United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
D. Clarke United States Magistrate Judge.
Lynn Moore ("'plaintiff') brings this action
pursuant to the Social Security Act (the "Act") to
obtain judicial review of a final decision of the
Commissioner of Social Security (the
"Commissioner"). The Commissioner denied plaintiffs
application for Title XVI Supplemental Security Income
("SSI") under the Act. For the reasons set forth
below, the Commissioner's decision is AFFIRMED.
21, 2012, plaintiff protectively applied for SSI alleging
disability beginning October 6, 2004. Tr. 10, 160-68. Her
application was denied initially on September 17, 2012, and
upon reconsideration on December 19, 2012. Tr. 10, 63-92.
Plaintiff timely requested a hearing before an Administrative
Law Judge ("ALJ"). Tr. 10, 110-12. On September 12,
2014, plaintiff appeared and testified at the ALJ hearing
before the Honorable Kelly Wilson. Tr. 10, 27-62. An
impartial vocational expert ("VE") also appeared
and testified at the hearing. Id. On October 31,
2014, ALJ Wilson issued a decision finding plaintiff not
disabled within the meaning of the Act. Tr. 7-26. The Appeals
Council denied plaintiffs request for review on March 18,
2016, making the ALJ's decision the final decision of the
Commissioner. Tr. 1-6. Plaintiff thereafter filed a complaint
in this court.
May 7, 1964, plaintiff was 40 years old on the alleged onset
date of disability and 50 years old at the time of the
hearing. Tr. 31, 64, 79, 160. She did not graduate from high
school, but later earned her GED. Tr. 32, 76, 91. Plaintiff
previously worked as an office worker, book shelver, and mail
clerk. Tr. 32-34, 59, 75-76, 91. Plaintiff alleges disability
beginning October 6, 2004 due to fibromyalgia, depression,
panic attacks, and arthritis. Tr. 10, 35-37, 64, 79.
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. Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial
evidence is "more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consol.
Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The
court must weigh "both the evidence that supports and
detracts from the [Commissioner's] conclusions."
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.
1986). "Where the evidence as a whole can support either
a grant or a denial, [a court] may not substitute [its]
judgment for the ALJ's." Massachi v.
Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
and internal quotations omitted).
initial burden of proof rests upon the claimant to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the claimant must
demonstrate an "inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to
last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A).
Commissioner has established a five-step sequential process
for determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
416.920. First, the Commissioner determines whether a
claimant is engaged in "substantial gainful
activity"; if so, the claimant is not disabled.
Yuckert, 482 U.S. at 140; 20 C.F.R §
two, the Commissioner determines whether the claimant has a
"medically severe impairment or combination of
impairments." Yuckert, 482 U.S. at 140-41; 20
C.F.R. § 416.920(c). If not, the claimant is not
disabled. Yuckert, 482 U.S. at 141.
three, the Commissioner determines whether the claimant's
impairment meets or equals "one of a number of listed
impairments that. . . are so severe as to preclude
substantial gainful activity." Id.; 20 C.F.R.
§ 416.920(d). If so, the claimant is conclusively
presumed disabled; if not, the Commissioner proceeds to step
four. Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant can
still perform "past relevant work." Id.;
20 C.F.R. § 416.920(e). If the claimant can work, he is
not disabled; if he cannot perform past relevant work, the
burden shifts to the Commissioner. Yuckert, 482 U.S.
five, the Commissioner must establish that the claimant can
perform other work that exists in significant numbers in the
national economy. Id. at 142; 20 C.F.R. §
416.920(e) & (f). If the Commissioner meets this burden,
the claimant is not disabled. 20 C.F.R. § 416.966.
one of the sequential evaluation process outlined above, the
ALJ found that plaintiff had not engaged in substantial
gainful activity since June 21, 2012, the application date.
Tr. 12. At step two, the ALJ determined that plaintiff had
the following severe impairments: fibromyalgia, migraine,
personality disorders, anxiety disorders, and affective
disorders. Id. The ALJ also noted that the record
contained evidence that plaintiff suffered from carpal tunnel
syndrome, but found this impairment was not severe since
plaintiff had not received any treatment for it during the
last three years. Tr. 13. At step three, the ALJ found that
plaintiffs impairments, either singly or in combination, did
not meet or equal the requirements of a listed impairment.
continued the sequential evaluation process to determine how
plaintiffs impairments affected her ability to work. The ALJ
concluded that plaintiff had the residual functional capacity
("RFC") to perform light work, but with the
[S]he can perform occasional crawling and frequent balancing,
stooping, kneeling, crouching, and climbing of ramps and
stairs. She also cannot climb ladders, ropes, or scaffolds.
She should avoid concentrated exposure to extreme heat,
noise, vibration, fumes, odors, dusts, gases, and hazards.
She is capable of simple, routine tasks, but cannot perform
detailed or complex tasks consistently. She should not work
with the public. The claimant can have superficial work with
coworkers in that she can be around coworkers and interact
with them briefly, but she would do better in a more solitary
work setting. Finally, there should be few changes in the
work setting. Tr. 14.
four, the ALJ concluded that plaintiff could perform her past
relevant work as a mail clerk. Tr. 21. Based on these
findings, the ALJ determined that plaintiff was not disabled
within the meaning of the Act. Tr. 22. The ALJ did not
proceed to step five.
argues that the ALJ erred by: 1) improperly rejecting the
medical opinions of Dr. Scott Alvord, Dr. Joshua Russell, Dr.
Joseph Resendiz, and Dr. M. John Givi; 2) failing to find her
impairments of arthritis, asthma, bilateral hip bursitis, and
wrist pain were severe at step two; 3) improperly evaluating
the lay witness statement of Christopher Fesler; 4) failing
to provide a clear and convincing reason, supported by
substantial evidence, for rejecting her subjective symptom
testimony; and 5) failing to conduct a proper step four
inquiry. Pl.'s Opening Br. 5-20. Pl.'s Reply Br.
Evaluation of the Medical Opinion Evidence
argues that the ALJ improperly rejected the medical opinion
evidence of Dr. Scott Alvord, Dr. Joshua Russell, Dr. Joseph
Resendiz, and Dr. M. John Givi. Pl.'s Opening Br. 7-12,
Pl.'s Reply Br. 1-5.
social security cases, there are three categories of medical
opinions: those that come from treating, examining, and
non-examining doctors. Holohan v. Massanari, 246
F.3d 1195, 1201 (9th Cir. 2008). "Generally, a treating
physician's opinion carries more weight than an examining
physician's, and an examining physician's opinion
carries more weight than a reviewing physician's."
Id. at 1202. Opinions supported by explanations are
given more authority than those that are not, as are opinions
of specialists directly relating to their specialties.
Id. If the treating doctor's opinion is
supported by medically acceptable clinical findings and is
consistent with substantial evidence in the record,
controlling weight is given. Id. Nonetheless, an ALJ
may discount a treating doctor's uncontroverted opinion
by providing "clear and convincing" reasons
supported by the record. Id. (citing Reddick v.
Chater, 157 F.3d 715, 725 (9th Cir. 1998)). If the
treating doctor's opinion is in dispute, the ALJ must
provide "specific and legitimate reasons" for
rejecting the opinion. Tommasetti v. Astrue, 533
F.3d 1035. 1041 (9th Cir. 2008).
The Opinion of ...