UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

MICHAEL KLEIN, ) Case No. 3:15-cv-01438-AC 

) 

Plaintiff, ) 

) 

v. ) 

) 

CAROLYN W. COLVIN, ) 

Acting Commissioner of Social Security, ) 

) 

Defendant. ) 

ACOSTA, Magistrate Judge: 

FINDINGS AND 

RECOMMENDATION 

Michael Klein ("plaintiff') seeks judicial review of the final decision of the 

Commissioner of the Social Security Administration ("Commissioner") denying his application 

for Disability Insurance Benefits ("DIB"). Because the Commissioner's decision is supported by 

substantial evidence, her decision should be AFFIRMED. 

Procedural Background 

Plaintiff filed his application for DIB on January 18, 2012, alleging disability as of June 

10, 2011. (Tr. 17.) The Commissioner denied his application initially and upon reconsideration, 

and he requested a hearing before an Administrative Law Judge ("ALJ''). (Tr. 114, 123, 193-96.) 

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An administrative hearing was held on November 13, 2013. (Tr. 45-113.) After the hearing, the 

ALJ issued an unfavorable decision on January 31, 2014, finding plaintiff not disabled. (Tr. 14-

44.) The Appeals Council denied plaintiffs subsequent request for review, making the ALJ's 

decision final. (Tr. 1-13.) This appeal followed. Plaintiff argues that the ALJ ell'ed by: (1) 

failing to resolve a conflict between the vocational expert ("VE") testimony and the Dictionary 

of Occupational Titles ("DOT"); (2) improperly rejecting the medical opinion of Vladimir Files, 

M.D.; and (3) improperly rejecting his subjective symptom testimony. 

Factual Background 

Born in July, 1980, plaintiff was 33 years old at the time of the hearing. (Tr. 228.) He 

completed the twelfth grade and earned a certificate in information technology. (Tr. 233.) He 

stopped working in June, 2011 due to his conditions. (Tr. 232.) Plaintiff alleges disability due to 

back injury, depression, anxiety, and a compressed nerve causing back spasms and severe pain 

on his left side. Id. 

Standard of Review 

The 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. Hammock v. 

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. 

It means such relevant evidence as a reasonable mind might accept as adequate to suppmi a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 

NL.R.B., 305 U.S. 197, 229 (1938)). The court must weigh "both the evidence that suppmis and 

detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th 

Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [a comi] may 

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not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 

2007) (citation omitted). 

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

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must 

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

determinable physical or mental impairment 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. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a). 

First, the Commissioner determines whether a claimant is engaged in "substantial gainful 

activity"; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). 

At step two, the Commissioner determines whether the claimant has a "medically severe 

impairment or combination of impainnents." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 

404.1520(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. 

At step three, the Commissioner determines whether the impairment meets or equals "one 

of a number of listed impairments that the Secretary acknowledges are so severe as to preclude 

substantial gainful activity." Id; 20 C.F.R. § 404.1520(d). If so, the claimant is conclusively 

presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. 

At step four, the Commissioner determines whether the claimant can still perform "past 

relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. § 404.1520(e). If the claimant can work, 

she is not disabled; if she cannot perform past relevant work, the burden shifts to the 

Commissioner. Yuckert, 482 U.S. at 141. At step five, the Commissioner must establish that the 

claimant can perform other work. Id at 142; 20 C.F.R. § 404.1520(e) & (f). If the 

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Commissioner meets this burden and proves that the claimant is able to perform other work 

which exists in the national economy, she is not disabled. 20 C.F.R. § 404.1566. 

The ALJ's Findings 

The ALJ performed the sequential analysis. At step one, he found that plaintiff had not 

engaged in substantial gainful activity since his alleged onset date. (Tr. 20.) At step two, the 

ALJ concluded that plaintiff had the following severe impairments: degenerative disc disease of 

the lumbar, thoracic and cervical spine; depressive disorder not otherwise specified ("NOS"); 

anxiety disorder NOS; and polysubstance use. Id. At step three, the ALJ determined that 

plaintiff did not have an impairment or combination of impairments that met or medically 

equaled a listed impairment. Id. 

The ALJ next assessed plaintiff's residual functional capacity ("RFC") and found that 

plaintiff has the RFC to "lift and carry ten pounds frequently and twenty pounds occasionally." 

(Tr. 23.) He continued: 

[Plaintiff] can sit for one hour at a time, after which time he needs to stand and stretch for 

a few minutes (but not away from his work station). In this manner, he can sit a total of 

six hours in an eight-hour workday. He can stand and/or walk for two hours at a time, 

after which he requires a break. With usual and customary breaks, he can stand and/or 

walk a total of six hours in an eight-hour workday. He can occasionally stoop, kneel, 

crouch, crawl, or climb ladders or scaffolding. He has an unlimited ability to balance or 

to climb ramps or stairs. He should avoid concentrated exposure to extreme cold or 

hazards (such as heights and dangerous moving machinery). He has sufficient 

concentration to understand, remember, and catTy out simple and repetitive tasks. He can 

concentrate in two-hour increments with usual and customary breaks throughout an eighthour workday. He can work in the same room with up to four other people, but should 

not work in coordination with them. He can tolerate superficial and occasional contact 

with the general public. 

Id. At step four, the ALJ found that plaintiff was unable to perform any of his past relevant 

work. (Tr. 36.) At step five, the ALJ determined that plaintiff retained the residual functional 

capacity to perform the jobs that exist in significant numbers in the national economy, such as 

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small product assembler II. (Tr. 36-37.) The ALJ therefore concluded plaintiff was not disabled. 

(Tr. 37.) 

Discussion 

1 Conflict Between DOT and VE Testimony. 

Plaintiff first argues that the ALJ failed to resolve a conflict between the DOT and the VE 

testimony, causing enor at step five. At the administrative hearing, the ALJ submitted a 

hypothetical to the VE consisting of limitations set foiih in the RFC, including the limitation that 

plaintiff cannot work in coordination with others. (Tr. 108-10.) Based on this hypothetical, the 

VE testified that a worker with plaintiffs RFC could perform jobs that exist in the national 

economy, including small products assembler II. (Tr. 111.) The ALJ based his step five 

determination on this testimony. (Tr. 36-37.) 

Plaintiff contends that the VE testimony conflicts with the DOT, because assembly line 

workers such as small products assemblers typically work "in coordination with many other 

people." (ECF No. 16, p. 6.) Plaintiff alleges that the ALJ's step five finding that he can 

perform the job of small products assembler II is therefore inconsistent with his RFC. Plaintiff, 

however, cites neither legal authority nor the DOT definition in support of his argument. See id., 

p. 6-7. 

The ALJ is entitled to rely upon VE testimony as substantial evidence to supp01i a 

disability determination when the ALJ poses a hypothetical that accurately reflects the claimant's 

RFC. Massachi, 486 F.3d at 1153. Here, the DOT definition of small products assembler II 

does not indicate that working with or near others is required. Small Products Assembler II, 

DOT Code 739.687-030, available at 1991 WL 680180. While this occupation requires the 

worker to take instructions, the DOT indicates that the level of involvement with other people is 

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"Not Significant." Id. On this record, the court can find no conflict between the VE's testimony 

and the DOT. The ALJ was therefore entitled to rely on the VE's testimony as substantial 

evidence supporting his step five findings. The ALJ's step five findings should be affirmed. 

II. Medical Opinion of Dr. Fiks. 

Plaintiff also argues that the ALJ erred by rejecting the medical opinion of treating 

physician Vladimir Fiks, M.D. In general, the opinion of a treating physician is given more 

weight than the opinion of an examining physician, and the opinion of an examining physician is 

given more weight than the opinion of a non-examining physician. Ghanim v. Colvin, 763 F.3d 

1154, 1160 (9th Cir. 2014). "If a treating physician's opinion is well-supported by medically 

acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other 

substantial evidence in [the] case record, [it will be given] controlling weight." Orn v. Astrue, 

495 F.3d 625, 632 (9th Cir. 2007); 20 C.F.R. § 404.1527(c). To reject the uncontroverted 

opinion of a treating or examining physician, the ALJ must present clear and convincing reasons. 

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 

If a treating or examining physician's opinion is contradicted by another physician's 

opinion, it may be rejected by specific and legitimate reasons. Tonapetyan v. Halter, 242 F.3d 

1144, 1148 (9th Cir. 2001). When evaluating conflicting opinions, an ALJ is not required to 

accept an opinion that is not supported by clinical findings, or is brief or conclusory. Id. at 1149. 

Dr. Fiks first evaluated plaintiff in October, 2010. (Tr. 1461.) He authored two letters 

regarding plaintiffs functioning, dated February 2012 and November 2013. (Tr. 1461-62, 1614-

15.) In the 2012 letter, Dr. Fiks opines that prior to plaintiffs motor vehicle accidents in May, 

2011, his back pain was primarily in the lumbar region, with minimal thoracic pain. (Tr. 1461.) 

He wrote that the motor vehicle accident was a substantial contributing factor to plaintiffs 

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cmTent symptoms in the thoracic spine. (Tr. 1461-62.) Dr. Fiks dete1mined that it was unclear 

whether plaintiff would be able to return to work after the accident. (Tr. 1461.) 

Dr. Files' s 2013 letter was submitted to the Agency "in an attempt to appeal the denial of 

social security benefits to [plaintiff!" after the Appeals Council denied plaintiffs request for 

review of the ALJ's non-disability determination. (Tr. 1614.) In that letter Dr. Fiks opined that 

a cyst on plaintiffs thoracic spine resisted conservative therapy and surgical intervention and 

required ongoing pain medications. Id Dr. Fiks wrote that plaintiff had to stop working due to 

mediation side effects, and that although his symptoms waxed and waned plaintiff was unlikely 

to be able to sustain even part-time work. (Tr. 1614-15.) 

The ALJ rejected Dr. Fiks's opinion. (Tr. 32-34.) As an initial matter, Dr. Fiks's opinion 

that plaintiff was unable to sustain even part-time work was contradicted by the opinions of state 

agency medical consultants Neal Berner, M.D., and Richard Alley, M.D., who each reviewed the 

medical evidence and concluded that plaintiff was not disabled. (Tr. 115-22, 125-36.) The ALJ 

was therefore require to provide specific, legitimate reasons for rejecting Dr. Fiks's controverted 

opinion. Tonapetyan, 242 F.3d at 1148. 

The ALJ determined that Dr. Fiks's op11110n was both internally inconsistent and 

inconsistent with the medical record as a whole. (Tr. 33.) It is the ALJ's duty to resolve 

conflicts in the record. Morgan v. Comm 'r, 169 F.3d 595, 603 (9th Cir. 1999). Here, while Dr. 

Fiks opined that plaintiffs motor vehicle accident in May, 2011 was a substantial contributing 

factor to plaintiffs current symptoms in his thoracic spine, (Tr. 1461-62), plaintiffs medical 

records indicate that he suffered chronic and severe thoracic back pain prior to the accident. (Tr. 

361-62, 369, 405-07 (medical records noting that the motor vehicle accident exacerbated, but did 

not cause, plaintiffs ongoing back problems).) Further, while Dr. Fiks's 2013 letter stated that 

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conservative and surgical interventions failed to cure plaintiffs thoracic symptoms which 

therefore required ongoing medications, his 2012 letter states that plaintiffs thoracic symptoms 

were very mild prior to the accident, suggesting that ongoing medication was not required. (Tr. 

1461-62, 1614-15.) On this record, it was reasonable for the ALJ to resolve the apparent conflict 

within Dr. Fiks's two opinion letters as well as the conflict between Dr. Fiks's opinion and the 

medical records as a whole by assigning less weight to Dr. Fiks's opinion. Morgan, 169 F.3d at 

603. 

The ALJ also found that plaintiffs work activity contradicted Dr. Fiks's opinion that the 

side-effects of plaintiffs medications would prevent him from performing substantial gainful 

activity. (Tr. 33-34.) Here, while Dr. Fiks opined that the side effects of opioid pain medication 

prevented plaintiff from sustaining gainful employment, the record indicates that plaintiff was 

capable of perfmming skilled work for several years while taking opiates for pain. (Tr. 33-34, 

1462.) While susceptible to multiple interpretations, it was reasonable for the ALJ to resolve this 

conflict in the record by concluding that Dr. Fiks' s opinion was entitled to less weight. Morgan, 

169 F.3d at 603. In sum, the ALJ's evaluation of Dr. Fiks's opinion in light of the entire record 

was supported by substantial evidence and should be affi1med. 

III. Plaintiffs Testimony. 

Plaintiff also argues that the ALJ erred by rejecting his subjective symptom testimony. 

The Ninth Circuit has developed a two-step process for evaluating the credibility of a claimant's 

own testimony about the severity and limiting effect of the claimant's symptoms. Vasquez v. 

Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ "must dete1mine 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." Lingenfelter v. Astrue, 504 F.3d 

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1028, 1036 (9th Cir. 2007). Second, "ifthe claimant meets the first test, and there is no evidence 

of malingering, 'the ALJ can reject the claimant's testimony about the severity of her symptoms 

only by offering specific, clear and convincing reasons for doing so."' Id, quoting Smolen v. 

Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). The ALJ's overall credibility detennination may be 

upheld even if not all of the ALJ's reasons for rejecting the claimant's testimony are upheld. 

Batson v. Comm 'r, 359 F.3d 1190, 1197 (9th Cir. 2004). 

The ALJ rejected plaintiffs testimony regarding his symptoms and limitations and 

provided clear and convincing reasons for doing so. (Tr. 21.) First, the ALJ found that plaintiff 

was non-compliant with his medication recommendations and violated his pain contract. (Tr. 

28-29.) Failing to follow a prescribed course of treatment is a relevant factor in evaluating a 

claimant's testimony. SSR 96-7p, 1996 WL 374186, at *7 (1996). Here, plaintiff was 

prescribed opiates to treat his back pain, and also used marijuana. (Tr. 381.) In April, 2010, 

treating physician Kara Kassay, M.D., advised plaintiff that ifhe continued to use marijuana, he 

could not use opiates for pain. Id Despite this advice, plaintiff continued to use marijuana. (Tr. 

387, 403-04.) Further, the ALJ noted that plaintiff regularly overused his prescribed opiates and 

consumed medications that were not currently prescribed to him. (Tr. 28-29.) For example, 

plaintiff tested positive for Valium when it was not currently prescribed, in violation of his pain 

contract. (Tr. 1137-38, 1142.) Plaintiffs overall noncompliance with medication 

recommendations constitutes a clear and convincing for rejecting plaintiffs subjective symptom 

testimony. 

Second, the ALJ noted that plaintiffs daily activities were inconsistent with the degree of 

severity of his alleged limitations. (Tr. 29-30.) A claimant's daily activities can form the basis 

of an adverse credibility finding when they contradict a claimant's testimony. Molina v. Astrue, 

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674 F.3d 1104, 1113 (9th Cir. 2012). Here, for example, while plaintiff testified that he could 

only sit for 20 minutes at a time, he stated elsewhere that he was able to drive for up to 45 

minutes at a time, and work on a computer for an hour at a time. (Tr. 29, 242, 560.) Further, 

while plaintiff stated that he could not perform household chores and daily activities by himself 

in his DIB application, he indicated elsewhere that he completes household chores and other 

activities alone. (Tr. 29, 240-42, 473, 479, 487, 494, 499.) Based on this conflict in the record 

between plaintiffs statements, it was reasonable for the ALJ to conclude that plaintiffs 

testimony was entitled to little weight. Molina, 674 F.3d at 1113. In sum, the ALJ provided 

legally sufficient reasons for rejecting plaintiffs testimony, and his finding should be affirmed. 

Recommendation 

The Commissioner's decision is supported by substantial evidence in the record, and 

should therefore be AFFIRMED. 

The above Findings and Recommendation will be referred to a United States District 

Judge for review. Objections, if any, are due no later than fomieen days after the date this order 

is filed. The patiies ai·e advised that the failure to file objections within the specified time may 

waive the right to appeal the District Court's order. See Martinez v. Ylst, 951F.2d1153 (9th Cir. 

1991 ). If no objections are filed, review of the Findings and Recommendation will go under 

advisement on that date. If objections are filed, any party may file a response within fourteen 

days after the date the objections are filed. Review of the Findings and Recommendation will go 

under advisement when the response is due or filed, whichever date is earlier . 

. -ft DATED this /0 ctay of November, 2016. 

JOHN V. ACOSTA 

U it d States Magistrate Judge 

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