United States District Court, D. Oregon
OPINION & ORDER
MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE
Douglas M. seeks judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”).
The decision of the Commissioner is REVERSED and REMANDED for
immediate calculation and award of benefits.
5, 2014, Plaintiff filed a Title II application for a period
of disability and disability insurance benefits and a Title
XVI application for supplemental security income alleging
disability beginning August 15, 2010. Tr. 18. The claims were
denied initially and upon reconsideration. Id. At
Plaintiff's request, a hearing was held before an
administrative law judge (“ALJ”) on November 10,
2016. Id. On December 9, 2016, the ALJ issued a
decision finding Plaintiff not disabled. Tr. 28. The Appeals
Council denied Plaintiff's request for review, making the
ALJ's decision the final decision of the Commissioner.
Tr. 1. This appeal followed.
claimant is disabled if he or she is unable to “engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which .
. . has lasted or can be expected to last for a continuous
period of not less than 12 months[.]” 42 U.S.C. §
423(d)(1)(A). “Social Security Regulations set out a
five-step sequential process for determining whether an
applicant is disabled within the meaning of the Social
Security Act.” Keyser v. Comm'r, 648 F.3d
721, 724 (9th Cir. 2011).
The five-steps are: (1) Is the claimant presently working in
a substantially gainful activity? (2) Is the claimant's
impairment severe? (3) Does the impairment meet or equal one
of a list of specific impairments described in the
regulations? (4) Is the claimant able to perform any work
that he or she has done in the past? and (5) Are there
significant numbers of jobs in the national economy that the
claimant can perform?
Id. at 724-25; see also Bustamante v.
Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Bustamante, 262 F.3d at 953. The Commissioner bears
the burden of proof at step five. Id. at 953-54. At
step five, the Commissioner must show that the claimant can
perform other work that exists in significant numbers in the
national economy, “taking into consideration the
claimant's residual functional capacity, age, education,
and work experience.” Tackett v. Apfel, 180
F.3d 1094, 1100 (9th Cir. 1999). If the Commissioner fails to
meet this burden, the claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If,
however, the Commissioner proves that the claimant is able to
perform other work existing in significant numbers in the
national economy, the claimant is not disabled.
Bustamante, 262 F.3d at 953-54.
performed the sequential analysis. At step one, the ALJ found
Plaintiff had not engaged in substantial gainful activity
since the alleged onset date, August 15, 2010. Tr. 20. The
ALJ determined Plaintiff had the following severe
impairments: degenerative disc and joint disease of the
lumbar spine; lumbago; history of cervical nerve root
impingement status post disc fusion; tremor; post-traumatic
stress disorder (“PTSD”); major depression; panic
disorder; cognitive disorder NOS; and psychoactive substance
abuse disorder. Id. The ALJ determined
Plaintiff's impairments did not meet or equal a listed
impairment. Tr. 21.
determined Plaintiff had the RFC to perform a range of light
work with the following additional restrictions: he is
limited to lifting and/or carrying 20 pounds occasionally and
10 pounds frequently; he is limited to sitting, standing,
and/or walking about six hours in an eight-hour work day,
with normal breaks; he is limited to no more than frequent
climbing of ramps or stairs and no climbing of ladders,
ropes, or scaffolds; he is limited to no more than frequent
balancing, stooping, kneeling, and crouching, and no more
than occasional crawling; his is limited to no more than
occasional bilateral overhead reaching; he must avoid
concentrated exposure to temperature extremes; he must avoid
concentrated exposure to excessive vibration; he must avoid
concentrated exposure to fumes, odors, dust, gases, and
poorly ventilated areas; he must avoid concentrated exposure
to workplace hazards; he is limited to understanding and
carrying out simple instructions in a work environment with
few changes; he is limited to no interaction with the general
public and no more than occasional, brief interaction
coworkers and supervisors. Tr. 23.
noted Plaintiff was 45 years old on the alleged onset date
and has at least a high school education and is able to
communicate in English. Tr. 27. The ALJ found Plaintiff is
unable to perform past relevant work. Id. Based on
his RFC, the ALJ determined Plaintiff was able to perform
work as a marking clerk, electrical accessories assembler, or
garment sorter. Tr. 28. As a consequence, the ALJ determined
Plaintiff was not disabled. Id.
district court must 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.
42 U.S.C. § 405(g); Batson v. Comm'r, 359
F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence
“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 quotation marks omitted). In reviewing
the Commissioner's alleged errors, this Court must weigh
“both the evidence that supports and detracts from the
[Commissioner's] conclusion.” Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
the evidence before the ALJ is subject to more than one
rational interpretation, courts must defer to the ALJ's
conclusion. Batson, 359 F.3d at 1198 (citing
Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.
1995)). A reviewing court, however, cannot affirm the
Commissioner's decision on a ground that the agency did
not invoke in making its decision. Stout v.
Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006).
Finally, a court may not reverse an ALJ's decision on
account of an error that is harmless. Id. at
1055-56. “[T]he burden of showing that an error is
harmful normally falls upon the party attacking the
agency's determination.” Shinseki v.
Sanders, 556 U.S. 396, 409 (2009).
alleges the ALJ erred by (1) improperly rejecting the medical
opinions of treating and examining sources; (2) improperly
rejecting Plaintiff's subjective symptom testimony; (3)
improperly rejecting lay witness testimony; and (4) failing
to account for all of Plaintiff's limitations in the
hypothetical question to the Vocational Expert
Medical Opinion Evidence
asserts that the ALJ erred by rejecting the opinions of
examining psychologist William Trueblood, Ph.D., examining
physician Daniel S. Selinger, M.D., and treating
physician's assistant Jonathan Neal. The ALJ is
responsible for resolving conflicts in the medical record.
Carmickle v. Comm'r, 533 F.3d 1155, 1164 (9th
Cir. 2008). “As a general rule, more weight should be
given to the opinion of a treating source than to the opinion
of doctors who do not treat the claimant[.]” Turner
v. Comm'r, 613 F.3d 1217, 1222 (9th Cir. 2010)
(internal quotation marks and citation omitted). An ALJ may
reject the uncontradicted medical opinion of a treating or
examining physician only for “clear and
convincing” reasons supported by substantial evidence
in the record. Bayliss v. Barnhart, 427 F.3d 1211,
1216 (9th Cir. 2005). An ALJ may reject the contradicted
opinion of a treating or examining doctor by providing
“specific and legitimate reasons that are supported by
substantial evidence.” Id.
Trueblood examined Plaintiff on June 7, 2013. Tr. 687. In his
report, Dr. Trueblood noted that Plaintiff's affect was
appropriate, with no apparent anxiety or irritability. Tr.
692. During testing, Plaintiff performed one of the tests
incorrectly and, after being told that he was not performing
the test properly, continued to perform incorrectly.
Id. Dr. Trueblood opined: “Possibly this
reflects some frustration or the manner in which this
gentleman might sometimes react when he ...