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Justin P. v. Commissioner of Social Security

United States District Court, D. Oregon, Portland Division

October 21, 2019

Justin P., [1] Plaintiff;
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          ANN AIKEN UNITED STATES DISTRICT JUDGE

         Plaintiff Justin P, brings this action pursuant to the Social Security Act ('Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner") which denied Plaintiffs application for Disability Insurance Benefits ("DIB"). For the reasons set forth below, the Commissioner's decision is REVERSED and REMANDED for an immediate award of benefits.

         BACKGROUND

         On February 20, 2014, Plaintiff filed an initial application for DIB with a date last insured of December 31, 2015. Tr. 15. In his application, Plaintiff alleged disability beginning on May 30, 2010, due to failed back syndrome, post-traumatic stress disorder ("PTSD"), major depression and suicidal ideation. Tr. 198. An administrative hearing was held before an Administrative Law Judge ("ALJ"), on July 2, 2015. Plaintiff was represented by counsel, and he and a vocational expert ("VE") offered testimony. After the hearing, the ALJ issued a decision on October 8, 2015, finding Plaintiff not disabled under the Act. Tr. 15. The Appeals Council declined review on May 18, 2016. Tr.1. Plaintiff appealed the decision, and on August 14, 2017, Magistrate Judge John Acosta issued an order and opinion remanding the case for further proceedings. Tr. 2367-2383. A second administrative hearing was held on June 26, 2018, and, on July 31, 2018, the same ALJ again found Plaintiff not disabled under the Act. Tr. 2291. Plaintiff then filed a direct appeal with this Court.

         STANDARD OF REVIEW

         The district court must affirm the ALJ's decision unless it contains legal error or is not supported by substantial evidence." Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing Stout v. Comm'r, Soc. Sec. Admin, ., 454 F.3d 1050, 1052 (9th Cir. 2006)). Harmless legal errors are not grounds for reversal. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). "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." Gutierrez v. Comm'r of Soc. Sec, 740 F.3d 519, 522 (9th Cir. 2014) (citation and internal quotation marks omitted). The court must evaluate the complete record and weigh "both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed, because "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

         COMMISSIONER'S DECISION

         The initial burden of proof rests upon the plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden. The plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4); id. § 416.920(a)(4). At step one, the ALJ found that Plaintiff had not engaged in "substantial gainful activity" since the alleged onset date of May 30, 2010, through the date last insured. Tr. 2293. 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id. §§ 416.920(a)(4)(i), (b). At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease, obesity, failed back syndrome, anxiety, depression and PTSD. Tr. 2293. 20 C.F.R. §§ 404.1520(c). At step three, the ALJ determined Plaintiffs impairments, whether considered singly or in combination, did not meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. Tr. 2294. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d); id. §§ 416.920(a)(4)(iii), (d).

         The ALJ then assessed Plaintiffs residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(e); id. § 416.920(e). The ALJ found that Plaintiff

had the residual functional capacity to perform modified sedentary work as defined in 20 CFR 404.1567(a). The claimant can lift/carry 10 pounds occasionally and less than 10 pounds frequently. He can sit for 6 to 8 hours and stand/walk for 2 of 8 hours. He can push/pull as much as he could lift and carry. The claimant can never climb ladders or scaffolds. He can no more than occasionally crouch, crawl, balance, stoop, kneel and climb ramps and stairs. He is further limited to simple, routine and repetitive tasks and simple work related decisions. He can no more than occasionally interact with the public and with coworkers.

Tr. 2296. At step four, the ALJ determined that Plaintiff does not have past relevant work. Tr. 2306. At step five, the ALJ determined that "there were jobs that existed in significant numbers in the national economy that the claimant could have performed," such as small products assembler, electronics assembler, and escort vehicle driver. Tr. 2307. Accordingly, the ALJ found that Plaintiff was not disabled and denied his application for benefits. Tr. 2308.

         DISCUSSION

         Plaintiff raises four assignments of error on appeal. He contends that the ALJ erred in: (1) his evaluation of the medical opinions from Dr. Mandelblatt and Dr. Ellison; (2) not providing persuasive, specific and valid reasons for not assigning great weight to the Veteran's Administrative (VA") imemployability determination, (3) not providing clear and convincing reasons to reject Plaintiffs symptom reports and (4) assigning a RFC assessment that was not supported by substantial evidence because the ALJ failed to include all supported functional limitations. The Court addresses each issue in turn.

         I. Medical Opinion Evidence from Dr. Mandelblatt and Dr. Ellison

         Plaintiff argues that the ALJ erred in his evaluation of the medical opinions from Dr. Steven Mandelblatt and Dr. John Ellison, because he did not provide specific and legitimate reasons to reject their opinions. The Court agrees that the ALJ committed harmful legal error in his evaluations of this evidence.

         There are three types of medical opinions in Social Security disability cases: those of treating, examining, and reviewing physicians. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001). "Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Id. at 1202; accord 20 C.F.R, § 404.1527(d). Accordingly, "the Commissioner must provide clear and convincing reasons for rejecting the uncontradicted opinion of an examining physician." Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995). Moreover, "the opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons." Id. at 830-831. "The ALJ is responsible for resolving conflicts in the medical record." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). "Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld." See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). "[T]he consistency of the medical opinion with the record as a whole" is a relevant consideration in weighing competing evidence. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007).

         A. Dr. Mandelblatt's Medical Opinion

         The ALJ committed harmful legal error in giving Dr. Mandelblatt's 2015 medical opinion little weight. Dr. Mandelblatt, Plaintiffs treating physician, diagnosed Plaintiff with "failed back surgery, chronic low back pain and depression with fair response to extensive medical and surgical intervention and counseling." Tr. 2165. The prognosis was fair for the short term but poor to nonexistent for recovery. Tr. 2165. Dr. Mandelblatt's opinion indicated significant limitations on Plaintiffs mental and physical abilities to perform at work. Tr. 2165-2168.

         The ALJ provided five reasons for giving Dr. Mandelblatt's opinion little weight. Tr, 2303-2304. First, the ALJ noted that state agency physician's Dr. Jensen and Dr. Eder had opined that Plaintiff could "perform light exertional work with occasional postural restrictions." Tr. 2303. In his decision, the ALJ only addressed Dr. Eder's opinion and gave it "some" weight. Tr. 2305. The ALJ did not explain, however, why Dr. Eder's opinion contradicts Dr. Mandelblatt's medical opinion. The fact that there is contradicting medical opinion cannot be the only reason to reject the opinion of a treating physician. Lester, 81 F.3d at ...


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