Edwards v. Commissioner Social Security Administration
Opinion and Order: The ALJ's decision is free of legal error and supported by substantial evidence. The Commissioner's final decision is therefore affirmed. Signed on 8/7/2017 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JASON LEE EDWARDS,
Civ. No. 3:16-cv-01416-MC
OPINION AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner of the Social Security
Plaintiff Jason Lee Edwards brings this action for judicial review of the Commissioner’s
decision denying his application for supplemental security income (“SSI”) and disability
insurance benefits (“DIB”). This court has jurisdiction under 42 U.S.C. §§ 405(g) and
On October 14, 2010, Edwards filed his application for SSI and DIB, alleging disability
as of that date. After a hearing, the administrative law judge (“ALJ”) determined Edwards was
not disabled under the Social Security Act from October 14, 2010 through August 30, 2012. Tr.
597. 1 Edwards appealed and, following a stipulated remand from the district court, the ALJ
conducted two more hearings. Following those hearings, the ALJ again concluded Edwards was
not disabled. Tr. 554-55. This appeal followed.
“Tr” refers to the Transcript of Social Security Administrative Record provided by the Commissioner.
1 – OPINION AND ORDER
Edwards argues the ALJ erred in finding him less-than credible, in rejecting the opinion
of his treating physician and in weighing other medical opinions, in not finding several
impairments to be “severe” at step two, in rejecting the opinions of Edwards’s mother and father,
and in formulating an insufficient residual functional capacity (“RFC”) at step five, leading to an
erroneous hypothetical to the vocational expert (“VE”). Many of Edwards’s assignments of error
are somewhat generalized arguments essentially attacking the RFC while arguing the evidence
demonstrates Edwards is disabled. I consider Edwards’s main arguments to be that the ALJ erred
in rejecting the opinion of his treating physician and in finding that Edwards could read at the
General Educational Development (“GED”) level of one. Because the Commissioner’s decision
is based on proper legal standards and supported by substantial evidence, the Commissioner’s
decision is AFFIRMED.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 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.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980
(9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative
record as a whole, weighing both the evidence that supports and that which detracts from the
ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can
reasonably support either affirming or reversing, ‘the reviewing court may not substitute its
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judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d
519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of
proof rests upon the claimant to meet the first four steps. If the claimant satisfies his burden with
respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. §
404.1520. At step five, the Commissioner must show that the claimant is capable of making an
adjustment to other work after considering the claimant’s residual functional capacity (RFC),
age, education, and work experience. Id. If the Commissioner fails to meet this burden, then the
claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the
Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante v. Massanari, 262
F.3d 949, 953-54 (9th Cir. 2001).
As relevant here, the ALJ ultimately found Edwards had the RFC to perform light work
provided: the work was unskilled, entry level work in a routine environment; Edwards have no
“transactional” work with the public; the job has GED reasoning, language, and mathematical
development levels of one. Tr. 536. Based on the VE’s testimony, a person with such an RFC
could perform the jobs of laundry worker and room cleaner. Tr. 544. As noted, Edwards makes
several assignments of error.
I turn first to the argument that the ALJ improperly rejected the medical opinion of Dr.
Steve Becker, Edwards’s longstanding treating physician. Dr. Becker was Edwards’s primary
care physician for many years. Dr. Becker treated Edwards for many ailments ranging from tooth
3 – OPINION AND ORDER
aches to anxiety issues to back problems. Edwards points to three comments Dr. Becker wrote in
chart notes. On September 20, 2011, Dr. Becker noted, “applying for disability but has been
denied, now going through court; it would seem unlikely he can pursue gainful employment.” Tr.
438. On February 2, 2012, Dr. Becker commented, “long standing hx psycho-neuro dysfunction
with diagnosis of dementia along with depression and anxiety; he is unlikely to be able to
maintain gainful employment; he would seem an appropriate candidate for disability.” Tr. 435.
On May 11, 2015, Dr. Becker wrote, “Long standing history of learning disability, cognitive
dysfunction and now with diagnosis of Gerstamann syndrome per specialty clinic in 2010—he
has been unable to pursue any reliable employment, he continues to seek disability which would
appear to be appr[o]priate given his long standing limitations.” Tr. 727.
Regarding Dr. Becker’s opinions, the ALJ concluded:
In January 2012 and again in June 2015, Dr. Becker opined that the claimant was
unlikely to be able to maintain gainful employment and he was unable to pursue
“any reliable employment.” He felt the claimant would be an appropriate
candidate for disability. Little weight is given to these opinions. To begin, they
are conclusory and not offered in functional terms. Additionally, they are
inconsistent with the claimant’s own reports of searching for work and his own
report that he believed he was unable to obtain work due to a lack of a high school
diploma. They are also inconsistent with Dr. Becker’s treatment records. For
example, his treatment note from May 2015 shows the claimant’s neurologic
examination was normal, and on the SLUMS examination, the claimant’s score of
22 was consistent with mild cognitive dysfunction. Moreover, his opinion from
2015 appears to be in part based on his belief the claimant was diagnosed with
Gerstmann’s syndrome in 2010, however, a close reading of Dr. Mega’s report
shows this was a “likely” diagnosis and not an unequivocal diagnosis, and
moreover, a subsequent MRI of the claimant’s brain was negative.”
Tr. 542 (internal citations omitted).
I agree with the ALJ’s finding that most of Dr. Becker’s comments regarding Edwards’s
ability to work “are conclusory and not offered in functional terms.” A statement from a
physician that one is “disabled” or “unable to work” is not a medical opinion but rather an
opinion on the ultimate determination of disability, which is an administrative finding reserved
4 – OPINION AND ORDER
for the Commissioner. 20 C.F.R. § 404.1527(d)(1); see also McLeod v. Astrue, 640 F.3d 881,
884-85 (9th Cir. 2011) (treating physician’s belief that claimant “could not work at all” is not
binding on the ALJ). Additionally, physicians typically neither consult nor have the expertise of
a VE as to whether a claimant is “disabled” under the regulations. McLeod, 640 F.3d at 885. Dr.
For those reasons, Dr. Becker’s rather conclusory statements are not necessarily “medical
opinions” in the social security context.
Additionally, the ALJ pointed out the contrast between Dr. Becker’s May 2015 statement
that Edwards “has been unable to pursue any reliable employment” with Edwards’s own
testimony at the February 2016 hearing that he dropped off applications at “every place in the
Hood River. There wasn’t one business I didn’t go to . . . .” Tr. 568. The ALJ’s reliance and
interpretation of this contradiction was reasonable in light of the record, particularly so when
Edwards own belief at the time was that he was being turned down for work because of his lack
of a high school diploma.
The ALJ also considered the contradictions between Dr. Becker’s “opinion” and Dr.
Becker’s own records. While Dr. Becker believed Edwards was “an appropriate candidate for
disability,” the results of objective testing pointed to milder impairments. This case largely turns
on Edwards’s cognitive abilities. In that regard, Dr. Becker referred Edwards to Dr. Michael
Mega at Providence Cognitive Assessment Clinic for a memory diagnosis. Tr. 333. On
September 30, 2010, Dr. Mega examined Edwards. The examination and tests revealed Edwards
fulfilled the criteria for dementia. Tr. 333. Dr. Mega summarized the results of the examination:
Cognitive function shows no delirium, no memory impairment, mild word-finding
language disturbance but severe dyslexia mild comprehension difficulty and
acalculia, no visuospatial impairment, and mild executive dysfunction. The
elemental neuroglogical exam shows no significant abnormalities.
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Edwards’s Functional Assessment Staging score of 4 equated to “Mild Impairment”
meaning “Decreased ability to perform complex tasks, e.g., planning dinner for guests; handling
personal finances; difficulty marketing.” Tr. 337. 2
Generally, more weight is given “to the medical opinion of a specialist about medical
issues related to his or her area of specialty than to the medical opinion of a source who is not a
specialist.” 20 C.F.R. § 404.1527(c)(5). Because Dr. Becker referred Edwards to Dr. Mega
specifically to test his memory, the ALJ’s reference to these results (specifically to the finding
that Edwards had “no memory impairment”) is not an example of “cherry picking.” Rather, it is a
reasonable interpretation of the record, and a reasonable weighing of conflicting evidence or
Dr. Becker wrote, “and now with diagnosis of Gerstamann syndrome per specialty clinic
in 2010—he has been unable to pursue any reliable employment . . . .” Tr. 727. The ALJ
properly pointed out that Dr. Mega did not diagnose Edwards with Gerstamann syndrome, but
instead opined “Gerstmann’s Syndrome is the most likely diagnosis.” Noting Dr. Becker’s
opinion appeared to rely in part on a questionable diagnosis is supported by the record.
Where there exists conflicting medical evidence, the ALJ is charged with determining
credibility and resolving any conflicts. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012).
Considering the case revolves in large part around Edwards’s cognitive abilities, the ALJ
properly accorded less weight to Dr. Becker’s opinion on that issue, and more weight to the
specialist. Although Edwards argues another interpretation of the record is reasonable, that is not
a legitimate reason for overturning the ALJ’s conclusions. Gutierrez, 740 F.3d at 523 (quoting
Reddick, 157 F.3d at 720-21) (“If the evidence can reasonably support either affirming or
Edwards’s RFC does not require that he perform complex tasks. Instead, the ALJ limited Edwards to performing
“unskilled, entry level work in a routine environment” in jobs requiring a GED level of one. Tr. 537.
6 – OPINION AND ORDER
reversing, ‘the reviewing court may not substitute its judgment’ for that of the Commissioner.”)).
The ALJ provided “specific and legitimate reasons supported by substantial evidence in the
record” for assigning little weight to Dr. Becker’s “opinions.” Orn v. Astrue, 495 F.3d 625, 632
(9th Cir. 2007). 3
Edwards also argues the ALJ erred in finding him less-than credible as to the extent of his
limitations. The ALJ is not “required to believe every allegation of disabling pain, or else
disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. §
423(d)(5)(A).” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen,
885 F.2d 597, 603 (9th Cir.1989)). The ALJ “may consider a wide range of factors in assessing
credibility.” Ghanim v. Colvin, 12-35804, 2014 WL 4056530, at *7 (9th Cir. Aug. 18, 2014).
These factors can include “ordinary techniques of credibility evaluation,” id., as well as:
(1) whether the claimant engages in daily activities inconsistent with the alleged
symptoms; (2) whether the claimant takes medication or undergoes other
treatment for the symptoms; (3) whether the claimant fails to follow, without
adequate explanation, a prescribed course of treatment; and (4) whether the
alleged symptoms are consistent with the medical evidence.
Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir.2007). The ALJ in this case supported his
credibility determination with references to several of the above factors.
The ALJ noted that Edwards’s alleged limitations contrasted with his activities of daily
living. The ALJ pointed again to Dr. Mega’s report, where Edwards reported independent
functioning in all aspects other than medical and money management. Edwards’s own testimony
on this matter supports the finding that Edwards’s impairments do not significantly impact his
activities of daily living. The ALJ also pointed out that for much of the relevant time period,
Edwards also argues his RFC should have included the recommendation from DDS psychological consultants that
he requires short, oral instructions in a routine setting. As discussed below, the record supports the ALJ’s finding
that Edwards is capable of reading at a GED level of one. Additionally, the record, including Edwards’s activities of
daily living and past employment history, support the ALJ’s finding that Edwards can perform unskilled, entry level
work in a routine environment.
7 – OPINION AND ORDER
Edwards lived alone with his two adolescent daughters. Tr. 541. That evidence contrasts with
Edwards’s alleged limitations.
The ALJ also found that Edwards’s conservative treatment suggested his impairments are
not as severe as alleged. Regarding Edwards’s degenerative disc disease, the ALJ noted that
Edwards declined injections because stretching controlled his back pain. Doctors regularly
described Edwards as having normal strength and gait, with no muscle atrophy. And despite
alleging severe depression, Edwards did not seek mental health treatment. 4 The ALJ provided
“specific, clear and convincing reasons” for finding Edwards less-than credible regarding the
extent of his limitations. Vasquez v. Astrue, 572, F.3d 586, 591 (9th Cir. 2009) (quoting Smolen v.
Charter, 80 F.3d 1273, 1282 (9th Cir. 1996)).
Edwards argues the ALJ erred in rejecting the testimony of his parents. That testimony
largely mirrored Edwards’s own testimony. The ALJ accorded that testimony little weight
because it conflicted with other evidence in the record. Specifically, the ALJ contrasted the lay
witness testimony regarding Edwards’s inability to remember things against the objective results
of Dr. Mega’s cognitive assessment findings. Inconsistency with other evidence in the record is a
germane reason for rejecting the testimony of a lay witness. Lewis v. Apfel, 236 F.3d 503, 511
(9th Cir. 2001). Further, it is not reversible error to reject lay testimony when “the lay testimony
described the same limitations as [claimant’s] own testimony, and the ALJ’s reasons for rejecting
[claimant’s] testimony apply with equal force to the lay testimony.” Molina, 674 F.3d at 1122.
As noted, the lay witness testimony essentially aligned with Edwards’s own testimony.
Edwards also argues the ALJ provided an incomplete hypothetical to the VE at step five.
“Specifically, the ALJ relied on an incorrect hypothetical, which improperly placed the
On September 6, 2011, Dr. Becker noted, “Provided list of mental health provider and explained importance of
therapy. He agreed to begin with community mental health program.” Tr. 516.
8 – OPINION AND ORDER
individual’s reading, math, and language levels at one, despite convincing evidence that he is
unable to read, write, or perform simple math.” Pl. Br., 18. In contrast with Edwards’s own
statements, the only objective evidence in the record on this subject demonstrates that Edwards is
able to read and write at GED level one. A GED level of one is “somewhere between first and
third grade capacity.” Tr. 559.
During Dr. Mega’s examination, he wrote “Close Your Eyes” on a piece of paper and
asked Edwards to read it and follow its instructions. Tr. 339. Edwards complied as Dr. Mega
noted “Able to read close your eyes slowly—had to do this in order to follow command.” Tr.
340. Additionally, Edwards successfully completed another task, to “Make up and write a
sentence about anything. (Must have noun and verb).” Tr. 339. The ALJ’s RFC, where Edwards
could read at a GED level of one adequately captures Edwards’s abilities. It certainly is a more
accurate representation than finding Edwards “illiterate”.
The VE discussed this topic somewhat extensively at the final hearing. The VE testified,
“If there’s no capacity to work with the written language whatsoever, I think that any
employment is very problematic.” Tr. 560. Here, the VE discussed an individual with “a
complete inability to read or to match numbers, or items, or words, and so that would be a open
and closed public sign, an employees only sign . . . .” Tr. 560. That hypothetical, however, does
not describe Edwards. Instead, the results of objective testing supports the ALJ’s finding that
Edwards could work in jobs requiring a GED level of one. 5
Edwards’s step two arguments fail as the RFC adequately captured all of his limitations, even those the ALJ found
to be non-severe at step two. Therefore, any step two error is harmless. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir.
9 – OPINION AND ORDER
The ALJ’s decision is free of legal error and supported by substantial evidence. The
Commissioner’s final decision is therefore AFFIRMED.
IT IS SO ORDERED.
DATED this 7th day of August, 2017.
_______/s/ Michael J. McShane ________
United States District Judge
10 – OPINION AND ORDER
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