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3:17-cv-1788-JR (D. Or. Nov. 19, 2018)



KIMBERLY S., Plaintiff, v. NANCY A. BERRYHILL, Deputy Commissioner of Social Security, Defendant.


Plaintiff brings this proceeding to obtain judicial review of the Commissioner's final decision denying plaintiff's application for disability insurance benefits and supplemental security income. Plaintiff asserts disability beginning October 2, 2011, due to arthritis, asthma, and high blood pressure. Tr. 102. After a hearing held on May 18, 2016, an Administrative Law Judge (ALJ) determined plaintiff was not disabled. Plaintiff argues the ALJ erred by: (1) improperly rejecting her testimony; (2) improperly rejecting the opinion of an examining physician; and (3) failing to obtain a consultative psychological evaluation. For the reasons stated below, the Commissioner's decision should be affirmed and this case should be dismissed. A. Plaintiff's Credibility

Plaintiff worked primarily as a data entry clerk before a layoff in August 2011. Tr. 349, 353. Plaintiff asserts she lost jobs due to her asthma and that her asthma is getting worse. Tr. 349, 353.

Plaintiff testified she can't work:

Because I'm in too much pain. I can't walk, my knees. I can't even stand for five minutes waiting for the bus.
I spend a lot of time sitting.
I can barely get to the bus stop across the street and I'm out of breath and I'm in pain.

Tr. 59, 60, 63. Plaintiff also reported that changing positions from sitting to standing is "excruciating" and "standing can't be done." Tr. 324.

The ALJ determined plaintiff's residual functional capacity limited her to sedentary work and to the extent plaintiff asserted additional limitations that precluded her from work, the ALJ found plaintiff lacked credibility. Tr. 25-26. Plaintiff asserts the ALJ erred in rejecting her testimony.

The ALJ noted plaintiff recently attended community college for more than a year taking computer and data entry classes. Tr. 25, 47-48. The ALJ found plaintiff's ability to travel to and from school and attend classes was inconsistent with plaintiff's asserted limitations. Tr. 26. Although plaintiff argues attending community college is not equivalent to working full-time, the ALJ reasonably concluded that the ability to attend classes contradicted plaintiff's professed inability to walk, change positions from sitting to standing, or do more physically than cross a street. Plaintiff did not testify she had difficulty walking to her classes and did not otherwise explain how she managed her symptoms while attending classes. The ALJ appropriately determined that plaintiff's community college attendance provided a clear and convincing reason to discount her symptom testimony. See Carmickle v. Commissioner, 533. F.3d 1155, 1161 (9th Cir. 2008) (asserted need to constantly change position inconsistent with college attendance).

The ALJ also noted that Dr. Sue Lewis, after conducting a physical consultative exam on June 12, 2010, opined plaintiff could stand/walk up to half an hour at a time. Tr. 26, 438. This also undermined plaintiff's alleged limitation regarding walking and standing. See Bray v. Commissioner of Social Security, 554 F.3d 1219, 1227 (9th Cir. 2009) (in constructing a residual functional capacity, the ALJ appropriately relied on uncontroverted medical opinion).

Plaintiff applied for disability benefits on two prior occasions in 2010 and 2011. Tr. 103. Plaintiff's previous applications were denied because plaintiff maintained a normal workweek in 2010, continued to work until 2011, and then did not see a provider for over two years (2010-2013). Tr. 107. --------

The ALJ next noted a significant lack of medical care for any of plaintiff's alleged impairments. Tr. 26. The record establishes plaintiff did not receive any medical care for at least two years prior to January 9, 2012. Tr. 456. Failure to seek treatment despite complaints of severe pain is a clear and convincing reason for rejecting plaintiff's testimony of severe debilitating pain. See. e.g., Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). Plaintiff's counsel asserts she could not seek medical care because she was homeless, but fails to support this allegation beyond plaintiff's testimony that, as of May 18, 2016, she obtained subsidized housing and got health insurance. Tr. 46-47. Moreover, counsel asserts plaintiff became homeless after being laid off in August 2011 and does not explain why plaintiff failed to seek medical treatment prior to that time. Nonetheless, even assuming the ALJ erred in failing to develop the record as to why plaintiff did not seek treatment prior to 2012, the ALJ appropriately noted that when plaintiff did receive treatment she received only conservative care. Tr. 26. See, e.g., Tr. 453 (prescribed rest, ice, compression, and elevation for swelling of left ankle joint); Tr. 410 (takes nonprescription Aleve for knee and foot pain). Evidence of conservative treatment is sufficient to discount testimony regarding impairment severity. Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995).

The ALJ further noted plaintiff's testimony that her asthma was well-controlled with medication. Tr. 27, Tr. 60-61 (asthma and blood pressure medication are effective with no side effects); see also Tr. 452 (March 5, 2013 medical note shows doing well on current inhalers). "Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits." Warre v. Commissioner of Social Security, 439 F.3d 1001, 1006 (9th Cir. 2006).

The ALJ provided several clear and convincing reasons, supported by substantial evidence in the record, for rejecting plaintiff's allegations of disabling impairments. Accordingly, the ALJ did not err in rejecting plaintiffs testimony to the extent she asserted an inability to work. B. Examining Physician

As noted above, Dr. Sue Lewis performed a consultative exam on June 10, 2010. Dr. Lewis opined plaintiff's maximum lifting and carrying capacity is less than ten pounds due to knee pain. Tr. 439. The ALJ adopted Dr. Lewis' opinion, but did not account for this limitation in the residual functional capacity assessment used in the hypothetical presented to the vocational expert.

Plaintiff asserts the ALJ erred in failing to reject this aspect of Dr. Lewis' opinion. However, the ALJ found plaintiff could perform her past relevant work at step four of the sequential evaluation process for determining disability. Plaintiff reported her past relevant work required lifting and carrying less than ten pounds. Tr. 350-51. Plaintiff asserts the vocational expert only identified sedentary jobs and "even the Commissioner does not suppose that plaintiff will be returning to the actual job she had in 2011." Plaintiff's Reply (doc. 31) at p. 5.

Because the evaluation process ended at step four, the burden of proof remained with plaintiff to demonstrate disability, and although vocational expert testimony is useful, it is not required in order for an ALJ to conclude plaintiff is capable of returning to her past relevant work. Thus, it is harmless error to exclude from the hypothetical a limitation that does not preclude past relevant work as performed. See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993).

Moreover, the record demonstrates the vocational expert did opine that plaintiff could return to her past relevant work as actually performed. The ALJ also found plaintiff could perform her past relevant work as actually performed. Tr. 30. Relying on plaintiff's description of the job, the ALJ asked the vocational expert whether a hypothetical person with limitations the ALJ ascribed to plaintiff could perform plaintiff's work as actually performed. The vocational expert responded that plaintiff could perform that work. Tr. 68-69. Indeed, plaintiff's counsel questioned the vocational expert extensively regarding the ability to perform the work as plaintiff actually performed it. Tr. 70-75. Because plaintiff does not qualify for disability benefits unless she is unable to do her past relevant work both as actually performed and generally performed, the ALJ did not err in failing to include the limitation assessed by Dr. Lewis in the hypothetical to the vocational expert. See Sodt v. Astrue, 2009 WL 2634611, at *3-4 (W.D. Wash. Aug. 24, 2009). Even if it was error, such error was harmless as noted above. C. Consultative Psychological Evaluation

Plaintiff asserts the ALJ erred in failing to obtain a consultative psychological examination. Plaintiff contends the record demonstrates she suffers from depression and the exam is necessary to determine whether plaintiff's ability to sustain concentration and pace was effected.

The ALJ noted that Michael Dennis, Ph.D., reviewed plaintiff's medical records and determined plaintiff did not have a medically determinable mental impairment and further noted plaintiff never sought treatment for a mental impairment nor reported significant limitations. Tr. 30, Tr. 144 (Dr. Dennis indicates plaintiff was never treated for depression, reported no difficulty following written/spoke instructions, and was able to pay attention indefinitely without any limitations caused by a mental health impairment.), Tr. 353 (Plaintiff only notes she has been "very stressed out + depressed since getting laid off"). Indeed, plaintiff did not assert any limitations related to concentration, understanding, following instructions, or getting along with others in her function report to the agency. Tr. 359. In addition, plaintiff declined treatment for depression. Tr. 457.

While the burden of demonstrating disability lies with the claimant, Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987), the ALJ has a duty to assist in developing the record. Armstrong v. Commissioner of Soc. Sec. Admin., 160 F.3d 587, 589 (9th Cir. 1998). An ALJ may supplement an inadequate medical record via a "physical or mental examination or test purchased for [a claimant] at [the Social Security Administration's] request and expense." 20 C.F.R. §§ 404.1519, 416.919.

The Commissioner "has broad latitude in ordering a consultative examination." Diaz v. Sec'y of Health and Human Servs., 898 F.2d 774, 778 (10th Cir. 1990). The government is not required to bear the expense of an examination for every claimant. See generally 20 C.F.R. §§ 404.1517-1519t, 416.917-919t. However, an ALJ must order a consultative evaluation when such an evaluation is necessary to enable the ALJ to make the disability determination. Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996). Here, the ALJ appropriately determined the record was sufficient for determining the limitations imposed by plaintiff's purported mental limitation. Accordingly, the ALJ did not err in declining to order a consultative psychological examination.


Pursuant to Sentence 4 of 42 U.S.C. § 405(g), the decision of the Commissioner should be affirmed and judgment should be prepared dismissing this case.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.

DATED this 19th day of November 2018.

/s/ Jolie A. Russo


United States Magistrate Judge