Flagg v. Commissioner Social Security Administration

Filing 27

OPINION AND ORDER: The Commissioner's decision is AFFIRMED. Signed on 11/13/2017 by Judge Ann L. Aiken. (ck)

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

WILLIAM E. FLAGG, JR.,

Case No. 6:16-cv-01687-AA
OPINION AND ORDER

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

AIKEN, Judge:
Plaintiff William E. Flagg, Jr., 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").

In 2008, the Commission found plaintiff disabled.

On

October 6, 2011, the Commissioner found plaintiffs impainnents had improved such that he was
no longer disabled. In this appeal, plaintiff challenges that disability cessation decision. For the
reasons set forth below, the Commissioner's decision is affirmed and this case is dismissed.

Page 1 - OPINION AND ORDER

BACKGROUND

In May 2008, the Commissioner found plaintiff was disabled and awarded him Disability
Insurance Benefits ("DIB") with an effective date of November 25, 2003. On October 6, 2011,
the Commissioner info1med plaintiff that he was no longer disabled and his DIB would cease.
The disability cessation decision was upheld on reconsideration and referred to an ALJ for a
hearing. That hearing took place on July 22, 2014; plaintiff testified and was represented by
counsel, and a vocational expeli ("VE") also testified. In a written decision dated February 26,
2015, the ALJ upheld the cessation decision. After the Appeals Council denied review, plaintiff
filed a complaint in this Court.
STANDARD OF REVIEW

In an initial application for Social Security benefits, the claimant bears the initial burden
of establishing disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). "Once a
claimant has been found to be disabled, however, a presumption of continuing disability arises in
her favor." Bellamy v. Sec. Health & Human Servs., 755 F.2d 1380, 1381 (9th Cir. 1985).
Accordingly, in a disability cessation case, the Commissioner has the burden to rebut the
presumption of continuing disability. Id The Commissioner may find a disability has ceasedand may te1minate disability benefits-only when substantial evidence shows that "(1) 'there has
been any medical improvement in the claimant's impahment' and (2) the claimant 'is now able
to engage in substantial gainful activity."' Attmore v. Colvin, 827 F.3d 872, 873 (9th Cir. 2016)
(quoting 42 U.S.C. § 423(f)(l)) (alterations normalized).
Even though the Commissioner bears the burden of proof in cessation cases, the standard
of review on appeal is the same as the standard in other Social Security disability cases.
Bellamy, 755 F.2d at 1381. The district court must affim1 the Commissioner's decision if it is

Page 2 - OPINION AND ORDER

based upon proper legal standards and the findings are supported 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 support a conclusion." Gutierrez v. Comm 'r of

Soc. Sec., 740 F.3d 519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The court
must weigh "both the evidence that suppo1ts and the evidence that detracts from the ALJ' s
conclusion." 1'1ayes v. A1assanari, 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 affomed, because "the court may not substitute its judgment for that of the
Commissioner." Edlundv. lYfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION

The Commissioner has established an eight-step process to determine whether a disability
has ceased. Easly v. Astrue, 2009 WL 928682, *3 (D. Or. Apr. 2, 2009). The process requires
the identification of the most recent decision in which the claimant was found to be disabled,
teimed the comparison point decision ("CPD") under the regulations. Anderson v. Colvin, 223 F.
Supp. 3d 1108, 1115 (D. Or. 2016). The ALJ identified the disability decision issued May 27,
2008, as the CPD. The ALJ noted that
[a]t the time of the CPD the claimant had the following medically dete1minable
impairments: chronic back pain secondary to degenerative disc disease; pain
disorder with psychological factors and a general medical condition, and
cognitive disorder not otherwise specified. These impairments were found to
result in the residual functional capacity to perform sedentary work, except he
would not be able to complete a full work day or workweek due to waxing and
waning of pain and psychological symptoms and would miss more than two days
of work per month.
Tr. 18.

Page 3 ~ OPINION AND ORDER

At step one, the ALJ found plaintiff had not engaged in substantial gainful activity
through December 1, 2012. 20 C.F.R. § 404.1594(f)(l). At step two, the ALJ found plaintiffs
impahments, 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. Id § 404.1594(f)(2). At step tln·ee, the ALJ found there had been medical
improvement since the CPD with respect to plaintiffs physical and mental impairments. Id. §
404.1594(f)(3). At step four, the ALJ found that medical improvement was related to plaintiffs
ability to do work. Id. § 404. l 594(f)(4).
Step five only applies when there has been no medical improvement or when that
improvement does not affect ability to work. Id. § 404.1594(f)(5). Although the ALJ did not
make any express findings at step six, he implicitly found plaintiffs impahments remained
severe when he reevaluated plaintiffs RFC. Id. §§ 404.1594(f)(6). Like in the CPD, the ALJ
limited plaintiff to sedentary work. The ALJ further restricted plaintiff to unskilled, simple,
routine tasks. The ALJ departed from the CPD when he found plaintiff would be off-task "only
9% of the time" and would miss "only one day of work per month." Tr. 19. At step seven, the
ALJ concluded plaintiff could not perform past relevant work. 20 C.F.R. § 404.1594(f)(7). At
step eight, the ALJ concluded plaintiff could perform jobs existing in the national economy, such
as telephone solicitor or ticket seller. Id. § 404.1594(f)(8). The ALJ found plaintiffs disability
had ceased on December 1, 2012.
DISCUSSION

Plaintiff argues that the ALJ erred when he found medical improvement since the CPD.
With respect to his back pain, plaintiff does not challenge any particular portion of the ALJ's
analysis. Instead, he asse1is that ceiiain medical records show "progressive symptoms." Pl.'s

Page 4 - OPINION AND ORDER

Br. 6. Those records plausibly support plaintiffs assertion that his degenerative disc disease and
associated symptoms have worsened over time. However, plausibility of the plaintiffs theory of
the case is not the standard of review in Social Security disability appeals. Instead, the question
is whether substantial evidence in the record support' s the ALJ' s interpretation of the evidence.
Plaintiff ignores the ALJ' s citation of treating physician records showing insufficient neural
impingement to match reported pain levels (and including musings about possible secondary
gain motivations) and the fact that plaintiff went months without narcotic pain medication.
Having carefully reviewed the record, I find that substantial evidence supports the ALJ' s finding
that plaintiffs back pain improved after the CPD .1
Regarding plaintiffs symptoms from cognitive disorder, plaintiff argues that the ALJ
provided legally insufficient reasons to reject the opinion of examining psychologist Ron
Leclmyr, Ph.D. There are three types of medical opinions in Social Security disability cases:
those of treating, examining, and reviewing physicians. Holohan v. lvfassanari, 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(c).

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 contradicted by another doctor, can only
be rejected for specific and legitimate reasons." Id. at 830-31.

1

With respect to plaintiffs physical limitations, such as ability to walk, stand, and lift,
the back pain medical improvement finding was immaterial to the ultimate disability
dete1mination. The ALJ limited plaintiff to sedentary work, an identical limitation to that
imposed in the CPD.
Page 5 - OPINION AND ORDER

Dr. Lechnyr conducted a six hour evaluation and assessment session on November 9,
2012.

He reviewed more than one thousand pages of medical records and administered

extensive cognitive testing, diagnosing pain disorder, mood disorder, major depressive disorder,
bipolar affective disorder, intermittent explosive disorder, post traumatic stress disorder, alcohol
abuse in remission, nicotine dependence, and cognitive disorder not otherwise specified. Tr.
1340-41. Dr. Lechnyr opined that plaintiff is "psychologically disabled and unable to work,"
with symptoms "consistent over an extended period of time." Tr. 1344. He assessed marked
limitations in a number of areas, including ability to carry out detailed instructions; ability to
maintain attention and concentration for extended periods; and ability to perform activities
within a schedule, maintain regular attendance, and be punctual within customary tolerances.
The ALJ gave Dr. Lechnyr's opinion "minimal weight."

Tr. 22.

Instead, the ALJ

credited the opinion of agency reviewing physician Sandra Lundblad, Psy.D. In an opinion
written May 15, 2012, Dr. Lundblad wrote:
Psych improved since CPD. At CPD, decreased stamina, poor sleep, no
recreational activities, narcotics for chronic pain.
Currently, no longer
prescription pain meds, says he no longer uses [marijuana], leaves home nearly
every day, sleep improved, several recreational activities including metal
sculpting, Facebook, internet poker. GAF at CPD was 35; currently GAF 60. At
CPD ALJ rated marked limitations to [concentration, persistence and pace].
Cmrnnt MRFC no longer results in marked limitations.
Tr. 1316. Because there is a clear conflict between Dr. Lechnyr's opinion and Dr. Lundblad's
opinion, the ALJ's reasons for rejecting Dr. Lechnyr's opinion must be specific and legitimate.

Lester, 81 F.3d at 831.
The ALJ found Dr. Lechnyr's opinion inconsistent with plaintiff's statements about his
activities of daily living. Specifically, the ALJ found plaintiffs ability to prepare his home for
sale on the market in a short timeframe inconsistent with marked limitations regarding

Page 6 - OPINION AND ORDER

performing at a consistence pace. The ALJ similarly found plaintiffs regular attendance at
church and Bible study inconsistent with his alleged marked limitations with regular attendance
and punctuality. Finally, the ALJ found plaintiffs expressed intent to enroll at a four-year
school so he could become a prison outreach minister inconsistent with marked difficulty
working with others. The ALJ also noted that plaintiff had not indicated he had any problems
interacting with others and that plaintiff had been able to maintain an amicable relationship with
his ex-spouse and in-laws. These inconsistencies are specific, legitimate reasons to give less
weigh to Dr. Leclmyr's opinion. See Morgan v. Comm 'r of Soc. Sec. Admin., 169 F.3d 595,
600-01 (9th Cir. 1999) (inconsistency between provider's treatment notes and a claimant's daily
activities may constitute a specific and legitimate reason to discount provider's opinion).
Moreover, the record contains ample evidence that plaintiffs mental symptoms had
improved by 2012. Plaintiff testified that had experienced a "spiritual revival" since beginning
to attend church and Bible study regularly. Tr. 49. He planned to apply for a four-year program
to become a pastor. When the ALJ asked him if he was up to the physical and mental challenges
of such a program, plaintiff testified that he believed he was mentally "up to the challenge[.]"
Tr. 51. He also testified that symptoms from his bipolar disorder were under control "[m]ost the
time" with medication. Tr. 53. He acknowledged that on his current doses of Cymbalta and
Abilify, both adjusted after the CPD, his mood swings and other cognitive symptoms were both
less frequent and less severe than they had been without the medications. Tr. 57. Plaintiff
repo1ied to a doctor in 2012 that he had improved mood, adequate sleep, and general
contentment regarding his current circumstances. Tr. 1446. The ALJ reasonably relied on that
and other evidence in finding that plaintiffs cognitive disorder had improved since the CPD.

Page 7 - OPINION AND ORDER

Plaintiff next argues that the ALJ erred in finding him disabled because a small difference
in the ALJ' s findings would have rendered him disabled. It is true that, had the ALJ found
slightly more severe symptoms, plaintiff would have continued receiving DIB. The VE testified
that a hypothetical individual could maintain employment if off-task nine percent of the time and
absent one day per month, but not if off-task ten percent of the time or absent two days per
month. Thus, a one percentage-point difference in off-task time or one additional absence per
month would have tipped the scales in favor of a disability finding. Plaintiff contends that small
"margin of eirnr" means the ALJ's decision is supported by a mere scintilla of evidence. Pl.'s
Br. 8. Plaintiffmischaracterizes the applicable legal standard. Taking plaintiffs argument to its
logical conclusion, the ALJ's decision would never be suppo1ted by evidence in a "close call"
case; the ALJ would always be required to find the claimant disabled if the evidence could
plausibly support both disability and non-disability.

That is precisely the opposite of the

substantial evidence standard, which requires affinnance if the record supports the ALJ' s
conclusion even if another outcome is equally supported by the evidence.
Finally, plaintiff contends the ALJ presented the VE with an incomplete hypothetical
question, invalidating the findings about work plaintiff could perform. At the hearing, the ALJ
asked the VE about a hypothetical person who would be off-task nine percent of the time but
nonetheless meet minimal production requirements. The VE confirmed that such a person could
work as a ticket seller or phone solicitor "for the long haul over months and years[.]" Tr. 71. In
the written decision, the ALJ mentions the nine percent off-task number but says nothing about
minimal production requirements. Plaintiff asse1ts this mismatch between hearing transcript and
written decision amounts to e11'or at step eight. But there is no e!Tor; the ALJ relied on the VE's
response to a more restrictive hypothetical than the one in the opinion. It is not possible that the

Page 8 - OPINION AND ORDER

"complete" hypothetical, which in this case simply would have subtracted a restriction, would
have yielded a different step-eight outcome.
It is understandable that plaintiff is frustrated by the Commissioner's decision.

The

finding that he would be off task nine percent of the time drove the decision; a single percentage
point more of off-task time, or a single more absence per month, would have meant he continued
to receive DIB. But it is not the district cou1t's role to second-guess the ALJ's decision so long
as it is supported by substantial evidence. Here, the substantial evidence standard is satisfied.
CONCLUSION

The Commissioner's decision is AFFIRMED and this case is dismissed.
IT IS SO ORDERED.
Dated this

IJ:l

day of November 2017.

Ann Aiken
United States District Judge

Page 9 - OPINION AND ORDER