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Langford v. Colvin

United States District Court, D. Oregon

September 5, 2014

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


MICHAEL J. McSHANE, District Judge.

Plaintiff Bre-Anna Langford brings this action for judicial review of a final decision of the Commissioner of Social Security denying her application for supplemental security income payments (SSI) under Title XVI of the Social Security Act. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). This Court is asked to consider (1) whether the ALJ erred in evaluating the evidence submitted by plaintiff, lay witness, Tabitha Langford, and treating physician, Dr. Miller, and (2) whether the ALJ relied on erroneous Vocational Expert (VE) testimony. Because the ALJ articulated sufficient reasons supported by substantial evidence in the record for his evaluation of the respective evidence, the Commissioner's decision is AFFIRMED.


Plaintiff applied for SSI on March 12, 2009, alleging disability since January 1, 2004 (later amended to March 12, 2009). Tr. 12, 32, 154. These claims were denied initially and upon reconsideration. Tr. 12, 91-100. Plaintiff timely requested a hearing before an administrative law judge (ALJ), and appeared before the Honorable Michael Gilbert on September 20, 2011. Tr. 12, 29-90. ALJ Gilbert denied plaintiff's claims by written decision dated December 20, 2011. Tr. 12-23. Plaintiff sought review from the Appeals Council, which was subsequently denied, tr. 1-3, thus rendering the ALJ's decision final. Plaintiff now seeks judicial review.

Plaintiff, born on December 6, 1990, tr. 21, 154, completed the eleventh grade, tr. 36, and, at the time of hearing, was enrolled in online high school through Lane Technical Learning Center, tr. 36, 50, 273-74. Plaintiff was eighteen at the time of alleged disability onset, and twenty at the time of hearing. See tr. 33, 154.[1] Plaintiff alleges disability due to: diabetes type-I with neuropathy; obesity; gastroparesis; fibromyalgia; adjustment disorder with anxiety and depressive mood; pain disorder with psychological features, and chronic irritable bowel syndrome (IBS). Tr. 14; Pl.'s Br. 1, ECF No. 17.


The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence on the record. See 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). To determine whether substantial evidence exists, this Court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).


The Social Security Administration utilizes a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (RFC), age, education, and work experience. Id.

Plaintiff contends that the ALJ erred in formulating and applying plaintiff's RFC under step four and five of the sequential evaluation.[2] In particular, plaintiff argues that: (1) the ALJ erred in evaluating plaintiff's testimony; (2) the ALJ erred in evaluating Tabitha Langford's testimony; (3) the ALJ erred in evaluating Dr. Miller's medical evaluation; and (4) the ALJ relied on erroneous VE testimony.

I. Plaintiff's Testimony

Plaintiff contends that the ALJ improperly rejected her testimony. Pl.'s Br. 12-17, ECF No. 17. In response, defendant argues that substantial evidence supports the ALJ's credibility findings. Def.'s Br. 5, 8-9, ECF No. 18.

An ALJ must consider a claimant's symptom testimony, including statements regarding pain and workplace limitations. See 20 CFR §§ 404.1529, 416.929. "In deciding whether to accept [this 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." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). If a claimant meets the Cotton analysis[3] and there is no evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Id. (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)). This Court "may not engage in second-guessing, " Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citations omitted), and "must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation, " Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (citations omitted).

The ALJ found that plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms were "not credible to the extent they were inconsistent with the" RFC. Tr. 17; see also supra note 2 (identifying plaintiff's RFC). The ALJ's credibility analysis relied on four bases, including: (1) non-compliance with treatment; (2) daily activities; (3) inconsistency with medical evidence; and (4) school attendance. This Court looks to those bases.

First, as to non-compliance with treatment, the ALJ discussed plaintiff's non-compliance at length. This analysis provided:

One reason she is not credible is her lack of compliance with treatment and recommendations to treat her impairments. Throughout the record, the claimant exhibits significant problems with her ability to maintain compliance with medical treatment. She has been noted to not be following up with medical suggestions which has been repeatedly reiterated to her regarding her sleep hygiene, and has failed to maintain proper sleep hygiene (Exhibit 13F/1 [tr. 520]). She also has not been properly maintaining her diet regarding her diabetes treatment. She has "forgotten" to eat on a few occasions, then has found herself very hungry and has gotten off her diet (Exhibit 18F/65 [tr. 733]). She also is regularly consuming coffee and 44 ounces of soda per day, despite claiming compliance with diabetes mellitus (Exhibit 18F/65 [tr. 733]). The claimant also has not been compliant with maintaining a sleep log in her efforts to treat her sleep disorders (Exhibit 11F/1 [tr. 516]).
The claimant also has disregarded recommendations that she exercise to treat her diabetes. Her providers at OHSU recommended that she get a book on pain management and focus on exercise, specifically reconditioning, stretching, strengthening and increasing activities (Exhibit 18F/25;/65 [tr. 693, 733]). Her providers at Oregon Medical Group have also recommended that she exercise and she has not followed up on these recommendations, as her mother has been concerned about her heart rate increasing during exercise (Exhibit 27F/14 [tr. 1017]). There is no evidence in the record that she has followed up and attempted to exercise. The claimant has also been noted to have a tendency to make excuses, and has not completed 100% of the recommendations her providers have had for her (Exhibit 20F/29 [tr. 868]). Her excuses in response to these issues at hearing failed to explain her lack of compliance.

Tr. 19. Because plaintiff disputes the evidentiary record, this Court looks to the record.

On September 2, 2009, Erik Marsiglia, D.O., and Brett Stacey, M.D., met with plaintiff for an office visit. Dr. Marsiglia reported that plaintiff "has not followed many of our prior suggestions which we reiterated."[4] Tr. 681.

On September 24, 2009, Dainis Irbe, M.D., met with plaintiff and administered a sleep consultation. Tr. 516-519. Dr. Irbe noted that "[u]nfortunately she did not fill out the sleep log She was unable to provide me with a reliable sleep-wake pattern at this point." Tr. 516. Dr. Irbe also indicated that plaintiff "does not exercise, " and "consumes one or two cups of coffee and 44 ounces of soda daily." Id.

On October 20, 2009, Joanne Miracle, ANP, met with plaintiff for an office visit. At that time, plaintiff had not started physical rehabilitation or read the book suggested by Dr. Stacey. Tr. 671. ANP Miracle also reported that plaintiff's pain "is aggravated by eating, fatty foods, soda" and that plaintiff was not exercising. Tr. 670.[5]

On February 24, 2010, plaintiff met with Kate Cable, R.D., and indicated that her biggest concern was that "she forgets to eat" and often ate about one meal per day. Tr. 733. Plaintiff also reported ...

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