Asbury v. Commissioner Social Security Administration

Filing 24

Opinion and Order. The Court affirms the final decision of the Commissioner and DISMISSES this matter. Signed on 10/28/2017 by Judge Anna J. Brown. See attached 26 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DREW T. ASBURY,
Plaintiff,

3:14-cv-01425-BR
OPINION AND ORDER

v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.

KAREN STOLZBERG
11830 S.W. Kerr Parkway, #315
Lake Oswego, OR 97035
[phone]
Attorney for Plaintiff
BILLY J. WILLIAMS
Acting United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
JEFFREY E. STAPLES
Special Assistant United States Attorneys
Social Security Administration
701 Fifth Avenue, Suite 2900
Seattle, WA 98104
[phone]
Attorneys for Defendant
1 - OPINION AND ORDER

BROWN, Judge.
Plaintiff Drew T. Asbury seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff’s application
for Disability Insurance Benefits (DIB) under Title II of the
Act.
This Court has jurisdiction to review the Commissioner’s
decision pursuant to 42 U.S.C. § 405(g).

Following a thorough

review of the record, the Court AFFIRMS the final decision of the
Commissioner.

ADMINISTRATIVE HISTORY
Plaintiff filed his application for DIB on June 1, 2010.
Tr. 288.1

His applications were denied initially and on

reconsideration.

An Administrative Law Judge (ALJ) held an

initial hearing on December 13, 2012, and a supplemental hearing
on April 4, 2013.

Tr. 4, 47.

attorney at both hearings.

Plaintiff was represented by an

Plaintiff primarily testified at the

initial December 13, 2012, hearing; Harvey Alpern, M.D., a
medical expert (ME), testified at the April 4, 2013, supplemental
hearing; and a vocational expert (VE) also testified at the
April 4, 2013, supplemental hearing.

1

Tr. 4, 47.

Citations to the official transcript of record filed by
the Commissioner on January 29, 2015, are referred to as “Tr.”
2 - OPINION AND ORDER

The ALJ issued a decision on April 15, 2013, in which he
found Plaintiff is not entitled to benefits.

Tr. 116-25.

That

decision became the final decision of the Commissioner on
July 21, 2014, when the Appeals Council denied Plaintiff’s
request for review.

Tr. 95-99.

See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).

BACKGROUND
Plaintiff was born on November 20, 1977; was 35 years old on
the date of the initial hearing; and has a twelfth-grade
education.

Tr. 288, 306.

Plaintiff has prior relevant work

experience as a grocery clerk, merchandising shelf-stocker, and
assistant grocery manager.

Tr. 124.

Plaintiff alleges disability since February 28, 2010, due to
“chronic lower limb pain,” chronic back pain, heart disease,
hypertension, “severe anxiety,” “stress,” and plantar fasciitis.
Tr. 288, 305.
2014.

Plaintiff’s date last insured was December 31,

Tr. 301.
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
medical evidence.

See Tr. 118-24.

3 - OPINION AND ORDER

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden a claimant must demonstrate his

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.”
§ 423(d)(1)(A).

42 U.S.C.

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, 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 (quoting Valentine v.

Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)).
is “more than a mere scintilla” of evidence but less than a
preponderance.

Id. (citing Valentine, 574 F.3d at 690).

4 - OPINION AND ORDER

It

The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

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
Social Security Regulations set out a five-step sequential
process for determining whether an applicant is disabled within
the meaning of the Social Security Act.

Keyser v. Comm’r of

Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011).

See also

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R.
§ 404.1520.

Each step is potentially dispositive.

At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. § 404.1520(a)(4)(I).

5 - OPINION AND ORDER

See also Keyser, 648

F.3d at 724.
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.

Stout v. Comm’r Soc.

Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).

See also 20

C.F.R. § 404.1520(a)(4)(ii); Keyser, 648 F.3d at 724.
At Step Three the Commissioner must determine whether a
claimant’s impairments meet or equal one of the listed
impairments and are so severe that they preclude substantial
gainful activity.

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.
§ 404.1520(a)(4)(iii).

20 C.F.R.

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, she 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.
§ 404.1520(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

“A

‘regular and continuing basis’ means 8 hours a day, for 5 days a

6 - OPINION AND ORDER

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)).

The assessment of a claimant's

RFC is at the heart of Steps Four and Five of the sequential
analysis when the ALJ is determining whether a claimant can still
work despite severe medical impairments.

An improper evaluation

of the claimant's ability to perform specific work-related
functions “could make the difference between a finding of
‘disabled’ and ‘not disabled.’”

SSR 96-8p, at *4.

At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.

20 C.F.R. § 404.1520(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she 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).

Keyser, 648 F.3d at 724-25.

See also

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 set

7 - OPINION AND ORDER

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 disabled.

20 C.F.R. § 404.1520(g)(1).

ALJ’S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since February 28, 2010, his alleged
onset date.

Tr. 118.

At Step Two the ALJ found Plaintiff has venous insufficiency
and foot pain.

Tr. 118-20.

The ALJ concluded Plaintiff’s

“history of cardiac catherization with no ongoing ischemia” and
“reactive stress with panic attacks and depression” are nonsevere
impairments.

Tr. 118-20.

At Step Three the ALJ found Plaintiff’s impairments do not
meet or equal the criteria for any impairment in the Listing of
Impairments.

Tr. 120-21.

In his assessment of Plaintiff’s RFC

the ALJ found Plaintiff has the functional capacity to perform
“less than the full range of light work” that restricts Plaintiff
to lifting and carrying 10 pounds frequently and 20 pounds
occasionally; standing and walking no more than two to four hours
in an eight-hour workday with the option to change positions on
an hourly basis; not performing any work around hazards such as
unprotected heights or machinery with exposed moving parts; and
not having more than occasional interaction with the general

8 - OPINION AND ORDER

public.

Tr. 121-24.

At Step Four the ALJ found Plaintiff is unable to perform
his past relevant work as a grocery clerk, merchandising shelfstocker, or assistant grocery manager.

Tr. 124.

At Step Five, however, the ALJ found Plaintiff is capable of
performing other work that exists in significant numbers in the
national economy, including work as an optical-goods assembler, a
“wire worker semi-conductor,” and a photocopy-machine operator.
Tr. 124-25.

Accordingly, the ALJ found Plaintiff is not disabled

and, therefore, is not entitled to benefits.

Tr. 125.

DISCUSSION
Plaintiff contends the Appeals Council erred when it
declined to incorporate into the administrative record medical
evidence that was dated after the ALJ’s decision.

In addition,

Plaintiff contends the ALJ erred when he (1) found at Step Three
that Plaintiff’s lower-extremity conditions in combination with
his anxiety did not equal Listing 4.11(B); (2) discredited
Plaintiff’s testimony; (3) discredited the opinion of Jennifer
Backman, M.D., one of Plaintiff’s primary-care providers;
(4) discredited the opinion of Frederick Grossman, Ph.D.,
Plaintiff’s mental-health treatment provider; (5) credited the
testimony of Dr. Alpern, the ME who testified at the supplemental
hearing; and (6) based on the above errors, failed to formulate

9 - OPINION AND ORDER

an assessment of Plaintiff’s RFC that was supported by
substantial evidence in the record.
I.

Incorporation of Evidence Submitted to the Appeals Council
into the Record
Plaintiff first contends the Appeals Council erred when it

declined to incorporate into the administrative record certain
medical records submitted by Plaintiff that were dated after the
ALJ’s decision.
“During the Appeals Council review process, a claimant may
submit ‘any new and material evidence . . . which relates to the
period on or before the date of the administrative law judge
hearing decision.’”

Bales v. Comm’r Soc. Sec. Admin., No. 3:14-

cv-01553-HZ, 2015 WL 5686884, at *3 (D. Or. Sept. 25,
2015)(quoting 20 C.F.R. § 404.976(b)(1)).

“If new and material

evidence is submitted, the Appeals Council shall consider the
additional evidence only where it relates to the period on or
before the date of the administrative law judge hearing
decision.”

20 C.F.R. § 404.970(b).

“[W]hen the Appeals Council

considers new evidence in deciding whether to review a decision
of the ALJ, that evidence becomes part of the administrative
record, which the district court must consider when reviewing the
Commissioner's final decision for substantial evidence.”

Brewes

v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012).
On the other hand, when “the Appeals Council determines that
the new evidence falls outside of the relevant time period, it
10 - OPINION AND ORDER

has not ‘considered’ that evidence as that term is used in the
Social Security regulations.”

Bales, 2015 WL 5686884, at *3.

See also 20 C.F.R. § 404.970(b)(“If you submit evidence which
does not relate to the period on or before the date of the [ALJ]
hearing decision, the Appeals Council will return the additional
evidence to you with an explanation as to why it did not accept
the additional evidence.”).

“The rejected evidence does not

become part of the administrative record.”

Bales, 2015 WL

5686884, at *3 (citing Barrington v. Colvin, No. 1:13-cv-01512JO, 2014 WL 5342371, at *8 (D. Or. Oct. 20, 2014)).
In this case Plaintiff submitted a substantial amount of new
evidence to the Appeals Council.

The evidence submitted by

Plaintiff fell generally into three categories:

(1) general

information concerning Plaintiff’s alleged impairments;
(2) medical records dated before the ALJ’s decision; and
(3) medical records dated after the ALJ’s decision.
819; Pl.’s Br. (#16) App. A.

See Tr. 724-

The Appeals Council considered and

incorporated into the administrative record the general
information concerning Plaintiff’s alleged impairments and
Plaintiff’s medical records that were dated before the ALJ’s
decision.

Tr. 95-96.

The Appeals Council, however, determined

the medical records dated after the ALJ’s decision were “about a
later time” and, accordingly, returned that evidence to Plaintiff
with an explanation that Plaintiff was required to file a new

11 - OPINION AND ORDER

application if he wanted the Commissioner to consider such
evidence.

Tr. 96.

The Appeals Council, therefore, complied with 20 C.F.R.
§ 404.970(b), considered those records that related to the time
before the ALJ issued his decision and incorporated those records
into the administrative record, and rejected the evidence dated
after the ALJ issued his decision because they did not relate to
the period before the ALJ issued his decision.
WL 5686884, at *3.

See Bales, 2015

Accordingly, on this record the Court

concludes the Appeals Council did not err when it declined to
incorporate Plaintiff’s post-decision medical records into the
administrative record.
In the alternative, Plaintiff requests this Court to remand
this case to the Commissioner pursuant to sentence six of 42
U.S.C. § 405(g).

The Court may only remand a case pursuant to

sentence six when “the Commissioner requests a remand before
answering the complaint, or where new, material evidence is
adduced that was for good cause not presented before the agency.”
Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002).
Plaintiff has the burden of demonstrating materiality and good
cause.

Bales, 2015 WL 5686884, at *4.

“To demonstrate good

cause, the claimant must demonstrate that the new evidence was
unavailable earlier.”
(9th Cir. 2001).

Mayes v. Massanari, 276 F.3d 453, 462

See also Bales, 2015 WL 5686884, at *4.

12 - OPINION AND ORDER

“‘Merely obtaining a more favorable report after an adverse
decision is insufficient to warrant a sentence six remand.’”
Bales, 2015 WL 5686884, at *4 (quoting Gibb v. Comm’r Soc. Sec.
Admin., No. 3:09-cv–00533–HA, 2010 WL 988467, at *3 (D. Or. Mar.
15, 2010)).
Plaintiff contends medical records from Daniel W.
Isenbarger, M.D., are material because Dr. Isenbarger
“definitively diagnosed [Plaintiff’s] leg issues, and gave
[Plaintiff] the first effective treatment for them.”
Dr. Isenbarger also opined Plaintiff’s chronic venous
insufficiency meets the criteria of Listing 4.11(B).
(#16-6) App. A at 3.

Pl.’s Br.

Although Dr. Isenbarger’s opinion that

Plaintiff’s chronic venous insufficiency meets the criteria of
Listing 4.11(b) may satisfy the materiality requirement for a
remand pursuant to sentence six, Plaintiff has not made any
showing of good cause as to why Dr. Isenbarger’s opinion could
not have been obtained earlier.
Accordingly, on this record the Court denies Plaintiff’s
request for a remand to the Commissioner pursuant to sentence
six, 42 U.S.C. § 405(g).
II.

Step Three
Plaintiff next contends the ALJ erred at Step Three when he

found Plaintiff’s medical and psychological impairments did not
in combination equal the criteria of Listing 4.11(B).

13 - OPINION AND ORDER

The ALJ must determine at Step Three whether a claimant’s
impairments meet or equal an impairment in the Listing of
Impairments.

The Listings describe the “symptoms, signs, and

laboratory findings” that make up the characteristics of each
listed impairment.

See 20 C.F.R. § 404.1525(c).

“To meet a

listed impairment, a claimant must establish that he or she meets
each characteristic of a listed impairment relevant to her
claim.”

Taylor v. Colvin, No. 6:12-cv-00225-BR, 2013 WL 1914400,

at *5 (D. Or. May 8, 2013)(citing 20 C.F.R. § 404.1525).

“To

equal a listed impairment, a claimant must establish symptoms,
signs, and laboratory findings ‘at least equal in severity and
duration’ to the characteristics of a relevant listed
impairment.”

Taylor,

2013 WL 1914400, at *5 (quoting 20 C.F.R.

§ 404.1525(a)).
Listing 4.11(B) provides
Chronic venous insufficiency of a lower extremity with
incompetency or obstruction of the deep venous system
and . . . :
* * *
B. Superficial varicosities, stasis dermatitis, and
either recurrent ulceration or persistent ulceration
that has not healed following at least 3 months of
prescribed treatment.
20 C.F.R. Pt. 404, Subpt. P, App. 1.

Plaintiff contends he meets

the criteria of Listing 4.11(B) because the medical evidence
establishes Plaintiff has superficial varicosities and stasis
dermatitis and that Plaintiff’s conditions in combination
14 - OPINION AND ORDER

otherwise equal the Listing.
As the ME testified, however, there is not any evidence in
the record that demonstrates Plaintiff has suffered from
recurrent or persistent ulceration.

Tr. 28.

Plaintiff,

therefore, has failed to establish that his conditions in
combination equal Listing 4.11(B).
Accordingly, on this record the Court concludes the ALJ did
not err by failing to find Plaintiff’s impairments equal the
criteria of Listing 4.11(B).
III. Plaintiff’s Testimony
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments, and he must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).

Cotton, 799 F.2d 1403, 1407 (9th

See also Spelatz v. Astrue, 321 F. App’x 689, 692

(9th Cir. 2009).

The claimant, however, need not produce

objective medical evidence of the actual symptoms or their
severity.

Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

See also Delgado v. Comm’r Soc. Sec. Admin., 500 F. App’x 570,
570 (9th Cir. 2012).
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
15 - OPINION AND ORDER

claimant's pain testimony only if she provides clear and
convincing reasons for doing so.

Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995)).

General assertions that the claimant's

testimony is not credible are insufficient.

Id.

The ALJ must

identify "what testimony is not credible and what evidence
undermines the claimant's complaints."

Id. (quoting Lester, 81

F.3d at 834).
At the original hearing on December 13, 2012, Plaintiff
testified he left his prior employment at Fred Meyer after
allegations of harassment were brought against him.

Tr. 54.

Shortly thereafter, however, Plaintiff stated his physician
informed him that his heart condition made it “too dangerous” for
him to return to work, and he was never again medically cleared
to return to work.

Tr. 54-55, 57.

Plaintiff stated his foot and leg conditions cause him to
suffer “continuous pain,” and pain radiates from his ankles into
his hips and spine if he sits for more than 45 minutes.

Tr. 59.

Plaintiff stated sitting causes his feet to turn “black and blue”
from blood pooling and standing for extended periods causes his
feet to turn white from lack of blood flow.

Tr. 59.

Plaintiff

reported the pain caused by standing for 20 to 30 minutes is “so
incredibly brutal that [he] will start throwing up.”

Tr. 71.

After sitting for 20 minutes, Plaintiff stated his “lower spine
16 - OPINION AND ORDER

starts locking up” and he must stretch and perform calisthenics
for 10 or 15 minutes to relieve the symptoms.

Tr. 71-72.

Plaintiff testified his foot and leg conditions began affecting
him 15 years before the hearing and that the symptoms had
progressively worsened.

Tr. 60.

Plaintiff testified he had a

“nuclear exam” earlier in 2012 that showed “that all of the
multiple partial blockages around [his] heart are now blockages.”
Tr. 64.
Plaintiff also testified he suffers from panic attacks “a
couple times a day” that last for between 45 minutes and two
hours.

Tr. 67-68.

In addition, Plaintiff reported his

medications cause memory problems, and, as a result, Plaintiff
“can’t remember a conversation from 20 minutes ago.”

Tr. 68-69.

Plaintiff stated he performs upper-body exercises at the gym
two days per week, but all of his exercises are performed in a
seated position.

Tr. 75.

Plaintiff stated he has isolated

himself as much as possible and cannot go out other than to the
gym or a brief trip to the grocery store because of his memory
limitations.

Tr. 78.

In his Adult Function Report dated June 19, 2010, Plaintiff
stated he “[c]annot stand or walk longer than 5-10 minutes” and
“cannot function at all without heavy narcotics.”

Tr. 330.

Plaintiff reported he requires reminders from his family to take
care of daily activities and often forgets to take some

17 - OPINION AND ORDER

medications.

Tr. 332.

Plaintiff stated he can cook simple meals

and can perform “5-10 minutes” of laundry, feed his dogs, wash
dishes, and do light dusting.

Tr. 332-33.

Plaintiff reported

his hobbies are watching television, using the internet, playing
video games, and reading, but his memory problems have made
comprehension of these activities more difficult.

Tr. 334.

Plaintiff indicated his conditions affect his abilities to
lift, squat, bend, stand, reach, walk, sit, kneel, hear, climb
stairs, remember, complete tasks, concentrate, understand, and
follow instructions.

Tr. 335.

Plaintiff reported he can only

pay attention for two to five minutes and has difficulty
following both written and verbal instructions.

Tr. 335.

The ALJ discredited Plaintiff’s testimony because Plaintiff
left his employment immediately preceding his alleged onset date
of disability for nondisability reasons, Plaintiff delivered his
testimony in a dramatic fashion and appeared at the hearing in a
manner inconsistent with his alleged limitations, Plaintiff made
statements inconsistent with the medical evidence, and
Plaintiff’s activities of daily living are inconsistent with his
reported limitations.
After a thorough review of the record, the Court concludes
the ALJ cited clear and convincing reasons for rejecting
Plaintiff’s testimony.

The ALJ is correct that there are several

inconsistencies between the medical record and Plaintiff’s

18 - OPINION AND ORDER

testimony.

For example, despite testifying in 2012 that he had a

“nuclear exam” that revealed “multiple” blockages around his
heart, the medical record indicates Plaintiff’s 2012 nuclear
stress test was “stable.”

Tr. 64, 65, 666.

In addition,

contrary to Plaintiff’s testimony that he was never medically
cleared to return to work after he left Fred Meyer, Plaintiff
told a worker’s compensation examiner that he was “welcomed back
to work with a note from his physician but apparently decided not
to return to work,” and in December 2010 Plaintiff’s physician
stated Plaintiff was capable of light or sedentary work.
57, 280, 558-59.

Tr. 55,

Moreover, despite Plaintiff’s allegations of

significant memory and concentration limitations in his June 2010
Adult Function Report, it was repeatedly noted in contemporaneous
medical records that Plaintiff exhibited normal memory and
concentration.

See Tr. 494, 519, 575.

The ALJ also properly

discredited Plaintiff’s testimony because Plaintiff left his job
at Fred Meyer for nondisability-related reasons.
Massanari, 268 F.3d 824, 828 (9th Cir. 2001).

See Bruton v.

See also Page v.

Colvin, No. 14-35243, 2015 WL 6153597, at *1 (9th Cir. Oct. 20,
2015).
Accordingly, on this record the Court concludes the ALJ did
not err when he discredited Plaintiff’s testimony because he
provided legally sufficient reasons supported by substantial
evidence for doing so.

19 - OPINION AND ORDER

IV.

The Medical Testimony of Drs. Backman, Grossman, and Alpern
Plaintiff contends the ALJ improperly rejected the opinions

of Dr. Backman and Dr. Grossman while improperly crediting the
testimony of Dr. Alpern, the ME who testified at the supplemental
hearing.
An ALJ may reject a treating physician’s opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes findings setting forth specific,
legitimate reasons for doing so that are supported by substantial
evidence in the record.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1232 (9th Cir. 2011).

When the medical opinion of

a treating physician is uncontroverted, however, the ALJ must
give “clear and convincing reasons” for rejecting it.

Turner v.

Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010)(quoting
Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995)).

The

opinion of a treating physician is “given greater weight than the
opinions of other physicians.”

Kelly v. Astrue, No. 10–36147,

2012 WL 767306, at *1 (9th Cir. 2012)(quoting Smolen v. Chater,
80 F.3d 1273, 1285 (9th Cir. 1996)).
A nonexamining physician is one who neither examines nor
treats the claimant.
Cir. 1995).

Lester v. Chater, 81 F.3d 821, 830 (9th

See also Garrison v. Colvin, No. 12-CV-15103, 2014

WL 3397218, at *13 (9th Cir. 2014).

"The opinion of a

nonexamining physician cannot by itself constitute substantial
20 - OPINION AND ORDER

evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician."
at 1233 (quoting Lester, 81 F.3d at 831).

Taylor, 659 F.3d

When a nonexamining

physician's opinion contradicts an examining physician's opinion
and the ALJ gives greater weight to the nonexamining physician's
opinion, the ALJ must articulate her reasons for doing so with
specific and legitimate reasons supported by substantial
evidence.

See, e.g., Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,

1198 (9th Cir. 2008).

A nonexamining physician's opinion can

constitute substantial evidence if it is supported by other
evidence in the record.

Morgan v. Comm’r of Soc. Sec. Admin.,

169 F.3d 595, 600 (9th Cir. 1999).

See also Simpson v. Astrue,

No. 10-cv-06399-BR, 2012 WL 1340113, at *5 (D. Or. Apr. 18,
2012).
A.

Dr. Backman’s Opinion

On December 13, 2012, Dr. Backman, one of Plaintiff’s
primary-care providers, submitted a letter in which she stated
Plaintiff had been diagnosed with peripheral arterial disease and
a “bilateral lower extremity neuropathic process,” which cause
pain, numbness, tingling, and weakness in his legs.

Tr. 705.

Dr. Backman opined Plaintiff would be required to change his
position every five to fifteen minutes.

Tr. 705.

Dr. Backman

also reported Plaintiff had significant low-back pain due to
degenerative disc disease and that Plaintiff’s “back looks like
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the back of a much older man.”

Tr. 705.

Dr. Backman opined

Plaintiff exhibited anxiety as well as limited concentration
caused by his physical limitations.

Tr. 705-06.

The ALJ discredited Dr. Backman’s opinion because
Dr. Backman’s letter mirrored Plaintiff’s discredited testimony;
Dr. Backman stated Plaintiff had conditions, including peripheral
artery disease and degenerative disc disease, that were not
supported by the medical record; and Dr. Backman’s opinion was
inconsistent with her own treatment notes and the medical record.
Because Dr. Backman’s opinion was contradicted by the
testimony of Dr. Alpern, the ME, the ALJ was required to provide
specific and legitimate reasons for rejecting Dr. Backman’s
opinion.

After reviewing the record, the Court concludes the ALJ

cited legally sufficient reasons to discredit Dr. Backman’s
opinion.

For example, as the ALJ noted, Dr. Backman’s opinion

that Plaintiff has low-back pain due to degenerative disc disease
and his “back looks like that of a much older man” is
contradicted by an MRI on July 16, 2012, that reflected
Plaintiff’s back was “for the most part normal, without any
significant degenerative findings.”

Tr. 696.

Moreover the ALJ

is correct that Plaintiff did not receive a diagnosis of
peripheral arterial disease.

To the contrary, on May 17, 2012,

M. Darren Mitchell, M.D., a cardiologist to whom Dr. Backman
referred Plaintiff, noted Plaintiff’s lower-extremity condition

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“certainly does not appear to be an arterial issue.”

Tr. 627.

Accordingly, on this record the Court concludes the ALJ did
not err when he discredited Dr. Backman’s opinion because the ALJ
provided legally sufficient reasons supported by substantial
evidence for doing so.
B.

Dr. Grossman’s Opinion

On February 19, 2013, Dr. Grossman submitted a letter and
“Medical Source Statement” regarding Plaintiff’s psychological
limitations.

Dr. Grossman reported Plaintiff’s physical problems

caused him to have psychological and emotional limitations that
resulted in “difficulty in concentrating and functioning.”
Tr. 719.

Dr. Grossman reported Plaintiff is “extremely anxious

and depressed” and that the stress caused by his physical
conditions make it “impossible for him to concentrate or
remember” important issues.

Tr. 720.

When asked to identify

Plaintiff’s degree of limitation in several categories,
Dr. Grossman provided “yes” or “no” answers that did not specify
any degree of limitations.

Tr. 721-22.

Dr. Grossman, however,

indicated Plaintiff had “extreme” limitations in his activities
of daily living and his ability to maintain concentration,
persistence, and pace.

Tr. 722-23.

The ALJ discredited Dr. Grossman’s opinion because
Dr. Grossman’s treatment notes were disorganized and difficult
to read; Dr. Grossman’s assessment is inconsistent with an

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April 2010 psychological evaluation that indicated Plaintiff did
not have any psychiatric limitations; and the record did not
support Dr. Grossman’s findings of extreme limitations in
Plaintiff’s activities of daily living and concentration,
persistence, and pace.

In addition, Dr. Grossman’s evaluation of

Plaintiff’s mental limitations was inconsistent with the April
2010 evaluation by Ronald N. Turco, M.D., who found that
Plaintiff did not have any psychological limitations.

The ALJ,

therefore, was required to provide specific and legitimate
reasons for rejecting Dr. Grossman’s testimony.
After a thorough review of the record, the Court concludes
the ALJ provided legally sufficient reasons to discredit
Dr. Grossman’s opinion.

The ALJ was correct when he found

Dr. Grossman’s treatment notes were highly disorganized.
Dr. Grossman’s treatment notes consist of six pages of unsigned,
largely illegible notes written on plain white paper (Tr. 71318), and the disorganization of Dr. Grossman’s notes diminished
the ALJ’s ability to consider Dr. Grossman’s often conclusory
opinions in the context of Plaintiff’s treatment record.
Moreover, the ALJ is correct that Dr. Grossman’s opinion
regarding Plaintiff’s “extreme” limitations in activities of
daily living and his concentration, persistence, and pace is
inconsistent with the rest of the medical record.
Accordingly, on this record the Court concludes the ALJ did

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not err when he rejected Dr. Grossman’s opinion because the ALJ
provided legally sufficient reasons supported by substantial
evidence for doing so.
C.

Dr. Alpern’s Opinion

Plaintiff contends the ALJ erred when he credited the
opinion of Dr. Alpern, the ME.

Plaintiff specifically argues the

ALJ should not have credited Dr. Alpern’s testimony because Dr.
Alpern was “confused” during his testimony and his statements
contained factual errors.
Plaintiff does not cite any authority for the proposition
that the ALJ is required to provide a specific justification for
crediting the testimony of a medical or psychological expert.
Accordingly, the Court will only find error in the ALJ’s decision
to credit Dr. Alpern’s testimony fully if that testimony is not
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”

See Molina, 674 F.3d. at

1110-11 (quoting Valentine, 574 F.3d at 690).

See also Seiber v.

Colvin, No. 3:14-cv-01149-BR, 2015 WL 4994195, at *4 (D. Or.
Aug. 19, 2015).
Dr. Alpern testified at the April 4, 2013, supplemental
hearing after reviewing the medical record.

Plaintiff’s argument

that Dr. Alpern was “confused” is misplaced.

Although Dr. Alpern

noted the medical record was “confusing” as to the nature and
seriousness of Plaintiff’s lower-extremity limitations,

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Dr. Alpern’s testimony was sufficiently clear and consistent with
the record as a whole to render it “relevant evidence that a
reasonable mind might accept as adequate to support a
conclusion.”

See Molina, 674 F.3d. at 1110-11 (quoting

Valentine, 574 F.3d at 690).
Accordingly, on this record the Court concludes the ALJ did
not err when he relied on the testimony of Dr. Alpern.
Because the Court concludes the ALJ properly considered
Plaintiff’s testimony and the testimony of the medical experts,
the Court rejects Plaintiff’s contention that the ALJ’s
assessment of Plaintiff’s RFC was erroneous.

CONCLUSION
For these reasons, the Court AFFIRMS the final decision of
the Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 28th day of October, 2015.

/s/ Anna J. Brown

ANNA J. BROWN
United States District Judge

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