United States District Court, D. Oregon
A. HERNANDEZ United States District Judge.
Judge Jelderks issued a Findings and Recommendation (#21) on
March 7, 2018, in which he recommends that this Court affirm
the Commissioner's decision to deny Supplemental Security
Income (SSI) to Plaintiff. The matter is now before me
pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of
Civil Procedure 72(b).
any party objects to any portion of the Magistrate
Judge's Findings & Recommendation, the district court
must make a de novo determination of that portion of
the Magistrate Judge's report. 28 U.S.C. §
636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932
(9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en banc).
carefully considered Plaintiff's objections. For the
reasons explained below, I reject the portion of the Findings
& Recommendation that found the conceded error of
omitting a restriction to 1-2 step tasks to be harmless.
Thus, I adopt the Findings & Recommendation in part and
modify it in part. I have also reviewed the pertinent
portions of the record de novo and find no other
errors in the Magistrate Judge's Findings &
appeal of the Commissioner's decision to deny her SSI
benefits, Plaintiff argued that the Administrative Law Judge
(ALJ) erred by rejecting the opinion of examining physician
Dr. John Ellison, M.D., and by failing to include a
limitation to 1-2 step tasks assessed by a non-examining
agency consultant whose opinion the ALJ otherwise accepted.
Defendant conceded the second error, but argued it was
harmless because the agricultural sorter job identified as
past relevant work that Plaintiff was capable of performing,
could still be performed without the 1-2 step task
restriction. Plaintiff argued that the error was not harmless
because the agricultural sorter job required exposure to loud
noise which was inconsistent with Dr. Ellison's
restriction to moderate noise. Defendant contended that the
moderate noise restriction was rejected by the ALJ in her
overall rejection of Dr. Ellison's opinion.
Jelderks found that the ALJ properly rejected Dr.
Ellison's opinion. He also agreed that the error in
failing to include the 1-2 step task limitation in the RFC
was harmless because, as Defendant had argued, Plaintiff
could still perform the agricultural sorter job. Plaintiff
objects to the finding that the conceded error regarding the
1-2 step task was harmless. Defendant responds that Judge
Jelderks's finding was correct, that Plaintiff waived the
argument, and that the record fails to support a noise
restriction in any event.
objections, Plaintiff does not directly challenge Judge
Jelderks's determination that the ALJ did not err in
rejecting Dr. Ellison's opinion. I agree with Judge
Jelderks that as to the specific functional limitations
assessed by Dr. Ellison that the ALJ actually discussed,
there was no error. Thus, I adopt Judge Jelderks's
finding that the ALJ did not err in giving little weight to
Dr. Ellison's opinion regarding Plaintiff's ability
to lift, stand, walk, reach, handle, balance, stoop, etc.
in describing Dr. Ellison's report and opinion, the ALJ
never mentioned the noise restriction which is categorically
distinct from the physical functional limitations cited by
the ALJ. Tr. 881-82 (first describing Dr. Ellison's
examination, then noting observations related to gait,
walking, coordination, muscle bulk, strength, tone, and range
of motion in the extremities, and finally citing to specific
limitations in the abilities of lifting, carrying, standing,
walking, reaching, handling, fingering, feeling, using foot
controls, balancing, stooping, kneeling, crouching, and
crawling). And, the reasons offered by the ALJ for rejecting
Dr. Ellison's opinion were limited to inconsistencies
with these physical assessments. Tr. 882 (explaining that
Plaintiff's ability to ride a bicycle was incongruous
with the level of functional limitations assigned by Dr.
Ellison and that there was no particular impairment of the
hands or upper extremities to support the manipulative
is required to give specific and legitimate reasons,
supported by substantial evidence in the record, for
rejecting the contradicted opinion of a treating or examining
physician. Garrison v. Colvin, 759 F.3d 995, 1012
(9th Cir. 2014). This standard is satisfied when the ALJ sets
"out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation
thereof, and making findings." Id.
(internal quotation marks omitted; emphasis added). "The
ALJ must do more than state conclusions. He must set
forth his own interpretations and explain why they, rather
than a doctors', are correct. Id. (internal
quotation marks omitted; emphasis added). The ALJ errs by
rejecting a medical opinion with "boilerplate language
that fails to offer a substantive basis for his
conclusion." Id. at 1012-13 (emphasis
argues that the ALJ was not obligated to separately discuss
each of Dr. Ellison's more than thirty individual
limitations. While this contention seems to run counter to
the requirement that the ALJ offer specific reasons and
explanation in support of rejecting a physician's
opinion, even if I accept it for the purposes of this
discussion, the argument loses validity when the limitation
at issue is of a completely different nature and category
than the limitations the ALJ actually discussed. Here, the
ALJ made no mention of the environmental restrictions and
none of the reasons she gave in support of rejecting Dr.
Ellison's opinion logically apply to a noise restriction.
Thus, while Judge Jelderks's finding that the ALJ did not
err in rejecting Dr. Ellison's opinion is correct, it
does not extend to the ALJ's failure to discuss the noise
restriction. As a result, that noise restriction remains
valid and precludes a determination by this Court that the
error in failing to incorporate the 1-2 step task limitation
I reject Defendant's waiver argument and its arguments as
to why the noise restriction is not supported in the record.
First, while Plaintiff did not identify each and every
limitation of Dr. Ellison's in the section of her Opening
Brief challenging the ALJ's rejection of his opinion, she
did raise the noise restriction issue in the section arguing
why the ALJ's errors were not harmless. Second,
Defendant's contentions about why the noise restriction
should be rejected are improper post-hoc rationalizations
that this Court cannot consider in the first instance.
Trevizo v. Comm'r, 871 F.3d 664, 677 n.4 (9th
Cir. 2017) (district court erred in looking beyond ALJ's
stated reasons and explanation to support ALJ's opinion);
Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015)
(court cannot affirm the agency on a ground not invoked by
the ALJ without violating the Chenery rule) (citing
Sec. & Exch. Comm'n v. Chenery Corp., 332
U.S. 194, 196 (1947) (stating that a reviewing court may
affirm agency action only on "the grounds invoked by the
agency")); Connett v. Barnhart, 340 F.3d 871,
874 (9th Cir. 2003) (district court may not make its own
independent findings, and is "constrained to review the
reasons the ALJ asserts.").
Court ADOPTS IN PART Magistrate Judge Jelderks's Findings
& Recommendation . The Commissioner's decision to
deny Plaintiff Supplemental Security Income is ...