United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge
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).
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
there is substantial evidence in the record to support the
ALJ's findings, the Commissioner's decision is
AND FACTUAL BACKGROUND
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
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.
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.
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
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 ...