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Smith v. Colvin

United States District Court, D. Oregon

November 5, 2014

SHAWNEE L. SMITH, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

Sara L. Gabin, Sara L. Gabin, P.C., Lake Oswego, OR, Attorney for plaintiff.

S. Amanda Marshall, United States Attorney, Ronald K. Silver, Assistant United States Attorney, Portland, OR.

John C. Lamont, Special Assistant United States Attorney, Social Security Administration, Seattle, WA, Attorneys for defendant.


ANN AIKEN, 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 Social Security disability insurance benefits (DIB) and supplemental security income (SSI) under the Act. The Commissioner's decision is affirmed and this case is dismissed.


Plaintiff argues that the Administrative Law Judge (ALJ) erred by failing to: 1) provide clear and convincing reasons for finding her not credible; 2) give controlling weight to the opinions of her examining doctor and nurse practitioner; and 3) adequately consider the lay evidence.[1] The Court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). In reviewing plaintiff's alleged errors, this Court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

I. Plaintiff's Credibility

Plaintiff argues that the ALJ failed to provide clear and convincing reasons for finding her not credible. Pl.'s Br. 10. Plaintiff stated she can walk only fifty feet before stopping, stand for less than ten minutes, lift no more than five pounds, and has difficulty using her hands. Tr. 43-47, 238. Plaintiff attributes her disability to right leg instability and chronic leg, hip, pelvic, and back pain, which she maintains is consistent with progressive osteoarthritis. Tr. 218, 233-34, 238, 272, 284-85, 290, 294-95, 374. Plaintiff claims she stopped working due to her physical limitations and also "to drive [her] husband around because he had lost his driver's license." Tr. 218, 284-85, 290.

The ALJ found plaintiff's statements regarding the extent of her limitations not credible due to inconsistencies between the physical limitations she reported and her daily activities, as well as inconsistencies between her reported daily doses of pain medication and the record. Tr. 26-29. Specifically, at the hearing, plaintiff reported having pain so severe that she took oxycodone every morning and took additional doses throughout the day, after which, she waits fifteen minutes "until [she] can move again." Tr. 44, 48. However, the ALJ pointed to the progress notes of Ms. Degan, FNP, which revealed that plaintiff took only sixty tablets over a six-month period, or approximately one tablet every three days. Tr. 29, 360.

The ALJ also noted that plaintiff's "activities of daily living are wide." Tr. 29. The record indicates that during the disability period, plaintiff was able to prepare "home cooked, from scratch" meals daily, in thirty minutes to an hour. Tr. 235. The record also indicates that plaintiff was able to go outside "all the time with [her] dogs [and] drive places [to] see kids and grand kids, " shop for food and household products monthly for an hour and a half, camp, read, and regularly visit the library, bookstore, and coffee shop. Tr. 25-26, 29, 235-37, 243-44. Further, the record indicates that plaintiff was able to perform household chores, such as "vacuuming, doing dishes, dusting, sweeping, doing laundry, watering plants, and tend[ing] [to her] small garden" daily. Id . Further, plaintiff admits that "[a] comprehensive look at the record shows that between November 2010 and April 2012, [she] did perform all of these activities to some degree save camping." Pl.'s Br. 12-13.

When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of.. symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).

The ALJ may consider ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid. Smolen, 80 F.3d at 1284. The ALJ may also consider the claimant's daily activities, work record, and the observations of physicians and third parties with personal knowledge of the claimant's functional limitations. Id . Finally, if the "ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted).

Here, the record reveals that plaintiff's statements regarding medication dosage to control her pain are inconsistent with the medical records. Specifically, plaintiff testified to taking oxycodone every morning and additional doses throughout the day to control her pain and enable her to move, while ...

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