IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

DONNA A. MONTAGUE, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, Acting 

Commissioner of Social Security, 

Defendant. 

AIKEN, Judge: 

Case No. 3: 15-cv-02399-AA 

OPINION AND ORDER 

Plaintiff Donna A. Montague 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"). The Commissioner denied plaintiffs applications for Disability 

Insurance Benefits ("DIB"). For the reasons set forth below, the Commissioner's decision is 

affirmed. 

BACKGROUND 

On January 18, 2012, plaintiff applied for DIB. Tr. 300. She alleged disability beginning 

December 31, 2008, due to depression, anxiety, Asperger's Syndrome, cognitive disorder, insomnia, 

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bowel disorder, anorexia, and sensory issues. Tr. 304. Her application was denied initially and upon 

reconsideration. Tr. 114, 129. On May 6, 2014, a hearing was held before an Administrative Law 

Judge ("ALJ"). Tr. 40. Plaintiff, represented by counsel, testified, as did a vocational expert ("VE") 

and a medical expert. Tr. 40. The ALJ scheduled a supplemental hearing to permit additional 

investigation into plaintiffs assertions regarding Asperger's Syndrome. Tr. 74-75. That second 

hearing, at which plaintiff was again represented by counsel, was held June 13, 2014. Tr. 79. On 

July 18, 2014, the ALJ issued an unfavorable decision. Tr. 33. After the Appeals Council denied 

her request for review, plaintiff filed a complaint in this Court. Tr. 1. 

STANDARD OF REVIEW 

The district co mi must affirm the Commissioner's decision if it is based upon proper legal 

standards and the findings are suppotied 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 suppoti a conclusion." Gutierrez v. Comm 'r of Soc. Sec., 740 F.3d 519, 522 (9th Cir. 

2014) (quotation marks omitted). The court must weigh "both the evidence that supports and the 

evidence that detracts from the ALJ's conclusion." Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 

2001). If the evidence is susceptible to more than one interpretation but the Commissioner's 

decision is rational, the Commissioner must be affirmed, because "the comi may not substitute its 

judgmentforthatofthe Commissioner." Edlundv. Massanari, 253F.3d1152, 1156 (9th Cir. 2001). 

COMMISSIONER'S DECISION 

The initial burden of proofrests upon the plaintiff to establish disability. Howardv. Heckler, 

782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff 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 

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a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502(a)(4). At 

step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the alleged 

disability onset date. Tr. 19; 20 C.F.R. §§ 404.1520(a)(4)(i), (b). At step two, the ALJ found 

plaintiff had the following severe impairments: depression, dysthymic disorder, 1 and mild cognitive 

disorder. Tr. 19; 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). At step three, the ALJ determined plaintiffs 

impairments, 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. Tr. 22; 20 C.F.R. §§ 404.1520(a)(4)(iii), (d). 

The ALJ found plaintiff retained the residual functional capacity ("RFC") 

to perform a full range of work at all exertional levels but with the following 

nonexe1iional limitations: She can understand and remember simple instructions. 

She can remember and understand some detailed instructions if she is given 

additional time in a focused environment to learn the detailed tasks. She has 

sufficient ability to maintain concentration, persistence, or pace to complete simple, 

routine tasks for a normal workday and workweek; but she can complete detailed 

tasks for a normal work day and workweek ... if she is not required to perform 

multitasking and if initially she is given additional time to get used to completing the 

detailed tasks. She should have only superficial interactions with co-workers and she 

should work independently. She should have few changes to the work setting. She 

should not be required to work in an environment with loud noise. She should be 

allowed to wear earplugs. 

Tr. 24; 20 C.F.R. § 404.1520(e). At step four, the ALJ concluded plaintiff would be unable to 

perform any "past relevant work." Tr. 31, 20 C.F.R. §§ 404.1520(a)( 4)(iv), (t). At step five, relying 

on the VE's testimony, the ALJ found plaintiff could perform several jobs existing in significant 

numbers in the national economy: small product assembler, garment s01ier, and packing line worker. 

Tr. 32, 20 C.F.R. §§ 404.1520(a)(4)(v), (g). Accordingly, the ALJ found plaintiff not disabled and 

denied her application for benefits. Tr. 33. 

DISCUSSION 

Plaintiff makes a single allegation of error on appeal. She contends the ALJ impermissibly 

1 "Dysthymic Disorder is a chronically depressed mood that occurs for most of the day, 

more days than not, for at least two years." Schneider v. Comm 'r of Soc. Sec. Admin., 223 F.3d 

968, 971 n.2 (9th Cir. 2000) (citing Diagnostic and Statistical Manual of Mental Disorders at 623 

(4th ed. 1994)). 

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discounted the opinion of Judith B. Belk, Ph.D., a speech-language pathologist and audiologist, 

without providing legally sufficient reasons for doing so. 

There are three types of medical opinions in Social Security disability cases: those of 

treating, examining, and reviewing physicians. Holohan v. Massanari, 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; 20. C.F.R. § 404.1527( d). The ALJ may reject the uncontradicted medical 

opinion of a treating physician only for "clear and convincing" reasons suppo1ted by substantial 

evidence in the record. Holohan, 246 F.3d at 1202. Where there is a conflict between two medical 

opinions, the ALJ may rely on the medical opinion of a non-treating doctor instead of the contrary 

opinion of a treating doctor only if the ALJ provides "specific and legitimate" reasons suppo1ted by 

substantial evidence in the record. Id. Medical opinions may address both the nature of the 

plaintiffs limitations and the ultimate issue of disability, i.e. whether the plaintiff is capable of any 

work, given his or her limitations. Id. Although the ultimate decision regarding disability is 

reserved to the Commissioner, 20 C.F.R. § 404.1527(e)(l), the rules governing consideration of 

medical opinions apply with equal force to opinions on the ultimate issue of disability. Reddick v. 

Chafer, 157 F.3d 715, 725 (9th Cir. 1998). 

Dr. Belk examined plaintiff on May 11, 2012 and June 8, 2012, and continued as hertreating 

provider. Tr. 633-34. In a February 23, 2014 letter to the ALJ, Dr. Belk wrote that 

Ms. Montague has documented bilateral hypersensitivity to sound. This 

hypersensitivity to sound results in an inability to filter out important sounds from 

background sounds. Ms. Montague has profound difficulty tuning out auditmy 

distractions whether in a classroom, on a job, when walking on city streets, or when 

trying to sleep. Her areas of significant dysfunction greatly reduce her quality oflife, 

and extremely limit her options due to the exhaustion and stress that she experiences 

from tlying to deal with constant bombardment of sounds. 

I do not believe that Ms. Montague could sustain a 40-hour work-week, even if a 

ve1y quiet environment such as a libra1y. The exhaustion that she would experience 

due to her efforts to filter out background noises would render her incapable of work 

after only an hour or two. 

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Tr. 633-34. 

The ALJ gave "some weight" to Dr. Belk's opinion, and as noted above included in the RFC 

some non-exertional limitations regarding hypersensitivity to sound. Tr. 24, 28. However, the ALJ 

noted that the ultimate decision regarding disability is reserved to the Commissioner, guided by the 

Social Security Act and its accompanying regulations. Tr. 28. The ALJ also stated, "I disagree that 

the claimant will be unable to adhere to basic attendance requirements . . . . Further, the evidence 

does not suppmt that the claimant would become so exhausted after two hours of filtering sounds 

from her environment that she would be unable to perform any full-time work." Tr. 29. 

Because Dr. Belk's opinion regarding plaintiffs ability to work full-time is contradicted by 

other medical opinions in the record, the ALJ was required to suppo1t the decision to reject that 

opinion with specific, legitimate reasons. Holohan, 246 F .3d at 1202. Plaintiff argues that the ALJ' s 

first statement about Dr. Belk' s opinion-that the ability to work a full day and week is a statement 

on the ultimate issue of disability, a determination reserved to the Commissioner-is not legitimate. 

She contends that the second statement-that the evidence does not suppo1t that plaintiff would be 

too exhausted to work after two hours - is insufficiently specific. 

With respect to the first argument, plaintiff is correct that an ALJ may not reject a treating 

physician's opinion simply because it relates to the ultimate issue of disability. However, that is not 

the only reason the ALJ gave for rejecting Dr. Belk's opinion. Accordingly, it is not a basis for 

reversal. Regarding the second argument, it is true that the ALJ failed to clearly explain which 

pmtions of the record did not support Dr. Belk's conclusion. The ALJ did not directly cite or 

describe any contrary evidence in the record in the paragraphs addressing Dr. Belk's opinion. The 

ALJ therefore erred by failing to provide sufficiently specific reasons to reject Dr. Belk's opinion. 

Even where the ALJ errs, the Commissioner's decision must be upheld if the error was 

harmless. Treichler v. Comm 'r ofSoc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). An error 

is harmless "if the agency's path may be reasonably discerned, even if the agency explains its 

decision with less than ideal clarity." Id. (citation and quotation marks omitted). 

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Here, the ALJ' s reasoning can be discerned from reading the pages preceding and following 

the paragraphs addressing Dr. Belk' s opinion. First, the ALJ gave "great weight" to the opinion of 

Donald E. Lange, Ph.D. Dr. Lange performed a comprehensive neuropsychological evaluation of 

plaintiff in November 2011. Tr. 411. Dr. Lange documented the same type of auditmy problems 

noted by Dr. Belk, stating that plaintiffs "inability to filter noise and other sensations essentially 

exhausts her in the process by which she attempts to exert the extra energy to avoid distraction, 

overstimulation, and remain focused." Tr. 421. However, Dr. Lange did not share Dr. Belk's 

opinion that plaintiff would be unable to sustain work due to those problems. Instead, Dr. Lange 

opined that 

[E]ven though ... [plaintiff is] most comfo1table being underemployed, the reality 

is that she actually will do better given the mix of her cognitive and emotional issues 

working in a job that has limited multitasking, is relatively routine, and easily learned 

w[h ]ere she can utilize memmy aids if necessary. When she becomes more 

stabilized then she can begin to look at more realistic long-term vocational 

alternatives that best fits her pattern of strengths and weaknesses. 

Tr. 424. In other words, Dr. Lange not only believed plaintiff could work full-time, he believed 

doing so would improve her overall functioning. 

Second, the ALJ cited the opinions of agency psychological consultants and the medical 

expe1t who testified at the hearing. Those reviewing providers all concluded plaintiff would be able 

to work full-time notwithstanding her limitations. Tr. 29. 

Third, the ALJ noted that plaintiffhad been struggling with the same underlying impairments 

"at approximately the same level of severity" for years prior to the alleged disability onset date. Tr. 

30. Specifically, the ALJ stated that plaintiff had experienced "auditmy processing symptoms for 

a very long time," but that those symptoms "did not prevent the claimant from completing several 

college degrees; traveling tln·oughout Europe, to Alaska, and elsewhere; and working adequately for 

many years" as a nurse. Tr. 30. The ALJ found those activities "strongly suggest[ed]" plaintiffs 

audito1y processing problems "would not currently prevent all work." Tr. 30. 

Two qualified experts diagnosed plaintiff with hypersensitivity to sound. Those experts 

reached conflicting conclusions regarding the work-related consequences of that condition. The ALJ 

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reasonably reconciled that conflict by adopting the interpretation she considered most consistent with 

the opinions of the reviewing providers and plaintiff's past education, work, and travel histoty. The 

ALJ then incorporated into the RFC limitations and protections designed to address the limiting 

effects of the underlying condition. Although the ALJ erred by failing to clearly connect those 

reasons to her partial rejection of Dr. Belk' s opinion, the ALJ' s reasoning can be discerned from the 

decision and is supported by substantial evidence. The ALJ' s error was therefore harmless. 

CONCLUSION 

The Commissioner's decision is AFFIRMED and this case is dismissed. 

IT IS SO ORDERED. 

Dated this // ~y of January 2017. 

AnnAiken 

United States District Judge 

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