Case Information
fILEIr09 APR 1? 140'7USOC-!RP IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON STACY KATHLEEN LEWIS, ) Civil No. 08-3071-JO
)
Plaintiff, )
) v. ) OPINION AND ORDER
) )
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION, )
)
Defendant. )
Philip W. Studenberg
Attorney at Law
200 Pine Street
Klamath Falls, OR 97601
Attorney for Plaintiff
L. J amala Edwards
SOCIAL SECURITY ADMINISTRATION
Office of the General Counsel
701 Fifth Avenue
Suite 2900, MIS 901
Seattle, WA 98104
Adrian L. Brown
UNITED STATES ATTORNEY'S OFFICE
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204
JONES, Judge:
Claimant Stacey Lewis seeks judicial review of a final decision of the Commissioner of Social Security denying her application for a period of disability and disability insurance benefits ("Dill").
This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). Following a careful review of the record, the court concludes that the Commissioner's decision is supported by substantial evidence, contains no errors oflaw, and must be affirmed.
ADMINISTRATIVE HISTORY
Claimant filed an application for Dill on August 13, 2002, alleging an inability to work since October 21,2001. The application was denied initially and on reconsideration.
Claimant requested a hearing, which ultimately was held before an Administrative Law Judge ("AU") on June 6, 2007. I Claimant, not represented by counsel, appeared and testified, as did her mother, Susan Curtis, and a vocational expert (liVE"). On August 22, 2007, the ALJ issued a decision denying claimant's application. The ALJ's decision became the final decision of the Commissioner on May 15, 2008, when the Appeals Council declined review.
to difficulty obtaining medical records. A hearing originally was scheduled for February 7,2007, but was continued due
STANDARD OF REVIEW
This court must affirm the Commissioner's decision ifit is based on proper legal standards and the findings are supported by substantial evidence on the record as a whole. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be upheld if it is a rational interpretation of the evidence, even if there are other possible rational interpretations. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).
SUMMARY OF THE AU'S FINDINGS
The AU first determined that claimant last met the insured status requirements of the Social Security Act on September 30,2004. The AU then employed a five-step "sequential evaluation" process in evaluating claimant's disability, as required. See 20 C.F.R. § 404.1520.
The AU first found that claimant had not been engaged in substantial gainful activity after her alleged onset date of October 21,2001, through her date last insured of September 30, 2004. Second, the AU found that through her date last insured, claimant had severe impairments the form of "degenerative disc disease of the lumbosacral spine and obesity," but that her impairments, either singly or in combination, did not meet or equal the criteria of any impairment in the Listing ofhnpairments at 20 C.F.R. Pt. 404, Subpt. P, App. 1. Tr. 20, 24, 25.
m the next step of the evaluation, the AU determined that claimant retains the following residual functional capacity:
[T]o perform a limited range oflight work. She could lift and carry and push and pull twenty pounds occasionally and ten pounds frequently; stand and/or walk for a total of about three hours in an eight-hour workday; and sit for a total of about six hours in an eight-hour workday. In addition, the claimant needed to avoid repetitious bending, lifting, and twisting from waist to floor level. She was able to perform a competitive work schedule with normal time, attendance, and expectations.
Tr.25. In making that determination, the ALI found that claimant's medically determinable impainnents could reasonably be expected to produce some of her alleged symptoms, "but that the claimant's statements concerning the intensity, persistence, and limiting effects of some of her symptoms are not fully credited" because "the objective medical evidence does not fully support the severity of some of the claimant's alleged limitations or her assertion of disability during the relevant period." Tr.27.
The AU next determined, based on the VE's testimony, that claimant cannot return to her past relevant work. In the final step of the evaluation, again based on the testimony of the VE, the AU found that claimant, a younger individual with at least a high school education and an ability to communicate English, could perfonn other jobs that exist in the national economy, such as table worker, hand stuffer, and parking lot cashier. Consequently, the ALJ found that claimant was not disabled at any time through September 30, 2004, the date of last insured, and denied her application for benefits. Tr. 33.
STATEMENT OF FACTS
The parties are familiar with the medical and other evidence ofrecord. I will not, therefore, repeat the evidence except as necessary to explain my decision.
DISCUSSION
Claimant makes several arguments J all centered on the AU's handling of the opinion of her treating physician, Dr. Paul Kaplan. ill essence, claimant asserts that the ALJ erred in failing to accord greater weight to Dr. Kaplan's opinion over that of a consultative evaluator, Dr. Steve McIntire. Claimant also asserts that the AU erred in failing to find that she meets Listing 1.04 in the Listing of Impairments.
The ALJ is obligated and has sole responsibility to resolve conflicts medical evidence. Carmickle v. Commissioner. Social Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); see also Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). My thorough review of the record in this case reveals that it is rife with conflicting medical evidence and disagreement between the doctors themselves, and even contains direct criticism of Dr. Kaplan's evaluation and treatment. [2] See. e.g., Tr. 283-84; 288; 345-46; 464. In view of those conflicts J the ALJ properly gave specific and legitimate reasons based on substantial evidence to support his decision to credit Dr. McIntire's assessment over that of Dr. Kaplan, a choice the ALJ was entitled to make. Substantial evidence also supports the ALJ's finding that "although there is evidence suggesting radiculopathy at times, the record as a whole does not contain objective medical evidence of nerve root compression, neuro-anatomic distribution ofpain, sensory loss in a radicular pattern, motor loss, reflex loss, or positive straight leg raising." Tr. 25. ill view of One medical examiner (apparently engaged with respect to claimant's workers' compensation claim), Dr. Stephen Abelow, goes as far as to suggest that "any further 'self interested referrals' in the form of electromyography on the part ofDr. Kaplan be reported to the California Medical Board." Tr. 346.
that finding, the AU did not err in detennining that claimant's impairments did not meet or equal Listing 1.04, which requires proof of the following:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise ofa nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution ofpain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively, as defined in 1.00B2b. [3]
20 C.F.R. Pt. 404, Subpt. P, Appendix 1, Listing of Impairments 1.04.
As the Commissioner points out, claimant's argument cites the rules and regulations governing an AU's evaluation of medical evidence, but she does not point to specific medical evidence that the AU either overlooked or was obligated to credit that would establish that her impairments meet or are equivalent to the findings necessary for Listing 1.04. The AU thus did not err in concluding that she did not meet the listing.
effectively as defined in Section 1.00 [of the Listing of Impairments]." Tr.25. The AU correctly found that the record does not show "an inability to ambulate 6 - OPIN10N AND ORDER
Beyond her arguments concerning Dr. Kaplan and Listing 1.04, claimant has not challenged the AU's assessment of her residual functional capacity, nor has she challenged the VB's testimony concerning the availability of other jobs she could perform in the national economy.4 Consequently, I affirm the Commissioner's decision.
CONCLUSION
Based upon a review of the record, I conclude that the Commissioner's decision is supported by substantial evidence, contains no errors oflaw, and is, therefore, AFFIRMED.
DATED this 1-1- day of April, 2009. again cites only the regulations without any explanation of how or why this argument affects her Claimant also asserts that the AU erred by failing to re-contact Dr. Kaplan, but case. I therefore decline to reach this argument.