Montague v. Commissioner Social Security Administration

Filing 23

Order. The Commissioner's decision is AFFIRMED. See, formal Opinion. Signed on 1/11/2017 by Judge Ann L. Aiken. (rdr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
Case No. 3: 15-cv-02399-AA
OPINION AND ORDER

DONNA A. MONTAGUE,
Plaintiff,

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
AIKEN, Judge:
Plaintiff Donna A. Montague 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"). The Commissioner denied plaintiffs applications for Disability
Insurance Benefits ("DIB"). For the reasons set forth below, the Commissioner's decision is
affirmed.

BACKGROUND
On January 18, 2012, plaintiff applied for DIB. Tr. 300. She alleged disability beginning
December 31, 2008, due to depression, anxiety, Asperger's Syndrome, cognitive disorder, insomnia,
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bowel disorder, anorexia, and sensory issues. Tr. 304. Her application was denied initially and upon
reconsideration. Tr. 114, 129. On May 6, 2014, a hearing was held before an Administrative Law
Judge ("ALJ"). Tr. 40. Plaintiff, represented by counsel, testified, as did a vocational expert ("VE")
and a medical expert. Tr. 40. The ALJ scheduled a supplemental hearing to permit additional
investigation into plaintiffs assertions regarding Asperger's Syndrome. Tr. 74-75. That second
hearing, at which plaintiff was again represented by counsel, was held June 13, 2014. Tr. 79. On
July 18, 2014, the ALJ issued an unfavorable decision. Tr. 33. After the Appeals Council denied
her request for review, plaintiff filed a complaint in this Court. Tr. 1.
STANDARD OF REVIEW

The district co mi must affirm the Commissioner's decision if it is based upon proper legal
standards and the findings are suppotied by substantial evidence in the record. 42 U.S.C. § 405(g);

Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "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 suppoti a conclusion." Gutierrez v. Comm 'r ofSoc. Sec., 740 F.3d 519, 522 (9th Cir.
2014) (quotation marks omitted). The court must 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 susceptible to more than one interpretation but the Commissioner's
decision is rational, the Commissioner must be affirmed, because "the comi may not substitute its
judgmentforthatofthe Commissioner." Edlundv. Massanari, 253F.3d1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION

The initial burden of proofrests upon the plaintiffto establish disability. Howardv. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, 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)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
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a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502(a)(4). At
step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the alleged
disability onset date. Tr. 19; 20 C.F.R. §§ 404.1520(a)(4)(i), (b). At step two, the ALJ found
plaintiff had the following severe impairments: depression, dysthymic disorder, 1 and mild cognitive
disorder. Tr. 19; 20 C.F.R. §§ 404.1520(a)(4)(ii), (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. 22; 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).
The ALJ found plaintiff retained the residual functional capacity ("RFC")
to perform a full range of work at all exertional levels but with the following
nonexe1iional limitations: She can understand and remember simple instructions.
She can remember and understand some detailed instructions if she is given
additional time in a focused environment to learn the detailed tasks. She has
sufficient ability to maintain concentration, persistence, or pace to complete simple,
routine tasks for a normal workday and workweek; but she can complete detailed
tasks for a normal work day and workweek ... if she is not required to perform
multitasking and if initially she is given additional time to get used to completing the
detailed tasks. She should have only superficial interactions with co-workers and she
should work independently. She should have few changes to the work setting. She
should not be required to work in an environment with loud noise. She should be
allowed to wear earplugs.
Tr. 24; 20 C.F.R. § 404.1520(e). At step four, the ALJ concluded plaintiff would be unable to
perform any "past relevant work." Tr. 31, 20 C.F.R. §§ 404.1520(a)(4)(iv), (t). At step five, relying
on the VE's testimony, the ALJ found plaintiff could perform several jobs existing in significant
numbers in the national economy: small product assembler, garment s01ier, and packing line worker.
Tr. 32, 20 C.F.R. §§ 404.1520(a)(4)(v), (g). Accordingly, the ALJ found plaintiff not disabled and
denied her application for benefits. Tr. 33.

DISCUSSION
Plaintiff makes a single allegation of error on appeal. She contends the ALJ impermissibly
1

"Dysthymic Disorder is a chronically depressed mood that occurs for most of the day,
more days than not, for at least two years." Schneider v. Comm 'r ofSoc. Sec. Admin., 223 F.3d
968, 971 n.2 (9th Cir. 2000) (citing Diagnostic and Statistical Manual of Mental Disorders at 623
(4th ed. 1994)).
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discounted the opinion of Judith B. Belk, Ph.D., a speech-language pathologist and audiologist,
without providing legally sufficient reasons for doing so.
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; 20. C.F.R. § 404.1527(d). The ALJ may reject the uncontradicted medical
opinion of a treating physician only for "clear and convincing" reasons suppo1ted by substantial
evidence in the record. Holohan, 246 F.3d at 1202. Where there is a conflict between two medical
opinions, the ALJ may rely on the medical opinion of a non-treating doctor instead of the contrary
opinion of a treating doctor only if the ALJ provides "specific and legitimate" reasons suppo1ted by
substantial evidence in the record. Id.

Medical opinions may address both the nature of the

plaintiffs limitations and the ultimate issue of disability, i.e. whether the plaintiff is capable of any
work, given his or her limitations. Id. Although the ultimate decision regarding disability is
reserved to the Commissioner, 20 C.F.R. § 404.1527(e)(l), the rules governing consideration of
medical opinions apply with equal force to opinions on the ultimate issue of disability. Reddick v.

Chafer, 157 F.3d 715, 725 (9th Cir. 1998).
Dr. Belk examined plaintiff on May 11, 2012 and June 8, 2012, and continued as hertreating
provider. Tr. 633-34. In a February 23, 2014 letter to the ALJ, Dr. Belk wrote that
Ms. Montague has documented bilateral hypersensitivity to sound.
This
hypersensitivity to sound results in an inability to filter out important sounds from
background sounds. Ms. Montague has profound difficulty tuning out auditmy
distractions whether in a classroom, on a job, when walking on city streets, or when
trying to sleep. Her areas of significant dysfunction greatly reduce her quality oflife,
and extremely limit her options due to the exhaustion and stress that she experiences
from tlying to deal with constant bombardment of sounds.

I do not believe that Ms. Montague could sustain a 40-hour work-week, even if a
ve1y quiet environment such as a libra1y. The exhaustion that she would experience
due to her efforts to filter out background noises would render her incapable of work
after only an hour or two.
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Tr. 633-34.
The ALJ gave "some weight" to Dr. Belk's opinion, and as noted above included in the RFC
some non-exertional limitations regarding hypersensitivity to sound. Tr. 24, 28. However, the ALJ
noted that the ultimate decision regarding disability is reserved to the Commissioner, guided by the
Social Security Act and its accompanying regulations. Tr. 28. The ALJ also stated, "I disagree that
the claimant will be unable to adhere to basic attendance requirements . . . . Further, the evidence
does not suppmt that the claimant would become so exhausted after two hours of filtering sounds
from her environment that she would be unable to perform any full-time work." Tr. 29.
Because Dr. Belk's opinion regarding plaintiffs ability to work full-time is contradicted by
other medical opinions in the record, the ALJ was required to suppo1t the decision to reject that
opinion with specific, legitimate reasons. Holohan, 246 F .3d at 1202. Plaintiff argues that the ALJ' s
first statement about Dr. Belk' s opinion-that the ability to work a full day and week is a statement
on the ultimate issue of disability, a determination reserved to the Commissioner-is not legitimate.
She contends that the second statement-that the evidence does not suppo1t that plaintiff would be
too exhausted to work after two hours - is insufficiently specific.
With respect to the first argument, plaintiff is correct that an ALJ may not reject a treating
physician's opinion simply because it relates to the ultimate issue of disability. However, that is not
the only reason the ALJ gave for rejecting Dr. Belk's opinion. Accordingly, it is not a basis for
reversal. Regarding the second argument, it is true that the ALJ failed to clearly explain which
pmtions of the record did not support Dr. Belk's conclusion. The ALJ did not directly cite or
describe any contrary evidence in the record in the paragraphs addressing Dr. Belk's opinion. The
ALJ therefore erred by failing to provide sufficiently specific reasons to reject Dr. Belk's opinion.
Even where the ALJ errs, the Commissioner's decision must be upheld if the error was
harmless. Treichler v. Comm 'r ofSoc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). An error
is harmless "if the agency's path may be reasonably discerned, even if the agency explains its
decision with less than ideal clarity." Id. (citation and quotation marks omitted).
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Here, the ALJ' s reasoning can be discerned from reading the pages preceding and following
the paragraphs addressing Dr. Belk' s opinion. First, the ALJ gave "great weight" to the opinion of
Donald E. Lange, Ph.D. Dr. Lange performed a comprehensive neuropsychological evaluation of
plaintiff in November 2011. Tr. 411. Dr. Lange documented the same type of auditmy problems
noted by Dr. Belk, stating that plaintiffs "inability to filter noise and other sensations essentially
exhausts her in the process by which she attempts to exert the extra energy to avoid distraction,
overstimulation, and remain focused." Tr. 421. However, Dr. Lange did not share Dr. Belk's
opinion that plaintiff would be unable to sustain work due to those problems. Instead, Dr. Lange
opined that
[E]ven though ... [plaintiff is] most comfo1table being underemployed, the reality
is that she actually will do better given the mix of her cognitive and emotional issues
working in a job that has limited multitasking, is relatively routine, and easily learned
w[h]ere she can utilize memmy aids if necessary. When she becomes more
stabilized then she can begin to look at more realistic long-term vocational
alternatives that best fits her pattern of strengths and weaknesses.
Tr. 424. In other words, Dr. Lange not only believed plaintiff could work full-time, he believed
doing so would improve her overall functioning.
Second, the ALJ cited the opinions of agency psychological consultants and the medical
expe1t who testified at the hearing. Those reviewing providers all concluded plaintiff would be able
to work full-time notwithstanding her limitations. Tr. 29.
Third, the ALJ noted that plaintiffhad been struggling with the same underlying impairments
"at approximately the same level of severity" for years prior to the alleged disability onset date. Tr.
30. Specifically, the ALJ stated that plaintiff had experienced "auditmy processing symptoms for
a very long time," but that those symptoms "did not prevent the claimant from completing several
college degrees; traveling tln·oughout Europe, to Alaska, and elsewhere; and working adequately for
many years" as a nurse. Tr. 30. The ALJ found those activities "strongly suggest[ed]" plaintiffs
audito1y processing problems "would not currently prevent all work." Tr. 30.
Two qualified experts diagnosed plaintiff with hypersensitivity to sound. Those experts
reached conflicting conclusions regarding the work-related consequences of that condition. The ALJ
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reasonably reconciled that conflict by adopting the interpretation she considered most consistent with
the opinions of the reviewing providers and plaintiff's past education, work, and travel histoty. The
ALJ then incorporated into the RFC limitations and protections designed to address the limiting
effects of the underlying condition. Although the ALJ erred by failing to clearly connect those
reasons to her partial rejection of Dr. Belk' s opinion, the ALJ' s reasoning can be discerned from the
decision and is supported by substantial evidence. The ALJ' s error was therefore harmless.
CONCLUSION
The Commissioner's decision is AFFIRMED and this case is dismissed.
IT IS SO ORDERED.
Dated this //

~y of January 2017.

AnnAiken
United States District Judge

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