The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JAMES R.,! Case No. 3:18-cv-01147-AA
OPINION AND ORDER
Plaintiff,
vs.
COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant.
AIKEN, District Judge:
Plaintiff James R. seeks judicial review of the final decision of the
Commissioner of Social Security ("Commissioner") denying his claim for Disability
Insurance Benefits. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and
1 Tn the interest of privacy, this opinion uses only the first name and the initial of the last name
of the non-governmental party or parties in this case. When applicable, this opinion uses the same
designation for the non-governmental party’s immediate family member,
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1383(c). For the reasons below, the Commissioner's decision is REVERSED, and the
case is REMANDED for further proceedings.
BACKGROUND
Plaintiff applied for disability benefits on July 7, 2014. He alleged disability
starting February 1, 2013 due to diabetes mellitus, hearing impairment, and
neuropathy. Plaintiff appeared at a hearing before an Administrative Law Judge
(“ALJ”) on June 15, 2017. On August 21, 2017, the ALJ issued his decision finding
plaintiff not disabled. The Appeals Council denied review, making the Al's decision
the final decision of the Commissioner. This action followed.
STANDARD OF REVIEW
A reviewing court shall affirm the decision of the Commissioner if it is based
on proper legal standards and the findings are supported by substantial evidence in
the record. 42 U.S.C. § 405(g); Baston v. Comm’r Soc. Sec. Admin., 859 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.8d 1153, 1159 (th Cir.
2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine
whether substantial evidence exists, the district court must “examine the
administrative record as a whole, weighing both the evidence that supports and
detracts” from the ALJ’s decision. Gonzales v. Sullivan, 914 F.2d 1197, 1200 (8th Cir.
1990).
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DISCUSSION
The ALJ below determined that plaintiff was not disabled under the Social
Security Act. The Social Security Administration uses a five-step process to
determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The burden of proof falls to the claimant at steps one through four and
with the Commissioner at step five. Jd.; Bustamante v. Massanari, 262 F.8d 949,
953-64 (9th Cir. 2001). At step four, the ALJ considers the claimant's residual
functional capacity (“RFC”) and past relevant work. If the ALJ finds—based on the
RFC-—-that the claimant can still perform past relevant work, the claimant is not
disabled. 20 C.F.R. § 404.1520(a)(4)(Giv). If the ALJ finds the plaintiff cannot still
perform past relevant work, then the ALJ will move on to step five. 20 C.F.R. §
404,1520(a)(4).
At step one, the ALJ below found that plaintiff had not engaged in substantial
gainful activity since the alleged onset date. Tr. 37.2 At step two, the ALJ found that
plaintiff had several severe impairments: diabetes, neuropathy, hearing loss,
tinnitus, and hypertension. Jd. At step three, the ALJ found that plaintiff had no
impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1. Tr. 39.
“Ty” vefers to the Transeript of the Social Security Administrative Record provided by the
Commissioner.
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The ALJ then determined that plaintiff had an RFC “to perform light work, as
defined in 20 CFR 404.1567(b), that does not require more than frequent use of foot
controls; that occurs in a moderate or quieter noise environment or that routinely
allows the claimant to wear hearing protection that reduces the noise level to
moderate, and that does not require exposure to vibration or hazards.” Tr. 40. Then,
at step four, the ALJ found that plaintiff was “capable of performing past relevant
work as a postal clerk.” Tr. 48. Asa result, the ALJ concluded that plaintiff was not
disabled. Tr. 43.
Plaintiff alleges that the ALJ erred in rejecting the opinions of J. Scott
Pritchard, D.O., and Thomas W. Davenport, M.D., two State Disability
Determination Services consultants. The doctors reviewed plaintiffs medical
records, findings from his consultative examination, treatment records, and plaintiffs
reported activities to render opinions about how plaintiffs impairments might limit
his ability to work. Tr. 52-54, 64-69. Among other environmental limitations, each
doctor opined that plaintiff should “[a]void even moderate exposure” to noise. Tr. 58,
73 (emphasis added).
The ALJ gave “great weight” to most of the opinions provided by Dr. Pritchard
and Dr. Davenport, noting that these doctors “are considered experts in the Social
Security Disability programs and their opinions are well supported by the medical
evidence.” Tr. 42. However, the ALJ noted that “the longitudinal record shows that
with hearing aids, the claimant would not need to see the speaker’s face, as set forth
by Dr. Pritchard and Dr. Davenport,” and he therefore did not include such limitation
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in plaintiffs RFC. Tr. 42. And the ALJ did not adopt the doctors’ opinions that
plaintiff could not tolerate “moderate” exposure to noise. Instead, as mentioned, the
ALJ determined that plaintiff could perform work “that occurs in a moderate or
quieter noise environment or that routinely allows the claimant to wear hearing
protection that reduces the noise level to moderate.” Tr, 40,
An ALJ’s rejection of medical opinions must be “explicit” and supported by
“substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). An
ALJ may not simply provide his own conclusion; he must also explain why his
interpretation of the evidence differs from the doctors’. Reddick v. Chater, 157 F.3d
715, 725 (9th Cir. 1998). The ALJ also may not ignore relevant evidence but must
consider the evidence “as a whole” in arriving at a conelusion based on “substantial
evidence.” Holohan v. Massanari, 246 F.3d 1195, 1201, 1207 (9th Cir. 2001). “[A]n
ALJ errs when he rejects a medical opinion... while doing nothing more than
ignoring it.” Garrison, 759 F.3d at 1012-13.
Here, the only explanation that the ALJ gave for rejecting the reviewing
doctors’ opinions about plaintiffs hearing-related limitations was that “the
longitudinal record shows that with hearing aids, the claimant would not need to see
the speaker's face ....” Tr. 42. The ALJ attributed that opinion to the Dr. Pritchard
and Dr. Davenport, but neither doctor provided that opinion. As the ALJ noted,
Brandon Markus, D.O., who examined plaintiff, opined that plaintiff would need to
see a speaker’s face to understand them. Tr. 42, 480-81. Although Dr. Pritchard
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and Dr. Davenport both examined Dr. Markus’s examination records, neither doctor
referenced that limitation in their report. See Tr. 51-61, 63—76.
The ALJ’s only reason for rejecting the opinions of Dr. Davenport and Dr.
Pritchard is thus either not supported by the record or is based on a misreading of
the record. Because the ALJ provided no other reason to reject of the doctor’s opinions
about plaintiffs noise limitations, the ALJ erred in rejecting those opinions.
In rejecting the opinions of Drs. Pritchard and Davenport, the ALJ may have
committed a harmless error. In general, an error is harmless if “it does not negate
the validity of the ALJ’s ultimate conclusion.” Cha Yang v. Commissioner of Social
Sec. Admin., 488 Fed. Appx. 203, 204 (9th Cir. 2012) (citation omitted). However,
remand—rather than affirmance-——is appropriate where an error prevents the district
court’s “meaningful review” of the ALJ decision. Brown-Hunter v. Colvin, 806 F.3d
487, 492 (9th Cir. 2015). Here, the ALJ prevented this Court from being able to
meaningfully review his decision by failing to provide a reason for his rejection of the
doctors’ opinions on environmental noise limitations. See td.
Furthermore, the ALJ determined that plaintiff could perform past relevant
work as a Postal Clerk, which has a noise level of “Level 3 — Moderate.” Selected
Characteristics of Occupations Defined in the Revised Dictionary of Occupational
Titles (“SCODICOT’), Part B 209.687-26. And when asked by the ALd at the hearing,
a Vocational Expert (“VE”) provided three other occupations that exist in substantial
numbers in the national economy that plaintiff could perform: Motel Cleaner,
Electronic Worker, and Packing Line Worker. Tr. 570. However, each of these also
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has a “Moderate” noise level. SCODICOT, Part B 323.687-014, 726.687-010, 753.687-
038. The ALJ did not ask the VE whether any occupations exist in substantial
numbers for someone with the same characteristics and RFC as plaintiff but with a
more restrictive environmental noise limitation.
It is therefore unclear whether the ALJ would have reached the same disability
determination even if he had included the doctors’ environmental noise limitation in
plaintiffs RFC. Asa result, itis uncertain whether the ALd’s rejection of the doctors’
opinions was inconsequential to his final disability determination. Black v. Astrue,
472 Fed. Appx. 491, 493 (th Cir. 2012) (citing Stout c. Comm ’r, Soe. Sec. Admin., 454
F.3d 1050, 1055 (9th Cir. 2006)). Because it is not clear whether the ALJ’s error was
harmless, I remand the case to the ALd to consider all the evidence. See id. at 493
(finding remand appropriate where the court could not “determine whether the error
was harmless because the ALJ did not provide a statement of reasons for rejecting
evidence relevant to [the plaintiffs RFC]”).
CONCLUSION
The Commissioner’s decision is REVERSED, and this case is REMANDED for
further proceedings.
IT IS SO ORDERED.
Dated this SH of February 2020.
(oer (hss
Ann Aiken
United States District Judge
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