Roberts v Commissioner, Social Security Administration, No. 2:2012cv01456 - Document 16 (D. Or. 2013)

Court Description: Opinion and Order. For the foregoing reasons, the Commissioner's final decision is AFFIRMED. (see 12 page opinion and order for further details) Signed on 10/29/13 by Judge Robert E. Jones. (cib)

Download PDF

Roberts v Commissioner, Social Security Administration Doc. 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PENDLETON DIVISION LADONNA P. ROBERTS, ) ) ) ) Plaintiff, v. 2: 12-CV-01456-JO ) ) CAROLYN W. COLVIN, Acting Commissioner of) Social Security, .) ) Defendant. ) JONES, J., OPINION AND ORDER PlaintiffLadonna Roberts appeals the Commissioner's decision denying her application for disability insurance benefits under Title II of the Social Security Act. The comi has jurisdiction under 42 U.S.C. § 405(g). I AFFIRL\1 the Commissioner's decision. PRIOR PROCEEDINGS Roberts alleged disability beginning in July 2007 due to mihritis, incontinence, residual effects of an acoustic neuroma, headaches, sleep apnea, carpal tunnel syndrome, deafness in the left ear, and Bell's palsy. Admin. R. 159, 163. The ALI applied the sequential disability determination process described in 20 C.P.R. section 404.1520. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The ALJ found Roberts's ability to work adversely affected by atihritis, obesity, and deafness in the left ear. Admin. R. 14. -1- OPINION AND ORDER Dockets.Justia.com The ALJ found that, despite her impahments, Roberts retained the residual functional capacity ("RFC") to perf01m light work that did not require her to bend, stoop, squat, crouch, crawl, stand longer than 90 minutes at a time, or work at heights or near moving machinery. In addition, Robe1is could only work if permitted a bathroom break at least once each hour. Admin. R. 16. The ALJ elicited testimony from a vocational expe1i ("VE") regarding the physical and mental demands ofRoberts's f01mer occupation as an accounts receivable clerk and medical billing clerk. The VE testified that these were sedentary, skilled and semi-skilled occupations and did not require activities precluded by Roberts's RFC. Admin. R. 45-46. The ALJ therefore found that Robe1is retained the RFC to perform the accounts receivable and medical billing jobs as they are generally perf01med in the national economy. Admin. R. 20. The ALJ concluded that Roberts was not disabled within the meaning of the Social Security Act. Admin. R. 21. STANDARD OF REVIEW The district cou1i must affirm the Commissioner's decision if it is based on proper legal standards and the findings offact are supp01ied by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Batson v. Comm 'r ofSoc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under this standard, the Commissioner's factual findings must be upheld if supported by inferences reasonably drawn from the record even if evidence exists to support another rational interpretation. Batson, 359 F.3d at 1193; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995). DISCUSSION I. · Claims of Error -2- OPINION AND ORDER Roberts contends the ALJ failed to assess her RFC accurately because he improperly discredited her testimony, rejected the opinion of examining physician Thomas Westhusing, D.O., ignored the statements oflay witnesses, and failed to explain how Roberts's obesity restricted her ability to work. Roberts also contends the ALJ's e!1'ed at step four of the decision making process because her former work requires activities precluded by the ALJ' s RFC assessment. II. Credibility Determination In application, Robetis alleged she could not work because of mihritis in her hands, hips, and lower back, incontinence, the residual effects of an acoustic neuroma, including hearing loss in the left ear, damage to her balance nerve, a11d mild Bell's palsy affecting the left side of her face. Roberts alleged that headaches, muscle spasms, sleep apnea, and carpal tunnel syndrome interfered with her ability to work. She said her impairments made it difficult to lift things and to stand or sit for a full workday. Admin. R. 163. At the administrative hearing, Roberts testified that she had an acoustic neuroma removed in 1983 after which she lost hearing in the left ear, developed minor Bell's palsy on the left side of her face, and experienced balance problems. Admin. R. 32, 35, 37, 39. She said she had difficulty understanding what people were saying to her in group situations. Admin. R. 40. Roberts fell and fractured her right wrist in June 2007. The fracture healed, but Robetis continued to experience aching in the wrist in cetiain weather conditions, due to arthritis and carpal tunnel syndrome. Admin. R. 33. Robetis said that mihritis also affected her lower back and hips. Admin. R. 34-35. She complained of sleep apnea, incontinence, and muscle spasms all the way from her ankles to her neck. Admin. R. 34, 36. Robetis said she suffered migraines at least five times a month. Admin. R. 39. She was depressed and had acid reflux. Admin. R. 40-41. Robetis testified -3- OPINION AND ORDER that she lies down during the day at least three times a week for 20 minutes to an hour for headaches or fatigue. Admin. R. 44. The ALJ accepted some of Robert's subjective statements. For example, he reduced Robetis's RFC to less than the full range oflight work with limited walking, standing, and postural requirements, and no work at heights or around moving machinety based on her assetiions of pain from mihritis, the limiting effects of obesity, and the residual effects of acoustic neuroma removal. Admin. R. 17. Indeed, the ALJ found her statements less than fully credible only insofar as she suggested that her symptoms were so limiting that she could not work within the restrictions of her RFC assessment. Admin. R. 16-17. The ALJ found that Robetis's impairments could reasonably be expected to produce some of her alleged symptoms, and there was no evidence of malingering. Under such circumstances, an ALJ must assess the claimant's credibility regarding the severity of symptoms. An adverse credibility detetmination must include specific findings supported by substantial evidence and clear and convincing reasons. Carmickle v. Comm '1; Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Smolen v. Chafer, 80 F.3d 1273, 1281-82 (9th Cir. 1996). The findings must be sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). In assessing credibility, an ALJ must consider all the evidence in the case record, including the objective medical evidence, the claimant's treatment history, medical opinions, daily activities, work hist01y, the observations of third parties with knowledge of the claimant's functional limitations, and any other evidence that bem·s on the consistency and veracity of the claimant's -4- OPINION AND ORDER statements. Tommasetti, 533 F3d at 1039; Smolen, 80 F3d at 1284; SSR 96-7p, 1996 WL 374186, at *5. The ALJ's decision demonstrates that he considered all the evidence relating to the proper factors for evaluating credibility. He provided a thorough discussion of the medical evidence, noting that some ofRoberts's allegedly disabling impairments were unsuppmied by medical findings. For example, Roberts alleged significant impairment from incontinence, headaches, carpal tunnel syndrome, vertigo, and full body muscle spasms, but these conditions were not diagnosed by physicians and the record reflects that Robetis did not seek treatment for them. Admin. R. 14-15, 33, 35-36, 519-20. When a claimant makes subjective statements claiming disabling symptoms, but fails to seek treatment to alleviate such symptoms, the ALJ may draw an adverse inference as to the claimant's credibility. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001); Flaten v. Sec'y of Health & Human Serv., 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ found that some of Roberts's allegedly disabling symptoms were controlled by treatment. For example, Robetis alleged significant impairment from sleep apnea, but this condition has been controlled with use of a CPAP device since 2003. Admin. R. 14, 385, 423. Roberts testified that the CPAP had become less effective in recent years, but as the ALJ pointed out, her failure to have this addressed by a physician suggests that it provides adequate relief. Admin. R. 14, 34. Similarly, Roberts's acid reflux appears to be controlled by medication and she said that her alleged migraines respond to over-the-counter headache medications like aspirin, Tylenol, and Excedrin. Admin. R. 14, 39, 42, 396,408. Impairments that are effectively controlled by medication or improve from treatment are not disabling. Warre v. Comm 'r ofSoc. Sec. Admin.,-439 F.3d 1001, -5- OPINION AND ORDER 1006 (9th Cir. 2006); Morgan v. Comm 'r 169 F.3d 595, 599 (9th Cir. 1999); Tidwell v. Apfel, 161 F. 3d 599, 601 (9th Cir. 1998). In his credibility dete1mination, the ALJ discussed Robe1is's treatment history, correctly noting that she has received minimal treatment during the period for which she claims disability, and what treatment she received has been routine and conservative. Admin. R. 20. Treatment that is conservative or minimal suppmis an adverse inference as to the claimant's credibility regarding subjective claims of disabling symptoms. Parra v. Astrue, 481 F3d 742, 750-51 (9th Cir. 2007); Meanal v. Apfel, 172 F3d 1111, 1114 (9th Cir. 1999). The ALJ also accounted for the medical opinion evidence in his credibility analysis. The ALJ discussed the opinions of the agency reviewing expe1is and adopted most of their findings because they were consistent with the record as a whole. Admin. R. 18. The ALJ discounted the expert's opinion that Robe1is should not climb, should limit gross manipulation with the right hand, and should avoid concentrated exposure to noise and vibration. The ALJ found these limitations unsupported by objective evidence and contrary to Robe1is's repmied daily activities. Admin. R. 18. Regarding Robe1is 's allegation of depression, the reviewing expe1i opined that she had mild depressive symptoms that did not cause work-related functional limitations. Admin. R. 535. This is consistent with the mental portion of Dr. Westhusing's evaluation. Admin. R. 519. The ALJ's evaluation of Dr. Westhusing's opinion is discussed below. In shmi, the medical opinions did not support Robe1is's subjective claim that she cannot engage in work within the limitations of her RFC assessment. The ALJ considered Robe1is's work history. The record shows that Robe1is worked as an accounts receivable representative and medical billing clerk for 15 years until she quit her job so that -6- OPINION AND ORDER she could move with her husband to a different pmt of the state. Admin. R. 20, 30-31, 45-46, 175. When a claimant stops working for reasons other than disability, the ALJ may draw an adverse inference as to the credibility of her disability claim. Bruton, 268 F.3d at 828. After moving, Roberts actively sought employment in her new location, suppmting an inference that she believed she remained capable of engaging in work with appropriate restrictions. Admin. R. 18. The ALJ also considered Robe1ts's daily activities, noting that she performs all personal care and typical household chores without assistance, navigates the stairs in her home, cares for a grandchild and a disabled husband, uses a computer and a telephone, knits, crochets, plays bingo, drives and generally appears to be less limited than she claims. Admin. R. 17-18. While these activities are not equivalent to a specific job description, they do support the ALJ's conclusion that Roberts is less limited than her subjective statements suggest. The ALJ also identified inconsistent statements that suggest Roberts is less than fully candid. Admin. R. 18. For example, Roberts told Dr. Westhusing that she worked as a medical biller for 15 years but had to stop due to problems with her legs and hands. Admin. R. 518. At the hearing she testified that she stopped working because she moved to a different town when her husband had to relocate for a new job. Admin. R. 30-31. Roberts argues that the ALJ improperly rejected her testimony that she has balance problems and difficulty understanding people in a group setting. The argument cannot be sustained for all the reasons already given. In particular, these limitations have been present since Roberts's acoustic neuroma surge1y in 1983 and did not preclude her from perfonning her past work, which she quit for reasons unrelated to these limitations. -7- OPINION AND ORDER The ALJ' s credibility determination included specific findings supported by substantial evidence and clear and convincing reasons. Carmickle, 533 F.3d at 1160; Smolen, 80 F.3d at 128182. His findings are sufficiently specific to permit me to conclude that he did not arbitrarily discredit Robetts's testimony. Tommasetti, 533 F.3d at 1039. Accordingly, the ALJ's credibility detetmination will not be ovetiurned. III. Lay Witness Statements Roberts contends the ALJ improperly rejected the lay witness statements without giving reasons. An ALJ must consider the testimony of a lay witness, but may discount it for reasons germane to the witness. Valentine v. Comm 'r ofSoc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). The ALJ' s reasons must be supp01ted by substantial evidence, but may appear anywhere in the decision without being tied directly to the evaluation of the lay witness statements. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Here the ALJ separately discussed each of the lay witness statements and explained the reasons for the weight he gave them in his decision. Admin. R. 19-20. For example, Robetts's parents provided a statement regarding Roberts's functional limitations at work. Admin. R. 229-31. The ALJ discounted this statement because Robetts's parents were unable to observe Robetis at work and appeared to be repeating her subjective complaints. Furthermore, Robetts's parents lived in a different town from Robetis beginning before the alleged onset ofher disability. Admin. R. 19. Similarly, LindaJolmson provided statements that were not based on first-hand observations and appeared to be based on Robetts' s subjective complaints. Admin. R. 20, 235-36, 714-17. J orene Roberts and Patricia Ross provided statements based on first-hand observations, but these showed -8- OPINION AND ORDER that Roberts retained the ability to perf01m many light and sedentmy tasks, albeit with some discomfort. Admin. R. 19-20, 232-34, 237-38, 703-06, 710-13. In general, the lay witness statements were consistent with Roberts's own subjective complaints and were susceptible to the same reasoning the ALJ provided in discounting Roberts's credibility. Molina v. Astrue, 674 F.3d 1104, 1117-18 (9th Cir. 2012). That reasoning provides an adequate basis for the ALJ's evaluation of the lay witness testimony. Valentine, 574 F.3d at 694; Lewis, 236 F.3d at 512. VI. Medical Opinion of Dr. Westhusing Dr. Westhusing performed a disability evaluation ofRobe1ts in December 2008. In the upper extremities, Robe1ts had full range of motion without evidence of muscle atrophy, full and symmetrical strength, normal reflexes and normal sensation. Roberts had full range of motion in the spine with a negative straight leg raise test and normal heel and toe walk test. She also had full range of motion in the hips, knees, and ankles, with full muscle strength and sensation in the lower extremities. A carpal tunnel examination was negative and her cranial nerves were intact except for the facial nerve on the left. Roberts had hearing loss in the left ear and a depression invent01y suggested mild depression. Admin. R. 519. In short, Dr. Westhusing's findings were generally benign with the exception of one-sided hearing loss. Dr. Westhusing then opined: I believe that she could function reasonably well in a clerical type sedentary work environment. I see no impairment in her use of either upper extremity. Would not recommend a work environment in which she is required to bend, stoop, crawl, squat, work at height or work above shoulder height. Admin. R. 519. -9- OPINION AND ORDER The ALJ adopted all of the limitations in Dr. Westhusing' s opinion except for his suggestion that Robetts should not work above shoulder level. Admin. R. 19. The ALJ correctly noted that this aspect of Dr. Westhusing's opinion contradicted his objective findings of full range of motion and strength in the upper extremities and his opinion that Robetis had no impairment in the use of either upper extremity. Admin. R. 19,519. The ALJ can reject an examining physician's opinion that is inconsistent with the opinions of other treating or examining physicians, if the ALJ makes "findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995). An uncontradicted opinion may be rejected for clear and convincing reasons. Thomas, 278 F.3d at 956-57. The ALJ found Dr. Westhusing' s opinion regarding work above shoulder level intemally inconsistent and unsupported by his own findings. The reasoning is clear and convincing and will not be disturbed. Roberts argues that the ALJ improperly discredited a different pati of Dr. Westhusing's opinion regarding her claim of balance problems. Dr. Westhusing acknowledged Robetis's subjective complaint ofbalance problems. He said that it would be ''conceivable" that vertigo might be associated with the acoustic neuroma surgery Roberts had experienced. In his examination, however, Dr. Westhusing found no nystagmus or other evidence ofvettigo. Admin. R. 519. Roberts contends the ALJ failed to understand Dr. Westhusing's repmt. On the contrmy, the ALJ's interpretation of this evidence is fully suppotied by inferences reasonably drawn from the record. Under such circumstances, the Commissioner's determination must be upheld, even if Dr. Westhusing' s opinion could be interpreted differently, in a manner more helpful to Robetis. Molina, -10-0PINION AND ORDER 674 F.3d at 1110; Batson, 359 F.3d at 1193 Andrews, 53 F.3d at 1039. The court is not free to substitute a different interpretation for that of the Commissioner if both are rational interpretations suppmied by inferences reasonably drawn from substantial evidence in the record. Andrews, 53 F .3d at 1039-40. V. Obesity Roberts contends the ALJ failed to explain with sufficient specificity which of her impairments were attributable to obesity. Plf. 's Br. 21. The ALJ discussed the medical evidence ofRobetis's obesity. He refe!1'ed to Dr. Westhusing's examination which showed that, despite her obesity and other impaitments in combination, Robetis walked normally and had normal gait and station. The ALJ adopted the postural limitations in Dr. Westhusing' s opinion, and the exetiional limitations from the agency reviewing expeti' s opinion, based on the impact ofRobetis' s obesity on her ability to perform work-related activities. Admin. R. 17. I find no error in the ALJ' s evaluation of Roberts's obesity. VI. Vocational Evidence At step four ofthe disability-detetmination process, the claimant bears the burden of showing that she can no longer perfotm her past work. 20 C.F .R. § 1520(e). Unless the claimant satisfies this burden, she will be found not disabled. Barnhart v. Thomas, 540 U.S. 20, 25 (2003). A claimant must show that she can perform neither the actual functional demands and job duties of a past relevant job as she performed it, nor the functional demands and job duties of the occupation as generally required by employers throughout the national economy. Carmickle, 533 F.3d at 1155. Robetis contends the ALJ erred at step four because her past job had required her to stoop as much as one hour per day and the ALJ's RFC assessment precluded stooping. P1f.'s Br. 13-14. -!!-OPINION AND ORDER Roberts's argument addresses only the functional requirements of her past work as she actually performed it. She failed to address the other prong, regarding the requirements of her work as it is generally performed. The VE testified that a person with all of the limitations in Roberts's RFC assessment, including the exclusion of stooping and a restriction to sedentary exertion, could perform the activities required in her past work as it is generally performed in the national economy. Admin. R. 46-4 7. Accordingly, Robe1is failed to show that she cannot perf01m the functional demands and job duties of her past occupation as generally required by employers throughout the national economy. Carmickle, 533 F.3d at 1155. CONCLUSION For the foregoing reasons, the Commissioner's final decision is AFFIRMED. DATED this ;1.1 fh day of October, 2013. Robery . J?JJ.eS, Senior Judge United'Stafes District Court -12-0PINION AND ORDER

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.