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Wendte v. Colvin

United States District Court, Ninth Circuit

May 30, 2013

Cynthia Wendte, Plaintiff,
Carolyn W. Colvin, [1] Acting Commissioner of the Social Security Administration, Defendant.


G. MURRAY SNOW, District Judge.

Pending before the Court is the appeal of Plaintiff Cynthia Wendte, which challenges the Social Security Administration's decision to deny benefits. (Doc. 1.) For the reasons set forth below, the Court vacates that decision and remands for further proceedings.


Wendte claims that she has been disabled since September 30, 1999. (R. at 15.) She is currently 35 years old and completed ninth grade. ( Id. at 1311-12.) Wendte does not appear to have relevant employment prior to the onset of her alleged disability. ( Id. at 21.) Wendte submitted a Title II application for disability and disability benefits on April 4, 2008, and a Title XVI application on April 15, 2005. ( Id. at 40.) The Social Security Administration ("SSA") denied her claims on August 21, 2008, and again on December 31, 2008. ( Id. ) Wendte subsequently requested a hearing, which was held on April 20, 2010 in Phoenix, Arizona. ( Id. ) On November 18, 2009, the Administrative Law Judge ("ALJ") issued a decision finding that Wendte was not disabled under sections 216(i) and 223(d) of the Social Security Act. ( Id. at 13.) That decision was reversed by the Appeals Council and the case was remanded back to the ALJ with instructions to re-consider several pieces of evidence. ( Id. ) The ALJ held another hearing and issued a second decision on December 22, 2011, again finding that Wendte was not disabled within the meaning of the Act. ( Id. at 22.)

To determine whether Wendte was disabled, the ALJ undertook the five-step analysis detailed at 20 C.F.R. §§ 404.1520(a) and 416.920(a).[2] (R. at 14.) He determined at the first step that Wendte had not engaged in substantial gainful activity since September 30, 1999, the alleged onset date. ( Id. at 15.) The ALJ then found that Wendte had the following impairments that are severe in combination: congenital heart block, cardiomyopathy, chronic heart failure, status-post defibrillator and pacemaker implantation, and depression secondary to her general medical condition. ( Id. at 16.) At step three, the ALJ determined that none of these impairments, either alone or in combination, met or equaled any of the SSA's listed impairments. ( Id. at 17-18.)

At that point, the ALJ made a determination of Wendte's residual functional capacity ("RFC"), [3] concluding that she could perform sedentary unskilled work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) with the following restrictions: she cannot crawl, crouch, climb, squat or kneel, and she should not be exposed to extremes of temperature or humidity or unusual dust, gases, or fumes. (R. at 18.) Still at step four, the ALJ concluded that Wendte did not have any past relevant work. ( Id. at 21.) The ALJ therefore reached step five and found (with the assistance of a vocational expert ("VE")) that Wendte was not disabled because there are jobs that exist in significant numbers in the national economy that she could perform. ( Id. at 21-22.) The Appeals Council declined to review the decision. ( Id. at 4-6.)

Wendte filed the Complaint in this action on July 16, 2012, seeking the Court's review of the ALJ's denial of benefits. (Doc. 1.) The matter became fully briefed on January 17, 2013. (Docs. 15, 19, 20.)



A reviewing federal court will address only the issues raised by the claimant in the appeal from the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A federal court may set aside a denial of disability benefits when that denial is either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is "more than a scintilla but less than a preponderance." Id. (quotation omitted). It "is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Id. (quotation omitted).

Subject to the Ninth Circuit's standards in particular cases, the ALJ is responsible for resolving conflicts in testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion." Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because "[t]he [ALJ] and not the reviewing court must resolve conflicts in evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted).


Wendte argues that the ALJ erred by: (A) improperly discounting the opinions of her treating cardiologist and other doctors, (B) relying on the VE's opinion at Step Five when that opinion was offered in response to incomplete information about Wendte's symptoms, (C) improperly discounting Wendte's own testimony regarding the severity of her symptoms, and (D) improperly rejecting all third party witness statements.

A. Improper Discount of Wendte's Treating Cardiologist

Wendte claimed that the ALJ improperly discounted the opinions of her treating cardiologist on the effect of her symptoms. The regulations craft a hierarchy for medical opinions offered by licensed doctors. The opinion of a treating physician is given more weight than non-treating and non-examining medical sources. See Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); 20 C.F.R. § 404.1527. When the treating doctor's opinion is uncontradicted, the ALJ can reject those conclusions only for "clear and convincing' reasons." Lester, 81 F.3d at 830 (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). Even when another doctor disagrees with the treating doctor's opinion, the ALJ can reject the treating doctor's conclusions only when he provides "specific and legitimate reasons' supported by substantial evidence in the record for so doing." Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).[4] In the words of the Commissioner, "[t]he regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker." SSR ...

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