IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JESSE TOOMEY, No. 3:13-cv-00751-HZ

Plaintiff, OPINION & ORDER

v.

CAROLYN COLVIN, Commissioner,

Social Security Administration,

Defendant.

Merrill Schneider

Schneider Kerr & Gibney Law Offices

PO Box 14490

Portland, OR 97293

Attorney for Plaintiff

Adrian L. Brown

U.S. Attorney’s Office 

District of Oregon

1000 SW Third Avenue, Suite 600

Portland, OR 97204

1 - OPINION & ORDER

Case 3:13-cv-00751-HZ Document 18 Filed 05/07/14 Page 1 of 10
Lisa Goldoftas

Social Security Administration

Office of General Counsel

701 Fifth Avenue, Suite 2900

Seattle, WA 98104

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Jesse Toomey brings this action for judicial review of the Commissioner’s final 

decision denying his application for Child’s Insurance Benefits and Supplemental Security 

Income (“SSI”) under Title II and Title XVI of the Social Security, respectively. I have 

jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). For the 

following reasons, I affirm the Commissioner’s decision.

BACKGROUND

Plaintiff was born in 1989, Tr. 206, and was 12 years old at the alleged onset of 

disability. He obtained a General Education Diploma, Tr. 42, and reports past work as a dock

worker and a gas station attendant, Tr. 219. Plaintiff alleged disability since September 1, 2002,

Tr. 206, due to severe tic disorder, generalized anxiety disorder, obsessive compulsive disorder, 

Tourette Syndrome, fatigue, leg pain, and sleep disorder, Tr. 76, 238.

The Commissioner denied his application initially and upon reconsideration and an 

Administrative Law Judge (“ALJ”) held a hearing on February 28, 2012. Tr. 21. The ALJ found

Plaintiff not disabled on March 23, 2012. Tr. 32. The Appeals Council declined review of the 

matter on March 7, 2013, making the ALJ’s decision the final decision of the Commissioner. Tr. 

1-5.

/ / /

/ / /

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SEQUENTIAL DISABILITY ANALYSIS

A claimant is disabled if unable 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).

Disability claims are evaluated according to a five-step procedure. See Valentine v. 

Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step 

procedure to determine disability). The claimant bears the ultimate burden of proving disability. 

Id.

In the first step, the Commissioner determines whether a claimant is engaged in 

“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 

137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner 

determines whether the claimant has a “medically severe impairment or combination of 

impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the 

claimant is not disabled.

In step three, the Commissioner determines whether the impairment meets or equals “one 

of a number of listed impairments that the [Commissioner] acknowledges are so severe as to 

preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 

416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner 

proceeds to step four. Yuckert, 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any 

impairment(s), has the residual functional capacity (RFC) to perform “past relevant work.” 20 

C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the 

claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, 

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the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 

141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden 

and proves that the claimant is able to perform other work which exists in the national economy, 

the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

THE ALJ’S DECISION

The ALJ found Plaintiff’s Tourette Syndrome, anxiety, and mood disorder “severe” at 

step two in the sequential proceedings. Tr. 23-24. At step three, the ALJ found that the 

impairments, singly or in combination, did not meet or equal the requirements of any listed 

impairment. Tr. 24-25. The ALJ assessed Plaintiff’s RFC and concluded that he could perform

“a full range of work at all exertional levels but with the following nonexertional limitations: the 

claimant [could] perform simple, routine, repetitive tasks that involve brief and occasional 

interaction with coworkers and the public.” Tr. 25-26. At step four, the ALJ found that Plaintiff

had no past relevant work. Tr. 30. The ALJ found there were jobs existing in the national 

economy in sufficient numbers that Plaintiff could have performed. Tr. 30-31. The ALJ therefore 

found Plaintiff not disabled under the Commissioner’s regulations. Tr. 31.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner’s decision if the Commissioner 

applied proper legal standards and the 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” means “more than a mere scintilla, but less than a 

preponderance.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) 

(quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is “such relevant evidence 

as a reasonable mind might accept as adequate to support a conclusion.” Id.

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This court must weigh the evidence that supports and detracts from the ALJ’s conclusion. 

Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 

715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the 

Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see

also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the 

evidence are insignificant if the Commissioner’s interpretation is a rational reading. Id.; see also

Batson, 359 F.3d at 1193. However, this court cannot now rely upon reasoning the ALJ did not 

assert in affirming the ALJ’s findings. Bray, 554 F.3d at 1225-26 (citing SEC v. Chenery Corp., 

332 U.S. 194, 196 (1947)); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) 

(citing same).

DISCUSSION

Plaintiff raises only one error—that the ALJ improperly rejected the opinion of treating 

physician, Dr. Heather Jones. Pl.’s Br. 2. Generally, social security law recognizes three types of 

physicians: (1) treating, (2) examining, and (3) nonexamining. Holohan v. Massanari, 246 F.3d 

1195, 1201–02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). More weight 

is given to the opinion of a treating physician than to the opinions of those who do not actually 

treat the claimant. Id.; 20 C.F.R. §§ 1527(d)(1)-(2), 416.927(d)(1)-(2). 

If the treating physician's medical opinion is supported by medically acceptable 

diagnostic techniques and is not inconsistent with other substantial evidence in the record, the 

treating physician's opinion is given controlling weight. Orn v. Astrue, 495 F.3d 625, 631 (9th 

Cir. 2007); Holohan, 246 F.3d at 1202. If a treating physician's opinion is not given controlling 

weight, the ALJ must articulate the relevant weight to be given to the opinion under the factors 

provided for in 20 C.F.R. §§ 1527(d)(2), 416.927(d)(2). Orn, 495 F.3d at 631. If a treating or 

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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.” 

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation omitted). “To reject an 

uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing 

reasons that are supported by substantial evidence.” Id. (citation omitted). A discrepancy 

between a doctor's chart notes, recorded observations, and opinions, and an assessment of a 

claimant's abilities, is a clear and convincing reason to reject the doctor's assessment. Id.

A. ALJ’s Findings

The ALJ discussed several progress notes and statements from Dr. Heather Jones in the 

decision denying Plaintiff’s claim. Dr. Jones has been Plaintiff’s treating physician since October 

2009 and is responsible for his medication management. Tr. 369. In June 2010, Dr. Jones noted 

that Plaintiff had “significant” improvement in “mood and tics,” but that he also complained of 

fatigue and anxiety. Tr. 27 (citing Tr. 329). She prescribed Adderall to combat his fatigue and 

continued his other medications, which included Sertaline, Klonopin, and Trazodone. Id. Dr. 

Jones also stated he “would not be likely able to complete tasks in a timely fashion in a work 

setting.” Tr. 29 (citing Tr. 324) (internal quotation marks omitted). Three months later, Plaintiff 

reported his “panic attacks were getting worse,” but admitted he was not taking his medication as 

prescribed. Tr. 27 (citing Tr. 328). Dr. Jones then added Effexor to his medication regimen. Id.

Plaintiff’s symptoms again worsened in December 2010 when he stopped taking two 

medications and he refused to follow Dr. Jones’ recommendation that he change his medications. 

Tr. 27 (citing Tr. 333). In September 2011, Dr. Jones noted that she had not seen Plaintiff in 

approximately nine months, but based on their last meeting, he was unable to work due to 

psychiatric symptoms. Tr. 29 (citing Tr. 332). Plaintiff’s depression worsened in December 

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2011, apparently due to “the holidays and family issues,” and he reported that he avoided going 

out in public. Tr. 27 (citing Tr. 361-362) (internal quotation marks omitted). Dr. Jones continued 

his existing prescriptions and added Seroquel and Cymbalta. Id. Three weeks later, Plaintiff felt 

“a lot better” and his anxiety did not “last as long and it [was] not as bad.” Tr. 28 (citing Tr. 

363). Dr. Jones continued his medications and increased his Cymbalta dose. Id.

Prior to Plaintiff’s February 2012 hearing before the ALJ, Dr. Jones indicated Plaintiff’s

concentration was markedly limited by his anxiety and depression, and that his pace and 

concentration were markedly limited by side effects from his medication. Tr. 371. Dr. Jones 

stated that Plaintiff avoided “leaving his home secondary to panic and depressive symptoms” and 

concluded that his “mental health symptoms [were] so significant he would be unable to function 

in any real employment setting.” Tr. 370-371.

After considering the above notes and statements, the ALJ gave Dr. Jones’ opinion 

“limited weight” because her statements were “inconsistent with her own treatment notes” and 

with other evidence in the record. Tr. 29-30. Plaintiff argues those reasons were not legitimate

because the ALJ “failed to consider all relevant evidence in assessing Dr. Jones’” opinion. Pl. Br. 

12-13. I disagree for the following reasons.

B. Analysis

Plaintiff argues the ALJ improperly rejected the opinion of Dr. Heather Jones for two 

reasons. First, the ALJ overstated Plaintiff’s improvement when he took his medication. Second, 

the ALJ relied on a selective discussion of the record. I address each argument in turn. 

First, Plaintiff asserts the “overarching reason” the ALJ rejected1 Dr. Jones’ opinion was 

“the ALJ’s impression that [P]laintiff’s symptoms improved when he took his medication.” Pl.’s 

1 Although Plaintiff asserts the ALJ “rejected” Dr. Jones’ opinion, the ALJ gave Dr. Jones’ 

opinion “limited weight.”

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Br. 12. Plaintiff argues his symptoms did not substantially improve when he took his 

medication; rather, his response to medication was “topsy turvy” and his symptoms were never 

“sustainably alleviated through any medication.” Pl.’s Br. 12.2

Plaintiff does not cite to any medical records to support his arguments. The ALJ, in 

contrast, discussed several progress notes before finding Plaintiff’s medications were “at least 

partially successful in treating his symptoms.” See e.g. Tr. 26 (after starting Fluoxetine in March 

2007,

3 Plaintiff “reported having less worry, less frequent and intense panic attacks, and 

currently feeling ‘happy.’”); Tr. 27 (in October 2007, Plaintiff’s symptoms improved, and he 

reported in June 2010 that “the medication seems to be working.”); Tr. 28 (in January 2012,

Plaintiff stated he felt “a lot better” and that his anxiety did not “last as long and it’s not as 

bad.”).

Moreover, the ALJ noted several occasions when Plaintiff’s symptoms worsened because 

he did not take his medications as prescribed. In September 2010, Plaintiff’s panic attacks were 

“getting worse,” but he had self-decreased one medication and self-increased another. Tr. 27 

(citing Tr. 328). In December 2010, Plaintiff continued to experience significant anxious and 

depressive symptoms, but again he had self-decreased two medications. Id. (citing Tr. 334). Dr. 

Jones recommended that he change his medication, but he refused. Id. Additionally, nine months 

passed between visits with Dr. Jones, causing the ALJ to believe Plaintiff was not “fully engaged 

in the treatment of his allegedly disabling impairments.” Tr. 27 (citing Tr. 332). Plaintiff’s non2 Plaintiff further argues that “to the extent that the ALJ saw improvement when [P]laintiff was 

taking his medication,” those medications merely “supplanted disabling anxiety with disabling 

fatigue.” Pl.’s Br. 13. This argument is unsupported by the record because fatigue was not a basis 

for Dr. Jones’ opinion that Plaintiff could not work. 3 Though Dr. Jones did not treat Plaintiff until 2009, the ALJ’s references to Plaintiff’s 2007 

medical records are relevant because they show his symptoms improved when he took 

medication.

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compliance belies his argument that medication did not improve his symptoms and that the ALJ 

overstated his improvement.

There was one instance the ALJ did not consider in which Plaintiff took his medication,

but still suffered symptoms of anxiety. Dr. Jones examined Plaintiff on January 28, 2010, when 

Plaintiff reported his anxiety was “a lot better” and that the “medicine helped for a long time, but 

. . . [then he felt] really anxious and scared all the time of people.” Tr. 294. Dr. Jones prescribed 

a new medicine, Risperidone, to treat his anxiety. Id. I am not persuaded that this instance 

supports Plaintiff’s argument that the ALJ incorrectly found that Plaintiff’s symptoms improved 

with medication. At most, this instance shows that Dr. Jones was working with Plaintiff to fine 

tune his medication regimen. There is nothing in the record to indicate that Plaintiff’s symptoms 

could not be controlled with medication. 

Second, Plaintiff argues the ALJ relied on a “selective discussion of the record” when 

concluding Dr. Jones’ statements were inconsistent with the record. Pl.’s Br. 13. The ALJ found 

Dr. Jones’ statements, like, “[Plaintiff] avoids leaving his home,” Tr. 371, inconsistent with 

evidence that he “engages in activities such as attending music concerts, taking public transit, 

travel to Phoenix, Oregon, bicycle riding, walking a dog, doing yard work, and camping,” Tr. 29-

30. The ALJ also found those activities were “inconsistent with [Plaintiff’s] allegations of total 

disability.” Tr. 28.

Plaintiff points out that he had attended only two concerts since 2002, Tr. 58, and rarely 

took the bus, Tr. 61. Furthermore, the record shows Plaintiff had been camping only twice and 

that his annual visit to Phoenix, Oregon was with his mother to visit his grandmother. See Tr. 60, 

61. On the other hand, Plaintiff admitted to riding his bike “every other day” to see friends or 

“anytime [he] wanted to go out,” and that he enjoyed walking his dog around the block. Tr. 58.

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While I agree the ALJ could have more fully described the extent of Plaintiff’s activities, those 

activities, particularly riding his bike every day to see friends, nonetheless support the ALJ’s 

finding that Dr. Jones’ statement about Plaintiff’s activities was inconsistent with the record. 

Thus, the ALJ’s reasons for giving Dr. Jones’ opinion limited weight were specific,

legitimate, and supported by substantial evidence. 

CONCLUSION

Based on the foregoing, the Commissioner’s decision is affirmed. 

IT IS SO ORDERED.

Dated this day of May, 2014

 

MARCO A. HERNÁNDEZ

United States District Judge

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