United States District Court, D. Oregon, Eugene Division
KATHERINE L. EITENMILLER MARK MANNING Harder, Wells, Baron
& Manning, P.C. Attorneys for Plaintiff
J. WILLIAMS United States Attorney RENATA GOWIE Assistant
United States Attorney District of Oregon, HEATHER GRIFFITH
Special Assistant United States Attorney Office of the
General Counsel Social Security Administration Attorneys for
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, United States Magistrate Judge.
(“Plaintiff”) seeks judicial review of a final
decision by the Commissioner of Social Security
(“Commissioner”) denying his application for
disability insurance benefits (“DIB”) under Title
II of the Social Security Act (“Act”), and
Supplemental Security Income (“SSI”) under Title
XVI of the Act. This court has jurisdiction to review the
Commissioner's decision pursuant to 42 U.S.C. §
405(g) and § 1383(c)(3). For the reasons set forth
below, that decision should be REVERSED and REMANDED for
protectively filed for DIB and SSI benefits on September 21,
2013, alleging disability beginning August 28, 2013. Tr. 21.
Plaintiff alleged disability due to perforated diverticulitis
with retroperitoneal abscess, alcoholism and alcohol
withdrawal, moderate chronic obstructive pulmonary disease
(“COPD”), accelerated hypertension, tobaccoism,
sepsis, respiratory failure, elevated liver function tests,
anxiety, depression, kidney stones, and back pain. Tr. 193,
214. Plaintiff's application was denied initially, and on
reconsideration. Tr. 75, 100. A hearing was held before an
administrative law judge (“ALJ”) on April 19,
2016. Tr. 40-64. Plaintiff and a vocational expert
(“VE”) testified. Id. On June 10, 2016,
the ALJ issued an opinion finding Plaintiff not disabled. Tr.
18-33. The Appeals Council denied Plaintiff's request for
review on August 24, 2017, making the ALJ's opinion the
final decision of the Commissioner. Tr. 1-4. Plaintiff timely
filed his request for district court review.
December 19, 1965, Plaintiff was 47 years old at the time of
the alleged onset date, and 50 years old at the time of the
hearing before the ALJ. Tr. 31, 45. Plaintiff completed 11th
grade. Tr. 194. He worked as a roofer from 1989 through 2010;
he was laid off due to lack of work. Tr. 193.
court must affirm the Commissioner's decision if it is
based on proper legal standards and the findings are
supported by substantial evidence in the record. Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial
evidence is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation and internal
quotations omitted). The court must weigh “both the
evidence that supports and detracts from the
[Commissioner's] conclusions.” Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where
the evidence as a whole can support either a grant or a
denial, [the court] may not substitute [its] judgment for the
ALJ's.” Massachi v. Astrue, 486 F.3d 1149,
1152 (9th Cir. 2007) (citation omitted).
initial burden of proof rests upon the claimant to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the claimant must
demonstrate an “inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected . . . to
last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A).
Commissioner has established a five-step sequential process
for determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
§§ 404.1520, 416.920. First, the Commissioner
determines whether a claimant is engaged in
“substantial gainful activity.” Yuckert,
482 U.S. at 140; 20 C.F.R. §§ 404.1520(b),
416.920(a)(4)(i). If so, the claimant is not disabled.
two, the Commissioner evaluates whether the claimant has a
“medically severe impairment or combination of
impairments.” Yuckert, 482 U.S. at 140-41; 20
C.F.R. §§ 404.1520(c), 416.920(c). If the claimant
does not have a medically determinable, severe impairment, he
is not disabled.
three, the Commissioner determines whether the claimant's
impairments, either singly or in combination, meet or equal
“one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity.” Yuckert, 482
U.S. at 140-41; 20 C.F.R. §§ 404.1520(d),
416.920(d). If so, the claimant is presumptively disabled.
Yuckert, 482 U.S. at 141.
claimant's impairments are not equivalent to one of the
enumerated impairments, between the third and fourth steps
the ALJ is required to assess the claimant's residual
functional capacity (“RFC”), based on all the
relevant medical and other evidence in the claimant's
record. See 20 C.F.R §§ 404.150(e),
416.920(e). The RFC is an estimate of the claimant's
capacity to perform sustained, work-related physical and/or
mental activities on a regular and continuing basis, despite
limitations imposed by the claimant's impairments.
See §§ 404.1545, 416.945; see
also SSR 96-8p, 1996 WL 374184.
four, the Commissioner resolves whether the claimant can
still perform “past relevant work.” 2 0 C.F.R.
§§ 404.152(f), 416.920(f). If the claimant can
work, he is not disabled; if he cannot perform past relevant
work, the burden shifts to the Commissioner.
five, the Commissioner must establish that the claimant can
perform other work existing in significant numbers in the
national or local economy. Yuckert, 482 U.S. at 141
- 42; 20 C.F.R. §§ 404.1520(g), 416.920(g). If the
Commissioner meets this burden, the claimant is not disabled.
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since his alleged onset date of
August 28, 2013. Tr. 23.
two, the ALJ found that Plaintiff had the following severe
impairments: history of chronic obstructive pulmonary disease
with an episode of respiratory failure; lumbar radiculopathy;
obesity; and history of abdominal sepsis with colostomy and
subsequent reversal. Id.
also found that Plaintiff's medically determinable
impairments of sleep apnea, history of right internal carotid
artery stenosis requiring angioplasty, and hypertension did
“not cause more than minimal limitations in
[Plaintiff's] ability to perform basic work
activities” and were, therefore, non-severe. Tr. 24.
Additionally, the ALJ found that Plaintiff's anxiety was
non-severe because it caused only mild limitations in his
activities of daily living, social functioning, and
concentration, persistence, and pace, and Plaintiff had not
experienced any episodes of decompensation. Tr. 24-25.
three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled a listed impairment. Tr. 26.
the ALJ assessed Plaintiff's RFC and found that he could
perform light work as defined in 20 C.F.R. §§
404.1567(b) and 416.967(b), except that the Plaintiff was
limited to no more than frequent stooping and no more than
occasional climbing, and must avoid exposure to fumes, dusts,
gases, poor ventilation, and other noxious odors. Tr 27.
four, the ALJ found that Plaintiff was unable to perform his
past relevant work as a roofer. Tr. 31.
five, based on the testimony of the VE, the ALJ determined
that Plaintiff could perform work as a photocopy machine
operator, office helper, or cashier II, all of which existed
in significant numbers in the national economy. Tr. 32-33.
The ALJ therefore concluded that Plaintiff was not disabled.
alleges that the ALJ erred by (1) improperly assessing
medical opinion evidence; (2) improperly assessing
“other source” opinion evidence; (3) improperly
discrediting Plaintiff's subjective symptom testimony;
and (4) improperly discrediting lay witness testimony.
Medical Opinion Evidence
alleges the ALJ erred by failing to provide specific and
legitimate reasons supported by substantial evidence for
giving no weight to the opinion of his treating physician,
Michael Findley, M.D. The Commissioner argues that the ALJ
reasonably concluded that Dr. Findley's opinion was not
supported by clinical findings and was likely based on
Plaintiff's subjective complaints.
opinions are “distinguished by three types of
physicians: (1) those who treat the claimant (treating
physicians); (2) those who examine but do not treat the
claimant (examining physicians); and (3) those who neither
examine nor treat the claimant (nonexamining
physicians).” Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995). Generally, a treating physician's
opinion is owed controlling weight. In order to reject the
uncontradicted opinion of a treating physician, the ALJ must
provide clear and convincing reasons; to reject a treating
physician's contradicted opinion, the ALJ must provide
specific and legitimate reasons supported by substantial
evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216
(9th Cir. 2005). An ALJ can satisfy the substantial evidence
requirement by setting out a detailed summary of the facts
and conflicting evidence, stating his interpretation, and
making findings. Morgan v. Comm'r Soc. Sec.
Admin., 169 F.3d 595, 600-01 (9th Cir. 1999). However,
“the ALJ must do more than offer his conclusions. He
must set forth his own interpretations and explain why they,
rather than the doctors', are correct.” Reddick
v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation
omitted). Notably, “even when contradicted, a treating
or examining physician's opinion is still owed deference
and will often be ‘entitled to the greatest weight . .
. even if it does not meet the test for controlling
weight.'” Garrison v. Colvin, 759 F.3d
995, 1012 (9th Cir. 2014) (quoting Orn v. Astrue,
495 F.3d 625, 633 (9th Cir. 2007)).
Dr. Findley's Opinion
Findley first examined Plaintiff as his new primary care
provider on November 3, 2014. Tr. 864. The initial exam
included a review of Plaintiff's medical history and
current medications and complaints. Id. Dr. Findley
noted that Plaintiff had a history of COPD for which he took
puffs of Atrovant and Qvar; a ruptured diverticular abscess
for which a colostomy bag was placed; malignant hypertension
for which Plaintiff took losartan and metoprolol; and
depression for which Plaintiff took bupropion. Id.
Additionally, the record indicated that Plaintiff complained
of bilateral shoulder pain. Id. Dr. Findley assessed
Plaintiff with COPD, hypertension, and shoulder pain, and
continued Plaintiff on the medications. Tr. 865. On his next
visit, on February 19, 2015, Plaintiff sought a referral for
reversal of the colostomy; Plaintiff reported 6/10 on the
pain scale, although the record does not indicate the source
of the pain or any associated physical exam. Tr. 868. Dr.
Findley continued Plaintiff on his medications. Tr. 868.
Findley next saw Plaintiff on July 31, 2015, approximately
eight days after Plaintiff underwent a colostomy reversal.
Tr. 870. Plaintiff reported a 5/10 on the pain scale and a
physical exam revealed some abdominal and incisional
tenderness. Tr. 871-72. Plaintiff's response to screening
indicated moderate depression. Tr. 872.
September 2, 2015, Plaintiff presented to Dr. Findley with
complaints of back pain radiating down to his left calf, and
in his mid-back between his shoulders. Tr. 874. Dr. Findley
noted that Plaintiff had a six-year history of back pain.
Id. Plaintiff reported a 6/10 on the pain scale, but
a physical exam revealed a “reasonably good”
range of motion. Tr. 875. Dr. Findley prescribed
cyclobenzaprine and meloxicam for the pain. Id. The
following month, Plaintiff reported minimal relief from the
prescription medications, pain when he rolled out of bed in
the morning, and a pain level of 7/10. Tr. 877-78. Upon
physical exam of his back, Plaintiff exhibited discomfort