IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOHN RODRIGUEZ, 6:13-CV-00722-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,1

Defendant.

BRUCE W. BREWER

P.O. Box 421

West Linn, OR 97068

(360) 688-0458

Attorney for Plaintiff

1 Carolyn W. Colvin became the Acting Commissioner of Social

Security on February 14, 2013. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Carolyn W. Colvin should be

substituted for Michael J. Astrue as Defendant in this case. No

further action need be taken to continue this case by reason of

the last sentence of section 205(g) of the Social Security Act,

42 U.S.C. § 405.

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Case 6:13-cv-00722-BR Document 22 Filed 05/12/14 Page 1 of 16
S. AMANDA MARSHALL

United States Attorney

ADRIAN L. BROWN

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

DAVID MORADO

Regional Chief Counsel

GERALD J. HILL 

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-2139

Attorneys for Defendant

BROWN, Judge.

Plaintiff John Rodriguez seeks judicial review of a final

decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff's application

for Disability Insurance Benefits (DIB) under Title II of the

Social Security Act. This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). 

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff filed an application for DIB on July 6, 2010,

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alleging a disability onset date of June 24, 2010. Tr. 100.2

The application was denied initially and on reconsideration. An

Administrative Law Judge (ALJ) held a hearing on March 12, 2012,

and a supplemental hearing on July 17, 2012. Tr. 37-68, 69-77. 

At the hearings Plaintiff was represented by an attorney. 

Plaintiff testified at the first and second hearings, and a

vocational expert (VE) testified at the second hearing. 

The ALJ issued a decision on August 7, 2012, in which he

found Plaintiff is not disabled and, therefore, is not entitled

to benefits. Tr. 16-36. Pursuant to 20 C.F.R. § 404.984(d),

that decision became the final decision of the Commissioner on

February 26, 2013, when the Appeals Council denied Plaintiff's

request for review. 

BACKGROUND

Plaintiff was born June 24, 1965; was 46 years old at the

time of the first hearing; and was 47 years old at the time of

the second hearing. Tr. 100. Plaintiff completed high school. 

Tr. 43. Plaintiff has past relevant work experience as a salesroute driver. Tr. 29. 

Plaintiff alleges disability due to a “back disorder” and

numerous surgeries. Tr. 78. 

2

 Citations to the official transcript of record filed by

the Commissioner on September 5, 2013, are referred to as "Tr."

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Except when noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

medical evidence. See Tr. 25-28.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden, a claimant must demonstrate his

inability "to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which . . . has lasted or can be expected to last for

a continuous period of not less than 12 months." 42 U.S.C. 

§ 423(d)(1)(A). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)). 

The district 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 as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

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adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). "It is more than a mere scintilla [of

evidence] but less than a preponderance." Id. (citing Valentine,

574 F.3d at 690). 

The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). 

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006). 

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

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2007). See also 20 C.F.R. § 404.1520. Each step is potentially

dispositive. 

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 404.1520(a)(4)(I). See also Keyser v.

Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii). See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R. 

§ 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. The

criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments). 

If the Commissioner proceeds beyond Step Three, she must

assess the claimant’s residual functional capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite his limitations. 20 C.F.R.

§ 404.1520(e). See also Social Security Ruling (SSR) 96-8p. “A

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'regular and continuing basis' means 8 hours a day, for 5 days a

week, or an equivalent schedule." SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete

incapacity to be disabled. Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885

F.2d 597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work he has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv). 

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 404.1520(a)(4)(v). See also

Keyser, 648 F.3d at 724-25. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 

The Commissioner may satisfy this burden through the testimony of

a VE or by reference to the Medical-Vocational Guidelines set

forth in the regulations at 20 C.F.R. part 404, subpart P,

appendix 2. If the Commissioner meets this burden, the claimant

is not disabled. 20 C.F.R. § 404.1520(g)(1).

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ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since his June 24, 2010, alleged

onset date. Tr. 21.

At Step Two the ALJ found Plaintiff has the severe

impairments of lumbar radiculopathy, carpal-tunnel syndrome,

lumbar stenosis, lumbar spondylosis, herniated disc, “L3-4

radiculopathy with foraminal stenosis at L3-4 and L4-5,” moderate

obstructive sleep apnea, major depressive disorder, and anxiety

disorder. Tr. 21. The ALJ found Plaintiff’s impairments of

glaucoma, gout, and hip pain to be nonsevere. Tr. 22.

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or medically equal one of

the listed impairments in 20 C.F.R. part 404, subpart P, 

appendix 1. Tr. 56. The ALJ found Plaintiff has the RFC to

perform sedentary work. Tr. 24. The ALJ found Plaintiff can

stand and/or walk for two hours in an eight-hour work day; can

sit for six hours in an eight-hour work day; can occasionally

climb ramps and stairs, balance, and stoop; can never kneel,

crouch, crawl, or climb ladders, ropes, or scaffolds; and “should

avoid” exposure to unprotected heights, walking on uneven

terrain, and all moving machinery. Tr. 24. The ALJ found

Plaintiff “can be off task for five percent of the work day, can

experience only occasional changes in the work setting, and can

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only occasionally engage in decision making.” Tr. 24. 

At Step Four the ALJ concluded Plaintiff was unable to

perform his past relevant work as a sales-route driver. Tr. 28. 

At Step Five the ALJ found Plaintiff could perform jobs that

exist in significant numbers in the national economy. Tr. 29. 

Accordingly, the ALJ found Plaintiff is not disabled.

DISCUSSION

Plaintiff contends the ALJ erred when he (1) improperly

rejected Plaintiff’s testimony; (2) improperly gave “little

weight” to the opinion of treating physician Janey Purvis, M.D.;

(3) improperly rejected lay-witness testimony; and (4) did not

give a complete hypothetical to the VE.

I. The ALJ gave clear and convincing reasons for partially

rejecting Plaintiff’s testimony.

Plaintiff alleges the ALJ erred when he failed to give clear

and convincing reasons for partially rejecting Plaintiff's

testimony.

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and he must show the impairment

or combination of impairments could reasonably be expected to

produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th

Cir. 1986). The claimant, however, need not produce objective

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medical evidence of the actual symptoms or their severity. 

Smolen, 80 F.3d at 1284.

If the claimant satisfies the above test and there is not

any affirmative evidence of malingering, the ALJ can reject the

claimant's pain testimony only if he provides clear and

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th

Cir. 1995)). General assertions that the claimant's testimony is

not credible are insufficient. Id. The ALJ must identify "what

testimony is not credible and what evidence undermines the

claimant's complaints." Id. (quoting Lester, 81 F.3d at 834).

At the first hearing in March 2012 Plaintiff testified he

has to lie down three-to-four times during the day, he cannot

prepare meals or wash dishes without sitting down, he uses a

shower chair, he cannot put on or tie his shoes without

difficulty, he cannot consistently lift ten pounds, he cannot

bend down to pick things up off of the floor when he drops them,

and he has difficulty reaching overhead. Plaintiff testified his

limitations are due to his surgeries and back pain.

The ALJ found Plaintiff’s “medically determinable

impairments could reasonably be expected to cause [Plaintiff's]

alleged symptoms,” but he concluded Plaintiff’s testimony

“concerning the intensity, persistence, and limiting effects” of

his symptoms “are not credible to the extent they are

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inconsistent with the [RFC]." Tr. 27. 

The ALJ noted the record reflects periods of time after

Plaintiff’s alleged onset date during which he stopped taking

pain medication. The ALJ also noted Plaintiff stopped working in

June 2010 for reasons unrelated to his impairments. 

Specifically, Plaintiff reported he lost his job because he lost

his certified drivers license after receiving a citation for

driving under the influence of alcohol.

The ALJ also pointed out that Mike Henderson, M.D.,

examining physician, noted on April 30, 2012, that “[t]here were

discrepancies between [Plaintiff’s] history today and [his]

previous medical records that were quite significant.” Tr. 1793. 

Dr. Henderson noted the record reflects Plaintiff reported his

pain level is typically between two and six out of ten, but

Plaintiff reported to Dr. Henderson that his pain level is

typically six or seven out of ten. Tr. 1792. For example, on

April 24, 2012, which was six days before Plaintiff’s examination

with Dr. Henderson, Plaintiff’s treating physician, Kent Yundt,

M.D., reported Plaintiff “actually says he is doing ‘well’, which

is a long time since I have heard [Plaintiff] say that. . . . 

[H]e is happy and this is the best I’ve seen him look in a long

time.” Tr. 1925.

On this record the Court finds the ALJ provided clear and

convincing reasons supported by substantial evidence in the

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record for finding Plaintiff's testimony was not entirely

credible as to the intensity, persistence, and limiting effects

of his conditions. The Court, therefore, concludes the ALJ did

not err when he rejected Plaintiff's testimony in part.

II. The ALJ did not err when he gave little weight to the

opinion of Dr. Purvis.

On June 8, 2012, Dr. Purvis, treating physician, opened in a

letter To Whom It May Concern that Plaintiff “is currently

disabled, is expected to be disabled for the next 12 months,” and

is “limited from performing any substantial gainful activity on a

sustained basis.” Tr. 1808. The ALJ gave 

Dr. Purvis’s opinion “little weight.” Tr. 28.

An ALJ may reject an examining or treating physician's

opinion when it is inconsistent with the opinions of other

treating or examining physicians if the ALJ makes "findings

setting forth specific, legitimate reasons for doing so that are

based on substantial evidence in the record." Thomas v.

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)(quoting Magallanes v.

Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). When the medical

opinion of an examining or treating physician is uncontroverted,

however, the ALJ must give "clear and convincing reasons" for

rejecting it. Thomas, 278 F.3d at 957. See also Lester v.

Chater, 81 F.3d 821, 830-32.

The ALJ noted Dr. Purvis did not cite any objective medical

evidence in the record to support her opinion. In addition, 

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Dr. Purvis failed to set out the impairments that she believed

caused Plaintiff’s disability and did not list any specific

limitations caused by Plaintiff’s impairments. See Thomas, 278

F.3d at 957 (“The ALJ need not accept the opinion of any

physician, including a treating physician, if that opinion is

brief, conclusory, and inadequately supported by clinical

findings."). In addition, the record reflects in April 2012

after Plaintiff had his final surgery to place a spinal cord

stimulator (SCS) in his back, he was doing “well” and looked

better than he had in a long time. Tr. 1925. On May 17, 2012,

Dr. Yundt reported “[t]he SCS has given [Plaintiff] significantly

improved management of his pain.” Tr. 1927. On June 5, 2012,

Plaintiff reported to Dr. Yundt that he was “50% better than he

was before surgery and he has remained stable since his last

visit.” Tr. 1929. Dr. Yundt reported Plaintiff was “awake,

alert, and cooperative. He is smiling and appears to be doing

well.” Tr. 1929.

On this record the Court concludes the ALJ did not err when

he gave little weight to the opinion of Dr. Purvis because the

ALJ provided clear and convincing reasons supported by

substantial evidence in the record for doing so.

III. The ALJ did not err when he rejected lay-witness statements.

On July 30, 2010, Plaintiff’s stepfather-in-law, Howard

Rackley, filled out a Third-Party Adult Function Report in which

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he noted Plaintiff could not sit or stand “very long,” could not

lift more than five pounds, needed a cane or walker to walk, used

a shower chair, could not tie his own shoes, and could not stand

long enough to prepare meals. T. 271-73. Rackley stated

Plaintiff did not do house or yard work because “no bending,

standing, or lifting!” Tr. 273. Rackley noted Plaintiff could

“pay attention” for 20 minutes at a time and was depressed due to

pain. Tr. 276-77. 

Lay testimony regarding a claimant's symptoms is competent

evidence that the ALJ must consider unless he "expressly

determines to disregard such testimony and gives reasons germane

to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511

(9th Cir. 2001). See also Merrill ex rel. Merrill v. Apfel, 224

F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a

claimant's disability, must give full consideration to the

testimony of friends and family members."). The ALJ's reasons

for rejecting lay-witness testimony must also be "specific." 

Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006). When "the

ALJ's error lies in a failure to properly discuss competent lay

testimony favorable to the claimant, a reviewing court cannot

consider the error harmless unless it can confidently conclude

that no reasonable ALJ, when fully crediting the testimony, could

have reached a different disability determination." Stout, 454

F.3d at 1056.

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The ALJ gave little weight to Rackley’s Report on the

grounds that Rackley stated he sees Plaintiff only eight hours

per week and that Rackley’s observations of Plaintiff “may not be

reflective of [Plaintiff’s] maximal capabilities,” which the ALJ

addressed in the context of partially rejecting Plaintiff’s

testimony and giving little weight to the opinion of Dr. Purvis. 

Tr. 28.

On this record the Court finds the ALJ did not err when he

gave little weight to Rackley’s Report because the ALJ provided

specific reasons germane to Rackley for doing so. 

IV. The ALJ’s vocational hypothetical to the VE was complete.

Plaintiff asserts the ALJ erred when he failed to pose a

complete hypothetical to the VE. Specifically, Plaintiff asserts

the ALJ did not include in the hypothetical all of the

limitations identified by Plaintiff.

Because the Court has concluded the ALJ properly rejected

Plaintiff’s testimony in part, properly gave little weight to the

opinion of Dr. Purvis, and properly gave little weight to

Rackley’s Report, the Court also concludes the ALJ did not err

when he did not include in his hypothetical to the VE the

limitations set out by those sources.

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the 

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Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 12th day of May, 2014.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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