United States District Court, D. Arizona
JOHN Z. BOYLE, Magistrate Judge.
Plaintiff Ruby Marion Mitchell seeks review of the Social Security Administration Commissioner's decision denying her application for supplemental security income benefits under the Social Security Act. (Doc. 1; Doc. 18.) For the reasons below, the Court will affirm the Commissioner's decision.
On March 16, 2009, Plaintiff filed applications for disability insurance and supplemental security income benefits. (AR 78.) Plaintiff alleged that she became unable to work on July 15, 2007. ( Id. ) Plaintiff's applications were initially denied on August 26, 2009, and denied upon reconsideration on December 22, 2009. ( Id. ) In a decision dated May 27, 2011, an ALJ found Plaintiff is not entitled to disability insurance or supplemental social security benefits. ( Id. at 78-88.) Plaintiff did not appeal the May 2011 ALJ decision, and it became final and binding. ( Id. at 11-12.)
On July 7, 2011, Plaintiff filed an application for supplemental security income benefits, alleging an onset date of May 28, 2011, due to a variety of conditions, including bipolar disorder, chronic obstructive pulmonary disease, ADHD, and status post pacemaker placement secondary to syncope. ( Id. at 14, 207-14.) On January 18, 2012, the Social Security Administration denied Plaintiff's application. ( Id. at 11.) On August 15, 2012, the Social Security Administration denied Plaintiff's request for reconsideration. ( Id. )
Pursuant to Plaintiff's request, a hearing was held on April 15, 2013, before ALJ Patricia A. Bucci. ( Id. at 11-30.) In a decision dated May 31, 2013, the ALJ ruled Plaintiff is not entitled to disability benefits because she is "not disabled under section 1614(a)(3)(A) of the Social Security Act." ( Id. at 30.) The Appeals Council denied Plaintiff's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner of the Social Security Administration. ( Id. at 1-6.)
Having exhausted the administrative review process, on November 20, 2013, Plaintiff sought judicial review of the ALJ's decision by filing a Complaint in this Court pursuant to 42 U.S.C. § 405(g). (Doc. 1.) On August 4, 2014, Plaintiff filed an Opening Brief, seeking remand of this case to the Social Security Administration for an award of benefits. (Doc. 18.) On August 14, 2014, Defendant filed a Response Brief in support of the Commissioner's decision. (Doc. 19.) On September 4, 2014, Plaintiff filed a Reply Brief. (Doc. 24.) On February 13, 2015, Defendant filed a Notice of Supplemental Authority, arguing that the Ninth Circuit Court's decision in Treichler v. Comm'r of SSA, 775 F.3d 1090 (9th Cir. 2014), requires the Court to remand for further proceedings, instead of for an award of benefits, should the Court find reversible error. (Doc. 26.)
II. Legal Standards
a. Standard of Review
The Social Security Act, 42 U.S.C. § 405(g), provides for judicial review of the Commissioner's disability benefits determinations. The Court may set aside the Commissioner's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). "Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007); see also Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).
In determining whether substantial evidence supports the ALJ's decision, the Court considers the record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusions. Reddick, 157 F.3d at 720; Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). The ALJ is responsible for resolving conflicts, ambiguity, and determining credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Court "must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1039. "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, 495 F.3d at 630 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). The Court reviews only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). Similarly, the Court reviews "only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely." Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
b. The ALJ's Five-Step Evaluation Process
To be eligible for Social Security benefits, a claimant must show an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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)(1)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). A person is under a disability only:
if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.
42 U.S.C. § 423(d)(2)(A).
The ALJ follows a five-step evaluation process to determine whether an applicant is disabled under the Social Security Act:
The five-step process for disability determinations begins, at the first and second steps, by asking whether a claimant is engaged in "substantial gainful activity" and considering the severity of the claimant's impairments. See 20 C.F.R. § 416.920(a)(4)(i)-(ii). If the inquiry continues beyond the second step, the third step asks whether the claimant's impairment or combination of impairments meets or equals a listing under 20 C.F.R. pt. 404, subpt. P, app. 1 and meets the duration requirement. See id. § 416.920(a)(4)(iii). If so, the claimant is considered disabled and benefits are awarded, ending the inquiry. See id. If the process continues beyond the third step, the fourth and fifth steps consider the claimant's "residual functional capacity" in determining whether the claimant can still do past relevant work or make an adjustment to other work. See id. § 416.920(a)(4)(iv)-(v).
Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). "The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).
Applying the five-step evaluation process, the ALJ found that Plaintiff is not disabled and is not entitled to benefits. ( Id. at 14-30.) At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the application date. ( Id. at 14.) At step two, the ALJ found that Plaintiff has the following severe impairments: bipolar disorder, chronic obstructive pulmonary disease, ADHD, and status post pacemaker placement secondary to syncope. ( Id. at 14.) At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. ( Id. at 16-18.)
At step four, the ALJ found the following:
[Plaintiff] had the [RFC] to perform light work as defined in 20 CFR 404.1567(b) except [Plaintiff] should never climb ladders, ropes, or scaffolds and can frequently climb ramps or stairs, balance, stoop, crouch kneel, and crawl. [Plaintiff] should avoid concentrated exposure to non-weather related temperatures of extreme heat and extreme cold; and should avoid concentrated exposure to pulmonary irritants, such as fumes, odors, dusts, or gases, and poorly ventilated areas. [Plaintiff] should avoid concentrated exposure to dangerous machinery with moving, mechanical parts, except motor vehicles, and should avoid concentrated exposure to unprotected heights. [Plaintiff] is limited [to work] that is simple, routine and repetitive, with only occasional simple decision making required and only occasional changes in the work setting. [Plaintiff] is further limited to only occasional interaction with the public, co-workers, and supervisors, but can still be in the vicinity of others.
( Id. at 16.) The ALJ further found that Plaintiff is unable to perform any of her past relevant work. ( Id. at 28.) At step five, the ALJ found that jobs exist in significant numbers in the national economy that Plaintiff could perform. ( Id. at 29.) Given that finding, the ALJ concluded that Plaintiff "has not been under a disability, as defined in the Social Security Act, since... the date the application was filed." ( Id. at 30.)
Plaintiff argues that the ALJ's decision is defective for four reasons: (1) the ALJ erred in weighing medical source evidence; (2) the ALJ improperly evaluated Plaintiff's credibility and discounted her testimony; (3) the ALJ improperly evaluated third-party testimony by Plaintiff's son; and (4) the ALJ's hypothetical to the vocational expert was incomplete. The Court addresses each argument below.
a. Weighing of Medical Source Evidence
Plaintiff argues that the ALJ erred in weighing the opinions of the following physicians: (1) Dr. Ahmed Qasimyar, treating physician; (2) Dr. Houshang Semino, treating physician; and (3) Dr. Sharon Steingard, examining physician. Below, the Court addresses the ALJ's treatment of these opinions.
i. Legal Standard
The Ninth Circuit distinguishes between the opinions of treating physicians, examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, an ALJ should give greatest weight to a treating physician's opinion and more weight to the opinion of an examining physician than to one of a non-examining physician. See Andrews, 53 F.3d at 1040-41; see also 20 C.F.R. § 404.1527(c)(2)-(6). If it is not contradicted by another doctor's opinion, the opinion of a treating or examining physician can be rejected only for "clear and convincing" reasons. Lester, 81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). "If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence." Garrison, 759 F.3d at 1012 (quoting Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)).
An ALJ can meet the "specific and legitimate reasons" standard "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). But "[t]he ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Embrey, 849 F.2d at 421-22. "The opinion of a non-examining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining or a treating physician." Lester, 81 F.3d at 831 (emphasis in original).
ii. The ALJ did not err in rejecting the opinions of treating physician, Dr. Qasimyar.
Plaintiff argues that the ALJ erred in giving little weight to the opinions of Plaintiff's treating physician, Dr. Qasimyar. (Doc. 18 at 17-19.) Dr. Qasimyar began treating Plaintiff in January 2010 for several conditions, including asthma, chest tightness, ear ache, neck pain, headaches, and bipolar disorder. (AR 932-37.) During the period of January 2010 through February 2013, Plaintiff saw Dr. Qasimyar for evaluation of several symptoms, including respiratory complaints, back pain, ...