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Allen v. Colvin

United States District Court, D. Oregon

October 8, 2014

AUDRA ALLEN, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

Phil Studenberg, Attorney-at-Law, PC, Klamath Falls, OR, Attorney for plaintiff.

S. Amanda Marshall, United States Attorney, Ronald K. Silver, Assistant United States Attorney, Portland, OR, Courtney Garcia, Special Assistant United States Attorney Social Security Administration, Seattle, WA, Attorneys for defendant.


ANN AIKEN, Chief District Judge.

Plaintiff brings this action pursuant to the Social Security Act (Act) to obtain judicial review of the final decision of the Commissioner of Social Security (Commissioner) denying her application for supplemental security income (SSI) under the Act. The Commissioner's decision is affirmed and this case is dismissed.


Plaintiff argues that the ALJ erred by: 1) rejecting the medical opinion evidence of her treating physician; 2) concluding that she refused to follow mental health treatment recommendations; 3) concluding that her physical and mental impairments did not rise to the level of meeting listings 1.02, 1.03, or 12.04; and 4) finding that jobs with less than 100, 000 positions nationally are jobs that exist in "significant numbers." Pl.'s Br. 1-4.

I. Rejection of Plaintiff's Treating Physician's Medical Opinion

Plaintiff argues that the ALJ improperly gave controlling weight to Dr. John Morse, M.D., a medical expert, over the opinion of her treating physician, Dr. Jamie Rich, M.D.. Pl.'s Br. 1.

The ALJ evaluated Dr. Rich's opinion and held that her opinion was not entitled to controlling weight because it "was largely based upon [plaintiff's] subjective accounts, provided little explanation or rationale, and was contradicted by the opinions of other physicians." Tr. 22. Dr. Rich first saw plaintiff on January 3, 2013, the same day she completed a check-box form indicating that plaintiff had extensive exertional and postural limitations and an inability to work.[1] Tr. 506, 513-14.

To reject an uncontradicted opinion of a treating doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence. Lester v. Chater , 81 F.3d 821, 830-31 (9th Cir. 1995). If contradicted, the ALJ may reject the opinion with specific and legitimate reasons. Bayliss v. Barnhart , 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester , 81 F.3d at 830-31). Although the contrary opinion of a non-treating medical expert does not alone constitute a specific, legitimate reason for rejecting a treating physician's opinion, it may constitute substantial evidence when it is consistent with other independent evidence in the record. Magallanes v. Bowen , 881 F.2d 747, 752 (9th Cir. 1989). Finally, a "physician's opinion of disability premised to a large extent upon the claimant's own accounts of [her] symptoms and limitations' may be disregarded where those complaints, have been properly discounted.'" Morgan v. Comm'r of Soc. Sec. Admin. , 169 F.3d 595, 602 (9th Cir. 1999) (quoting Fair v. Bowen , 885 F.2d 597, 605 (9th Cir. 1989)).

The ALJ found plaintiff's accounts that Dr. Rich relied on regarding the intensity, persistence, and limiting effects of her symptoms, not credible. In finding plaintiff's complaints not credible, the ALJ noted inconsistency with the medical evidence, specifically the objective evidence that her medications were "relatively effective in controlling [her] symptoms, " plaintiff's refusal of counseling, the conservative nature of her treatment, and the extensive nature of her daily activities. Tr. 21, 31, 386, 454, 515. The ALJ noted that plaintiff's activities of daily living are extensive and include: personal care, preparing meals, doing laundry, cleaning, driving, paying bills, watching television, doing puzzles, writing poetry, listening to music, reading, watching movies, shopping, socializing with friends, visiting her mother, and going to church. Tr. 21, 41-47, 248-51, 304-07. These are legally sufficient reasons to discount plaintiff's subjective complaints, as well as Dr. Rich's opinion based on such complaints.

The ALJ noted that in addition to Dr. Rich's opinion being based largely on plaintiff's subjective symptom testimony, her opinion was also contradicted by Dr. John Morse, the impartial medical expert, Dr. Gregory Cole, the psychological examiner, and Dr. Jon McKellar, the musculoskeletal consultative examiner. Tr. 21. Dr. Cole opined that plaintiff's "delayed memory capability was considered to be at an average level, " she "was able to sustain simple routine tasks, and no problems completing a simple multiple-step task were observed, " and that "she did not meet full behavioral criterial for a diagnosis of bipolar disorder." Tr. 21, 497. Dr. McKellar opined that plaintiff "can stand and walk for 30 minutes to an hour at a time four hours a day; sit for a normal 8-hour day with normal breaks; and lift and carry 20 pounds regularly, [and] 30 pounds occasionally." Tr. 21, 501.

In order to give plaintiff "all reasonable consideration, " the ALJ gave less weight to Dr. Cole and Dr. McKellar's less restrictive residual functional capacities (RFC) and ultimately adopted Dr. Morse's more restrictive RFC "due to its consistency with the record as a whole." Tr. 21. Further, the ALJ pointed to specific and legitimate instances where Dr. Rich' opinion was contradicted by the assessments of Drs. Morse, Cole, and McKellar. Tr. 15-16, 18-22. The record also reveals that Dr. Rich's opinion of plaintiff's disability was contradicted by her own report of plaintiff's markedly positive response to medical treatment. For example, on the same day that Dr. Rich opined that plaintiff had extensive exertional and postural limitations and was permanently unable to work, listing knee ankylosed, knee arthritis, and chronic pain as the only physical ailments, she also gave plaintiff an injection in her knee joints, which led her to opine that plaintiff sustained an eighty percent improvement in her right knee and a ninety percent improvement in her left knee. Tr. 511-14.

Because the ALJ pointed to specific and legitimate instances of Dr. Rich's opinion being contradicted by other doctors, as well as being based on plaintiff's subjective complaints that he found not credible, this Court ...

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