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Douglas M. v. Commissioner of Social Security

United States District Court, D. Oregon

July 11, 2019

DOUGLAS M., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION & ORDER

          MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         BACKGROUND

         On May 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.

         DISABILITY ANALYSIS

         A 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).

         The 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.

         THE ALJ'S FINDINGS

         The ALJ 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.

         The ALJ 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.

         The ALJ 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.

         STANDARD OF REVIEW

         The 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).

         When 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).

         DISCUSSION

         Plaintiff 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 (“VE”).

         I. Medical Opinion Evidence

         Plaintiff 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.

         A. Dr. Trueblood

         Dr. 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 ...


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