DeLong v. Commissioner Social Security Administration

Filing 18

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. IT IS SO ORDERED. See attached order for details. Signed on 1/14/19 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BRIAN D.,1

3:17-cv-01913-BR
Plaintiff,

OPINION AND ORDER

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
BRUCE W. BREWER
P.O. Box 421
West Linn, OR 97068
[phone]
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]

In the interest of privacy this Opinion uses only the
first name and the initial of the last name of the nongovernmental party. Where applicable, this Opinion uses the
same designation for the nongovernmental party's immediate
family member.
1

1 - OPINION AND ORDER

MICHAEL W. PILE
Acting Regional Chief Counsel
KATHRYN A. MILLER
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Brian D. 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.

ADMINISTRATIVE HISTORY
On February 26, 2015, Plaintiff protectively filed his

2 - OPINION AND ORDER

application for DIB and SSI benefits.

Tr. 13.2

Plaintiff

alleges a disability onset date of September 11, 2015.

Tr. 13.

Plaintiff=s application was denied initially and on
reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on March 23, 2017.

Tr. 13, 38-69.

Plaintiff and a

vocational expert (VE) testified at the hearing.

Plaintiff was

represented by an attorney at the hearing.
On April 13, 2017, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Council.

Tr. 28.

Plaintiff requested review by the Appeals

On September 25, 2017, 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.
3.

Tr. 1-

See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
On November 29, 2017, Plaintiff filed a Complaint in this

Court seeking review of the Commissioner=s decision.

BACKGROUND
Plaintiff was born on November 17, 1973.

Tr. 26.

Plaintiff was 41 years old on his alleged disability onset date.

Citations to the official transcript of record filed by
the Commissioner on May 16, 2018, are referred to as "Tr."
2

3 - OPINION AND ORDER

Tr. 26.

Plaintiff has a high-school education.

Tr. 26.

Plaintiff has past relevant work experience as a bakery worker
and manager/assistant manager.

Tr. 26.

Plaintiff alleges disability due to Asperger Syndrome,
“back issues,” autism, and “right leg/knee.”

Tr. 70.

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. 16-25.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2012).

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

To meet this burden, a claimant must

demonstrate his inability Ato 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.@
U.S.C. § 423(d)(1)(A).

42

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,

4 - OPINION AND ORDER

276 F.3d 453, 459B60 (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.
U.S.C. § 405(g).

42

See also Brewes v. Comm=r of Soc. Sec. Admin.,

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

Substantial evidence is

Arelevant 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)).

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.
(9th Cir. 2009).

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

The court must weigh all of the evidence

whether it supports or detracts from the Commissioner's
decision.
Cir. 2008).

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

5 - OPINION AND ORDER

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
gainful activity (SGA).
416.920(a)(4)(i).

20 C.F.R. §§ 404.1520(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.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
648 F.3d at 724.

20 C.F.R.

See also Keyser,

The criteria for the listed impairments, known

6 - OPINION AND ORDER

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 his limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.

See also Social Security Ruling

AA >regular and continuing basis= means 8 hours a

day, for 5 days a week, or an equivalent schedule.@
at *1.

20 C.F.R.

SSR 96-8p,

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 he has done in the past.
416.920(a)(4)(iv).

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.
416.920(a)(4)(v).

20 C.F.R. §§ 404.1520(a)(4)(v),

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

7 - OPINION AND ORDER

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 MedicalVocational 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
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 September 11, 2014,
Plaintiff=s alleged disability onset date.

Tr. 15.

At Step Two the ALJ found Plaintiff has the severe
impairments of “autism spectrum disorder, anxiety disorder, and
affective disorder.”

Tr. 15.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.

Tr. 17.

The ALJ found Plaintiff has the RFC to

perform a full range of work at all exertional levels with the

8 - OPINION AND ORDER

following nonexertional limitations:

Plaintiff is able to

perform “simple, routine tasks consistent with SVP 1 or 2”;
Plaintiff should not have contact with the public; and Plaintiff
should have only superficial contact with coworkers.

Tr. 18.

At Step Four the ALJ concluded Plaintiff is unable to
perform his past relevant work.

Tr. 26.

At Step Five the ALJ found Plaintiff can perform other jobs
that exist in the national economy such as janitor, laboratory
helper, and warehouse worker.

Tr. 27.

found Plaintiff is not disabled.

Accordingly, the ALJ

Tr. 28.

DISCUSSION
Plaintiff contends the ALJ erred when he failed to provide
clear and convincing reasons (1) for discounting Plaintiff’s
symptom testimony and (2) for rejecting the opinions of James
Bryan, Ph.D, an examining physician.
I.

The ALJ did not err when he found Plaintiff’s testimony was
not fully credible.
Plaintiff contends the ALJ erred when he failed to provide

clear reasons for discounting Plaintiff’s symptom testimony.
A.

Standards
The ALJ engages in a two-step analysis to determine

whether a claimant's testimony regarding subjective pain or
9 - OPINION AND ORDER

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 is not required to show that his “impairment could
reasonably be expected to cause the severity of the symptom [he]
has alleged; [he] 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 of the pain or fatigue itself, or the severity
thereof.”

Id.
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 [his] symptoms only by offering specific, clear
and convincing reasons for doing so.”
1014-15.

Garrison, 759 F.3d at

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

883 (9th Cir. 2006)(“[U]nless an ALJ makes a finding of
malingering based on affirmative evidence thereof, he or she may

10 - OPINION AND ORDER

only find an applicant not credible by making specific findings
as to credibility and stating clear and convincing reasons for
each.”).

General assertions that the claimant's testimony is

not credible are insufficient.
750 (9th Cir. 2007).

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

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 testimony regarding his

symptoms on the ground that Plaintiff’s testimony was “not
entirely consistent with the medical evidence.”

Tr. 19.

Plaintiff contends the ALJ erred when he found Plaintiff’s
allegations “do not have full objective corroboration.”
Plaintiff erroneously relies on Bunnell v. Sullivan, 947 F.2d
341 (9th Cir. 1991), to support his position.
In Bunnell the court held the appropriate standard for
evaluating pain in Social Security disability cases requires the
claimant to produce medical evidence of an underlying impairment
that is reasonably likely to cause the alleged pain.

When this

evidence is produced, medical findings that support the severity
of pain is not required, and, therefore, the ALJ may not

11 - OPINION AND ORDER

discredit the claimant’s allegations of pain severity solely on
the ground that his allegations are unsupported by objective
medical evidence.

947 F.2d at 343.

Here, however, substantial evidence supports the ALJ’s
determination.

For example, Plaintiff alleged he struggles with

social situations, has poor interpersonal skills, has problems
with concentration, and has a fear of leaving his home.

Tr. 19.

The ALJ noted the record reflects Plaintiff socializes in person
and online, attends church activities, and talks to people when
he is shopping.

The ALJ also noted Plaintiff received a regular

high-school diploma, and testing shows he has at least average
intellectual functioning, concentration, and attention.

The ALJ

pointed out that Plaintiff takes walks, rides a bicycle,
performs household chores, helps his mother, and performs work
on the property where he lives.

Tr. 19-20.

On this record the Court concludes the ALJ did not err
when he discounted Plaintiff’s symptom testimony and found it
was not fully credible because the ALJ provided clear and
convincing reasons supported by substantial evidence in the
record for doing so.
II.

The ALJ provided specific, legitimate reasons for
discounting the medical opinion of Dr. Bryan.
Plaintiff contends the ALJ erred when he discounted the

12 - OPINION AND ORDER

medical opinion of Dr. Bryan, who examined Plaintiff in October
2015.
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.”
2014).

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

“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).

Specifically, the

court must “distinguish among the opinions of three types of
physicians:

(1) those who treat the claimant (treating

physicians); (2) those who examine but do not treat the claimant
(examining physicians); and (3) those who neither examine nor
treat the claimant (nonexamining physicians).”
F.3d at 1012.

Garrison, 759

“As a general rule, more weight should be given

to the opinion of a treating source than to the opinion of
doctors who do not treat the claimant.”

Id.

Although the

opinion of a treating physician is entitled to greater weight
than that of an examining physician, the opinion of an examining
physician is entitled to greater weight than that of a

13 - OPINION AND ORDER

nonexamining physician. Ryan, 528 F.3d at 1198.

“The weight

afforded a nonexamining physician's testimony depends ‘on the
degree to which [he] provide[s] supporting explanations for
[his] opinions.’”

Id. (quoting 20 C.F.R. § 404.1527(d)(3)).

“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.

Even 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.

ALJ must do more than state conclusions.

“The

He must set forth his

own interpretations and explain why they, rather than the
doctors', are correct.”
B.

Id. (citation omitted).

Analysis
On October 30, 2015, Dr. Bryan performed a

neuropsychological evaluation of Plaintiff.

14 - OPINION AND ORDER

Dr. Bryan diagnosed

Plaintiff with “mild Autism Spectrum Disorder, requiring
support, without intellectual impairment” and “Specific Learning
Disorder, with impairment in written expression.”

Tr. 488.

Dr. Bryan noted Plaintiff showed “social awkwardness, strongly
idiosyncratic phrasing, rigidity, and lack of recognition of
social cues and timing” during his interview.

Id.

Nevertheless, Dr. Bryan suggested “[t]he same sort of
environment, structure and guidelines that had applied to
[Plaintiff’s] many years working the commercial bakery remain
relevant.”

Id.

Dr. Bryan stated:

“It is likely [Plaintiff]

would be able to return to a similar setting, although again
with accommodations through the human relations department that
would allow review of inappropriate comments and occasional
emotional over reactions.”

Id.

Dr. Bryan recommended a job

coach “through the initial phases of employment” and noted
“[o]ther structured and repetitive types of settings may be
considered, such as custodial or animal husbandry.”

Tr. 488-89.

As part of his evaluation of Plaintiff, Dr. Bryan also
interviewed Plaintiff’s mother.

Tr. 477-79.

Plaintiff’s mother

reported Plaintiff had learning disabilities in “essentially all
fundamental academic areas” and “severe difficulties with social
relating.”

Tr. 487.

Based on the statements of Plaintiff’s

15 - OPINION AND ORDER

mother, Dr. Bryan assessed Plaintiff’s adaptive functioning “at
the margin between the Borderline deficient and Extremely Low
ranges.”

Tr. 487.

Dr. Bryan also recommended Plaintiff

continue to apply for Social Security disability “largely on the
basis of the deficits of social skills, communication and
emotional decompensation.”

Tr. 489.

The ALJ gave “little weight” to Dr. Bryan’s opinion on
the grounds that “it is inconsistent with treatment records that
showed one significant decompensation after two major stressors
in 2014” and that Plaintiff sought minimal treatment for the
next two years. Tr. 23.

In addition, the ALJ discounted

Dr. Bryan’s opinion on the ground that it was based on the
assessment of Plaintiff’s mother3 that Plaintiff had “borderline
to extremely low ability to adapt,” but Dr. Bryan’s own
interactions with Plaintiff were “unremarkable.”

Tr. 24.

The ALJ, however, gave “significant weight” to the
opinion of Shawn Johnston, Ph.D., who performed a consulting
examination of Plaintiff in June 2015.

Tr. 22, 451-55.

Dr. Johnston diagnosed Plaintiff with “Asperger’s disorder,
mild,” mood instability,” and “possible unspecified bipolar

Plaintiff does not specifically allege the ALJ erred in
his assessment of third-party lay-witness statements.
3

16 - OPINION AND ORDER

disorder.”

Tr. 454.

Dr. Johnston also concluded Plaintiff

“demonstrated the ability to understand and remember
instructions, and [Plaintiff’s] attention, concentration and
persistence appear to be intact.”

Dr. Johnston noted Plaintiff

appeared “capable of engaging in appropriate social
interactions,” “capable of working a normal day or normal week,
either doing the kinds of work he has done in the past or
learning new job skills.”

Tr. 454.

The ALJ noted

Dr. Bryan’s assessed limitations are inconsistent with those
found by Dr. Johnston.

Tr. 23.

On this record the Court concludes the ALJ did not err
when he discounted Dr. Bryan’s opinion because the ALJ provided
clear and convincing reasons supported by substantial evidence
in the record for doing so.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 14th day of January, 2019.
/s/ Anna J. Brown
______________________________________
ANNA J. BROWN
United States Senior District Judge
17 - OPINION AND ORDER