Thomas v. Barnhart

• Decision Date: 24 January 2002
• Docket Number: No. 99-35711.,99-35711.
• Citation: 278 F.3d 947
• Parties: Maureen THOMAS, Plaintiff-Appellant, v. Jo Anne BARNHART, Commissioner of the Social Security Administration,<SMALL><SUP>*</SUP></SMALL> Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

278 F.3d 947

Maureen THOMAS, Plaintiff-Appellant, v. Jo Anne BARNHART, Commissioner of the Social Security Administration,^* Defendant-Appellee.

No. 99-35711.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 2001.

Filed January 24, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Tim Wilborn, Portland, OR, for the plaintiff-appellant.

Norman M. Barbosa, Assistant Regional Counsel for the Social Security Administration, Seattle, WA, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon; James A. Redden, District Judge, Presiding. D.C. No. CV-98-03073-JAR.

Before T.G. NELSON, GRABER, and RAWLINSON, Circuit Judges.

RAWLINSON, Circuit Judge.

Appellant Maureen Thomas appeals the district court's order affirming the Social Security Administration Commissioner's ("Commissioner's") decision denying Thomas' application for Supplemental Security Income benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Because substantial evidence supports the Commissioner's decision to deny Appellant benefits, we affirm.

BACKGROUND

Ms. Thomas applied for Supplemental Security Income benefits on December 7, 1993, with a protective filing date of August 11, 1993, alleging disability since August 11, 1993. She has not been gainfully employed since 1993. Ms. Thomas' applications were denied initially and upon reconsideration. A hearing was held before an administrative law judge ("ALJ") on December 14, 1995.

At the hearing, Ms. Thomas alleged disability due to back, shoulder and neck pain; carpal tunnel syndrome; difficulty concentrating; weakness and fatigue; depression; and disturbed sleep. At the time of the hearing, Ms. Thomas was 52 years old, had completed high school and had earned associate's degrees in art. Her past relevant work is as a bartender, house cleaner and concession worker.

In June of 1992, Ms. Thomas was seen by a chiropractor, Dr. B.G. Davis, for complaints of pain in her right leg and lower back, after she abruptly stepped off a floor ladder.

On July 13, 1992, Ms. Thomas was seen by an orthopedic surgeon, Mark Lau, M.D. Ms. Thomas described right hip pain caused by jumping three to four feet off a ladder while changing a light bulb.

Between November 3, 1992, and November 17, 1993, Ms. Thomas was seen by Mark Silver, M.D. Initially, she complained of left side abdominal pain.

In June 1993, while on vacation in California, Ms. Thomas cut her foot on a shower drain and struck her left shoulder on the faucet when she jumped back. She was seen by an emergency room physician, Tuan Luu, M.D., for complaints of pain in the left shoulder and back area. Dr. Luu diagnosed acute contusion of the left shoulder area and puncture wound of the left foot.

That same month, Dr. Silver examined Ms. Thomas and recorded mild discomfort in her neck, with little or no spasm; mild tenderness in the trapezius muscle distribution and the lumbar paraspinal muscles; and full range of motion in her shoulders.

In July 1993, Dr. Silver noted that after hydrotherapy, both upper and lower back were "much better, although she continues to have some pain."

In August 1993, Dr. Silver noted that Ms. Thomas was unable to tolerate Flexeril, and still had back pain. She continued to see the physical therapist three times a week, and Dr. Silver continued her prescription of Lodine. Dr. Silver noted that the cervicodorsal and lumbar sprains were "slowly improving."

In September 1993, Dr. Silver noted that Ms. Thomas reported that "[o]verall she is doing better." Her back pain was improving, she was sleeping well on Doxepin, and the Soma was also helpful.

By November 1993, Dr. Silver found tenderness in Ms. Thomas back, but no spasm, and good range of motion.

Ms. Thomas was seen by Diane Conrad, a mental health nurse practitioner, in March 1994 for complaints of depression. Ms. Thomas reported alcohol and marijuana abuse, stating that she had last used marijuana two weeks earlier. Ms. Conrad concluded that in spite of chronic pain syndrome, depression and substance abuse, Ms. Thomas had the ability to perform work-related mental activity such as understanding, memory, concentration and social interaction, but found her adaptation and motivation "questionable."

James Wahl, Ph.D., performed a psychodiagnostic evaluation on Ms. Thomas in April 1994. She was interviewed and given a mental status examination. Ms. Thomas told Dr. Wahl she had drunk a six-pack a day from 1988 to several months previously, but denied a problem with alcohol. She said she had nothing to drink for about a month and, contradicting what she had told Ms. Conrad a month earlier, reported that she had not smoked marijuana for a year.

At her appointment with Dr. Mize in June 1994, Ms. Thomas walked with a cane and complained of knee pain. However, Dr. Mize found no crepitus or fluid, and opined that the knee was "stable."

In July 1994, Ms. Thomas saw Katherine Groves, M.D., for numbness in her hands and right knee pain. Examination revealed no significant swelling or deformity, intact ligaments, and no patellar apprehension sign. X-rays of the knee were normal. Ms. Thomas asked Dr. Groves for an opinion about whether she was disabled. Dr. Groves replied that if Ms. Thomas were "on good anti-inflammatory medication she should be able to use her joints in such a way that she could work."

Ms. Thomas saw an orthopedist, Michael Coe, M.D., in August 1994, again complaining of right knee pain and chronic neck and back pain. Dr. Coe could detect no clinical basis for Ms. Thomas' complaints of knee pain, finding no physical or radiographic evidence of chronic patellar subluxation or dislocation.

On September 26, 1994, Ms. Thomas went to the hospital in tears complaining of chronic pain. Jeff Weintraub, P.A., reported that Ms. Thomas had not experienced any new trauma, but stress had made her pain worse.

In November 1994, Disability Determination Services psychologist Peter LeBray, Ph.D., reviewed Ms. Thomas' medical records and concluded that they suggested moderate limitations in the areas of understanding and remembering detailed instructions, carrying out detailed instructions, and maintaining extended attention and concentration. He also detected a moderate limitation in appropriate interaction with the public. He noted that Ms. Thomas was aware of normal hazards and could take appropriate precautions. Dr. LeBray's functional capacity assessment indicated that Ms. Thomas could understand, remember and carry out at least simple, low stress instructions with regular supervision, but should avoid hazardous settings and would need assistance with independent planning.

Ms. Thomas was seen by Larry Maukonen, M.D., a neurologist, in January 1995, for chronic neck pain, lower back pain and numbness and tingling in her hands. Examination showed normal coordination, no tremor, and that Ms. Thomas had the ability to stand on her toes and heels and perform a partial squat without difficulty. Her gait was normal and her motor strength was normal and symmetrical in upper and lower extremities on individual muscle testing. Her neck had a marked decreased range of motion with complaints of pain on the right side of her neck.

In March 1995, Ms. Thomas was seen by Gregory Duncan, M.D., an orthopedic surgeon, for neck and right wrist pain. He diagnosed right carpal tunnel syndrome and neck pain radiating into the right arm.

On June 27, 1995, Dr. Silver noted that Ms. Thomas requested that he change insurance forms that he filled out a year and half earlier. Dr. Silver noted that Ms. Thomas challenged his earlier opinion and that she requested a change to indicate that she was completely disabled through January 1, 1994. Dr. Silver complied with Ms. Thomas' request by summarizing other evaluations of Ms. Thomas' condition and revising Ms. Thomas' forms to state that Ms. Thomas was totally disabled from June 1993, to January 1, 1994. Under the heading "OBJECTIVE," where his objective observations were normally noted, Dr. Silver wrote only "Deferred."

On July 21, 1995, Dr. Groves signed a "Physician's Certificate of Borrower's Total and Permanent Disability" to support discharge of Ms. Thomas' student loans. The form certified that since 1993, Ms. Thomas was "unable to engage in any substantial gainful activity because of a medically determinable impairment that is expected to continue for a long and indefinite period of time."

Ms. Thomas was given a one-hour physical capacity evaluation in April 1996. The examiner noted that for the endurance step test, which requires stepping on a 12-inch step at a rate of twenty-four steps per minute, Ms. Thomas would not attempt even one step. The grip strength and pinch strength tests reflected less than a valid effort. While the examiner noted that there was not a good correlation between the pain rating and observed behavior, he nevertheless indicated that the results of the test appeared to be valid. The examiner concluded that Ms. Thomas "would not be able to do any significant type of work."

A two-day physical capacity evaluation was conducted on January 23-24, 1997. The therapist observed that Ms. Thomas "self-limited herself during testing." The therapist recommended placement in a "very sedentary job," finding that Ms. Thomas could tolerate only up to two hours of work with frequent rest breaks.

Ms. Thomas testified at the hearing that she lived alone in a trailer and had driven herself to the hearing. She stated that as of the time of the hearing she wore back and knee braces, but rarely used the wrist splint prescribed for her carpal tunnel syndrome. She was taking Vicodin for pain, Oravil for inflammation, and Amitriptyline to help her sleep. She cooked simple meals for herself and spent most of the afternoon sitting in bed reading and most of the evening watching television. She...