IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DREW T. ASBURY, 3:14-cv-01425-BR

Plaintiff, OPINION AND ORDER

v.

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration,

Defendant.

KAREN STOLZBERG

11830 S.W. Kerr Parkway, #315

Lake Oswego, OR 97035

(503) 251-0707

Attorney for Plaintiff

BILLY J. WILLIAMS

Acting United States Attorney

JANICE E. HEBERT

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1011

DAVID MORADO

Regional Chief Counsel

JEFFREY E. STAPLES

Special Assistant United States Attorneys

Social Security Administration

701 Fifth Avenue, Suite 2900

Seattle, WA 98104

(206) 615-3706

Attorneys for Defendant

1 - OPINION AND ORDER

Case 3:14-cv-01425-BR Document 24 Filed 10/28/15 Page 1 of 26
BROWN, Judge.

Plaintiff Drew T. Asbury seeks judicial review of a final

decision of the Commissioner of the Social Security

Administration (SSA) in which she denied Plaintiff’s application

for Disability Insurance Benefits (DIB) under Title II of the

Act. 

This Court has jurisdiction to review the Commissioner’s

decision pursuant to 42 U.S.C. § 405(g). Following a thorough

review of the record, the Court AFFIRMS the final decision of the

Commissioner.

ADMINISTRATIVE HISTORY

Plaintiff filed his application for DIB on June 1, 2010. 

Tr. 288.1 His applications were denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held an

initial hearing on December 13, 2012, and a supplemental hearing

on April 4, 2013. Tr. 4, 47. Plaintiff was represented by an

attorney at both hearings. Plaintiff primarily testified at the

initial December 13, 2012, hearing; Harvey Alpern, M.D., a

medical expert (ME), testified at the April 4, 2013, supplemental

hearing; and a vocational expert (VE) also testified at the 

April 4, 2013, supplemental hearing. Tr. 4, 47.

1

 Citations to the official transcript of record filed by

the Commissioner on January 29, 2015, are referred to as “Tr.”

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The ALJ issued a decision on April 15, 2013, in which he

found Plaintiff is not entitled to benefits. Tr. 116-25. That

decision became the final decision of the Commissioner on 

July 21, 2014, when the Appeals Council denied Plaintiff’s

request for review. Tr. 95-99. See Sims v. Apfel, 530 U.S. 103,

106-07 (2000).

BACKGROUND

Plaintiff was born on November 20, 1977; was 35 years old on

the date of the initial hearing; and has a twelfth-grade

education. Tr. 288, 306. Plaintiff has prior relevant work

experience as a grocery clerk, merchandising shelf-stocker, and

assistant grocery manager. Tr. 124.

Plaintiff alleges disability since February 28, 2010, due to

“chronic lower limb pain,” chronic back pain, heart disease,

hypertension, “severe anxiety,” “stress,” and plantar fasciitis. 

Tr. 288, 305. Plaintiff’s date last insured was December 31,

2014. Tr. 301.

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. 118-24.

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STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden a claimant must demonstrate his

inability “to 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.” 42 U.S.C. 

§ 423(d)(1)(A). 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, 276 F.3d

453, 459–60 (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. 42

U.S.C. § 405(g). See also Brewes v. Comm’r, 682 F.3d 1157, 1161

(9th Cir. 2012). Substantial evidence is “relevant 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). 

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The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner’s decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 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. 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

Social Security Regulations set out a five-step sequential

process for determining whether an applicant is disabled within

the meaning of the Social Security Act. Keyser v. Comm’r of 

Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). See also

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. 

§ 404.1520. Each step is potentially dispositive. 

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 404.1520(a)(4)(I). See also Keyser, 648

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F.3d at 724.

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. Stout v. Comm’r Soc.

Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). See also 20

C.F.R. § 404.1520(a)(4)(ii); Keyser, 648 F.3d at 724.

At Step Three the Commissioner must determine whether a

claimant’s impairments meet or equal one of the listed

impairments and are so severe that they preclude substantial

gainful activity. 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. 20 C.F.R. 

§ 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. The

criteria for the listed impairments, known 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 her limitations. 20 C.F.R.

§ 404.1520(e). See also Social Security Ruling (SSR) 96-8p. “A

‘regular and continuing basis’ means 8 hours a day, for 5 days a

6 - OPINION AND ORDER

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week, or an equivalent schedule.” SSR 96-8p, at *1. 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)). The assessment of a claimant's

RFC is at the heart of Steps Four and Five of the sequential

analysis when the ALJ is determining whether a claimant can still

work despite severe medical impairments. An improper evaluation

of the claimant's ability to perform specific work-related

functions “could make the difference between a finding of

‘disabled’ and ‘not disabled.’” SSR 96-8p, at *4. 

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. 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. 20 C.F.R. § 404.1520(a)(4)(v). See also

Keyser, 648 F.3d at 724-25. 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 Medical-Vocational Guidelines set

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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).

ALJ’S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since February 28, 2010, his alleged

onset date. Tr. 118.

At Step Two the ALJ found Plaintiff has venous insufficiency

and foot pain. Tr. 118-20. The ALJ concluded Plaintiff’s

“history of cardiac catherization with no ongoing ischemia” and

“reactive stress with panic attacks and depression” are nonsevere

impairments. Tr. 118-20.

At Step Three the ALJ found Plaintiff’s impairments do not

meet or equal the criteria for any impairment in the Listing of

Impairments. Tr. 120-21. In his assessment of Plaintiff’s RFC

the ALJ found Plaintiff has the functional capacity to perform

“less than the full range of light work” that restricts Plaintiff

to lifting and carrying 10 pounds frequently and 20 pounds

occasionally; standing and walking no more than two to four hours

in an eight-hour workday with the option to change positions on

an hourly basis; not performing any work around hazards such as

unprotected heights or machinery with exposed moving parts; and

not having more than occasional interaction with the general

8 - OPINION AND ORDER

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public. Tr. 121-24.

At Step Four the ALJ found Plaintiff is unable to perform

his past relevant work as a grocery clerk, merchandising shelfstocker, or assistant grocery manager. Tr. 124.

At Step Five, however, the ALJ found Plaintiff is capable of

performing other work that exists in significant numbers in the

national economy, including work as an optical-goods assembler, a

“wire worker semi-conductor,” and a photocopy-machine operator. 

Tr. 124-25. Accordingly, the ALJ found Plaintiff is not disabled

and, therefore, is not entitled to benefits. Tr. 125.

DISCUSSION

Plaintiff contends the Appeals Council erred when it

declined to incorporate into the administrative record medical

evidence that was dated after the ALJ’s decision. In addition,

Plaintiff contends the ALJ erred when he (1) found at Step Three

that Plaintiff’s lower-extremity conditions in combination with

his anxiety did not equal Listing 4.11(B); (2) discredited

Plaintiff’s testimony; (3) discredited the opinion of Jennifer

Backman, M.D., one of Plaintiff’s primary-care providers; 

(4) discredited the opinion of Frederick Grossman, Ph.D.,

Plaintiff’s mental-health treatment provider; (5) credited the

testimony of Dr. Alpern, the ME who testified at the supplemental

hearing; and (6) based on the above errors, failed to formulate

9 - OPINION AND ORDER

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an assessment of Plaintiff’s RFC that was supported by

substantial evidence in the record.

I. Incorporation of Evidence Submitted to the Appeals Council

into the Record

Plaintiff first contends the Appeals Council erred when it

declined to incorporate into the administrative record certain

medical records submitted by Plaintiff that were dated after the

ALJ’s decision.

“During the Appeals Council review process, a claimant may

submit ‘any new and material evidence . . . which relates to the

period on or before the date of the administrative law judge

hearing decision.’” Bales v. Comm’r Soc. Sec. Admin., No. 3:14-

cv-01553-HZ, 2015 WL 5686884, at *3 (D. Or. Sept. 25,

2015)(quoting 20 C.F.R. § 404.976(b)(1)). “If new and material

evidence is submitted, the Appeals Council shall consider the

additional evidence only where it relates to the period on or

before the date of the administrative law judge hearing

decision.” 20 C.F.R. § 404.970(b). “[W]hen the Appeals Council

considers new evidence in deciding whether to review a decision

of the ALJ, that evidence becomes part of the administrative

record, which the district court must consider when reviewing the

Commissioner's final decision for substantial evidence.” Brewes

v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012).

On the other hand, when “the Appeals Council determines that

the new evidence falls outside of the relevant time period, it

10 - OPINION AND ORDER

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has not ‘considered’ that evidence as that term is used in the

Social Security regulations.” Bales, 2015 WL 5686884, at *3. 

See also 20 C.F.R. § 404.970(b)(“If you submit evidence which

does not relate to the period on or before the date of the [ALJ]

hearing decision, the Appeals Council will return the additional

evidence to you with an explanation as to why it did not accept

the additional evidence.”). “The rejected evidence does not

become part of the administrative record.” Bales, 2015 WL

5686884, at *3 (citing Barrington v. Colvin, No. 1:13-cv-01512-

JO, 2014 WL 5342371, at *8 (D. Or. Oct. 20, 2014)).

In this case Plaintiff submitted a substantial amount of new

evidence to the Appeals Council. The evidence submitted by

Plaintiff fell generally into three categories: (1) general

information concerning Plaintiff’s alleged impairments; 

(2) medical records dated before the ALJ’s decision; and 

(3) medical records dated after the ALJ’s decision. See Tr. 724-

819; Pl.’s Br. (#16) App. A. The Appeals Council considered and

incorporated into the administrative record the general

information concerning Plaintiff’s alleged impairments and

Plaintiff’s medical records that were dated before the ALJ’s

decision. Tr. 95-96. The Appeals Council, however, determined

the medical records dated after the ALJ’s decision were “about a

later time” and, accordingly, returned that evidence to Plaintiff

with an explanation that Plaintiff was required to file a new

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application if he wanted the Commissioner to consider such

evidence. Tr. 96.

The Appeals Council, therefore, complied with 20 C.F.R. 

§ 404.970(b), considered those records that related to the time

before the ALJ issued his decision and incorporated those records

into the administrative record, and rejected the evidence dated

after the ALJ issued his decision because they did not relate to

the period before the ALJ issued his decision. See Bales, 2015

WL 5686884, at *3. Accordingly, on this record the Court

concludes the Appeals Council did not err when it declined to

incorporate Plaintiff’s post-decision medical records into the

administrative record.

In the alternative, Plaintiff requests this Court to remand

this case to the Commissioner pursuant to sentence six of 42

U.S.C. § 405(g). The Court may only remand a case pursuant to

sentence six when “the Commissioner requests a remand before

answering the complaint, or where new, material evidence is

adduced that was for good cause not presented before the agency.” 

Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). 

Plaintiff has the burden of demonstrating materiality and good

cause. Bales, 2015 WL 5686884, at *4. “To demonstrate good

cause, the claimant must demonstrate that the new evidence was

unavailable earlier.” Mayes v. Massanari, 276 F.3d 453, 462

(9th Cir. 2001). See also Bales, 2015 WL 5686884, at *4. 

12 - OPINION AND ORDER

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“‘Merely obtaining a more favorable report after an adverse

decision is insufficient to warrant a sentence six remand.’” 

Bales, 2015 WL 5686884, at *4 (quoting Gibb v. Comm’r Soc. Sec.

Admin., No. 3:09-cv–00533–HA, 2010 WL 988467, at *3 (D. Or. Mar.

15, 2010)). 

Plaintiff contends medical records from Daniel W.

Isenbarger, M.D., are material because Dr. Isenbarger

“definitively diagnosed [Plaintiff’s] leg issues, and gave

[Plaintiff] the first effective treatment for them.” 

Dr. Isenbarger also opined Plaintiff’s chronic venous

insufficiency meets the criteria of Listing 4.11(B). Pl.’s Br.

(#16-6) App. A at 3. Although Dr. Isenbarger’s opinion that

Plaintiff’s chronic venous insufficiency meets the criteria of

Listing 4.11(b) may satisfy the materiality requirement for a

remand pursuant to sentence six, Plaintiff has not made any

showing of good cause as to why Dr. Isenbarger’s opinion could

not have been obtained earlier. 

Accordingly, on this record the Court denies Plaintiff’s 

request for a remand to the Commissioner pursuant to sentence

six, 42 U.S.C. § 405(g).

II. Step Three

Plaintiff next contends the ALJ erred at Step Three when he

found Plaintiff’s medical and psychological impairments did not

in combination equal the criteria of Listing 4.11(B).

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The ALJ must determine at Step Three whether a claimant’s

impairments meet or equal an impairment in the Listing of

Impairments. The Listings describe the “symptoms, signs, and

laboratory findings” that make up the characteristics of each

listed impairment. See 20 C.F.R. § 404.1525(c). “To meet a

listed impairment, a claimant must establish that he or she meets

each characteristic of a listed impairment relevant to her

claim.” Taylor v. Colvin, No. 6:12-cv-00225-BR, 2013 WL 1914400,

at *5 (D. Or. May 8, 2013)(citing 20 C.F.R. § 404.1525). “To

equal a listed impairment, a claimant must establish symptoms,

signs, and laboratory findings ‘at least equal in severity and

duration’ to the characteristics of a relevant listed

impairment.” Taylor, 2013 WL 1914400, at *5 (quoting 20 C.F.R.

§ 404.1525(a)).

Listing 4.11(B) provides

Chronic venous insufficiency of a lower extremity with

incompetency or obstruction of the deep venous system

and . . . :

* * *

B. Superficial varicosities, stasis dermatitis, and

either recurrent ulceration or persistent ulceration

that has not healed following at least 3 months of

prescribed treatment.

20 C.F.R. Pt. 404, Subpt. P, App. 1. Plaintiff contends he meets

the criteria of Listing 4.11(B) because the medical evidence

establishes Plaintiff has superficial varicosities and stasis

dermatitis and that Plaintiff’s conditions in combination

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otherwise equal the Listing.

As the ME testified, however, there is not any evidence in

the record that demonstrates Plaintiff has suffered from

recurrent or persistent ulceration. Tr. 28. Plaintiff,

therefore, has failed to establish that his conditions in

combination equal Listing 4.11(B).

Accordingly, on this record the Court concludes the ALJ did

not err by failing to find Plaintiff’s impairments equal the

criteria of Listing 4.11(B).

III. Plaintiff’s Testimony

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and he must show the impairment

or combination of impairments could reasonably be expected to

produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th

Cir. 1986). See also Spelatz v. Astrue, 321 F. App’x 689, 692

(9th Cir. 2009). The claimant, however, need not produce

objective medical evidence of the actual symptoms or their

severity. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 

See also Delgado v. Comm’r Soc. Sec. Admin., 500 F. App’x 570,

570 (9th Cir. 2012).

If the claimant satisfies the above test and there is not

any affirmative evidence of malingering, the ALJ can reject the

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claimant's pain testimony only if she provides clear and

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)). General assertions that the claimant's

testimony is not credible are insufficient. Id. The ALJ must

identify "what testimony is not credible and what evidence

undermines the claimant's complaints." Id. (quoting Lester, 81

F.3d at 834).

At the original hearing on December 13, 2012, Plaintiff

testified he left his prior employment at Fred Meyer after

allegations of harassment were brought against him. Tr. 54. 

Shortly thereafter, however, Plaintiff stated his physician

informed him that his heart condition made it “too dangerous” for

him to return to work, and he was never again medically cleared 

to return to work. Tr. 54-55, 57.

Plaintiff stated his foot and leg conditions cause him to

suffer “continuous pain,” and pain radiates from his ankles into

his hips and spine if he sits for more than 45 minutes. Tr. 59. 

Plaintiff stated sitting causes his feet to turn “black and blue”

from blood pooling and standing for extended periods causes his

feet to turn white from lack of blood flow. Tr. 59. Plaintiff

reported the pain caused by standing for 20 to 30 minutes is “so

incredibly brutal that [he] will start throwing up.” Tr. 71. 

After sitting for 20 minutes, Plaintiff stated his “lower spine

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starts locking up” and he must stretch and perform calisthenics

for 10 or 15 minutes to relieve the symptoms. Tr. 71-72. 

Plaintiff testified his foot and leg conditions began affecting

him 15 years before the hearing and that the symptoms had

progressively worsened. Tr. 60. Plaintiff testified he had a

“nuclear exam” earlier in 2012 that showed “that all of the

multiple partial blockages around [his] heart are now blockages.” 

Tr. 64. 

Plaintiff also testified he suffers from panic attacks “a

couple times a day” that last for between 45 minutes and two

hours. Tr. 67-68. In addition, Plaintiff reported his

medications cause memory problems, and, as a result, Plaintiff 

“can’t remember a conversation from 20 minutes ago.” Tr. 68-69.

Plaintiff stated he performs upper-body exercises at the gym

two days per week, but all of his exercises are performed in a

seated position. Tr. 75. Plaintiff stated he has isolated

himself as much as possible and cannot go out other than to the

gym or a brief trip to the grocery store because of his memory

limitations. Tr. 78. 

In his Adult Function Report dated June 19, 2010, Plaintiff

stated he “[c]annot stand or walk longer than 5-10 minutes” and

“cannot function at all without heavy narcotics.” Tr. 330. 

Plaintiff reported he requires reminders from his family to take

care of daily activities and often forgets to take some

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medications. Tr. 332. Plaintiff stated he can cook simple meals

and can perform “5-10 minutes” of laundry, feed his dogs, wash

dishes, and do light dusting. Tr. 332-33. Plaintiff reported

his hobbies are watching television, using the internet, playing

video games, and reading, but his memory problems have made

comprehension of these activities more difficult. Tr. 334. 

Plaintiff indicated his conditions affect his abilities to

lift, squat, bend, stand, reach, walk, sit, kneel, hear, climb

stairs, remember, complete tasks, concentrate, understand, and

follow instructions. Tr. 335. Plaintiff reported he can only

pay attention for two to five minutes and has difficulty 

following both written and verbal instructions. Tr. 335.

The ALJ discredited Plaintiff’s testimony because Plaintiff

left his employment immediately preceding his alleged onset date

of disability for nondisability reasons, Plaintiff delivered his

testimony in a dramatic fashion and appeared at the hearing in a

manner inconsistent with his alleged limitations, Plaintiff made

statements inconsistent with the medical evidence, and

Plaintiff’s activities of daily living are inconsistent with his

reported limitations.

After a thorough review of the record, the Court concludes

the ALJ cited clear and convincing reasons for rejecting

Plaintiff’s testimony. The ALJ is correct that there are several

inconsistencies between the medical record and Plaintiff’s

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testimony. For example, despite testifying in 2012 that he had a

“nuclear exam” that revealed “multiple” blockages around his

heart, the medical record indicates Plaintiff’s 2012 nuclear

stress test was “stable.” Tr. 64, 65, 666. In addition,

contrary to Plaintiff’s testimony that he was never medically

cleared to return to work after he left Fred Meyer, Plaintiff

told a worker’s compensation examiner that he was “welcomed back

to work with a note from his physician but apparently decided not

to return to work,” and in December 2010 Plaintiff’s physician 

stated Plaintiff was capable of light or sedentary work. Tr. 55,

57, 280, 558-59. Moreover, despite Plaintiff’s allegations of

significant memory and concentration limitations in his June 2010

Adult Function Report, it was repeatedly noted in contemporaneous

medical records that Plaintiff exhibited normal memory and

concentration. See Tr. 494, 519, 575. The ALJ also properly

discredited Plaintiff’s testimony because Plaintiff left his job

at Fred Meyer for nondisability-related reasons. See Bruton v.

Massanari, 268 F.3d 824, 828 (9th Cir. 2001). See also Page v.

Colvin, No. 14-35243, 2015 WL 6153597, at *1 (9th Cir. Oct. 20,

2015).

Accordingly, on this record the Court concludes the ALJ did

not err when he discredited Plaintiff’s testimony because he

provided legally sufficient reasons supported by substantial

evidence for doing so.

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IV. The Medical Testimony of Drs. Backman, Grossman, and Alpern

Plaintiff contends the ALJ improperly rejected the opinions

of Dr. Backman and Dr. Grossman while improperly crediting the

testimony of Dr. Alpern, the ME who testified at the supplemental

hearing.

An ALJ may reject a treating physician’s opinion when it is

inconsistent with the opinions of other treating or examining 

physicians if the ALJ makes findings setting forth specific,

legitimate reasons for doing so that are supported by substantial

evidence in the record. Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1232 (9th Cir. 2011). When the medical opinion of

a treating physician is uncontroverted, however, the ALJ must

give “clear and convincing reasons” for rejecting it. Turner v.

Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010)(quoting

Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995)). The

opinion of a treating physician is “given greater weight than the

opinions of other physicians.” Kelly v. Astrue, No. 10–36147,

2012 WL 767306, at *1 (9th Cir. 2012)(quoting Smolen v. Chater,

80 F.3d 1273, 1285 (9th Cir. 1996)).

A nonexamining physician is one who neither examines nor

treats the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th

Cir. 1995). See also Garrison v. Colvin, No. 12-CV-15103, 2014

WL 3397218, at *13 (9th Cir. 2014). "The opinion of a

nonexamining physician cannot by itself constitute substantial

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evidence that justifies the rejection of the opinion of either an

examining physician or a treating physician." Taylor, 659 F.3d

at 1233 (quoting Lester, 81 F.3d at 831). When a nonexamining

physician's opinion contradicts an examining physician's opinion

and the ALJ gives greater weight to the nonexamining physician's 

opinion, the ALJ must articulate her reasons for doing so with

specific and legitimate reasons supported by substantial

evidence. See, e.g., Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,

1198 (9th Cir. 2008). A nonexamining physician's opinion can

constitute substantial evidence if it is supported by other

evidence in the record. Morgan v. Comm’r of Soc. Sec. Admin.,

169 F.3d 595, 600 (9th Cir. 1999). See also Simpson v. Astrue,

No. 10-cv-06399-BR, 2012 WL 1340113, at *5 (D. Or. Apr. 18,

2012).

A. Dr. Backman’s Opinion

On December 13, 2012, Dr. Backman, one of Plaintiff’s

primary-care providers, submitted a letter in which she stated

Plaintiff had been diagnosed with peripheral arterial disease and

a “bilateral lower extremity neuropathic process,” which cause

pain, numbness, tingling, and weakness in his legs. Tr. 705. 

Dr. Backman opined Plaintiff would be required to change his

position every five to fifteen minutes. Tr. 705. Dr. Backman

also reported Plaintiff had significant low-back pain due to

degenerative disc disease and that Plaintiff’s “back looks like

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the back of a much older man.” Tr. 705. Dr. Backman opined

Plaintiff exhibited anxiety as well as limited concentration

caused by his physical limitations. Tr. 705-06.

The ALJ discredited Dr. Backman’s opinion because 

Dr. Backman’s letter mirrored Plaintiff’s discredited testimony;

Dr. Backman stated Plaintiff had conditions, including peripheral

artery disease and degenerative disc disease, that were not

supported by the medical record; and Dr. Backman’s opinion was

inconsistent with her own treatment notes and the medical record.

Because Dr. Backman’s opinion was contradicted by the

testimony of Dr. Alpern, the ME, the ALJ was required to provide

specific and legitimate reasons for rejecting Dr. Backman’s

opinion. After reviewing the record, the Court concludes the ALJ

cited legally sufficient reasons to discredit Dr. Backman’s

opinion. For example, as the ALJ noted, Dr. Backman’s opinion

that Plaintiff has low-back pain due to degenerative disc disease

and his “back looks like that of a much older man” is

contradicted by an MRI on July 16, 2012, that reflected

Plaintiff’s back was “for the most part normal, without any

significant degenerative findings.” Tr. 696. Moreover the ALJ

is correct that Plaintiff did not receive a diagnosis of

peripheral arterial disease. To the contrary, on May 17, 2012,

M. Darren Mitchell, M.D., a cardiologist to whom Dr. Backman

referred Plaintiff, noted Plaintiff’s lower-extremity condition

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“certainly does not appear to be an arterial issue.” Tr. 627.

Accordingly, on this record the Court concludes the ALJ did

not err when he discredited Dr. Backman’s opinion because the ALJ

provided legally sufficient reasons supported by substantial

evidence for doing so.

B. Dr. Grossman’s Opinion

On February 19, 2013, Dr. Grossman submitted a letter and

“Medical Source Statement” regarding Plaintiff’s psychological

limitations. Dr. Grossman reported Plaintiff’s physical problems

caused him to have psychological and emotional limitations that

resulted in “difficulty in concentrating and functioning.” 

Tr. 719. Dr. Grossman reported Plaintiff is “extremely anxious

and depressed” and that the stress caused by his physical

conditions make it “impossible for him to concentrate or

remember” important issues. Tr. 720. When asked to identify

Plaintiff’s degree of limitation in several categories, 

Dr. Grossman provided “yes” or “no” answers that did not specify

any degree of limitations. Tr. 721-22. Dr. Grossman, however,

indicated Plaintiff had “extreme” limitations in his activities

of daily living and his ability to maintain concentration,

persistence, and pace. Tr. 722-23.

The ALJ discredited Dr. Grossman’s opinion because 

Dr. Grossman’s treatment notes were disorganized and difficult 

to read; Dr. Grossman’s assessment is inconsistent with an 

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April 2010 psychological evaluation that indicated Plaintiff did

not have any psychiatric limitations; and the record did not

support Dr. Grossman’s findings of extreme limitations in

Plaintiff’s activities of daily living and concentration,

persistence, and pace. In addition, Dr. Grossman’s evaluation of

Plaintiff’s mental limitations was inconsistent with the April

2010 evaluation by Ronald N. Turco, M.D., who found that

Plaintiff did not have any psychological limitations. The ALJ,

therefore, was required to provide specific and legitimate

reasons for rejecting Dr. Grossman’s testimony. 

After a thorough review of the record, the Court concludes

the ALJ provided legally sufficient reasons to discredit 

Dr. Grossman’s opinion. The ALJ was correct when he found 

Dr. Grossman’s treatment notes were highly disorganized. 

Dr. Grossman’s treatment notes consist of six pages of unsigned,

largely illegible notes written on plain white paper (Tr. 713-

18), and the disorganization of Dr. Grossman’s notes diminished

the ALJ’s ability to consider Dr. Grossman’s often conclusory

opinions in the context of Plaintiff’s treatment record. 

Moreover, the ALJ is correct that Dr. Grossman’s opinion

regarding Plaintiff’s “extreme” limitations in activities of 

daily living and his concentration, persistence, and pace is

inconsistent with the rest of the medical record.

Accordingly, on this record the Court concludes the ALJ did

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not err when he rejected Dr. Grossman’s opinion because the ALJ

provided legally sufficient reasons supported by substantial

evidence for doing so.

C. Dr. Alpern’s Opinion

Plaintiff contends the ALJ erred when he credited the

opinion of Dr. Alpern, the ME. Plaintiff specifically argues the

ALJ should not have credited Dr. Alpern’s testimony because Dr.

Alpern was “confused” during his testimony and his statements

contained factual errors.

Plaintiff does not cite any authority for the proposition

that the ALJ is required to provide a specific justification for

crediting the testimony of a medical or psychological expert. 

Accordingly, the Court will only find error in the ALJ’s decision

to credit Dr. Alpern’s testimony fully if that testimony is not

“relevant evidence that a reasonable mind might accept as 

adequate to support a conclusion.” See Molina, 674 F.3d. at

1110-11 (quoting Valentine, 574 F.3d at 690). See also Seiber v.

Colvin, No. 3:14-cv-01149-BR, 2015 WL 4994195, at *4 (D. Or. 

Aug. 19, 2015).

Dr. Alpern testified at the April 4, 2013, supplemental

hearing after reviewing the medical record. Plaintiff’s argument

that Dr. Alpern was “confused” is misplaced. Although Dr. Alpern

noted the medical record was “confusing” as to the nature and

seriousness of Plaintiff’s lower-extremity limitations, 

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Dr. Alpern’s testimony was sufficiently clear and consistent with

the record as a whole to render it “relevant evidence that a

reasonable mind might accept as adequate to support a

conclusion.” See Molina, 674 F.3d. at 1110-11 (quoting

Valentine, 574 F.3d at 690). 

Accordingly, on this record the Court concludes the ALJ did

not err when he relied on the testimony of Dr. Alpern.

Because the Court concludes the ALJ properly considered

Plaintiff’s testimony and the testimony of the medical experts,

the Court rejects Plaintiff’s contention that the ALJ’s

assessment of Plaintiff’s RFC was erroneous.

CONCLUSION

For these reasons, the Court AFFIRMS the final decision of

the Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 28th day of October, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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