United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane, United States District Judge.
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).
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
AND FACTUAL BACKGROUND
applied for DIB and SSI on September 8, 2014, alleging
disability since December 31, 2009 and July 1, 1988. Tr. 205,
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.
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.
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)).
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.
Dr. Alvord’s Medical Opinion
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.
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.
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.
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 ...