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Ash v. Colvin

United States District Court, D. Oregon, Portland Division

April 8, 2014

NANCY G. ASH, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JAMES A. REDDEN, District Judge.

Plaintiff Nancy G. Ash ("Ash") brings this action to obtain judicial review of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her claim for disability insurance benefits ("DIB"). For the reasons set forth below, the decision of the Commissioner is affirmed and this matter is dismissed.


Ash filed her application for DIB on March 4, 2009, alleging disability since March 22, 2008, due to "[h]ead, shoulder, knees, arms, legs, hips, pelvis I got hit in a cross walk and was through [sic] 15 feet on March 22, 2008 and have been in pain sence [sic]. I was hit by a car in a cross walk and it damaged my body." Tr. 135. Ash was 48 years old on her alleged onset date. She has two years of college. Tr. 39. Her application was denied initially and upon reconsideration. A hearing was held on July 7, 2011. The Administrative Law Judge ("ALI") found her not disabled. Tr. 20-28. Ash's request for review was denied, making the ALJ's decision the final decision of the Commissioner.


The ALJ found Ash had the medically determinable severe impairments of fibromyalgia, carpal tunnel syndrome, and depression/bipolar disorder. Tr. 22.

The ALJ found that Ash's impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. Tr. 23.

The ALJ determined Ash retained the residual functional capacity ("RFC") to perform a reduced range of light work, unskilled, with occasional climbing, balancing, stooping, kneeling, crouching, crawling, and occasional use of the bilateral upper extremities. Tr. 24.

The ALJ found Ash could not perform her past relevant work as an apartment manager, office manager, or administrative assistant, but was capable of working as an economy hostess, usher, or information clerk. Tr. 28.

Ash argues that the ALJ erred by: (1) finding her not fully credible; (2) improperly assessing her RFC; (3) failing to find her disabled under the "Grids;" and (4) improperly weighing lay testimony.


I. Credibility

The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir 1995). However, the ALJ's findings must be supported by specific, cogent reasons. Reddick v. Chafer, 157 F.3d 715, 722 (9th Cir 1998). Unless there is affirmative evidence showing that the claimant is malingering, the Commissioner's reason for rejecting the claimant's testimony must be "clear and convincing." Id. The ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints. Id. The evidence upon which the ALJ relies must be substantial. Reddick, 157 F.3d at 724. See also Holohan v. Massinari, 246 F.3d 1195, 1208 (9th Cir 2001). General findings (e.g., "record in general" indicates improvement) are an insufficient basis to support an adverse credibility determination. Reddick at 722. See also Holohan, 246 F.3d at 1208. The ALJ must make a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir 2002).

In deciding whether to accept a claimant's subjective symptom testimony, "an ALJ must perform two stages of analysis: the Cotton analysis and an analysis of the credibility of the claimant's testimony regarding the severity of her symptoms." [Footnote omitted.] Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir 1996).

Under the Cotton test, a claimant who alleges disability based on subjective symptoms "must produce objective medical evidence of an under-lying impairment which could reasonably be expected to produce the pain or other symptoms alleged...." Bunnell, 947 F.2d at 344 (quoting 42 U.S.C. ยง 423(d)(5)(A) (1988)); Cotton, 799 F.2d at 1407-08. The Cotton test imposes only two requirements on the claimant: (1) she must produce objective medical evidence of an impairment or impairments; and (2) she must show that the impairment or combination of impairments could reasonably be expected to (not that it did in fact) produce some degree of symptom.

Smolen, 80 F.3d at 1282.

The ALJ found Plaintiff not credible to the extent that her allegations exceed the RFC. Tr. 25. Ash testified that she has a driver's license but generally does not drive because "driving is very very scary for me, " and causes anxiety since she was hit by a car in March 2008 and hospitalized for five days with contusions and soft tissue injuries. Tr. 45. She stated that she gets up around noon and takes her medication, then tries to do some housework like the dishes, but her hands cramp and she drops dishes. She tries to do light housework for ten to fifteen minutes and then usually goes back to bed because she is depressed. Tr. 51. Her husband does most of the housework, and has to help her do buttons, snaps and zippers. Tr. 46.

Ash testified that she can no longer quilt because her hands cramp. Her husband does most of the cooking because she drops cooking utensils. She cannot grip with either hand, though it's worse in the dominant right hand. Ash stated she has good days and bad days, and on a good day she might buy a gallon of milk, but she is unable to carry a case of soda pop. Tr. 47. Ash testified she no longer goes out and she no longer takes photographs and makes photograph albums because her "hands don't work." Id. She can stand for about ten to fifteen minutes before she needs to sit down because of pain in her hips or knees. Tr. 48. She is in pain when sitting, and cannot sit through a half hour television show. Tr. 49. Reading causes headaches. Her husband helps her with the laundry. Tr. 50. She can pick a piece of paper up from the floor but it's "very painful." Tr. 52. Sometimes she uses a cane when she goes out. It hurts to reach shoulder high. She cut her hair because she could not take care of it. Tr. 53. She takes Oxycontin, Oxycodone, Flexeril, and Savilla, and has no side effects from the medications. Tr. 55. She had physical therapy after the accident, but cannot do the home exercises because "it was too painful... it hurts the joints really, really bad." Id. Ash testified she was "hard to get along with because I just I cry a lot. I would get angry because I am the way I am." Tr. 56. Since the accident, she has headaches at least twice a month that can last three to four days at a time, and when she has them she can't eat and she throws up. Tr. 57. She cannot tolerate smells or noise.

Ash testified that she has audio hallucinations where she hears voices or music at least three times a week. Tr. 58. She didn't tell her physicians about the voices until 2010 because she was afraid her doctors would think she was crazy. Sometimes she will sleep for three or four days at a time because of depression and shame. Tr. 60. Four or five times a week she does not get dressed. Tr. 61.

The Commissioner argues the ALJ identified clear and convincing reasons to find Ash less than fully credible as to the extent of her limitations:

A. Symptoms Controlled by Medication

Plaintiff testified that her pain made her unable to stand for more than 15 minutes, and her medications caused no side effects. Tr. 48, 55. The ALJ stated that "the medical records reveal that the medications have been relatively effective in controlling the claimant's symptoms. Indeed, the claimant repeatedly reported Oxycontin controlled her pain." Tr. 26. The ALJ cited a June 2009 note from treating physician Melvin D. Herd, M.D., Ph.D., who wrote "[p]atient states her pain is controlled with the OxyContin. She feels that the current dosing is adequate to control her pain." Tr. 272. The AJL also cited a December 2010 note from Dr. Herd:

Patient's pain has been controlled on the OxyContin. She's had some insurance issues and the insurance wanted to change her 2 other medications.... Patient has worked out these issues and that her daughter will be paying for her OxyContin. Patient states she ...

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