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Jason M. v. Berryhill

United States District Court, D. Oregon

May 21, 2019

JASON M., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Michael J. McShane United States District Judge

         Plaintiff Jason M. 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”) and supplemental security income (“SSI”) 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: (1) the Administrative Law Judge's (“ALJ's”) decision is supported by substantial evidence in light of new evidence submitted to the Appeals Council; (2) the ALJ gave clear and convincing reasons for rejecting Plaintiff's testimony; and (3) the ALJ gave germane reasons for disregarding the lay witness's testimony.

         Because there is substantial evidence in the record to support the ALJ's findings, the Commissioner's decision is AFFIRMED.


         Plaintiff applied for DIB and SSI on May 21, 2014, alleging disability since August 29, 2008. Tr. 19, 212-24. Both claims were denied initially and upon reconsideration. Tr. 19, 70, 71, 94, 95. Plaintiff timely requested a hearing before an ALJ and appeared before the Honorable Rudolph Murgo on April 5, 2017. Tr. 19, 40-69. ALJ Murgo denied Plaintiff's claim by a written decision dated May 17, 2017. Tr. 16-30. Plaintiff sought review from the Appeals Council and was denied on December 6, 2017, rendering the ALJ's decision final. Tr. 1-6. Plaintiff now seeks judicial review of the ALJ's decision.

         Plaintiff was 31 years old at the time of his alleged disability onset and 40 at the time of his hearing. See tr. 40, 212, 219. Plaintiff completed high school and worked as a banquet server, assistant director of catering, appliance technician, and electronic appliances sales associate. Tr. 28, 47, 65-67, 250. Plaintiff alleges disability due to metastatic thyroid cancer, stage 1 thyroid carcinoma cancer, nerve damage, calcium deficit, thyroid removal, migraines, nausea, brain cyst, trigeminal neuralgia, chronic leg pain, eye problems, and chronic nausea. Tr. 72, 241.


         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. New Evidence

         Plaintiff submitted two letters from Dr. Darren Lewis, M.D., his treating physician, to the Appeals Council after the ALJ issued his decision. Pl.'s Br. 1-2; tr. 1000-01. “[W]hen the Appeals Council considers new evidence in deciding whether to review a decision . . . that evidence becomes part of the administrative record, which the district court must consider when reviewing the . . . final decision for substantial evidence.” Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) (internal citation omitted). If the new evidence substantially changes the “record as a whole, ” the ALJ's decision may be said to no longer reflect substantial evidence in the record. See id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1030 n.2 (9th Cir. 2007).

         The ALJ gave limited weight to Dr. Lewis's earlier opinion that Plaintiff's nausea, facial twitching, and severe bilateral face pain may limit his concentration. Tr. 27; see tr. 999. The ALJ found that Dr. Lewis's opinion was vague, conclusory, tentative, and lacking specificity as to degree or severity. Tr. 27; see tr. 999. When evaluating conflicting medical opinions, an ALJ need not accept a brief, conclusory, or inadequately supported opinion. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)). The ALJ contrasted Dr. Lewis's opinion with Plaintiff's substantial daily activities and work for his parents since 2009, which showed no concentration limitations. Tr. 27; see tr. 48, 54-56, 999. The ALJ also found that Dr. Lewis did not document concentration issues in his treatment notes and Plaintiff rarely had nausea since January 2010. Tr. 27; se ...

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