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Donna B. v. Commissioner, of Social Security Administration

United States District Court, D. Oregon, Portland Division

July 18, 2019

DONNA B.[1], Plaintiff,



         Plaintiff Donna Raelene B. brings this action for judicial review of the Commissioner of Social Security's (“Commissioner's”) decision denying her application for Disability Insurance Benefits under the Social Security Act (the “Act”). This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). Both parties consent to jurisdiction by a U.S. Magistrate Judge. For the reasons discussed below, the Court affirms the Commissioner's decision.


         Plaintiff applied for Disability Insurance Benefits on August 7, 2013, alleging disability beginning September 7, 2012. Tr. 17. Her claims were initially denied, and Plaintiff timely requested and appeared for a hearing before Administrative Law Judge (“ALJ”) Kelly Wilson on March 24, 2016. Id. After the hearing, the ALJ received a supplemental record consisting of the report from consultative examiner John Ellison, M.D., interrogatory responses of impartial vocational expert Leta Berkshire, and additional medical records. Id. The ALJ denied Plaintiff's application in a written decision dated February 28, 2017. See Tr. 17-30. Plaintiff sought review from the Appeals Council and submitted Plaintiff's psychiatrist Dr. Stacy Caraballo's letter. Tr. 15. The Appeals Council admitted Dr. Caraballo's letter but found that the letter does not relate to the period at issue. Tr. 2. The Appeals Council denied review of the ALJ's decision, rendering the ALJ's decision the final decision of the Commissioner. Tr. 1-4. Plaintiff now seeks judicial review of the decision.


         A 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 of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, a court reviews the administrative record as a whole, “weighing both the evidence that supports and detracts from the ALJ's conclusion.” Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).


         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. Id. If the claimant satisfies her burden with respect to the first four steps, the burden shifts to the Commissioner at step five. Id.; see also Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). At step five, the Commissioner must show that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v) & 416.920(a)(4)(v). If the Commissioner fails to meet this burden, then the claimant is disabled. Id. If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Id.; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).

         In the present case, the ALJ found that Plaintiff was not disabled. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the onset date of September 7, 2012. Tr. 19. At step two, the ALJ found Plaintiff had the following severe impairments: “degenerative disc disease; osteopenia; plantar fasciitis; depressive disorder; anxiety disorder; [and] polysubstance abuse.” Tr. 20. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of a listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (“Listings”). Tr. 20-21.

         Prior to step four, the ALJ determined that Plaintiff retained residual functional capacity (“RFC”) that allowed her to perform light work, “except [that] she can frequently balance, stoop, and climb ramps/stairs; she can occasionally kneel, crouch, and crawl; she cannot climb ladders, ropes, or scaffolds; and she can perform simple and detailed tasks, but would have difficulty performing more complex tasks consistently.” Tr. 22.

         At step four, the ALJ found that Plaintiff is capable of performing past relevant work as a Receptionist and Waitress. Tr. 30.

         Plaintiff seeks review by this Court contending that (1) the ALJ improperly rejected Plaintiff's subjective complaints; (2) the Appeals Council erred in receiving but failing to consider the new evidence of Stacey Caraballo, Ph.D.'s opinion; and (3) the ALJ improperly rejected the opinion of consultative examiner John Ellison, M.D. Pl.'s Br. 7-20 (ECF No. 13).

         I. Subjective Symptom Testimony

         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; instead, 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). If the ALJ's finding regarding the claimant's subjective symptom testimony 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).

         Social Security Ruling (“SSR”) 16-3p[2] provides that “subjective symptom evaluation is not an examination of an individual's character, ” and requires the ALJ to consider all of the evidence in an individual's record when evaluating the intensity and persistence of symptoms. SSR 16-3p, available at 2016 WL 1119029 at *1-2. The ALJ must examine “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id. at *4.

         The ALJ provided the following reasons for discrediting Plaintiff's subjective testimony: (1) treatment for Plaintiff's physical impairments has been routine, conservative and effective, and treatment for her mental impairment is effective, Tr. 24-26; (2) after the onset date, Plaintiff collected unemployment benefits, continued working as a caregiver, and participated in vocational rehabilitation, which suggest that she considered herself able to work; Tr. 26; (3) Plaintiff engaged in activities that are inconsistent with her complaints, Tr. 27; (4) Plaintiff was inconsistent regarding her substance abuse, Id.; and (5) the record reflects that Plaintiff appeared highly motivated to obtain disability benefits, Tr. 24, 27.

         Plaintiff argues that the ALJ merely summarized the medical evidence but failed to identify what evidence undermined Plaintiff's testimony. Pl.'s Br. 10 (ECF No. 14) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.”). The Commissioner argues that the ALJ's reasons for discounting Plaintiff's subjective testimony were clear and convincing. Def.'s Br. 4-12 (ECF No. 20).

         A. Treatment

         a. Physical Impairments

         An ALJ may discredit a claimant's pain testimony based on a history of conservative treatment. Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (finding that the ALJ provided clear and convincing reasons to properly decline to rely on the claimant's testimony and noting that the doctor prescribed only “conservative treatment” which suggested a lower level of both pain and functional limitation). Furthermore, evidence of effective treatment may support an ALJ's rejection of symptom allegations. Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits.”).

         The ALJ found that the record does not contain objective evidence that supports a disabling degree of limitation for Plaintiff's physical impairments. Tr. 24. Specifically, the MRI imaging of the thoracic spine in November 2013 shows only “minimal loss of the vertebral body height at ¶ 4, T6 and T7.” Tr. 628. “There are a few ...

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