UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CATHERINE Y. DEWALL, ) 

) 

Plaintiff, ) 

) 

v. ) 

) 

CAROLYN W. COLVIN, ) 

Acting Commissioner of Social Security, ) 

) 

Defendant. ) 

James S. Coon 

Swanson, Thomas, Coon & Newton 

820 SW 2nd Ave., Suite 200, Portland, OR 97204 

Attorney for Plaintiff 

Billy J. Williams 

United States Attorney 

Janice E. Herbert 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

Thomas M. Elsberry 

Special Assistant United States Attorney 

Case No. 6:15-cv-00288-AA 

OPINION AND ORDER 

Case 6:15-cv-00288-AA Document 19 Filed 01/29/16 Page 1 of 9
Office of the General Counsel 

Social Security Administration 

701 Fifth A venue, Suite 2900 M/S 22 lA 

Seattle, WA 98104-7075 

Attorneys for Defendant 

Aiken, Chief Judge: 

Catherine Y. Dewall ("plaintiff") seeks judicial review of the final decision of the 

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

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

substantial evidence, the decision is AFFIRMED. 

I. BACKGROUND 

A. The Application 

Born in March 1954, plaintiff was 59 years old at the time of the administrative hearing. 

Tr. 4 7, 182. She completed school through the 8th grade and has past work experience as a 

dishwasher and as a worker at a frozen food processing plant. Tr. 203. She last worked in 2010. 

Id. She alleges disability due to panic attacks, depression, bipolar disorder, mood swings, 

learning disability, and having one kidney. Tr. 202. 

Plaintiff filed her application for DIB on November 17, 2011, alleging disability as of 

June 25, 2010. Tr. 32, 173-77. After the Commissioner denied her application initially and upon 

reconsideration, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). Tr. 

135-36. An administrative hearing was held on March 1, 2013. Tr. 47-85. On June 19, 2013, ALJ 

Anthony Johnson, Jr. issued a written decision finding plaintiff not disabled. 1 Tr. 29-42. The 

Appeals Council denied plaintiff's subsequent request for review on February 2, 2015, and the 

ALJ's decision became the final decision of the Commissioner. Tr. 1-4. This appeal followed. 

1 AU Marilyn Mauer also issued a written decision dated November 21, 2013, granting plaintiff a waiver from 

overpayment of DIB benefits. See Tr. 16-22. 

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B. The Sequential Analysis 

A claimant is disabled if he or she is 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)(l)(A). "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 Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. 

§ 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 

20 C.F.R. § 404.1520(a)(4). The five-step sequential process asks the following series of 

questions: 

1. Is the claimant performing "substantial gainful activity?" 20 C.F .R. § 

404.1520(a)(4)(i). This activity is work involving significant mental or 

physical duties done or intended to be done for pay or profit. 20 C.F.R. § 

404.1510. If the claimant is performing such work, she is not disabled 

within the meaning of the Act. 20 C.F.R. § 404.1520(a)(4)(i). If the 

claimant is not performing substantial gainful activity, the analysis 

proceeds to step two. 

2. Is the claimant's impairment "severe" under the Commissioner's 

regulations? 20 C.F.R. § 404.1520(a)(4)(ii). Unless expected to result in 

death, an impairment is "severe" if it significantly limits the claimant's 

physical or mental ability to do basic work activities. 20 C.F.R. § 

404.1521(a). This impairment must have lasted or must be expected to last 

for a continuous period of at least 12 months. 20 C.F.R. § 404.1509. If the 

claimant does not have a severe impairment, the analysis ends. 20 C.F .R. § 

404.1520(a)(4)(ii). If the claimant has a severe impairment, the analysis 

proceeds to step three. 

3. Does the claimant's severe impairment "meet or equal" one or more of the 

impairments listed in 20 C.F .R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii). If the 

impairment does not meet or equal one or more of the listed impairments, 

the analysis proceeds beyond step three. At that point, the ALJ must 

evaluate medical and other relevant evidence to assess and determine the 

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Case 6:15-cv-00288-AA Document 19 Filed 01/29/16 Page 3 of 9
claimant's "residual functional capacity" ("RFC"). This is an assessment 

of work-related activities that the claimant may still perform on a regular 

and continuing basis, despite any limitations imposed by his or her 

impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c). After the ALJ 

determines the claimant's RFC, the analysis proceeds to step four. 

4. Can the claimant perform his or her "past relevant work" with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F.R. § 

404.1520(a)( 4)(iv). If the claimant cannot perform his or her past relevant 

work, the analysis proceeds to step five. 

5. Considering the claimant's RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 

significant numbers in the national economy? If so, then the claimant is 

not disabled. §§ 404.1520(a)(4)(v); 404.1560(c). If the claimant cannot 

perform such work, he or she is disabled. Id. 

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). 

The claimant bears the burden of proof at steps one through four. Id. at 953; see also 

Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The 

Commissioner bears the burden of proof at step five. Tackett. 180 F.3d at 1100. At step five, the 

Commissioner must show that the claimant can perform other work that exists in significant 

numbers in the national economy, "taking into consideration the claimant's residual functional 

capacity, age, education, and work experience." Id.; see also 20 C.F.R. § 404.1566 (describing 

"work which exists in the national economy"). If the Commissioner fails to meet this burden, the 

claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(v). If, however, the Commissioner proves that 

the claimant is able to perform other work existing in significant numbers in the national 

economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 

1099. 

C. The ALJ's Decision 

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Case 6:15-cv-00288-AA Document 19 Filed 01/29/16 Page 4 of 9
The ALJ performed the sequential analysis. At step one, he found plaintiff had not 

engaged in substantial gainful activity since June 25, 2010, the alleged onset date. Tr. 34. At step 

two, the ALJ concluded plaintiff had the severe impairments of bipolar disorder, mixed learning 

disorder, and panic disorder. Id. At step three, the ALJ determined plaintiff did not have an 

impairment or combination of impairments that met or medically equaled a listed impairment. 

Tr. 35. 

The ALJ next assessed plaintiffs residual functional capacity ("RFC") and found that she 

retains the capacity to perform a full range of work at all exertional levels, with the following 

limitations: she is able to use commonsense understanding to perform detailed, but uninvolved, 

oral and written instructions (consistent with a range of unskilled work at reasoning level two as 

those terms are defined in the DOT); she can tolerate occasional contact with the general public, 

coworkers, and supervisors; and can perform low-stress jobs, defined as jobs not performed at an 

assembly line pace, with few workplace changes, little independent decision making, and no 

responsibility for the safety of others. Tr. 37-38. 

At step four, the ALJ found plaintiff was able to perform her past relevant work as a 

kitchen helper/dishwasher. Tr. 41. Accordingly, the ALJ concluded plaintiff was not disabled 

from June 25, 2010 through the decision date. Tr. 42. 

II. STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if it is based on the proper 

legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see 

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means 

"more than a mere scintilla but less than a preponderance." Bray v. Comm'r, 554 F.3d 1219, 

Page 5 - OPINION AND ORDER 

Case 6:15-cv-00288-AA Document 19 Filed 01/29/16 Page 5 of 9
1222 (9th Cir. 2009). It means "such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion." Id. 

Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th 

Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's 

interpretation is a rational reading of the record, and this Court may not substitute its judgment 

for that of the Commissioner. See Batson v. Comm'r, 359 F.3d 1190, 1193 (9th Cir. 2004). 

"However, a reviewing court must consider the entire record as a whole and may not affirm 

simply by isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 

630 (9th Cir. 2007). The reviewing court, however, may not affirm the Commissioner on a 

ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226. 

III. DISCUSSION 

Plaintiff argues the Commissioner erred by improperly evaluating the medical opinion of 

vocational examining physician Peter LeBray, Ph.D. 

The ALJ is responsible for resolving conflicts in the medical record, including conflicts 

among physicians' opinions. Carmickle v. Comm'r, 533 F.3d 1155, 1164 (9th Cir. 2008). The 

Ninth Circuit distinguishes between the opinions of three types of physicians: treating 

physicians, examining physicians, and non-examining physicians. The opinions of treating 

physicians are generally accorded greater weight than the opinions of non-treating physicians. 

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating doctor's opinion that is not 

contradicted by the opinion of another physician can be rejected only for "clear and convincing" 

reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If a treating or examining 

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Case 6:15-cv-00288-AA Document 19 Filed 01/29/16 Page 6 of 9
doctor's opinion is contradicted by another doctor's opinion, it may be rejected by specific and 

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

Dr. LeBray performed a psychological evaluation of plaintiff on October 19, 2011. Tr. 

393-402. He diagnosed plaintiff with bipolar disorder and a mixed learning disorder, and 

assessed her global assessment of functioning score at 52. Id. Summarizing his 

recommendations, Dr. LeBray wrote: "[Plaintiff] is not recommended for full-time, competitive 

work. A limited, part-time job without literacy demands or close social interaction ([with] 

coworkers, [or the] public) is advised. [Plaintiff] might do simpler, repetitive, unspeeded [sic], 

hands on tasks that are predictable and repetitive in a "relaxed" setting with a supportive mentor 

or supervisor (supportive, non-critical)." Tr. 401. Dr. LeBray concluded that plaintiff was 

capable only oflimited, part-time employment in a non-competitive setting with supportive, noncritical supervision. Id. 

As noted, the ALJ assessed plaintiff's RFC and found that plaintiff is capable of 

performing work with the following limitations: she is able to use commonsense understanding 

to perform detailed, but uninvolved, oral and written instructions (consistent with a range of 

unskilled work at reasoning level two as those terms are defined in the DOT); she can tolerate 

occasional contact with the general public, coworkers, and supervisors; and she can perform lowstress jobs, defined as jobs not performed at an assembly line pace, with few workplace changes, 

little independent decision making, and no responsibility for the safety of others. Tr. 37-38. This 

RFC did not include Dr. LeBray's limitation to only part-time employment and a setting with a 

supportive, non-critical mentor or supervisor. Tr. 37-38. The ALJ thus rejected Dr. LeBray's 

opinion to the extent that it conflicted with this RFC. Tr. 40. Plaintiff argues that this was error. 

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Case 6:15-cv-00288-AA Document 19 Filed 01/29/16 Page 7 of 9
The Court disagrees, and finds when an examining physician's opinion is contradicted by 

another physician's opinion, that opinion may be rejected for specific, legitimate reasons. 

Tonapeytan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). Here, Dr. LeBray's more restrictive 

findings were inconsistent with the opinions of the state agency psychological consultants, who 

reviewed plaintiffs medical records and concluded that plaintiff was capable of performing 

simple, routine work with some social limitations. Tr. 95-106, 108-21. The medical record 

contains extensive notes from the Samaritan Mental Health providers, who regularly treated 

plaintiff for several months and therefore created a more detailed picture of plaintiffs limitations 

and capabilities over time. Tr. 404-30, 436-55. After reviewing the treatment notes from 

Samaritan Mental Health Albany, the State agency consultants opined that plaintiff has moderate 

limitations in understanding and memory, sustained concentration and persistence, and social 

interaction; and no limitation in adaptation. Tr. 95-106. Dr. LeBray's opinion was thus 

contradicted by other medical evidence in the record, therefore the ALJ was required to provide 

specific, legitimate reasons for rejecting it. Tonapeytan, 242 F.3d at 1148. 

The ALJ provided at least one specific, legitimate reason for rejecting Dr. LeBray's 

controverted opinion, noting that Dr. LeBray's opinion was inconsistent with the opinions of 

"treating sources within Samaritan Mental Health." Tr. 40 (citing Tr. 434-55). Inconsistency with 

other medical evidence is a specific, legitimate reason for rejecting a medical provider's opinion. 

See Valentine v. Comm'r, 574 F.3d 685, 692 (9th Cir. 2009). Here, plaintiff was treated at 

Samaritan Mental Health Albany from December 2011 through June 2012. Tr. 404-30, 436-55. 

Plaintiff was treated by Audrey Longson, D.O., who was supervised by Dr. Timothy McCarley, 

M.D. Id. These providers recorded observations consistent with the ALJ's RFC limitations. See 

Tr. 37-38. For example, a mental status exam performed in December 2011 reveals appropriate 

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Case 6:15-cv-00288-AA Document 19 Filed 01/29/16 Page 8 of 9
hygiene and grooming, appropriate eye contact, normal speech rate, volume and tone, linear and 

organized thought process, intact attention and concentration, and fair to good insight and 

judgment despite a "lousy" mood and somewhat constricted affect. Tr. 406. 

The Samaritan Mental Health providers did not limit plaintiff to part-time employment or 

to working in a setting with a supportive, non-critical mentor or supervisor. The moderate social 

limitations included in the ALJ' s RFC thus reasonably accord with the findings of the Samaritan 

Mental Health treatment providers. To the extent these findings are consistent with the ALJ's 

RFC, they contradict the rejected portions of Dr. LeBray's medical opinion. The ALJ thus 

provided one specific, legitimate reason for rejecting Dr. LeBray's findings. Tonapeytan, 242 

F.3d at 1148. On this record, the ALJ provided legally sufficient reasons for rejecting Dr. 

LeBray's findings. Tonapeytan, 242 F.3d at 1148. 

II. CONCLUSION 

The Commissioner's decision that plaintiff is not disabled was supported by substantial 

evidence in the record and is therefore AFFIRMED. 

DATED thi~;'.C} day of January, 2016. 

Page 9 - OPINION AND ORDER 

/1 (-~,, \ 

l i( A & A -:lA~JC( Ann Aiken 

United States District Judge 

Case 6:15-cv-00288-AA Document 19 Filed 01/29/16 Page 9 of 9