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Alex K. v. Berryhill

United States District Court, D. Oregon, Eugene Division

January 2, 2019

ALEX K., [1] Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          KATHERINE L. EITENMILLER MARK MANNING Harder, Wells, Baron & Manning, P.C. Attorneys for Plaintiff

          BILLY 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 Defendant.


          MUSTAFA T. KASUBHAI, United States Magistrate Judge.


         Alex K. (“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 further proceedings.


         Plaintiff 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.

         Born on 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.

         Standard of Review

         The 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).

         The 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).

         The 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.

         At step 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.

         At step 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.

         If the 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.

         At step 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.

         At step 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.

         The ALJ's Findings

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of August 28, 2013.[2] Tr. 23.

         At step 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.

         The ALJ 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.

         At step 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.

         Next, 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.

         At step four, the ALJ found that Plaintiff was unable to perform his past relevant work as a roofer. Tr. 31.

         At step 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. Tr. 33.


         Plaintiff 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.

         I. Medical Opinion Evidence

         Plaintiff 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.

         A. Analytical Framework

         Medical 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)).

         B. Dr. Findley's Opinion

         Dr. 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.

         Dr. 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.

         On 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 ...

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