United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
AIKEN UNITED STATES DISTRICT JUDGE
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.
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.
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).
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).
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).
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.
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.
Medical Opinion Evidence from Dr. Mandelblatt and Dr.
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
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).
Dr. Mandelblatt's Medical Opinion
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.
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 ...