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Thomas B. v. Berryhill

United States District Court, D. Oregon

April 12, 2019

Thomas B., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Thomas B. brings this action for judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his 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 whether the Administrative Law Judge (“ALJ”): (1) gave clear and convincing reasons for rejecting the testimony of the Plaintiff; (2) erred in posing hypotheticals to the vocational expert; and (3) erred in rejecting medical opinions of two treating physicians. Because the ALJ erred in discounting both Plaintiff's testimony and that of his treating physicians, the Commissioner's decision is REVERSED and this matter is REMANDED for an award of benefits.


         Plaintiff applied for DIB February 5, 2014 and alleges disability since June 14, 2013. Tr. 100, 228.[2] His claim was denied initially and upon reconsideration. Tr. 156-61; 163-65. Plaintiff timely requested a hearing before an ALJ and appeared before the Honorable B. Hobbs on October 4, 2016. Tr. 166, 79. ALJ Hobbs denied Plaintiff's claim by a written decision dated December 2, 2016. Tr. 60-73. Plaintiff sought review from the Appeals Council and was denied on December 11, 2017, rendering the ALJ's decision final. Tr. 212, 1-6. Plaintiff now seeks judicial review of the ALJ's decision.

         Plaintiff was 47 years old at the time of his alleged disability onset and 50 at the time of his hearing. Tr. 125-26. Plaintiff completed 10th grade and worked for the Army Air Force Exchange Service in retail, in sales, doing labor in a warehouse, cleaning, and cashiering. Pl.'s Br. 2, ECF No. 11; tr. 85-90. Plaintiff alleges disability due to rheumatoid arthritis, COPD, and back, knees, neck, and shoulders issues. Tr. 125, 234.


         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.

         I. Dr. Greene and Dr. Walker's Medical Opinions

         “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, Plaintiff concedes that the examining physicians' findings are in conflict but argues that the ALJ failed to give specific and legitimate reasons for rejecting Dr. Greene and Dr. Walker's medical opinions. Pl.'s Br. 9-10. The ALJ did not expressly reject Dr. Greene's November 12, 2014 medical opinion. Rather, the ALJ said that Dr. Greene “assessed” Plaintiff with fibromyalgia but could not definitively diagnosis him. Tr. 64; see also tr. 1141. Dr. Greene found 18 out of 18 tender points, consistent with fibromyalgia. Tr. 1141. His assessment included “probable seropositive rheumatoid arthritis, ” “probable right knee [degenerative joint disease], ” and “fibromyalgia, ” which he said “certainly complicates matters.” Id. (emphasis added). Dr. Greene also recommended that Plaintiff wean off narcotics use because they “make fibromyalgia worse.” Id. This is a definitive diagnosis.

         Similarly, the ALJ did not expressly reject Dr. Walker's medical opinion, but rather undermined it with little explanation. Finding Plaintiff's spinal condition to be a non-severe impairment, the ALJ found that Dr. Walker identified a degree of spinal cord compression at C5-6 but only discussed “protective/preventative” surgery with Plaintiff. Tr. 63-64; see also tr. 1241. On January 21, 2016, Dr. Walker diagnosed Plaintiff with “quite severe” adjacent level spondylosis-age-related degeneration of the spinal disks in the neck-at C5-C6. Tr. 1220.[3] The ALJ wholly overlooked this report. On May 2, 2016, Dr. Walker noted robust fusion of Plaintiff's cervical spine at C6-C7, a broken anterior cervical plate, and spinal cord compression at C5-C6. Tr. 1241. He diagnosed Plaintiff with cervical spondylosis with myelopathy- compression of the cervical spinal cord-and spinal stenosis (i.e. narrowing) of the cervical region. Id. He also discussed a protective/preventative surgery with Plaintiff. Id. This indicates more than “a degree of spinal cord compression, ” and the protective/preventative nature of the surgery does not necessarily render it conservative treatment.

         The ALJ failed to give specific and legitimate reasons supported by substantial evidence for disregarding Dr. Greene's and Dr. Walker's medical opinions.

         II. Plaintiff's Credibility and Fibromyalgia

          Plaintiff next argues that the ALJ improperly rejected both Plaintiff's symptom testimony and the medical opinion of Dr. Greene with respect to fibromyalgia. Pl.'s Br. 5-6.

         A. Plaintiff's Credibility

         An ALJ must consider a claimant's symptom testimony, including statements regarding pain and workplace limitations. See 20 CFR §§ 404.1529(a), 416.929(a). Where there is objective medical evidence in the record of an underlying impairment that could reasonably be expected to produce the pain or symptoms alleged and there is no affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity of her symptoms. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ is not “required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

         The ALJ “may consider a range of factors in assessing credibility.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). These factors can include “ordinary techniques of credibility evaluation, ” id., as well as:

(1) whether the claimant engages in daily activities inconsistent with the alleged symptoms; (2) whether the claimant takes medication or undergoes other treatment for the symptoms; (3) whether the claimant fails to follow, without adequate explanation, a prescribed course of treatment; and ...

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