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Robert M. v. Berryhill

United States District Court, D. Oregon

July 25, 2019

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

          OPINION AND ORDER

          Michael J. McShane United States District Judge

         Plaintiff Robert M. brings this action for judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for 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 the Administrative Law Judge (“ALJ”) erred in rejecting: (1) Dr. Scott Alvord's, PsyD, medical opinion; (2) Felice Nirenstein-Rich's, M.S., Q.M.H.P., “other” medical source statement; and (3) Plaintiff's subjective symptom testimony. Because there is substantial evidence in the record to support the ALJ's findings and errors, if any, were harmless, the Commissioner's decision is AFFIRMED.

         PROCEDURAL AND FACTUAL BACKGROUND

         Plaintiff applied for SSI on December 27, 2013, alleging disability since August 1, 2005. Tr. 167-72.[2] His claim was denied initially and upon reconsideration. Tr. 106-09, 117-22. Plaintiff timely requested a hearing before an ALJ and appeared before the Honorable Mark Triplett on December 12, 2016. Tr. 120-22, 39-76. ALJ Triplett denied Plaintiff's claim by a written decision dated February 15, 2017. Tr. 15-38. Plaintiff sought review from the Appeals Council and was denied on January 29, 2018 rendering the ALJ's decision final. Tr. 162-64, 1- 6. Plaintiff now seeks judicial review of the ALJ's decision.

         Plaintiff was 42 years old at the time of his alleged disability onset and 45 at the time of his hearing. See tr. 167. Plaintiff has a GED and worked as a pizza delivery driver, tow truck driver, wrecking yard dismantler/salvager, delivery driver, and gas station/fuel attendant. Tr. 31, 48, 51, 203, 601. Plaintiff alleges disability due to shoulder, knee, heart, and kidney problems, attention-deficit/hyperactivity disorder (“ADHD”), post-traumatic stress disorder (“PTSD”), depression, and bipolar disorder. Tr. 44-46, 98, 167-72, 201.

         STANDARD OF REVIEW

         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)).

         DISCUSSION

         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 (“RFC”), 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. Alvord's Medical Opinion

         The State of Oregon Disability Determination Services referred Plaintiff to Dr. Scott Alvord, PsyD, to address his ADHD, PTSD, depression, and bipolar disorder and the impact of related symptoms on his employability. Tr. 600. The ALJ gave significant weight to Dr. Alvord's opinion that Plaintiff could understand and follow simple instructions but was markedly limited with more complex tasks. Tr. 29. The ALJ gave little weight to Dr. Alvord's opinion that Plaintiff had many marked limitations regarding social functioning. Id.

         “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) (citation omitted). “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. Id.

         Here, Dr. Alvord opined that Plaintiff was markedly restricted in his ability to interact appropriately with the public, supervisors, and coworkers and respond appropriately to work situations and changes in a routine work setting. Tr. 606. Dr. Alvord's opinion is contradicted by that of state agency psychological consultants Alvin Smith, Ph.D., and Dorothy Anderson, Ph.D. See tr. 103, 88 (opining that Plaintiff was capable of occasional indirect interaction with the public and coworkers and could frequently work independently). Therefore, the ALJ needed only provide specific and legitimate reasons supported by substantial evidence to properly reject Dr. Kerner's opinion. See Bayliss, 427 F.3d at 1216 (citation omitted). The ALJ did so here.

         An ALJ must weigh the following factors when considering medical opinions: (1) whether the source has an examining relationship with claimant; (2) whether the source has a treatment relationship with claimant; (3) supportability (as shown by relevant evidence and explanation); (4) consistency with the record as a whole; (5) specialization; and (6) other factors, including ...


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