Hall v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MELINDA N. H.,1 2:19-cv-02035-BR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

ARI D. HALPERN

Halpern Law Group, P.C.

62910 OB Riley Rd., Ste. 100

Bend, OR 97703

(541) 388-8410

D. James Tree

Tree Law Office

3711 Englewood Avenue

Yakima, WA 98902

(503) 452-1700

Attorneys for Plaintiff

1 In the interest of privacy this Court uses only the first

name and the initial of the last name of the nongovernmental

party in this case. Where applicable, this Court uses the same

designation for the nongovernmental party's immediate family

member.

1 - OPINION AND ORDER

BILLY J. WILLIAMS

United States Attorney

RENATA GOWIE

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

MICHAEL W. PILE

Acting Regional Chief Counsel

ERIN F. HIGHLAND

Special Assistant United States Attorney

Social Security Administration

701 5th Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-2495

Attorneys for Defendant

BROWN, Senior Judge.

Plaintiff Melinda N. H. seeks judicial review of the final

decision of the Commissioner of the Social Security

Administration (SSA) in which the Commissioner denied

Plaintiff's applications for Disability Insurance Benefits (DIB)

under Title II of the Social Security Act and Supplemental

Security Income (SSI) under Title XVI of the Social Security

Act. This Court has jurisdiction to review the Commissioner's

final decision pursuant to 42 U.S.C. § 405(g).

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

2 - OPINION AND ORDER

ADMINISTRATIVE HISTORY

I. Prior Proceedings

On February 5, 2010, Plaintiff protectively filed her

applications for DIB and SSI benefits. Tr. 991.2 Plaintiff

alleged a disability onset date of March 1, 2007. Tr. 991.

Plaintiff's applications were denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held a

hearing on December 13, 2011. Tr. 79-141. Plaintiff and a

vocational expert (VE) testified at the hearing. Plaintiff was

represented by an attorney at the hearing.

On April 23, 2012, the ALJ issued a partially favorable

decision and found Plaintiff was disabled from October 21, 2009,

through September 30, 2011. Tr. 962-87. Plaintiff did not

appeal that decision.

On July 31, 2012, Plaintiff protectively filed new

applications for DIB and SSI benefits. Tr. 22. Plaintiff

alleged a disability onset date of March 1, 2009. Tr. 22.

Plaintiff's applications were denied initially and on

reconsideration. An ALJ held a hearing on May 12, 2014.

2 Citations to the official Transcript of Record (#11)

filed by the Commissioner on May 20, 2020, are referred to as

"Tr."

3 - OPINION AND ORDER

Tr. 931-61. Plaintiff and a VE testified at the hearing.

Plaintiff was represented by an attorney at the hearing. At the

hearing Plaintiff amended her alleged disability onset date to

May 1, 2012. Tr. 937. On January 8, 2015, the ALJ held a

supplemental hearing. Tr. 48-78. Plaintiff and a VE testified

at the hearing. Plaintiff was also represented by an attorney

at the supplemental hearing.

On January 30, 2015, the ALJ issued an opinion in which she

found Plaintiff was not disabled and, therefore, was not

entitled to benefits. Tr. 22-47. Plaintiff requested review by

the Appeals Council. On June 21, 2016, the Appeals Council

denied Plaintiff's request to review the ALJ's decision, and the

ALJ's decision became the final decision of the Commissioner.

Tr. 1-3. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On August 24, 2016, Plaintiff filed a Complaint in this

Court (Case No. 3:16-cv-01699-JR) seeking review of the

Commissioner's decision.

On March 2, 2018, Magistrate Judge Jolie Russo issued an

Opinion and Order in which she found the ALJ failed to provide

legally sufficient reasons for discounting the medical opinions

of Tae-Im Moon, Ph.D., an examining psychologist, and Carol

4 - OPINION AND ORDER

Jurs, M.A., an examining mental-health professional.3

Magistrate Judge Russo reversed the decision of the ALJ and

remanded the case for further administrative proceedings.

Tr. 1125-52.

On April 4, 2018, the Appeals Council remanded the case to

the ALJ for further proceedings as directed by the district

court. Tr. 1153-55.

II. Current Proceeding

Following remand by the Appeals Council the ALJ held a

hearing on October 16, 2018. Tr. 1075-95. Plaintiff testified

at the hearing and was represented by an attorney. A VE was

also present at the hearing, but the VE did not testify.

On March 12, 2019, the ALJ held a supplemental hearing at

which Paul Morison, another VE, testified. Tr. 1050-74.

Plaintiff was not present at this hearing, but she was

represented by an attorney.

On July 9, 2019, Steven Floyd, another VE, responded to

interrogatories submitted by the ALJ. Tr. 1283-87.

On September 5, 2019, the ALJ issued an opinion in which

she found Plaintiff is not disabled and, therefore, is not

3 M.A. Jurs's opinion was co-signed by Kari Heistand, M.D.

5 - OPINION AND ORDER

entitled to benefits. Tr. 991.

The Appeals Council did not assume jurisdiction following

the ALJ's decision, and, therefore, the ALJ's decision

became the final decision of the Commissioner. 20 C.F.R.

§§ 404.984(a), 416.1484(a).

On December 15, 2019, Plaintiff filed a Complaint in this

Court seeking review of the Commissioner's decision.

BACKGROUND

Plaintiff was born on November 3, 1972. Tr. 327, 1013.

Plaintiff was 39 years old on her amended alleged disability

onset date. Tr. 999. Plaintiff has at least a high-school

education. Tr. 1013. Plaintiff has past relevant work

experience as a cashier. Tr. 1013.

Plaintiff alleges disability due to Post-Traumatic Stress

Syndrome (PTSD), depression, anxiety, "bulging discs in back,"

sleep apnea, arthritis, right-hip and leg pain, "narrowing of

[the] spine," hyperthyroidism, insomnia, and asthma. Tr. 157-

58.

Except as noted, Plaintiff does not challenge the ALJ's

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ's summary of the

6 - OPINION AND ORDER

medical evidence. See Tr. 997-1013.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110

(9th Cir. 2012). To meet this burden a claimant must

demonstrate her inability "to engage in any substantial gainful

activity by reason of any medically determinable physical or

mental impairment which . . . has lasted or can be expected to

last for a continuous period of not less than 12 months." 42

U.S.C. § 423(d)(1)(A). The ALJ must develop the record when

there is ambiguous evidence or when the record is inadequate to

allow for proper evaluation of the evidence. McLeod v. Astrue,

640 F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari,

276 F.3d 453, 459-60 (9th Cir. 2001)).

The district court must affirm the Commissioner's decision

if it is based on proper legal standards and the findings are

supported by substantial evidence in the record as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

"relevant evidence that a reasonable mind might accept as

adequate to support a conclusion." Molina, 674 F.3d. at 1110-11

7 - OPINION AND ORDER

(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). "It is more than a mere scintilla [of

evidence] but less than a preponderance." Id. (citing

Valentine, 574 F.3d at 690).

The ALJ is responsible for evaluating a claimant's

testimony, resolving conflicts in the medical evidence, and

resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591

(9th Cir. 2009). The court must weigh all of the evidence

whether it supports or detracts from the Commissioner's

decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th

Cir. 2008). Even when the evidence is susceptible to more than

one rational interpretation, the court must uphold the

Commissioner's findings if they are supported by inferences

reasonably drawn from the record. Ludwig v. Astrue, 681 F.3d

1047, 1051 (9th Cir. 2012). The court may not substitute its

judgment for that of the Commissioner. Widmark v. Barnhart, 454

F.3d 1063, 1070 (9th Cir. 2006).

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

At Step One the claimant is not disabled if the

Commissioner determines the claimant is engaged in substantial

8 - OPINION AND ORDER

gainful activity (SGA). 20 C.F.R. §§ 404.1520(a)(4)(i),

416.920(a)(4)(i). See also Keyser v. Comm'r of Soc. Sec., 648

F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the

Commissioner determines the claimant does not have any medically

severe impairment or combination of impairments. 20 C.F.R.

§§ 404.1509, 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also

Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant's impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R.

§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). See also Keyser,

648 F.3d at 724. The criteria for the listed impairments, known

as Listings, are enumerated in 20 C.F.R. part 404, subpart P,

appendix 1 (Listed Impairments).

If the Commissioner proceeds beyond Step Three, he must

assess the claimant's residual functional capacity (RFC). The

claimant's RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

regular and continuing basis despite her limitations. 20 C.F.R.

§§ 404.1520(e), 416.920(e). See also Social Security Ruling

9 - OPINION AND ORDER

(SSR) 96-8p. "A 'regular and continuing basis' means 8 hours a

day, for 5 days a week, or an equivalent schedule." SSR 96-8p,

at *1. In other words, the Social Security Act does not require

complete incapacity to be disabled. Taylor v. Comm'r of Soc.

Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work she has done in the past. 20 C.F.R. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, he must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). See also Keyser, 648 F.3d at 724-25. Here

the burden shifts to the Commissioner to show a significant

number of jobs exist in the national economy that the claimant

can perform. Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d

1068, 1071 (9th Cir. 2010). The Commissioner may satisfy this

burden through the testimony of a VE or by reference to the

Medical-Vocational Guidelines (or the grids) set forth in the

regulations at 20 C.F.R. part 404, subpart P, appendix 2. If

the Commissioner meets this burden, the claimant is not

10 - OPINION AND ORDER

disabled. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since May 1, 2012, Plaintiff's

alleged disability onset date in the current application for

disability. Tr. 995.

At Step Two the ALJ found Plaintiff has the severe

impairments of degenerative disc disease and degenerative joint

disease of the spine, carpal-tunnel syndrome status post release

surgery, asthma, obesity, depression, anxiety, and PTSD.

Tr. 996.

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or equal one of the listed

impairments in 20 C.F.R. part 404, subpart P, appendix 1.

Tr. 997. The ALJ found Plaintiff has the RFC to perform light

work with the following limitations: can only sit for one hour

at a time and up to six hours in an eight-hour day; can only

stand and walk for one hour at a time and up to six hours in an

eight-hour workday; can occasionally climb ramps and stairs;

should not climb ladders, ropes, and scaffolds; can occasionally

stoop, kneel crouch, and crawl; can frequently finger and handle

11 - OPINION AND ORDER

with her right (dominant) hand; can occasionally reach with her

right hand; should avoid even moderate exposure to extreme cold

and to hazards such as exposed machinery and unprotected

heights; should avoid concentrated exposure to vibration and to

respiratory irritants such as fumes, odors, dusts, gases, and

poor ventilation; can understand and remember simple one- and

two-step tasks; should have only rare (10% of the time or less)

contact with the general public; can have occasional, brief

interactions with coworkers; and is able to accept supervision.

Tr. 998.

At Step Four the ALJ concluded Plaintiff is unable to

perform her past relevant work. Tr. 1013.

At Step Five the ALJ found Plaintiff can perform other jobs

that exist in the national economy such as price-marker.

Tr. 1014. Accordingly, the ALJ found Plaintiff is not disabled.

Tr. 1015.

DISCUSSION

Plaintiff contends the ALJ erred when she (1) failed to

provide legally sufficient reasons for discounting Plaintiff's

testimony; (2) failed to provide legally sufficient reasons for

discounting the medical opinions of Dr. Moon, an examining

12 - OPINION AND ORDER

psychologist, and M.A. Jurs, an examining mental-health

professional; and (3) found at Step Five that Plaintiff was able

to perform other jobs that exist in the national economy.

I. The ALJ did not err when she discounted Plaintiff's

testimony.

Plaintiff contends the ALJ erred when she failed to provide

legally sufficient reasons for discounting Plaintiff's

subjective symptom testimony.

A. Standards

The ALJ engages in a two-step analysis to determine

whether a claimant's testimony regarding subjective pain or

symptoms is credible. "First, the ALJ must determine whether

the claimant has presented objective medical evidence of an

underlying impairment 'which could reasonably be expected to

produce the pain or other symptoms alleged.'" Garrison v.

Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)(quoting Lingenfelter

v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). The

claimant need not show her "impairment could reasonably be

expected to cause the severity of the symptom she has alleged;

she need only show that it could reasonably have caused some

degree of the symptom." Garrison, 759 F.3d at 1014 (quoting

Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). A

claimant is not required to produce "objective medical evidence

13 - OPINION AND ORDER

of the pain or fatigue itself, or the severity thereof."

Garrison, 759 F.3d at 1014.

If the claimant satisfies the first step of this

analysis and there is not any affirmative evidence of

malingering, "the ALJ can reject the claimant's testimony about

the severity of her symptoms only by offering specific, clear

and convincing reasons for doing so." Garrison, 759 F.3d at

1014-15. See also Robbins v. Soc. Sec. Admin., 466 F.3d 880,

883 (9th Cir. 2006)(same). General assertions that the

claimant's testimony is not credible are insufficient. Parra v.

Astrue, 481 F.3d 742, 750 (9th Cir. 2007). The ALJ must

identify "what testimony is not credible and what evidence

undermines the claimant's complaints." Id. (quoting Lester v.

Chater, 81 F.3d 821, 834 (9th Cir. 1995)).

B. Analysis

The ALJ discounted Plaintiff's statements concerning

the intensity, persistence, and limiting effects of her symptoms

on the ground that her statements are not entirely consistent

with the medical evidence and other evidence in the record.

Tr. 1000. In addition, the ALJ concluded Plaintiff's activities

of daily living and limited work history conflicted with

Plaintiff's subjective symptom testimony. Tr. 1006.

14 - OPINION AND ORDER

The Commissioner notes Magistrate Judge Russo found

the ALJ provided clear and convincing reasons in her January

2015 opinion for discounting Plaintiff's testimony based on

these same reasons. Tr. 1132-37. Accordingly, the Commissioner

contends Plaintiff is precluded from relitigating the ALJ's

current evaluation of Plaintiff's testimony pursuant to the law-

of-the-case doctrine. The Commissioner relies on Stacy v.

Colvin, 825 F.3d 563 (9th Cir. 2016), to support his argument.

In Stacy the Ninth Circuit noted: "The law of the

case doctrine generally prohibits a court from considering an

issue that has already been decided by that same court or a

higher court in the same case." 825 F.3d at 567. The court

held re-litigation of issues settled by the district court's

prior remand order may be reconsidered only when (1) the

evidence on remand is substantially different, (2) the

controlling law has changed, or (3) applying the doctrine would

be unjust. Id.

Here the ALJ discounted Plaintiff's testimony in her

opinion issued January 30, 2015, on the grounds that it was

inconsistent with Plaintiff's statements about her symptoms and

limitations, the medical record, Plaintiff's activities of daily

living, and Plaintiff's work history. Tr. 32-36. Magistrate

15 - OPINION AND ORDER

Judge Russo found the ALJ's reasons for discounting Plaintiff's

testimony were legally sufficient; the ALJ's reasons were

supported by substantial evidence in the record; and, therefore,

the ALJ properly discounted Plaintiff's testimony. Tr. 1132-37.

On remand the ALJ gave nearly identical reasons for discounting

Plaintiff's symptom testimony. See Tr. 1005-06.

Accordingly, on this record the Court concludes the

law-of-the-case doctrine applies, and Plaintiff is, therefore,

precluded from relitigating the ALJ's evaluation of her symptom

testimony. In addition, the Court concludes there has not been

any change in controlling law, and, therefore, applying the

doctrine would not be unjust. To the extent that the law-of-

the-case doctrine may not apply, the Court concludes the ALJ, in

any event, provided legally sufficient reasons supported by

substantial evidence in the record for discounting Plaintiff's

subjective symptom testimony.

II. The ALJ did not err in her assessment of the medical

opinions of Dr. Moon and M.A. Jurs.

Plaintiff contends the ALJ erred when she failed to provide

legally sufficient reasons for rejecting the medical opinions of

Dr. Moon, an examining psychologist, and M.A. Jurs, an examining

mental-health therapist.

16 - OPINION AND ORDER

A. Standards

"In disability benefits cases . . . physicians may

render medical, clinical opinions, or they may render opinions

on the ultimate issue of disability - the claimant's ability to

perform work." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.

2014). "In conjunction with the relevant regulations, [courts]

have . . . developed standards that guide [the] analysis of an

ALJ's weighing of medical evidence." Ryan v. Comm'r of Soc.

Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

"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 contradicted, a

treating or examining physician's opinion is still owed

deference and will often be "entitled to the greatest

weight . . . even if it does not meet the test for controlling

weight." Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007). An

ALJ can satisfy the "substantial evidence" requirement by

"setting out a detailed and thorough summary of the facts and

conflicting clinical evidence, stating his interpretation

thereof, and making findings." Reddick, 157 F.3d at 725. "The

17 - OPINION AND ORDER

ALJ must do more than state conclusions. He must set forth his

own interpretations and explain why they, rather than the

doctors', are correct." Id. (citation omitted).

Medical sources are divided into two categories:

"acceptable medical sources" and "other sources." 20 C.F.R.

§ 416.913. Acceptable medical sources include licensed

physicians and psychologists. 20 C.F.R. § 416.913(a). Medical

sources classified as "other sources" include, but are not

limited to, nurse practitioners, therapists, licensed clinical

social workers, and chiropractors. 20 C.F.R. § 416.913(d).

With respect to "other sources," the Social Security

Administration Regulations provide:

With the growth of managed health care in recent

years and the emphasis on containing medical

costs, medical sources who are not acceptable

medical sources, such as nurse practitioners,

physician assistants, and licensed clinical

social workers, have increasingly assumed a

greater percentage of the treatment and

evaluation functions previously handled primarily

by physicians and psychologists. Opinions from

these medical sources, who are not technically

deemed acceptable medical sources under our

rules, are important and should be evaluated on

key issues such as impairment severity and

functional effects, along with the other relevant

evidence in the file.

SSR 06-03p, at *3. Factors the ALJ should consider when

determining the weight to give an opinion from those "important"

18 - OPINION AND ORDER

sources include the length of time the source has known the

claimant, the number of times and frequency that the source has

seen the claimant, the consistency of the source's opinion with

other evidence in the record, the relevance of the source's

opinion, the quality of the source's explanation of his opinion,

and the source's training and expertise. SSR 06-03p, at *4. On

the basis of the particular facts and the above factors the ALJ

may assign an "other source" either greater or lesser weight

than that of an acceptable medical source. SSR 06-03p, at *5-6.

The ALJ, however, must explain the weight assigned to such

sources so that a claimant or subsequent reviewer may follow the

ALJ's reasoning. SSR 06-03p, at *6. "The ALJ may discount

testimony from . . . 'other sources' if the ALJ 'gives reasons

germane to each witness for doing so.'" Molina, 674 F.3d at

1111 (quoting Turner v. Comm'r Soc. Sec. Admin., 613 F.3d 1217,

1224 (9th Cir. 2010)).

Inasmuch as M.A. Jurs's assessment was co-signed by

Dr. Heistand, the Commissioner acknowledges M.A. Jurs's opinion

comes from an acceptable medical source (Def.'s Br. at 6-7),

and, therefore, the ALJ must provide specific and legitimate

reasons supported by substantial evidence in the record for

rejecting M.A. Jurs's opinion rather than the mere "germane-

19 - OPINION AND ORDER

reasons standard" usually applied to "other" medical sources.

B. Analysis

1. Dr. Moon

In September 2012 Dr. Moon completed a psychological

examination of Plaintiff. Tr. 593-97. Dr. Moon diagnosed

Plaintiff with PTSD, depressive disorder NOS, and psychiatric

disorder NOS. Tr. 594. Dr. Moon assessed Plaintiff's

functioning in thirteen "basic work activities" and opined

Plaintiff has marked limitations in her ability to understand,

to remember, and to persist in tasks by following detailed

instruction; to perform activities withing a schedule, to

maintain regular attendance, and to be punctual; to learn new

tasks; to perform routine tasks without special supervision; to

adapt to change in a routine work setting; to be aware of normal

hazards and to take appropriate precautions; to ask simple

questions or to request assistance; to complete a normal work

day and work week without interruptions from her psychological

symptoms; and to set realistic goals and to plan independently.

Tr. 595. Dr. Moon also found Plaintiff has severe limitations

in her ability to communicate, to perform effectively, and to

maintain appropriate behavior in a work setting. Tr. 595.

In her January 2015 decision the ALJ gave only partial

20 - OPINION AND ORDER

weight to Dr. Moon's opinion on the grounds that it relied on

Plaintiff's self-reports and was inconsistent with the

Cooperative Disability Investigations Unit (CDIU) report.

Tr. 37-38. On review by the district court, Magistrate Judge

Russo determined the ALJ failed to provide specific and

legitimate reasons for discounting Dr. Moon's opinion, and,

accordingly, reversed and remanded the case as to that issue.

Tr. 1140-42.

Following remand, the ALJ again gave Dr. Moon's

opinion "little weight" on the grounds that it is inconsistent

with Dr. Moon's own examination findings and with other evidence

in the medical record, and, in addition, that Dr. Moon did not

provide any analysis or explanation to support his opinion.

Tr. 1009.

The record reflects the ALJ correctly found Dr. Moon's

opinion was contradicted by his own examination conclusions.

For example, the ALJ noted even though Dr. Moon found

Plaintiff's perception and fund of knowledge are not within

normal limits, Dr. Moon found Plaintiff's stream of thought is

logical and her thought content, orientation, memory,

concentration, and abstract thought are within normal limits.

Tr. 597. Dr. Moon also noted Plaintiff presented at the

21 - OPINION AND ORDER

examination with a casual/neat appearance, had normal speech,

was cooperative with good eye contact, and had a normal mood.

Tr. 596. The Ninth Circuit has held contradictions between a

doctor's opinion and the doctor's own observations are clear and

convincing reasons for discounting the doctor's medical opinion.

See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

The ALJ also did not err when she concluded Dr. Moon's

opinion is inconsistent with other evidence in the record.

Tr. 1009. Although the record contains evidence that supports

Dr. Moon's opinion (Pl.'s Br. at 10), the record also contains

evidence that treating providers noted Plaintiff's mental-status

examinations were normal and that she had normal mood, affect,

cooperation, memory, attention, behavior, grooming, and hygiene

(Def.'s Br. at 5).

The Court must uphold the ALJ's findings if they are

supported by inferences reasonably drawn from the record. See

Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002)(if the

"evidence is susceptible to more than one rational

interpretation, one of which supports the ALJ's decision, the

[ALJ's] conclusion must be upheld."). On this record the Court

concludes the ALJ did not err when she discounted Dr. Moon's

opinion because the ALJ provided legally sufficient reasons

22 - OPINION AND ORDER

supported by inferences reasonably drawn from the record and by

substantial evidence in the record.

2. M.A. Jurs

In December 2011 Plaintiff was examined by M.A. Jurs

as part of an application for state benefits. Tr. 586-91.

M.A. Jurs indicated Plaintiff suffered from anxiety, depression,

paranoia, and physical chronic pain. Tr. 587. She diagnosed

Plaintiff with psychosis (NOS), PTSD, depression, and

amphetamine dependence (sustained remission). Tr. 588.

M.A. Jurs opined Plaintiff has moderate limitations in her

ability to understand, to remember, and to persist in tasks with

simple instructions; to learn new tasks; and to be aware of

normal hazards and take appropriate precautions. She also

opined Plaintiff has marked limitations in her ability to

understand, to remember, and to persist in tasks with complex

instructions; to perform routine tasks without undue

supervision; and to communicate and to perform effectively in a

work setting with limited public contact. In addition, she

opined Plaintiff has severe limitations in her ability to

communicate and to perform effectively in a work setting with

the public and to maintain appropriate behavior in a work

setting. Tr. 589.

23 - OPINION AND ORDER

The ALJ gave M.A. Jurs's opinion "little weight" on

the grounds that it conflicted with M.A. Jurs's treatment

records, conflicted with other medical evidence in the record,

and was not supported by any contemporaneous mental-status

findings. Tr. 1010. For example, the ALJ noted M.A. Jurs's

opinion that Plaintiff has marked limitations in her ability to

understand, to remember, to follow complex instructions, and to

perform tasks without undue supervision was inconsistent with

Plaintiff's reports of caring for her partner's father including

changing his catheter, administering his insulin, and monitoring

his blood sugars throughout the day. Tr. 1010, 594. Plaintiff

described these activities as taking a significant portion of

her day starting at 7:30 a.m. Tr. 594. The ALJ found these

tasks consistent with the ability to perform routine tasks

and/or to complete tasks and also consistent with the ALJ's

assessment of Plaintiff's RFC. Tr. 998.

In addition, the ALJ found M.A. Jurs's opinion that

Plaintiff is severely impaired in her ability to communicate and

to perform effectively in a work setting with public contact was

inconsistent with Plaintiff's treatment record, which showed

Plaintiff did not have any limitations generally communicating

with treating providers. Tr. 1010. For example, the medical

24 - OPINION AND ORDER

record reflected generally that Plaintiff was cooperative and

had normal behavior, and there was only one treatment note on

April 24, 2014, by Alyssa Sponhauer, F.N.P., that indicated

Plaintiff had difficulty communicating. Tr. 825-26.

M.A. Jurs's opinion was written in December 2011, which was six

months before Plaintiff's alleged onset day of May 1, 2012. In

addition, when Plaintiff was next seen by M.A. Jurs in May 2012,

M.A. Jurs noted Plaintiff had normal speech, good cooperation,

linear thought processes, calm affect, alert cognition, and

fair-to-good insight and judgment. Tr. 602-03.

On this record the Court concludes the ALJ did not err

when she discounted M.A. Jurs's opinion because the ALJ provided

legally sufficient reasons supported by substantial evidence in

the record for doing so.

In summary, the Court concludes the ALJ did not err in her

assessment of the medical opinions of Dr. Moon and M.A. Jurs.

III. The ALJ did not err at Step Five.

Plaintiff contends the ALJ erred at Step Five when she

failed to provide legally sufficient reasons for her conclusion

that Plaintiff could perform other work in the economy.

A. Standards

As noted, if the ALJ reaches Step Five, she must

25 - OPINION AND ORDER

determine whether the claimant is able to do other work that

exists in the national economy. 20 C.F.R. § 404.1520(a)(4)(v).

See also Keyser, 648 F.3d at 724-25. Here the burden shifts to

the ALJ to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).

The ALJ may satisfy this burden through the testimony of a VE or

by reference to the Medical-Vocational Guidelines (or the grids)

set forth in the regulations at 20 C.F.R. part 404, subpart P,

appendix 2. If the ALJ meets this burden, the claimant is not

disabled. 20 C.F.R. §§ 404.1520(g)(1).

B. Analysis

At the hearing on March 12, 2019, VE Paul Morrison

testified a claimant with the RFC to perform light work and with

the same limitations as Plaintiff could not perform Plaintiff's

past relevant work as a cashier. Tr. 1056. The VE further

testified the only occupation that Plaintiff could perform was

price-marker. Tr. 1057.

Subsequent to the hearing the ALJ sent interrogatories

to VE Steven Floyd. Tr. 1283-87. On July 9, 2019, VE Floyd

opined Plaintiff's RFC would prevent an individual from

performing all unskilled occupations with jobs that exist in the

26 - OPINION AND ORDER

national economy "due to a combination of reaching limited to

occasional with the right upper extremity, rare contact with the

general public, and other elements of the hypothetical."

Tr. 1286.

Plaintiff contends the ALJ erred when she failed to

provide a legally sufficient basis supported by substantial

evidence in the record for rejecting VE Floyd's opinion.

The ALJ instead adopted VE Morrison's opinion even

though his testimony was inconsistent with the Dictionary of

Occupational Titles (DOT). Tr. 1014. The DOT is presumptively

authoritative regarding job classifications, but the presumption

is rebuttable. "[A]n ALJ may rely on expert testimony which

contradicts the DOT, but only insofar as the record contains

persuasive evidence to support the deviation." Johnson v.

Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). See also Kevin

L.S. v. Berryhill, No. 6:18-cv-00269, 2019 WL 7285575, at *12

(D. Or. Sep. 16, 2019)(same). VE Morrison provided a detailed

explanation of how an individual limited to occasional reaching

with the right upper extremity would, nonetheless, be able to

perform the occupation of price marker. Tr. 1058-59.

VE Morrison based his opinion on his professional experience

analyzing occupations and his extensive training. Tr. 1014.

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The ALJ accepted this explanation. Tr. 1014. The ALJ also

noted VE Floyd "did not appear to understand the difference

between a limitation to occasional reaching bilaterally versus a

limitation to occasional reaching with one upper extremity."

Tr. 1015 n.3.

On this record the Court concludes the ALJ did not err

at Step Five and provided legally sufficient reasons supported

by substantial evidence in the record for relying on the opinion

of VE Morrison.

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 15th day of January, 2021.

/s/ Anna J. Brown

______________________________________

ANNA J. BROWN

United States Senior District Judge

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