United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge
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).
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
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).
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
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. 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.
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.
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.
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.
Weight Assigned to the Opinion of Dr.
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.” 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.
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. 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. ...