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Janice T. v. Berryhill

United States District Court, D. Oregon

October 16, 2018

JANICE T.[1], Plaintiff,
NANCY BERRYHILL, Commissioner of the Social Security Administration, Defendant.


          Michael J. McShane United States District Judge

         Plaintiff Janice T. brings this action for judicial review of a final decision of the Commissioner of Social Security denying her application for disability insurance benefits (DIB) under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         The issues before this Court are: (1) whether the Administrative Law Judge (ALJ) erred in evaluating the opinions of Dr. Thomas Hickerson, M.D., and Barbara Majors, M.S.W. and Q.M.H.P.; and (2) whether the ALJ erred in evaluating Plaintiff's credibility.

         Because the ALJ articulated sufficient reasons supported by substantial evidence in her evaluation of the respective evidence and, to the extent that she erred, such errors were harmless, the Commissioner's decision is AFFIRMED.


         Plaintiff applied for DIB on March 31, 2014, alleging disability since August 18, 2013. Tr. 236.[2] Plaintiff subsequently amended her alleged disability onset to September 15, 2013. Tr. 234-35. Plaintiff also applied for Supplemental Security Income on April 1, 2014. Tr. 227. Both claims were denied initially, tr. 158, 163, and upon reconsideration, tr. 173, 176. Plaintiff timely requested a hearing before an ALJ, tr. 184, and appeared before the Honorable Linda Thomasson on November 2, 2016, tr. 36. ALJ Thomasson denied Plaintiff's claim by a written decision dated January 30, 2017. Tr. 17-19. Plaintiff sought review from the Appeals Council, tr. 8, and was denied, tr. 1, rendering the ALJ's decision final. Plaintiff now seeks judicial review.

         Plaintiff, born on October 26, 1959, tr. 91, completed three years of college and worked as a journalist, a United Parcel Service “load planner, ” and a program analyst for Alaska Air between 2003 and 2013. Tr. 254. Plaintiff was fifty-three at the time of alleged disability onset, tr. 91, and fifty-seven at the time of her hearing, see tr. 91, 36. Plaintiff alleges disability due to post-concussive trauma, vertigo, headaches, loss of concentration and short-term memory, dizziness and nausea, cerebral cyst, light sensitivity, inability to handle or work under stress, loss of intellectual ability to process information, and dexterity difficulty. Tr. 253.


         The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); Batson v. Comm'r of 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 court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989) (citing Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986)). “‘If the evidence can reasonably support either affirming or reversing,' the reviewing court ‘may not substitute its judgment' for that of the Commissioner.” Gutierrez v. Comm'r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).


         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden of proof rests on the claimant for steps one through four, and on the Commissioner for step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). At step five, the Commissioner's burden is to demonstrate that the claimant can make an adjustment to other work existing in significant numbers in the national economy after considering the claimant's residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner fails to meet this burden, then the claimant is considered disabled. Id.

         Plaintiff contends that the ALJ's decision contains legal errors and is not supported by substantial evidence. Pl.'s Brief, ECF No. 19, 2. Specifically, Plaintiff argues that the ALJ erred in evaluating (1) the opinions of Dr. Thomas Hickerson, M.D., and Barbara Majors, M.S.W. and Q.M.H.P., and (2) Plaintiff's credibility. Id.

         I. Dr. Hickerson's Opinion

         Dr. Thomas Hickerson, Plaintiff's primary care provider, submitted a letter dated January 26, 2016, tr. 627, and a Physical Capacity Statement form dated July 6, 2016, tr. 910. Dr. Hickerson's letter stated that Plaintiff was “under [a] tremendous amount of stress” and experiencing chest pain and shortness of breath. Tr. 627. Plaintiff's family has a history of heart problems, and she has recurring headaches and dizziness that Dr. Hickerson opined could be stress- or endolymphatic hydrops-related. Id. Dr. Hickerson explained that Plaintiff was diagnosed with and on medication for anxiety disorder and attention deficit disorder, had a difficult fracture in her right hand with a recent surgery history, and suffered from a host of problems including chronic fatigue, a cerebellar brain cyst, and reflux. Id. Dr. Hickerson stated that he was especially concerned with Plaintiff's chest pain, palpitations, and shortness of breath. Id. He recommended she avoid stress and anxiety until further evaluation. Id.

         On the Physical Capacity Statement form, Dr. Hickerson indicated that Plaintiff must rest and avoid most activity and basic functions during vertigo attacks, extreme headaches, and nausea. Tr. 910. He indicated Plaintiff's ability to sit, stand, or walk was variable; she could walk up to one city block sometimes and none other times. Id. Dr. Hickerson also indicated that Plaintiff needed to elevate her lower extremities with prolonged sitting and must lie down after sitting for too long. Id. Due to this and “random severe attacks” from Plaintiff's “permanent severe vertigo and TBI-Hydrops, ” Dr. Hickerson opined that Plaintiff cannot work or hold a sedentary job. Id. Dr. Hickerson stated that Plaintiff “can't even do anything for thirty minutes, ” depending on her vertigo, pain, and post-traumatic stress disorder (PTSD). Id.

         Dr. Hickerson further stated that Plaintiff cannot work without resting for an eight-hour work day and would need to take unscheduled breaks. Tr. 911. He attributed Plaintiff's need to rest to “severe vertigo, ” short-term memory loss, headaches, pain, stress, PTSD, back and wrist injuries, arthritis, and cyst. Id. Dr. Hickerson stated that these breaks would occur ten times per day for fifteen minutes to two hours and would require Plaintiff to lie down. Id. Dr. Hickerson also said Plaintiff must take four naps per day. Id.

         Dr. Hickerson stated Plaintiff could bend at the waist occasionally[3] but not “at the moment” due to her back injury. Tr. 911. Dr. Hickerson indicated that Plaintiff could not squat, crawl, climb, grasp repetitively, push or pull with her hands repetitively, push or pull with her feet repetitively, crouch, balance, or stoop. Tr. 911-12. Dr. Hickerson indicated that Plaintiff could reach overhead with arms a little, engage in simple grasping occasionally, engage in gross manipulation occasionally but not much, operate foot pedals occasionally, and twist occasionally but not much. Tr. 912. Dr. Hickerson also indicated that Plaintiff could occasionally lift ten pounds or less. Id. Dr. Hickerson stated that stress played a big role in Plaintiff's condition, also noting PTSD, brain cyst, hydrops, and TBI. Id. Dr. Hickerson then indicated that Plaintiff is incapable of working at even a low stress job due to vertigo, headaches, and PTSD. Id.

         Dr. Hickerson stated that Plaintiff experiences symptoms during more than two-thirds of the day and is likely to have more than two days per month where her condition would render her absent from work. Tr. 912-13. Dr. Hickerson explained that Plaintiff had a combination of disabilities, was struggling with basic daily functions, and was getting worse. Tr. 913. Lastly, Dr. Hickerson marked Plaintiff's prognosis “poor” and stated that most of Plaintiff's impairments are “permanent and severely disabling.” Id.

         “To reject an uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). “If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.” Id. When evaluating conflicting medical opinions, an ALJ need not accept a brief, conclusory, or inadequately supported opinion. Bayliss , 427 F.3d at 1216 (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)).

         Here, the ALJ gave Dr. Hickerson's opinion little weight because she found his letter was unsupported by explanation and his recommendation was unclear and lacked functional limits. Tr. 27. The ALJ also noted that the “extreme limitations” Dr. Hickerson posited seemed to be based on Plaintiff's subjective input as opposed to “the diagnostic record and objective findings.” Id. Specifically, the ALJ stated that there was no objective basis for Plaintiff's vertigo, treatment for her severe spine impairment was conservative, and she worked on her farm for part of the relevant period. Id.

         Conversely, the ALJ gave some weight to the opinions of two State agency medical evaluators. Tr. 26. Dr. Marin Lahr, M.D., reviewed the medical evidence of record on September 4, 2014 and concluded that Plaintiff could lift fifty pounds occasionally and twenty-five pounds frequently, and could occasionally climb, tr. 86, and perform left overhead reaching, tr. 87. Dr. Lahr further concluded that Plaintiff should avoid concentrated exposure to noise and could not be exposed to heights or hazards due to dizziness and headaches. Tr. 88.

         Dr. Thomas Davenport, M.D., reviewed the medical evidence of record on February 17, 2015 and affirmed Dr. Lahr's opinion. Tr. 135-37. The ALJ gave significant weight to both opinions regarding left overhead reaching, postural limitations, and hazards, and less weight with regard to noise exposure, lack of right hand manipulative limitations, and Plaintiff's exertional abilities (the latter of which, the ALJ wrote, they overestimated). Tr. 26.

         Because Dr. Lahr and Dr. Davenport's opinions contradict that of Dr. Hickerson, the ALJ needed only provide specific and legitimate reasons supported by substantial evidence to properly reject Dr. Hickerson's opinion. See Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31). This Court finds that the ALJ did so here.

         A. Lack of An Objective Basis for ...

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