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Schnelle v. Colvin

United States District Court, D. Oregon, Eugene Division

February 27, 2017

RUTH A. SCHNELLE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          Robert E. Jones, Senior Judge United States District Court

         Plaintiff Ruth Schnelle (plaintiff) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (the Commissioner) denying her application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. Because the Commissioner's decision is supported by substantial evidence, the decision is AFFIRMED.

         PRIOR PROCEEDINGS

         Plaintiff protectively filed an application for DIB on May 16, 2008. Admin. R. 185. Her application was denied initially and on reconsideration, and she requested a hearing before an administrative law judge (ALJ). Admin. R, 121-24, 129-32. On January 20, 2011, a hearing was held before ALJ John Madden, Admin. R. 42. On February 18, 2011, ALJ Madden issued a decision finding plaintiff not disabled. Admin. R. 9-26. The Appeals Council denied plaintiffs request for review. Admin. R. 1-4.

         Plaintiff requested review in this court and on May 2, 2013, Judge Hubel issued an Order of Remand based on the stipulation of the parties, reversing the ALJ's decision and remanding the case for further proceedings. Admin. R, 761-62. On remand, ALJ Kelly Wilson held an administrative hearing on April 22, 2015. Admin. R. 669. On June 22, 2015, ALJ Wilson issued a decision denying plaintiffs claim. Admin. R. 634-68. The Appeals Council denied review and the ALJ's decision became the final order of the Commissioner. Plaintiff now seeks review of that decision.

         Plaintiff was born 1960 and was 50 years old on her date last insured, March 31, 2010. Admin. R. 20, 51. She completed high school and attended two years of college. Admin. R. 52-53. She has past work experience as a truck driver, a bottle washer, and a car deliverer. Admin. R. 147. Plaintiff alleges disability due to cervical and lumbar degenerative disc disease with radiculopathy after a cervical fusion, peripheral edema in the legs, fibromyalgia, morbid obesity, posttraumatic stress disorder, depressive disorder, and plantar fasciitis.

         The ALJ performed the sequential analysis described in 20 C.F.R section 404.1520. At step one, she found plaintiff had not engaged in substantial gainful activity since her alleged onset date of May 1, 2005 through her date last insured of March 31, 2010. Admin. R. 639. At step two, the ALJ concluded plaintiff suffered the following severe impairments: morbid obesity, sleep apnea, degenerative disc disease of the cervical spine status-post fusion surgery, degenerative disc disease of the lumbar spine, hypertension with edema, depressive disorder, and anxiety disorder. Admin. R. 639-40. At step three, the ALJ determined plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Admin. R. 643.

         The ALJ next assessed plaintiffs residual functional capacity (RFC) and found that she retains the capacity to perform light work with the following limitations: she can lift and carry 20 pounds occasionally and 10 pounds frequently, and sit in 2-hour intervals for a total of at least 6 hours in an 8-hour workday; she can stand and/or walk in 30-minute intervals for up to 6 hours in an 8-hour workday; she can occasionally kneel, crouch, crawl, and climb ramps and stairs but cannot climb ladders, ropes, or scaffolds; she must avoid concentrated exposure to vibration, fumes, odors, gases, poor ventilation, and all exposure to hazards such as dangerous working machinery or unprotected heights; and she can perform simple tasks of reasoning level 1 to 3 in a low-stress job, defined as requiring only occasional decision making and occasionally adaptation to change that does not involve high-volume production pace, such as high-volume assembly line. Admin. R. 645.

         At step four, the ALJ found plaintiff is unable to perform any of her past relevant work. Admin. R. 658. At step five, the ALJ found that plaintiff retained the RFC to perform jobs that exist in significant numbers in the national economy, including photo copy machine operator, office helper, and ticket seller. Admin. R. 659. The ALJ therefore concluded plaintiff was not disabled. Admin, R. 660.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means 81 F.3d 821, 830 (9th Cir. 1995). A treating doctor's opinion that is not contradicted by the opinion of another physician can be rejected only for "clear and convincing" reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If a treating or examining doctor's opinion is contradicted by another doctor's opinion, it may be rejected by specific and legitimate reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

         1. Treating Physician's Assistant Amy Scheer, PA-C

         Plaintiff argues that the ALJ improperly rejected the opinion of treating physician's assistant Amy Scheer, PA-C. Ms. Scheer opined that plaintiff could not perform light or medium work due to her fibromyalgia. Admin. R. 582-83. She stated that plaintiff "may" be able to perform sedentary work. Id. As a physician's assistant, Ms. Scheer was an "other" medical source under the Regulations, and the ALJ was required to provide germane reasons for rejecting her opinion. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); 20 C.F.R. § 404.1513(d)(1).

         Here, the ALJ noted that Ms. Scheer's opinion that plaintiff was limited by fibromyalgia was not supported by the medical record because plaintiffs fibromyalgia was not a medically determinable impairment. Admin. R. 640-41, 655. The ALJ may assign less weight to a medical opinion that is inconsistent with the overall medical record or unsupported by clinical findings. 20 C.F.R. § 404.1527(c)(4). Here, there appears to be no examination or clinical findings in the record to support a diagnosis of fibromyalgia. Further, the clinical findings in the record do not support such a diagnosis. For example, plaintiff exhibited fair to good range of motion on examination in February, 2007. Admin. R. 506. Ms. Scheer also noted that plaintiff was able to go grocery shopping and perform activities such as packing and lifting, which conflicts with her opinion that plaintiff was capable of very little standing and lifting. Admin. R. 582. On ...


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