Hottman v. Commissioner Social Security Administration

Filing 17

OPINION AND ORDER. Signed on 10/17/2017 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

Case No. 3:16-cv-02142-AA
OPINION AND ORDER

RYANE. HOTTMAN,
Plaintiff,
v.

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

AIKEN, Judge:
Plaintiff Ryan E. Hottman brings this action pursuant to the Social Security 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 application for Supplemental
Security Income ("SSI").

For the reasons set forth below, the Commissioner's decision is

affirmed.

Page 1 - OPINION AND ORDER

BACKGROUND

On July 27, 2012, plaintiff applied for SSL He alleged disability beginning October 21,
1980, due to cerebral palsy, double vision, and brain damage. Plaintiffs application was denied
initially and upon reconsideration. On January 30, 2015, plaintiff appeared at a hearing before
an ALJ. At the hearing, plaintiff and a vocational expert ("VE") testified. The ALJ found
plaintiff not disabled in a written decision issued February 26, 2015. After the Appeals Council
denied review, plaintiff filed a complaint in this Coutt.
STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if it is based upon proper
legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. §
405(g); Beny 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 supp01t a conclusion." Gutierrez v. Comm 'r Soc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (internal quotation marks omitted). The court must weigh "both the
evidence that supports and the evidence that detracts from the ALJ' s conclusion." Mayes v.

J'vfassanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one
interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed,
because "the coutt may not substitute its judgment for that of the Commissioner." Edlund v.

1Vfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION

The initial burden of proof rests upon the plaintiff to establish disability. Howard v.

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986).

To meet this burden, the plaintiff must

demonstrate an "inability to engage in any substantial gainful activity by reason of any medically

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dete1minable physical or mental impahment 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
a person is disabled. Bml'en v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920(a)(4). At
step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the
application date. 20 C.F.R. §§ 416.920(a)(4)(i), (b). At step two, the ALJ found plaintiff had the
following severe impairments: "cerebral palsy, attention deficit hyperactivity disorder, cognitive
disorder, math disorder, and anxiety disorder[.]" Tr. 22; see 20 C.F.R. §§ §§ 416.920(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 impahments" that the Commissioner
acknowledges are so severe as to preclude substantial gainful activity.

20 C.F.R. §§ §§

416.920(a)(4)(iii), (d).
The ALJ then assessed plaintiffs residual functional capacity ("RFC"). 20 C.F.R. §
416.920(e). In addition to other limitations not relevant to this appeal, the ALJ found plaintiff
is limited to performing simple, routine, repetitive tasks consistent with unskilled
work; he is limited to low stress work which is defined as work requiring few
decisions and few changes; he can have occasional superficial contact with the
public and co-workers; and he can perform at a standards or ordinary pace but not
at a strict productions rate pace.
Tr. 25. At step four, the ALJ concluded plaintiff had no past relevant work. 20 C.F.R. §§
416.920(a)(4)(iv), (f). At step five, the ALJ found plaintiff could perfo1m work existing in the
national economy; specifically, plaintiff could work as a small products assembler, a silver
wrapper, or a price marker. 20 C.F.R. §§ 416.920(a)(4)(v), (g)(l). Accordingly, the ALJ found
plaintiff not disabled and denied his application for benefits.

Page 3 - OPINION AND ORDER

DISCUSSION

Plaintiff contends the ALJ committed harmful eiTOr by not accounting for ce1tain
accommodations recommended by examining psychologist Dr. LeBray and the Office of
Vocational Rehabilitation Services ("VRS") when dete1mining which jobs plaintiff could
perform.
I.

Treatment ofDr. LeBray's Opinion
Plaintiff challenges the ALJ's treatment of the opinion of examining psychologist Dr.

LeBray. Specifically, plaintiff contends the ALJ e11'ed by failing to address a pmtion of Dr.
LeBray's opinion advising that plaintiff receive certain accommodations for vocational training.
There are three types of medical opinions in Social Security disability cases: those of
treating, examining, and reviewing physicians. Holohan v. 1vlassanari, 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; accord 20 C.F.R. § 404.1527(d).

Accordingly, "the

Commissioner must provide clear and convincing reasons for rejecting the uncontradicted
opinion of an examining physician." Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995).
Moreover, "the opinion of an examining doctor, even if contracted by another doctor, can only
be rejected for specific and legitimate reasons[.]" Id. at 830-31.
But the "clear and convincing" and "specific and legitimate" standards only apply when
the ALJ rejects all or part of a medical opinion. See Turner v. Comm 'r Soc. Sec., 613 F.3d 1217,
1223 (9th Cir. 2010). If an ALJ credits a medical opinion and incorporates observations from
that opinion into the RFC, there is no conflict to resolve. Id. Moreover, an ALJ need not use the
precise wording of a medical opinion in order to incorporate its findings; indeed, it is the ALJ' s

Page 4 - OPINION AND ORDER

task to translate the often-vague limitations included in medical opm1ons into "concrete
restrictions" applicable to the workplace. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174
(9th Cir. 2008).
Dr. LeBray diagnosed plaintiff with adult attention deficit disorder, cognitive disorder
NOS, mathematics disorder, and anxiety disorder NOS. He found plaintiff "would be able to
learn, understand and perform simpler, semi-structured, paced (umushed) mental related
worklike tasks-routines." Tr. 318. However, he opined plaintiff would "not fare well in novel,
speeded, demanding 'production' settings with math demands or close attention to detail." Tr.
322 (emphasis in original). He fmiher opined that plaintiff "may do best in work settings where
close public or coworker interaction is not required." Id. He recommended "reasonable supports
and accommodations in all vocational training or schooling," and listed the following:
*Assistance with realistic planning, goal-setting
*Pace-partition all projects, coursework (avoid overload);
*Use daily planner, organizer always
*Preferred classroom seating (avoid distractions)
*Use of calculator for all math
*Simplification of training materials (8-9GE level)
*Digital recorder for oral input (review, recall)
*Double all test times
*Briefbreaks per agreed cue (client-instructor)
*Suppotiive feedback always (avoid harsh, highly critical style)
*Others as client-instructor might agree.
Tr. 323 (emphasis omitted).

Page 5 - OPINION AND ORDER

The ALJ gave "[g]reat weight" to the opinion of Dr. LeBray. Tr. 29. Plaintiff argues the
ALJ ened because the recommended accommodations for vocational training were not expressly
discussed in his findings.

Specifically, plaintiff contends such lack of express discussion

demonstrates the ALJ' s failure to consider the vocational training limitations; he avers the
number of jobs suggested by the VE at step five could have been significantly reduced had the
ALJ considered plaintiffs need for those accommodations. Defendant disagrees, responding
that the ALJ gave great weight to Dr. LeBray's opinion as it relates to workplace
accommodations, and reasonably did not apply accommodations applicable to vocational
training to the workplace generally.
I begin by clarifying that the accommodations included in Dr. LeBray' s opinion at issue
here are expressly tied to vocational training or schooling.

With that said, there are two

questions that need to be answered: whether the ALJ was required to consider Dr. LeBray's
recommendations for vocational training in foimulating the RFC and, if so, whether the ALJ' s
failure to expressly discuss those accommodations means that the ALJ did not consider them.
I first examine whether the ALJ was required to consider Dr. LeBray's suggested
accommodations for plaintiffs vocational training. Recommendations about future vocational
training and support do not equate to an opinion that plaintiff is incapable of working except
under the recommended conditions. See Valentine v. Comm 'r Soc. Sec. Admin., 574 F.3d 685,
691 (9th Cir. 2009) (holding that the ALJ did not en by excluding from the RFC "a
recommended way for [the claimant] to deal with his PTSD symptoms").

Also, physician

opinions that are recommendations, not imperatives, need not be adopted by the ALJ. Carmickle
v. Commissioner, 533 F.3d 1155, 1165 (9th Cir. 2008). Accordingly, the ALJ was not required

to consider the vocational training pmt of Dr. LeBray' s opinion, and the "clear and convincing"

Page 6 ~OPINION AND ORDER

and "specific and legitimate" standards are inapplicable as there was no rejection of all or pati of
a medical opinion.
Even if the ALJ had been required to consider the vocational training pati of Dr.
LeBray's opinion, however, the absence of express discussion regarding the recommended
accommodations does not mean that the ALJ did not consider them. Here, the ALJ elaborated
Dr. LeBray's assessment in detail. Considering that the ALJ specifically cited and discussed Dr.
LeBray's opinion as a whole, it is unlikely that the ALJ read only part of the opinion. Based on
the fact that the ALJ not only extensively discussed Dr. LeBray's opinion but also gave it "great
weight," it is fair to infer the ALJ did consider Dr. LeBray's opinion, and reasonably interpreted
the accommodation for vocational training and schooling as itTelevant to plaintiffs RFC.
Furthe1more, although the ALJ was not obligated to adopt Dr. LeBray's accommodation
for vocational training and schooling, the advised recommendations were effectively translated
into the RFC in a way that is applicable to workplace surroundings.

For example,

recommendations for "simplification of training materials" and "pace-pmiition all projects,
coursework[,]" Tr. 323, were incorporated into the po1iion of the RFC limiting plaintiffs work
to performing "simple, routine, repetitive tasks consistent with unskilled work" and "at a
standard or ordinary pace but not at a strict production rate pace[,]" Tr. 24.
In sum, I find no error in the ALJ' s treatment of Dr. LeBray' s opinion. The ALJ was not
required to consider recommendations about foture vocational training. Even assuming that
there was such a requirement, the ALJ did not reject any po1iion of Dr. LeBray's opinion but
reasonably translated the assessed limitations to concrete workplace limitations in the RFC.

Page 7 - OPINION AND ORDER

II.

Treatment of VRS Assessment
Plaintiff also challenges the ALJ's treatment of the evaluations conducted by VRS.

Echoing his first argument, plaintiff contends the ALJ ened by failing to address the
rehabilitation counselors' opinion that plaintiff "will need training and job accommodation to
allow for extra time for him to train and to develop work skills and leam work strategies to help
him perform up to the employer expectation." Tr. 338.
The opinion by VRS's rehabilitation counselors constitutes an opinion from a "nonmedical source." SSR 16-3p, 2016 WL 1119029, *7 (Mar. 16, 2016). An ALJ may discount the
opinion of a non-medical source by providing reasons that are "gennane." Dodrill v. Shala la, 12
F.3d 915, 918-19 (9th Cir. 1993) (citing Sprague v. Bowen, 812 F.3d 1226, 1232 (9th Cir.
1987)). An ALJ's failure to comment on other source evidence is harmless, however, when the
other source evidence minors limitations found elsewhere in the record and the ALJ has
adequately addressed those limitations. See Nfolina v. Astrue, 674 F.3d 1104, 1122 (9th Cir.
2012).
Here, plaintiff is cmrnct in that the ALJ was required to consider the VRS records. The
ALJ ened by failing to expressly discuss those records. However, the evaluation by VRS merely
suggested accommodation for allowing extra time for plaintiff "to help him perform up to the
employer expectation."

Tr. 338.

That evaluation is consistent with the accommodations

recommended by Dr. LeBray. Fmihe1more, the RFC limiting plaintiff to simple tasks with no
strict production rate pace properly translates the essence of the VRS evaluation. Therefore, I
find the ALJ' s error harmless as to the treatment of non-medical other source evidence.

Page 8 - OPINION AND ORDER

CONCLUSION

The Commissioner's decision is AFFIRMED and this case is DISMISSED.
IT IS SO ORDERED.
Dated this £Fday of October 2017.

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Ann Aiken
United States District Judge

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