United States District Court, D. Arizona
CHARLES R. PYLE, District Judge.
Plaintiff has filed the instant action seeking review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). The Magistrate Judge has jurisdiction over this matter pursuant to the parties' consent. See 28 U.S.C. § 636(c). Pending before the Court are Plaintiff's Opening Brief (Doc. 17) ("Plaintiff's Brief"), Defendant's Opposition to Plaintiff's Opening Brief (Doc. 18) ("Defendant's Brief"), and Plaintiff's Reply (Doc, 19). For the following reasons, the Court remands this matter for an immediate award of benefits.
In March 2009, Plaintiff protectively filed applications for disability insurance benefits and supplemental social security income under the Social Security Act. (Administrative Record ("AR.") 28, 174, 181). Plaintiff was born in 1982 and has earned a Bachelor of Arts degree. (AR. 81; Plaintiff's Brief, p. 4). Plaintiff worked from October 2008 to December 2008 as a substitute teacher, in September 2008 as a clerk at a temp agency, in May 2008 as a cashier trainer at a convenience store, in April 2008 in data entry, in December 2007 as a cashier at a hotel, from September 2007 to October 2007 as a dispatcher, and from September 2006 to August 2007 as a cashier at a video store. (AR. 208). Plaintiff lives with her sister. (AR. 60).
Plaintiff asserts that she has been unable to work since March 1, 2008 due to migraines, depression, bipolar disorder and OCD. (AR. 207). After Plaintiff's applications were denied initially and on reconsideration, she requested a hearing before an Administrative Law Judge. (AR. 101, 105, 111, 114, 118). On October 19, 2010, Plaintiff, who was represented by counsel, her sister, and vocational expert ("VE") Ruth Van Vleet testified before ALJ George Reyes ("ALJ"). (AR. 51-96). On December 14, 2010, the ALJ issued his decision finding Plaintiff was not disabled under the Social Security Act. (AR. 28-37). Thereafter, Plaintiff requested Appeals Council Review and submitted additional evidence which the Appeals Council considered in making its determination to deny her request for review. (AR. 1-5). Upon the Appeals Council denial of Plaintiff's request for review, the ALJ's December 14, 2010 decision became the final decision of the Commissioner.
Plaintiff then initiated the instant action, raising the following three grounds for relief: (1) the ALJ failed to account for nurse practitioner Amy Tees' opinion concerning Plaintiff's absences from work due to migraine headaches; (2) the ALJ erroneously rejected the 2010 opinion of treating psychiatrist, Steven J. Bupp, M.D.; and (3) substantial evidence did not support the ALJ's reliance on the opinion of Agency examining psychologist James Armstrong, Ph.D.
The Court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. §405(g). The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may "set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted).
Substantial evidence is "more than a mere scintilla[, ] but not necessarily a preponderance.'" Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Tackett, 180 F.3d at 1098. Further, substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where "the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Tackett, 180 F.3d at 1098 ( citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)). Moreover, the Commissioner, not the court, is charged with the duty to weigh the evidence, resolve material conflicts in the evidence and determine the case accordingly. Matney, 981 F.2d at 1019. However, the Commissioner's decision "cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Tackett, 180 F.3d at 1098 ( quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir.1998)). Rather, the Court must "consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Id. ( quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).
SSA regulations require the ALJ to evaluate disability claims pursuant to a five-step sequential process. 20 C.F.R. §§404.1520, 416.920. To establish disability, the claimant must show she has not worked since the alleged disability onset date, she has a severe impairment, and her impairment meets or equals a listed impairment or her residual functional capacity ("RFC") precludes her from performing past work. Where the claimant meets her burden, the Commissioner must show that the claimant is able to perform other work, which requires consideration of the claimant's RFC to perform other substantial gainful work in the national economy in view of claimant's age, education, and work experience.
THE ALJ'S REJECTION OF TREATING DR. BUPP'S OPINION
The ALJ found that Plaintiff had the following severe impairments: migraine headaches, obesity, bipolar disorder, obsessive-compulsive disorder, and anxiety disorder. (AR. 30). He determined that Plaintiff had the RFC to perform medium work, except that she should not use ladders, ropes or scaffolds and she must avoid exposure to hazards such as dangerous machinery and unprotected heights. (AR. 32). He also found that although Plaintiff "can attend and concentrate during an 8-hour day with breaks every two hours in a customary manner, [...] Claimant is limited to simple tasks that are not performed in a fast-paced production environment and involve only simple work-related decisions. Claimant is limited to only occasional conversation or interpersonal interaction with her supervisors or coworkers and further limited to only incidental public contact." ( Id. ). The ALJ found that Plaintiff had no past relevant work, but based upon testimony from the VE, Plaintiff "would be able to perform the requirements of representative light unskilled occupations such as janitor...." (AR. 36).
In reaching his decision, the ALJ gave "little weight" to the opinion of Plaintiff's treating psychiatrist Dr. Bupp, and gave "substantial weight" to the opinion of examining psychologist Dr. Armstrong. (AR. 35). Plaintiff agues that the ALJ erroneously rejected Dr. Bupp's opinion.
It is well-settled that the opinions of treating physicians, like Dr. Bupp, are entitled to greater weight than the opinions of examining or non-examining physicians. Andrews v. Shalala, 53 F.3d 1035, 1040-1041 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) ("We afford greater weight to a treating physician's opinion because he is employed to cure and has a greater opportunity to know and observe the patient as an individual.")(internal quotation marks and citation omitted); see also 20 C.F.R §§ 404.1527, 416.927 (generally, more weight is given to treating sources). An ALJ may reject a treating physician's uncontradicted opinion only after giving "clear and convincing reasons' supported by substantial evidence in the record." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) ( quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). Additionally, "[a] treating physician's opinion on disability, even if controverted, can be rejected only with specific and legitimate reasons supported by substantial evidence in the record." Id .; see also Holohan v. Massanari, 246 F.3d 1195, 1202-1203 (9th Cir. 2001).
In September 2010, Dr. Bupp opined that since March 1, 2008, Plaintiff has been markedly limited in her abilities to: understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance and be punctual; sustain an ordinary routine without special supervision; complete a workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without more than the normal rest periods; accept instructions and respond appropriately to criticism from supervisors; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the work setting; and set realistic goals or make plans independently of others. (AR. 169-171). Dr. Bupp also opined that Plaintiff was moderately limited in five other areas. ( Id. ). Dr. Bupp further indicated that Plaintiff "continued to ...