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Johnny E. v. Berryhill

United States District Court, D. Oregon

September 30, 2019

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

          OPINION AND ORDER

          Michael J. McShane, United States District Judge.

         Plaintiff Johnny E. 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 the Administrative Law Judge (“ALJ”) erred in rejecting: (1) Dr. Scott Alvord’s, Psy.D., medical opinion; and (2) Plaintiff’s subjective symptom testimony. Because the ALJ erred in discounting both Plaintiff’s testimony and Dr. Alvord’s medical opinion, the Commissioner’s decision is REVERSED and this matter is REMANDED for an award of benefits.

         PROCEDURAL AND FACTUAL BACKGROUND

         Plaintiff applied for DIB and SSI on September 8, 2014, alleging disability since December 31, 2009 and July 1, 1988. Tr. 205, 212.[2] Both claims were denied initially and upon reconsideration. Tr. 29–30, 59–60. Plaintiff timely requested a hearing before an ALJ and appeared before the Honorable Vadim Mozyrsky on November 18, 2016 and March 9, 2017. Tr. 138, 22–28, 1–21. ALJ Mozyrsky denied Plaintiff’s claims by a written decision dated June 16, 2017. Tr. 89–112. Plaintiff sought review from the Appeals Council and was denied on May 17, 2018 rendering the ALJ’s decision final. Tr. 113–19. Plaintiff now seeks judicial review of the ALJ’s decision.

         Plaintiff was 24 years old at the time of his alleged disability onset and 53 at the time of his hearings. See tr. 31. Plaintiff completed high school and attended college and worked as a mason and temporary laborer. Tr. 483, 7, 235, 221, 297. Plaintiff alleges disability due to melanoma, bad back, gall bladder removal, and right leg nerve damage. Tr. 31, 45, 61, 77, 234.

         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

         Dr. Scott Alvord, Psy.D., examined Plaintiff at the request of Disability Determination Services on January 20, 2015. Tr. 101, 481–88. Dr. Alvord found that Plaintiff’s overall adaptive functioning was mild to moderately impaired. Tr. 487. Dr. Alvord diagnosed Plaintiff with chronic post-traumatic stress disorder, depressive disorder, and dependent personality traits. Id. The ALJ adopted some of Dr. Alvord’s opinions regarding Plaintiff’s difficulties but rejected his opinions that Plaintiff would have difficulty interacting with coworkers, maintaining regular workplace attendance, completing a normal workday/workweek, and dealing with typical workplace stress. Tr. 102.

         “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’s opinion is uncontradicted by that of state agency psychological consultants Ben Kessler, Psy.D., and Winifred Ju, Ph.D. See tr. 54–56, 72–74 (opining that Plaintiff should not frequently engage with the public, should have structured interaction with coworkers, and would do best in a predictable and infrequently changing environment). Therefore, the ALJ needed to provide clear and convincing reasons supported by substantial evidence to properly reject Dr. Kerner’s opinion. See Bayliss, 427 F.3d at 1216 (citation omitted). The ALJ failed to do 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 the ...


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