United States District Court, D. Oregon
OPINION AND ORDER
M. COFFIN, United States Magistrate Judge
Elvira Medina Molina seeks judicial review of the
Commissioner's decision denying her application for
disability insurance benefits ("DIB") and
supplemental security income ("SSI") under Titles
II and XVI of the Social Security Act. This court has
jurisdiction under 42 U.S.C. §§ 405(g) and
1383(c)(3). All parties have consented to allow a Magistrate
Judge to enter final orders and judgments in this case in
accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c).
Because the Commissioner's decision is based on proper
legal standards and supported by substantial evidence, the
Commissioner's decision is AFFIRMED.
protectively filed an application for DIB and SSI on December
5, 2011. Tr. 208-14, 215-24, 234. Plaintiff was insured under
Title II through September 30, 2013. Tr. 234. Following a
denial of benefits, plaintiff requested a hearing before an
administrative law judge ("ALJ"). On July 25, 2014,
an ALJ determined plaintiff was not disabled. Tr. 10-26.
Plaintiff appealed that decision to the Appeals Council. On
November 20, 2015, the Appeals Council declined to grant
plaintiffs request for review, resulting in the ALJ's
decision becoming the final order of the Agency. Tr. 1-5.
This appeal followed.
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 in the
record. 42 U.S.C. § 405(g); Batson v. Comm'r
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
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 the
Commissioner'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).
the evidence before the ALJ is subject to more than one
rational interpretation, we must defer to the ALJ's
conclusion. Batson, 359 F.3d at 1198 (citing
Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)).
A reviewing court, however, "cannot affirm the
Commissioner's decision on a ground that the
Administration did not invoke in making its decision."
Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050,
1054 (9th Cir. 2006) (citation omitted). Finally, a court may
not reverse an ALJ's decision on account of an error that
is harmless. Id. at 1055-56. "[T]he burden of
showing that an error is harmful normally falls upon the
party attacking the agency's determination."
Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
argues that the ALJ erred by improperly: (1) rejecting her
testimony; (2) rejecting the opinions of her treating nurse
and chiropractor; (3) rejecting lay witness testimony; and
(4) finding that she could return to her past relevant work
at step four of the sequential analysis. Pl.'s Br. 9-20.
I. Plaintiffs Testimony The ALJ found plaintiffs
subjective symptom statements "not entirely
credible" because "the objective evidence, when
considered as a whole, is not consistent with [plaintiffs]
allegations of disabling pain." Tr. 22. The ALJ made
several findings in support of her conclusion.
the ALJ found that plaintiffs statements that "she is
unable to work due to her back, neck, and hip" pain were
inconsistent with her "mild" and "normal"
medical diagnoses relating to her neck and back pain and
lower extremities. Id. The ALJ specifically noted
that in August 2012, a cervical spine x-ray revealed
"mild" degenerative disk disease and a
"mild" degree of neutral foraminal narrowing at
plaintiffs C-C6 vertebra. Id. The ALJ also noted
that plaintiffs lumbar spine x-rays from the same time period
revealed "mild" dextroconvex scoliosis.
Id. The ALJ noted that in September 2012, plaintiff
reported no lower extremity weakness and during this visit,
as well as during a return visit in December 2012, an
examination of her back revealed "normal" results
with "normal" reflexes, gait, and strength.
Id. The ALJ noted plaintiffs MRI results from
February 2013 that revealed some disk bulging, but only
"mild" narrowing of the neutral foramina.
Id. at 23. Finally, the ALJ noted one of plaintiffs
MRIs from December 2013 that "showed [her] lumbar spine
was felt to be unremarkable other than mild dural ectasia,
" and a report from April 2014, where plaintiff
"reported her body-wide aches were improved" and
"reported they were sometimes bad at night, but she
walked and they got better." Id.
next found plaintiffs subjective symptom statements not
credible because her treatment was "minimal and
essentially routine and conservative." Id. The
ALJ specifically noted that there is no evidence that
plaintiff has taken any narcotic based or over the counter
pain medication "in spite of the allegations of quite
limiting pain." Id. The ALJ also noted
"significant gaps in [plaintiffs] history of treatment,
" including "not receiving treatment for almost a
full year after her alleged onset date, " not seeking
counseling for her mental impairment until October 2013,
"despite being referred to counseling over six months
earlier, " and findings from her counselor that once she
began counseling, she had made "some progress."
addition to referencing inconsistencies between plaintiffs
subjective symptom statements, the treatment she sought, and
the objective findings in the medical records, the ALJ also
noted that plaintiffs reported activities of daily living
("ADL's") "are not limited to the extent
one would expect, given her complaints of disabling symptoms
and limitations." The ALJ also noted that plaintiff
provided inconsistent statements regarding her ADL's at
various times. Id. The ALJ specifically noted that
plaintiff is "functionally independent concerning her
personal care needs" and can grocery shop and walk the
six blocks to the store, go out alone and use public
transportation, prepare meals, do laundry, dishes, and light
cleaning, and help attend to her children. Id. The
ALJ also noted that despite initially denying babysitting her
grandchildren at the hearing, plaintiff later admitted that
she picks up her seven-year-old granddaughter from school and
watches her for about two hours at times until her parents
pick her up Id.
noted that in addition to these inconsistent statements,
"the record suggests even greater involvement" by
plaintiff in caring for her grandchildren, such as reports
from January, February, and March 2014, where plaintiff
reported that her grandchildren, ages 7 and 11, live with her
and she feeds and cares for them because the children's
parents were "not caring for them." Id.
The ALJ also noted that in April 2014, plaintiff reported she
cared for her grandchildren "the majority of the time
because she does not work." Id. The ALJ noted
that the Dictionary of Occupational Titles
("DOT") "defines the job of a child care
worker (DOT 301.677-010) as a medium unskilled job" and
found that although plaintiffs child care tasks may not rise
to this medium level of exertion, "they do suggest she
should be able to perform some sedentary work activity."
also noted internal inconsistency in plaintiffs statements
regarding her ability to travel. Id. Specifically,
the ALJ noted that although plaintiff "initially denied
traveling since her alleged onset date, " after further
questioning at the hearing, she admitted taking trips to
Mexico and California. Id. at 22-23. The ALJ found
that "although traveling and a disability are not
mutually exclusive, [plaintiffs] decision to go on these
trips tends to support a finding that she could do some
sedentary unskilled work activity." Id.
in addition to noting inconsistencies between plaintiffs
symptom statements and the medical records and her ADL's,
and the internal inconsistencies in the statements plaintiff
made regarding her ability to travel and care for her
grandchildren, the ALJ also noted that plaintiff
"stopped working due to a business-related layoff when
the company relocated rather than because of her allegedly
disabling impairments." Id.
argues that the ALJ failed to articulate a clear and
convincing reason, supported by substantial evidence, for
rejecting her subjective symptom statements concerning the
extent and severity of her impairments and also challenged
several of the reasons proffered by the ALJ for finding her
not credible. Pl.'s Br. 13-16.
plaintiff argues that she is unable to take NSAID medications
due to her chronic kidney disease and because many narcotic
pain medications contain NSAIDs, her inability to "take
certain pain medications as a result of one of her other
impairments is not an indication that her pain is not as
severe as alleged." Id. at 14.
plaintiff argues that her conservative treatment for her back
was not a valid reason to discredit her symptom statements
because: (1) conservative treatment is what her doctors
recommended; (2) her spinal condition cannot be repaired with
surgery; and (3) she had gaps in her medical treatment
because she could not afford treatment without insurance,
which she did not obtain until 2014. Id.
plaintiff argues that her ADL's as cited by the ALJ were
not inconsistent with her statements that she is unable to
sit, stand, walk, or lift well enough to make it through a
typical work day. Id. Plaintiff states that the
ALJ's assertion to the contrary was improper because her
ADL's, such as watching her grandchildren were not
comparable to performing full-time work because her
grandchildren were in school most of the day and when they
came home from school, they were largely self-sufficient.
Id. Plaintiff further asserts that caring for her
grandchildren "as described in the record, involved
nothing more than making dinner for a 7 and 11 year old and
making sure they went to bed on time, " Pl.'s Reply
Br. 3, and "making dinner was not something [she] did on
a regular basis, " but instead was something she did
only when their parents are out of the house. Pl.'s Br.
plaintiff argues that although she "left her most recent
job because the company moved out of state rather than
because of her impairments, " "she was in so much
pain while she was still doing that job that she missed 2
days of work each week" and "was able to keep her
job for as long as she did only because the employer
didn't want to go to the trouble of ...