALJ considered all three lay opinions and assigned them little weight. 17 Tr. 41. 18 First, the ALJ gave less weight to the lay opinion evidence because the ALJ 19 identified inconsistencies in the lay evidence. Tr. 41. Inconsistency with other 20 evidence in the record is a germane reason to discredit lay witness evidence. Lewis 21 ORDER - 19 1 v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). The ALJ noted that Mr. A. Herdon’s 2 report that Plaintiff “just wants to sit or lay down just to relieve the pain” was 3 inconsistent with Plaintiff’s testimony that sitting caused him pain.4 Tr. 41; 4 compare Tr. 254 with Tr. 59. The ALJ also noted that Mr. L. Herdon’s report that 5 Plaintiff was able to hunt and fish while sitting was inconsistent with Ms. Keller’s 6 report that Plaintiff was unable to engage in outdoor activities. Tr. 41; compare Tr. 7 256-57 with Tr. 261. Finally, the ALJ observed that Ms. Keller’s report that 8 Plaintiff frequently visited doctors was inconsistent with the complete lack of 9 medical records of doctor’s visits during the relevant period. Tr. 41; see Tr. 261. 10 These inconsistencies provide germane reason to discredit the lay witnesses’ 11 opinions. 12 13 14 4 Plaintiff challenges the ALJ’s finding by identifying another portion of Mr. 15 Herdon’s statement that is consistent with Plaintiff’s testimony but inconsistent 16 with the portion of Mr. Herdon’s statement identified by the ALJ. ECF No. 13 at 17 14. Even where the “evidence is susceptible to more than one rational 18 interpretation, the ALJ’s decision should be upheld.” Ryan, 528 F.3d at 1198 19 (internal quotation marks omitted). The evidence Plaintiff identifies does not 20 undermine the ALJ’s reasonable interpretation of the record. 21 ORDER - 20 1 Second, the ALJ gave less weight to the lay opinion evidence because it was 2 not clear how much time each witness spent with the Plaintiff. The opinion of a 3 lay witness who views the claimant on a less-than-daily basis still carries weight. 4 Dodrill, 12 F.3d at 919. However, the frequency with which a lay witness 5 observes the claimant is a relevant consideration in how much weigh to assign to a 6 lay opinion. 20 C.F.R. § 404.1527(c)(2), (f)(1). The ALJ noted that although all 7 three of the lay witnesses indicated they had known Plaintiff for a substantial 8 period, none of the lay witness statements indicated how frequently they observed 9 Plaintiff’s functioning.5 Tr. 40-41. The ALJ reasonably considered this factor in 10 light of the inconsistencies the ALJ observed in their testimony discussed supra. 11 This was a germane reason to discredit the lay opinion evidence. The ALJ’s 12 evaluation of the lay opinion evidence is supported by substantial evidence. 13 14 5 Contrary to Plaintiff’s argument, ECF No. 13 at 14, the omission of this 15 information did not trigger the ALJ’s duty to develop the record. The duty to 16 develop the record is triggered if the evidence is ambiguous or the record is 17 inadequate to make a decision. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th 18 Cir. 2001). A lay witness’ failure to indicate how frequently they observe a 19 claimant does not render the record as a whole ambiguous or inadequate to 20 determine disability. 21 ORDER - 21 1 2 C. RFC Formulation Plaintiff asserts the ALJ erred in failing to incorporate evidence of Plaintiff’s 3 functional limitations into the RFC. ECF No. 13 at 4-7. 4 The RFC reflects the claimant’s ability to perform physical and mental work 5 activities on a sustained basis despite his or her limitations. 20 C.F.R. § 6 404.1545(a)(1). “[T]he ALJ is responsible for translating and incorporating 7 clinical findings into a succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 8 F.3d 996, 1006 (9th Cir. 2015). To the extent the evidence could be interpreted 9 differently, it is the role of the ALJ to resolve conflicts and ambiguity in the 10 evidence. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th 11 Cir. 1999). 12 First, Plaintiff asserts the ALJ should have incorporated limitations for lack 13 of focus and absenteeism into the RFC based on Dr. Thompson’s hearing 14 testimony. ECF No. 13 at 5-7. The ALJ gave Dr. Thompson’s opinion great 15 weight. Tr. 39. However, an ALJ does not need to incorporate into the RFC an 16 opinion that does “not show how [a claimant’s] symptoms translate into specific 17 functional deficits which preclude work activity.” See Morgan, 169 F.3d at 601. 18 Here, Plaintiff identifies the following exchange from the hearing as evidence of a 19 functional limitation: 20 21 ORDER - 22 1 2 3 4 ALJ: From your experience people who have to wear a prosthetic, is that, is that something that would impact maybe his ability to focus on work or would he miss days, what, what’s your experience with that? Dr. Thompson: Yeah. I think it would. The, the issues of wearing a prosthesis are more complex and more frequent in, in the above the knee area than they are in the more common below knee amputations which tend to be better well tolerated and can be worn more reliably. 5 Tr. 56. 6 7 Dr. Thompson did not render a specific opinion as to how Plaintiff’s prosthesis would impact Plaintiff’s focus or attendance at work. Dr. Thompson did 8 not opine that Plaintiff would miss any particular number of hours or days at work 9 due to the prosthesis, nor did Dr. Thompson give an opinion as to what impact a 10 prosthesis would have on this Plaintiff’s focus. To the contrary, Dr. Thompson 11 testified that certain problems with prostheses could be resolved by taking the 12 prosthesis off. Tr. 56. Dr. Thompson further testified that Plaintiff’s specific 13 limitations could be resolved by removing the prosthesis. Tr. 58. The ALJ 14 15 16 17 reasonably incorporated Dr. Thompson’s opinions into the RFC by developing an RFC that reflects Plaintiff’s functioning while his prosthesis was removed. Tr. 3641. Additionally, Dr. Thompson’s opinion that Plaintiff could improve his functioning by removing the prosthesis is consistent with Plaintiff’s own testimony 18 that he often removed his prosthesis for comfort. Tr. 55. The ALJ did not err in 19 incorporating Dr. Thompson’s opinion into the RFC. 20 21 ORDER - 23 1 Plaintiff also asserts the ALJ should have incorporated the vocational 2 expert’s testimony about distraction and absenteeism into the RFC. ECF No. 13 at 3 6-7. Plaintiff quotes the vocational expert’s testimony about the vocational 4 impacts of prostheses generally as evidence of limitations that the ALJ should have 5 incorporated into the RFC. Id. However, the testimony identified by Plaintiff is a 6 statement of the vocational expert’s general observation and experience and does 7 not pertain to Plaintiff’s specific functioning. Tr. 71-72. Therefore, it was not 8 required to be incorporated into the RFC. See 20 C.F.R. § 404.1545(a)(4) (“When 9 we assess your residual functional capacity, we will consider your ability to meet 10 the physical, mental, sensory, and other requirements of work”) (emphasis added). 11 The ALJ did not err in formulating the RFC. 12 13 D. Step Five Plaintiff challenges the ALJ’s evaluation of the vocational expert’s 14 testimony at step five. ECF No. 13 at 16-18. 15 First, Plaintiff asserts the ALJ failed to ask the vocational expert if his 16 testimony was consistent with the Dictionary of Occupational Titles (DOT), as 17 required by SSR 00-4p. ECF No. 13 at 16-17; SSR 00-4p, 2000 WL 1898704. 18 However, Plaintiff’s reply brief concedes that the ALJ did in fact satisfy this duty 19 by instructing the vocational expert to state whether his testimony deviated from 20 the DOT. ECF No. 21 at 4; see Tr. 70. The ALJ did not err in this regard. 21 ORDER - 24 1 Second, Plaintiff asserts the ALJ failed to resolve a conflict between the 2 vocational expert’s testimony and the DOT. ECF No. 13 at 16-18. Specifically, 3 Plaintiff claims that Plaintiff’s limitation to modified sedentary work is 4 inconsistent with the RFC limitation that Plaintiff “requires the opportunity to 5 change positions every thirty minutes.” Id.; Tr. 36. 6 “In some disability claims, the medical facts lead to an assessment of RFC 7 which is compatible with the performance of either sedentary or light work except 8 that the person must alternate between periods of sitting and standing.” SSR 839 12, 1983 WL 31253, at *4. “In cases of unusual limitation of ability to sit or stand, 10 a [vocational specialist] should be consulted to clarify the implications for the 11 occupational base.” Id. Additionally, “[w]hen there is an apparent unresolved 12 conflict between [vocational expert] or [vocational specialist] evidence and the 13 DOT, the adjudicator must elicit a reasonable explanation for the conflict before 14 relying on the VE or VS evidence.” SSR 00-4p, 2000 WL 1898704, at *2. 15 However, where the DOT is “silent on whether the jobs in question allow for a 16 sit/stand option,” there is no conflict with a vocational expert’s testimony that a 17 claimant can perform a job with a sit/stand option. Dewey v. Colvin, 650 F. App’x 18 512, 514 (9th Cir. 2016) (unpublished); see also Meyer v. Astrue, No. CV 12-8919 M-DLC-JCL, 2013 WL 1615893, at *7-*8 (D. Mont. Feb. 22, 2013) (SSR 00-4p 20 21 ORDER - 25 1 satisfied where DOT did not address sit/stand option and ALJ consulted vocational 2 expert about limitation of claimant’s ability to sit or stand pursuant to SSR 83-12). 3 Here, the RFC included a limitation that Plaintiff would be required to 4 change positions every thirty minutes. Tr. 36. The ALJ consulted the vocational 5 expert, who testified that an individual with Plaintiff’s RFC would be capable of 6 performing the jobs of order clerk, telephone solicitor, or final assembler. Tr. 707 73. The DOT is silent as to whether the three jobs identified by the vocational 8 expert allow for a sit/stand option. DOT 209.567-014, Order Clerk, 1991 WL 9 671794; DOT 299.357-014, Telephone Solicitor, 1991 WL 672624; DOT 713.68710 018, Final Assembler, 1991 WL 679271. Therefore, there was no conflict for the 11 ALJ to resolve. The ALJ satisfied SSR 83-12 by seeking the testimony of a 12 vocational expert. 1983 WL 31253, at *4. The ALJ did not err in considering the 13 vocational expert’s testimony at step five. 14 15 CONCLUSION Having reviewed the record and the ALJ’s findings, this court concludes the 16 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 17 Accordingly, IT IS HEREBY ORDERED: 18 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 19 2. Defendant’s Motion for Summary Judgment, ECF No. 20, is GRANTED. 20 3. The Court enter JUDGMENT in favor of Defendant. 21 ORDER - 26 1 The District Court Executive is directed to file this Order, provide copies to 2 counsel, and CLOSE THE FILE. 3 DATED February 4, 2019. 4 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER - 27
]]>
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.
