United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge
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
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
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.
AND FACTUAL BACKGROUND
applied for DIB on March 31, 2014, alleging disability since
August 18, 2013. Tr. 236. 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.
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.
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.
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.
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.
Dr. Hickerson's Opinion
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
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.
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.
Hickerson stated Plaintiff could bend at the waist
occasionally 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.
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
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)).
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.
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.
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.
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.
Lack of An Objective Basis for ...