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Smith v. Berryhill

United States District Court, D. Oregon

January 18, 2018

TODD ANDREW SMITH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          OPINION AND ORDER

          Michael J. McShane United States District Judge

         Plaintiff, Todd Andrew Smith, brings this action for judicial review of the Commissioner of Social Security's decision denying his application for Supplemental Security Income and Disability Insurance Benefits. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         On October 23, 2012, Mr. Smith filed an application for Supplemental Security Income and Disability Insurance Benefits. After a hearing, an Administrative Law Judge determined that Mr. Smith was not disabled under the Social Security Act. Mr. Smith now contends that the Administrative Law Judge erred (1) in weighing the medical opinion of treating psychiatrist Bryan D. Yates, (2) in crediting at step 3 a limitation on social functioning and then excluding that limitation from his residual functional capacity, and (3) in rejecting portions of the lay opinion testimony of physical therapist Tom Zomerschoe. Because the Commissioner of Social Security's decision is based on proper legal standards and supported by substantial evidence, it is AFFIRMED.

         STANDARD OF REVIEW

         A reviewing court shall affirm the decision of the Commissioner of Social Security (“Commissioner”) if her decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, the district court must review the administrative record as a whole, weighing both the evidence that supports and detracts from the decision of the Administrative Law Judge (“ALJ”). Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).

         DISCUSSION

         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If the claimant satisfies her burden with respect to the first four steps, the burden then shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's Residual Functional Capacity (“RFC”), age, education, and work experience. Id.

         In the present case, the ALJ found that Mr. Smith was not disabled. She first determined that Mr. Smith remained insured for Disability Insurance Benefits (“DIB”) until December 31, 2012. Tr. 39.[1] Next, at step one of the sequential evaluation, the ALJ found that Mr. Briceno had not engaged in substantial gainful activity since November 30, 2007, the alleged onset date of disability. Tr. 39. At step two, the ALJ determined that Mr. Smith had the following severe impairments: thoracic degenerative disc disease with mild scoliosis, mild cervical degenerative disc disease, mild diverticulitis, hearing loss, attention deficit disorder (“ADD”), and major depressive disorder. Tr. 39-40. At step three, the ALJ found that Mr. Smith did not have an impairment or combination of impairments that met or medically equaled the severity of listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 40-41.

         Before moving to step four, the ALJ found that Mr. Smith had the RFC to perform a reduced range of light work. Tr. 41. This included lifting and carrying 20 pounds occasionally and 10 pounds frequently, standing and/or walking for 4 hours per 8-hour workday, and sitting for 6 hours per 8-hour workday. Tr. 41. In addition, Mr. Smith could not climb ladders, ropes, or scaffolds, and could not be exposed to workplace hazards such as unprotected heights or dangerous machinery. Tr. 41. Mr. Smith was also required to perform the majority of his work tasks in front of his body and could not engage in sustained overhead work. Tr. 41. He further required a15-minute break every two hours and could not be exposed to loud noise. Tr. 41. Finally, with respect to his mental abilities, Mr. Smith could only understand, remember, and carry out simple instructions that could be learned in 30 days or less. Tr. 41.

         At step four, relying on the testimony of a Vocational Expert, the ALJ found that Mr. Smith was unable to perform past relevant work as a hospice nurse or general nurse. Tr. 45. At step 5, after considering his age, education, work experience, and RFC, the ALJ determined that Mr. Smith was capable of performing jobs existing in significant numbers in the national economy, including electronics work, electronics accessories assembler, and storage facility rental clerk. Tr. 46. Having made this determination, the ALJ concluded that Mr. Smith was not disabled within the meaning of the Social Security Act and did not qualify for benefits. Tr. 46.

         Mr. Smith challenges the ALJ's non-disability determination on three grounds. First, he argues that the ALJ failed to properly weigh the medical opinion of treating psychiatrist Brian D. Yates and, in doing so, ignored functional limitations contained therein. Pl.'s Br. 3-10. Second, Mr. Smith argues that the ALJ erred by crediting at step 3 a limitation on social functioning identified by Dr. Yates and then excluding that limitation from the RFC. Pl.'s Br. 10-13. Finally, Mr. Smith argues that the ALJ improperly rejected portions of the testimony by his physical therapist Tom Zomerschoe. Pl.'s Br. 10. The Court addresses each objection in turn.

         I. Weight Assigned to the Opinion of Dr. Yates.

         Mr. Smith first argues that the ALJ failed to properly weigh the opinion of Dr. Yates. Pl.'s Br. 3-10. The medical opinion of a treating physician is entitled to controlling weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the claimant's] case record.” 20 C.F.R. § 404.1527(c)(2). An opinion is inconsistent if the record contains other substantial evidence which “contradicts or conflicts with the opinion.” SSR 96-2p, 1996 WL 374188, at *3. When a treating physician's opinion is not controlling, it must be “weighted according to factors such as the length of the treatment relationship, supportability, consistency with the record, and specialization of the physician.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing 20 C.F.R. § 404.1527(c)(2)-(6)). In the alternative, a non-controlling opinion may be rejected in full if it is “contradicted by another doctor's opinion” and the ALJ “provid[es] specific and legitimate reasons . . . supported by substantial evidence.”[2] Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). An ALJ “meet[s] this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).

         As a threshold matter, the ALJ did not fully reject the opinion of Dr. Yates. Pl.'s Br. 5; Def.'s Br. 15. Instead, she expressly assigned the opinion “little weight.” Tr. 44. The ALJ was therefore not obligated to-though nevertheless did-justify her determination with “specific and legitimate reasons.” See SSR 96-02p, 1996 WL 374188, at *5. Second, the ALJ was not required to separately discount and then assign a weight to Dr. Yates's opinion. Pl.'s Br. 7-8. Neither the regulations nor case law support imposing such a burden on the ALJ's analytical process. There is no reason an ALJ may not focus her analysis on the ultimate question of weight, provided that she still both meets her burden for declining to assign the opinion controlling weight and justifies the weight assigned.[3] Finally, the ALJ was not required to expressly discuss each factor listed in 20 C.F.R. § 404.1527(c). Pl.'s Br. 8. Instead, an ALJ need only justify the weight assigned to a treating source's opinion with “specific reasons . . . supported by the evidence in the case record.” SSR 96-02p, 1996 WL 374188, at *5; see also Harris v. ...


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