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Willits v. Colvin

United States District Court, D. Oregon

February 17, 2015

KATHY N. WILLITS, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


THOMAS M. COFFIN, Magistrate 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 Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits under the Act. The Commissioner's decision is affirmed and this case is dismissed.


Plaintiff asserts that the Commissioner's decision should be reversed and remanded for the payment of benefits. Plaintiff argues that the Administrative Law Judge (ALJ) erred by: 1) failing to provide clear and convincing reasons for rejecting her testimony; 2) rejecting the opinion of her treating physician; 3) failing to develop the record regarding the functional limitations caused by her fibromyalgia and arthritis; 4) substituting her own opinion for that of her treating doctor and failing to consider whether the combined effects of her multiple impairments would result in a finding of disabled; and 5) basing her decision on the opinion of the vocational expert (VE), which was based on an incomplete hypothetical. Pl.'s Br. 5-6.

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 erred by failing to state clear and convincing reasons for rejecting her testimony. Pl.'s Br. 24.

The ALJ found plaintiff's complaints less than credible because she "engage[d] in activities in excess of her reported activities, " was not "fully compliant with treatment recommendations, " and provided inconsistent statements concerning her alleged symptoms. Tr. 25. The ALJ noted, for example, that plaintiff told her treating physician, Dr. Berryman Jr., M.D., that she had difficulty standing, despite previous reports where she stated that she was only "able to perform her work as a customer service representative because she was able to stand." Tr. 27.

The ALJ also noted that plaintiff described her daily activities as "significantly limited by symptoms of pain and fatigue" and that she could only lift five pounds, sit or stand for five minutes, and walk for up to ten minutes. Tr. 22-23. However, contrary to plaintiff's claimed limitations, the ALJ pointed to therapy notes from October 2009, where plaintiff reported that "she had spent hours raking the yard, " was "noted for multiple blisters on her hands, " and despite complaints of arm pain, intended to go home after the appointment "to do some more raking and to bake some pies." Id . The ALJ also observed that "ongoing records through November 2009 reflect she continued performing raking, and reported many other activities in excess of her alleged limitations, including vacuuming and doing laundry" and that plaintiff "reported she was doing a lot of cleaning and other household activities and denied much pain associated with these exertions." Tr. 26. Moreover, the ALJ noted that in December 2009, plaintiff "reported she was doing better with less pain" and "stated she continued to be engaged in most activities, including carrying firewood and working around the house for hours at a time." Id.

In addition to noting specific instances where plaintiff's daily activities exceeded her claimed limitations, the ALJ also pointed to specific instances where plaintiff failed to follow treatment recommendations and lied about her ongoing tobacco use. The ALJ noted, for example, that plaintiff's physical therapy chart showed "several no shows/cancellations, such that she was discharged." Tr. 26. Additionally, the ALJ observed that despite repeated warnings from Dr. Berryman about the effects of smoking on her symptoms, plaintiff continued to smoke one to two packs per day. Tr. 23, 25, 27, 549, 552. The ALJ also noted that during an appointment with consultative examiner, Dr. Solomon, D. O., plaintiff "reported she had quit smoking, [but] was observed smoking out in the parking lot." Tr. 27. Finally, the ALJ noted that despite developing persistent sinus problems, watery and swollen eyes, and chronic conjunctivitis that an allergist attributed to plaintiff being "clearly allergic to cat and dog dander, " she continued to keep two cats in her home. Tr. 23.

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). A general assertion that the claimant is not credible is insufficient; the ALJ must "state which testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 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 objective medical evidence and the claimant's treatment history as well as any unexplained failure to seek treatment or follow a prescribed course of treatment. Smolen, 80 F.3d at 1284. The ALJ may also employ ordinary techniques of credibility evaluation, such as the claimant's reputation for lying and prior inconsistent statements concerning the alleged symptoms. Id . The ALJ may also consider the claimant's daily activities, work record, and the observations of physicians and third parties with personal knowledge about the claimant's functional limitations. Id . Daily activities may serve as a basis for discrediting a claimant where they either "are transferable to a work setting" or "contradict claims of a totally debilitating impairment." Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012). 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 credibility was impaired by inconsistent statements concerning her alleged symptoms, as well as by her activities of daily living. Specifically, the ALJ observed that despite claiming that she could stand for only five minutes, walk for only ten minutes, and carry no more than five pounds, plaintiff remained able to carry firewood, she spent hours raking the yard and working around the house, and arrived to a doctors appointment with blisters on her hands. The record also reveals that plaintiff failed to follow treatment recommendations and that she lied to a consultative examiner about her continued tobacco use.

In sum, the ALJ provided clear and convincing reasons, supported by substantial evidence, for rejecting plaintiff's subjective symptom statements. While variable interpretations of this evidence may exist, the ALJ's analysis was nonetheless reasonable, such that it must be upheld. See ...

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