Thomas v. Commissioner Social Security Administration, No. 6:2009cv06208 - Document 19 (D. Or. 2010)
Court Description: Opinion and Order: The Commissioner's decision is based on substantial evidence, and is therefore, affirmed. This case is dismissed. Signed on September 19, 2010 by Chief Judge Ann L. Aiken. (cp)
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Thomas v. Commissioner Social Security Administration Doc. 19 1 2 3 4 5 6 7 8 9 10 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE DISTRICT OF OREGON 13 BRYONNA L. THOMAS, 14 Civil No. 09-620B-AA OPINION AND ORDER Plaintiff, 15 vs. 16 17 MICHAEL J. ASTRUE, Commissioner of Social Security, 18 Defendant. 19 20 21 22 23 24 25 26 27 28 Kathryn Tassinari Robert Baron Harder, Wells, Baron & Manning, P.C. 474 Wi1lamette, Suite 200 Eugene, Oregon 97401 Attorneys for plaintiff Dwight Holton United States Attorney District of Oregon Adrian L. Brown Assistant United States Attorney 1000 S.W. Third Avenue Portland, Oregon 97204-2902 Franco~. Becia Special Assistant U.S. Attorney Social Security Administration 1 - OPINION AND ORDER Dockets.Justia.com 1 2 701 Fifth Avenue, Suite 2900 MiS 901 Seattle, Washington 98104-7075 Attorneys for defendant 3 AIKEN, Chief Judge: 4 Claimant, Bryonna Thomas, brings this action pursuant to 5 the 6 1383(c) (3), to obtain judicial review of a final decision of the 7 Commissioner denying her application for Supplemental Security 8 Income (SSI) disability benefits under Title XVI of the Act. 9 the 10 Social Security Act reasons set forth (the Act), below, the 42 U.S.C. 405 (g) §§ Commissioner's and For decision is affirmed and this case is dismissed. 11 PROCEDURAL BACKGROUND 12 Plaintiff protectively applied for Supplemental Security 13 Income on October 15, 2004, alleging disability as of March 1, 14 2004. 15 reconsideration. 16 before an Administrative Law Judge (ALJ) which was held on April 17 27, 18 onset date to her date of filing. 19 found plaintiff not disabled. 20 Appeals Council denied plaintiff's request for review. 21 Accordingly, 22 decision. Tr. 65. Tr. 30-37. Tr. 733, 736. 2007. 23 Plaintiff's request was denied initially and upon the ALJ's Plaintiff requested a hearing At that time, plaintiff amended her On June 21, decision On May 21, 65. Tr. 2007, became the the ALJ 2009, the Tr. 7. agency's final STATEMENT OF THE FACTS 24 At the time of the hearing, plaintiff was 35 years old. 738. plaintiff has aGED. Id. Plaintiff has worked in 25 Tr. 26 daycare and as a companion and a community program aid. 27 84. 28 2 - OPINION AND ORDER Tr. 783- 1 STANDARD OF REVIEW 2 This court must affirm the Secretary's decision if it is 3 based on proper legal standards and the findings are supported by 4 substantial evidence in the record. 5 498, 501 (9th Cir. 1989). 6 mere scintilla. 7 mind might accept 8 Richardson v. 9 Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). court Hammock v. Bowen, 879 F.2d SUbstantial evidence is "more than a It means such relevant evidence as a reasonable as adequate Perales, weigh U.S. "both the support 389, a conclusion." 401 10 The 11 detracts from the Secretary's conclusion." 12 evidence (1971) that (quoting 807 F.2d 771, 772 (9th Cir. 1986). 13 must 402 to supports and Martinez v. Heckler, The initial burden of proof rests upon the claimant to 14 establish disability. 15 (9th Cir. 1986). 16 an "inability to engage in any substantial gainful activity by 17 reason 18 impairment which can be expected . . . to last for a continuous 19 period 20 423 (d) (1) (A). 21 of of The 782 F.2d 1484, 1486 To meet this burden, plaintiff must demonstrate any not Howard v. Heckler, medically less Secretary than has determinable 12 physical months. established "42 a five-step or mental U.S.C. § sequential 22 process for determining whether a person is disabled. 23 Yuckert, 24 416.920. 25 engaged in "substantial gainful activity." If so, the claimant 26 is 140; 27 404.1520(b),416.920(b). 28 not 482 U.S. 137, 140 (1987); 20 C.F.R. §§ Bowen v. 404.1520, First the Secretary determines whether a claimant is disabled. Yuckert, 482 U.S. at 20 C.F.R. §§ In step two the Secretary determines whether the claimant 3 OPINION AND ORDER 1 has a "medically 2 impairments." 3 §§ 4 disabled. In impairment or combination of Yuckert, 482 D.S. at 140-41; see 20 C.F.R. 404.1520(c), 5 severe step 416.920(c). three the If not, Secretary the claimant not whether determines is the 6 impairment meets or equals "one of a number of listed impairments 7 that the Secretary acknowledges are so severe as to preclude 8 substantial gainful 9 404.l520(d), 416.920(d), acti vi ty. " I f so, Id. ; see 20 C. F. R. §§ the claimant is conclusively 10 presumed disabled; if not, the Secretary proceeds to step four. 11 Yuckert, 482 D.S. at 141. 12 In step four the Secretary determines whether the claimant 13 can still perform "past relevant work." 20 C.F.R. 14 404.1520(e),416.920(e). 15 disabled. 16 shifts 17 establish that the claimant can perform other work. 18 D.S. at 141-42; 19 If the Secretary meets this burden and proves that the claimant 20 is 21 economy, she is not disabled. I f the claimant can work, §§ she is not If she cannot perform past relevant work, the burden to the Secretary. ~ In step five, 20 C.F.R. §§ the Yuckert, 482 404.l520(e)-(g), 416.920(e)-(g). able to perform other work which exists 22 Secretary must in the national 20 C.F.R. §§ 404.1566, 416.966. DISCUSSION 23 1. The ALJ's Findings 24 At step one, the ALJ found that plaintiff had not engaged 25 in substantial 26 alleged amended disability date. 27 28 gainful activity since October 15, 2004, her Tr. 19, Finding 1. At step two, the ALJ found that plaintiff had the following severe 4 impairments: depression - OPINION AND ORDER with a history of psychotic 1 features (hallucinations); post-traumatic stress disorder (PTSD); 2 borderline 3 disorder; history of polysubstance abuse in apparent remission; 4 history of pulmonary embolism (March 2004) with anxiety and panic 5 episodes 6 treated; obesity; and diabetes mellitus. 7 intellectual following from functioning; concern of borderline personality recurrence; hypothyroid, Tr. 19, Finding. 2 At step three, the ALJ found that plaintiff's impairments 8 did not meet or equal the requirements of a listed impairment. 9 Tr. 19, Finding 3. plaintiff's the ALJ found residual functional 11 unable to follow complex or detailed instructions; 12 maintain ongoing 13 occasional or superficial exchanges; unable to tolerate crowded 14 conditions; 15 teamwork; 16 intolerant of unannounced changes in the work setting. interaction unable unable (RFC) , determining 10 17 capacity In to At step four, to with the consistently maintain rapid that plaintiff was general engage unable to public beyond in cooperative production pace; and Tr. 20. the ALJ found that plaintiff was able to 18 perform her past relevant work as a home day care provider and 19 companion. 20 so, the ALJ made an alternative step five finding. 21 that, based on the above residual functional capacity, plaintiff 22 could 23 national economy; specifically noting the positions identified by 24 the vocational expert (VE): light duty cashier, such as a parking 25 lot cashier, garment sorter; and cafeteria attendant. 26 Finding 9. Tr. 25-26, Finding 5. perform work existing 27 28 5 - OPINION AND ORDER in Although not required to do significant The ALJ found numbers in the Tr. 26-27, 1 2. Plaintiff's Allegations of Error 2 A. Medical Evidence of Record 3 Plaintiff alleges that the ALJ failed to properly consider 4 and address the medical evidence of record. 5 Plaintiff argues that the ALJ improperly evaluated the 6 consul tati ve psychiatric opinion of Dr. 7 2004. 8 be guarded for this individual for having significant improvement 9 in occupational functioning in the near future. Tr. 388-95. Salbador in December Dr. Salbador's prognosis stated, "Appears to Her prognosis 10 for the long run may be somewhat less guarded due to the fact 11 that she hasn't really had the benefit of much in the way of mood 12 stabilizer trials." 13 the medical record in its entirety, plaintiff's impairments are 14 not 15 Plaintiff reported that her pulmonary embolism caused her severe 16 anxiety, however, her treating physicians reassured her of its 17 probable 18 pulmonary embolism in March 2004, although plaintiff was reported 19 to be stable at all times. 20 started plaintiff on Coumadin and Lovenox and subsequent imaging 21 studies in 2004 indicated the pulmonary embolism was resolved. 22 Tr. 20, 422, 519. as 23 severe as Tr. 393 (emphasis added). determined by resolution. The ALJ also Tr. noted 21, Dr. Sa1bador. 388. Tr. Plaintiff Tr. 20, 222. that When considering 19-26. suffered a Plaintiff's physician plaintiff complained of an 24 inability to remember, concentrate and multi-task, however, she 25 stated 26 methamphetamine abuse in 1999. 27 pl~intiff failed to mention that she had recently relapsed and 28 that the 6 that in she prior could six - OPINION AND ORDER do these things Tr. 21, 389. months, she had prior to her The ALJ noted that abused alcohol, 1 methamphetamines, and marijuana. 2 that Dr. Sa1bador's opinion reflected plaintiff's self-reported 3 problems 4 mention her recent drug and alcohol abuse. 5 physician's opinion that is premised on plaintiff's subjective 6 complaints is weighed the same as plaintiff's own testimony. 7 Tonapetyan v. Halter, 242 8 Moreover, quoted above, 9 regarding plaintiff's marked limitations, he also opined that her 10 condition could improve with medication and the record supports 11 exactly that. 12 that when plaintiff ceased abusing drugs and alcohol and complied 13 with her individual and group therapy sessions, she improved. 14 Tr. 20-26. 15 of recent as pulmonary the ALJ Further, the ALJ noted embolism, F.3d 1144, despite Tr. 21, 22-26. Finally, Tr. 21. however, Dr. to Tr. 21, 388-95. 1149 failed A (9 th Cir. 2001). Salbador's opinion The record as a whole indicates noted that Dr. Salbador's checklist 16 assessment was in response to plaintiff's report to him that she 17 was hiding in her room and having psychotic symptoms. 18 found that in light of plaintiff's documented improvement with 19 actual treatment, tr. 20-25, 20 60S, 656, 663, 21 symptoms rise to 22 impairment, tr. 20-25, 413, 23 symptom exaggeration, 24 noncompliance and drug and alcohol abuse, tr. 20, 326-34, 437- 25 39); 26 functioning, 27 642-43, 653, 656, 663, 666; Dr. Salbador's checklist assessment 28 was given little weight. 7 642-43, 653, giving and later tr. 390, - OPINION AND ORDER 413,417,422-33,590,597, 666; as well as resolution of the plaintiff's perceived level of 417, 422-33, 519; documentation of 24, 711; observations tr. 20-25, The ALJ 390, 413, the impact of plaintiff's of 417, Tr. 21-26. plaintiff's 422-33, unimpaired 590, 597, 60S, See Crane v. Shalala, 76 (9 th Cir. 1 F.3d 252, 2 evaluations "because they were check -off reports that did not 3 contain any explanation for the bases of their conclusions."). 4 The ALJ here provided sufficient reasons supporting his decision, 5 therefore the court accepts the ALJ's analysis of Dr. Salbador's 6 opinion. 7 253 The plaintiff 1996) (ALJ rejected three psychological also argues that the ALJ erred in 8 discrediting the March 2007 disability opinion of Dr. Eckstein. 9 Again, the ALJ met his burden by setting out a detailed and 10 thorough summary of the facts and conflicting clinical evidence, 11 and made findings in that regard. 12 as 13 impairments were not as severe as determined by Dr. Eckstein. 14 Tr. 15 exaggeration in plaintiff's self reporting. 16 opinion based on uncritical acceptance of plaintiff's subjective 17 cOIDplaints cannot be accorded significant weight under the Act 18 and IDay be disregarded. 19 Administration, 20 noted plaintiff's inconsistent reporting to both Drs. Eckstein 21 and Salbador regarding her hallucinations. 22 found that plaintiff's statements were not credible as her self- 23 reports were erratic and not corroborated by the Douglas County 24 Mental Health records. 25 43. 26 addiction 27 evaluation. 28 reported that her mental symptoms decreased significantly when 8 a whole supports 19-26. Dr. the Eckstein Tr. 19-26. ALJ's finding acknowledged The medical record that the plaintiff's possibility Tr. 23, 711. of An Bayliss v. Commissioner. Social Security 427 F.3d 1211 (9 th Cir. 2005). The ALJ Tr. 23-24. also The ALJ Tr. 20-21, 23-24, 431-33, 439, 488, 641- Moreover, plaintiff reported recovering from a relapse of to prescription Tr. 24, 708. OPINION AND ORDER drugs Also, within as two weeks noted above, of her plaintiff 1 she was in counseling, which is corroborated by the record. 2 plaintiff 3 sessions, her mental symptoms improved significantly so that she 4 ceased attending counseling, 5 "stable" 6 plaintiff herself. 7 counseling sessions, 8 drug abuse. 9 counseling sessions over time greater weight than the one-time participated and in "doing well" individual and group When counseling and her status was described as by her therapists Tr. 24,639-666,705-17. as well as by Upon ceasing her within one month plaintiff relapsed into The ALJ properly gave Tr. 24. the chart 10 evaluation by Dr. Eckstein. 11 notes of her Therefore, the ALJ properly evaluated the medical evidence from Dr. Eckstein. 12 B. Plaintiff's Credibility 13 The plaintiff argues that the ALJ erred in finding her 14 testimony and other subjective complaints not entirely credible. 15 Tr. 16 rejecting plaintiff's testimony that she was disabled by her 17 impairment. 18 must make findings "sufficiently specific to permit the reviewing 19 court to conclude that the ALJ did not arbitrarily discredit the 20 claimant's testimony." 21 Cir. 22 allegations that she experience some limitations, but does not 23 support plaintiff's' 24 working. Tr. 19-26. 25 an underlying impairment, but testifies that she experiences pain 26 (or 27 disbelieve that testimony. 28 (9 th Cir. 1985). 9 25. The ALJ provided clear and convincing reasons In order to reject plaintiff's testimony, the ALJ 1995). other for Here, symptom) Orteza v. Shalala, 50 F.3d 748, 750 (9 th reliable evidence allegations that supports she is plaintiff's incapable of If a plaintiff submits medical evidence of at a higher level, the Commissioner may Nyman v. Heckler, 779 F.2d 528, 531 Plaintiff's credibility was undermined by the - OPINION AND ORDER 1 lack of medical evidence to support the severity of limitations 2 she claimed. 3 evidence 4 inference as to plaintiff's credibility. 5 1147-48. 6 a 7 convincing reasons 8 determination. in The lack of medical evidence combined with other the record allows the ALJ to draw an adverse Tonapetyan, 242 F.2d at Here, the ALJ judges plaintiff's credibility based on consideration of the entire record and provided clear and supported by substantial evidence for his SSR 96-7p. CONCLUSION 9 The 10 Commissioner's decision 11 evidence, and is therefore, affirmed. 12 is based on substantial This case is dismissed. IT IS SO ORDERED. Dated this ~ day of September 2010. 13 14 15 16 17 Ann Aiken United States District Judge 18 19 20 21 22 23 24 25 26 27 28 10 - OPINION AND ORDER
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