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Thompson v. Colvin

United States District Court, D. Arizona

November 1, 2016

Tamara L Thompson, Plaintiff,
v.
Carolyn W Colvin, Defendant.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending before the Court is Plaintiff's appeal of the Commissioner's denial of her application for social security disability benefits. The parties are familiar with Plaintiff's medical history; therefore, the Court will only discuss it below as necessary for the decision.

         Plaintiff does not claim a particular error in the Administrative Law Judge's (ALJ) application of the five-step sequential evaluation to determine whether Plaintiff is entitled to benefits. See Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987) (citing 20 C.F.R. §§ 404.1520(b)-(f)). Instead, Plaintiff claims four separate errors regarding how the ALJ reached her conclusions within the five-steps. The four claimed errors are: 1) the ALJ failed to give sufficient reasons for discrediting the treating physicians; 2) the ALJ failed to give sufficient reasons for discrediting Plaintiff's claimed symptoms; 3) the ALJ failed to give sufficient reasons for discrediting the lay witness testimony; and 4) the ALJ did not pose a complete hypothetical to the vocational expert. The Court will consider each of these claims of error in turn.

         I. Physicians

         The ALJ must give “clear and convincing” reasons for rejecting the opinion of a treating if it is not contradicted. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The ALJ must give “specific and legitimate” reasons, supported by substantial evidence in the record, for rejecting the opinion of a treating physician when it is contradicted. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Here, Plaintiff argues the ALJ failed to give sufficient reasons to reject the opinions of her two treating physicians: Dr. Dearing and Dr. Syal. (Doc. 14 at 18). Plaintiff also argues that the ALJ failed to give sufficient reasons for rejecting portions of the opinion of examining physician, Dr. Darden. (Id.).

         Plaintiff never states whether she argues that the clear and convincing test verses the specific and legitimate test applies in this case. (Doc. 14 at 12). Defendant argues that because there is a conflict in the medical evidence, the specific and legitimate test applies. (Doc. 15 at 4). The Court agrees with Defendant and will determine whether the ALJ provided specific and legitimate reasons for rejecting the opinions at issue.

         A. Dr. Dearing

         The ALJ gave the following reasons for rejecting the testimony of treating physician Dr. Dearing: 1) his opinions were not consistent with his own clinical and laboratory findings (Doc. 11-3 at 41); 2) his opinions were not consistent with the medical records (id.); 3) his opinions were based on Plaintiff's self-reported symptoms (id); 4) his limitations on Plaintiff's abilities were not based on objective evidence and he gave no explanation for how he arrived at the limitations (such as breaks every two hours) (id.); 5) his opinions on fibromyalgia and anxiety are outside his area of expertise; and, 6) any legal conclusions about the Plaintiff's ability to work are the exclusive purview of the ALJ (id.).

         Plaintiff only argues that one of these six reasons is not a legitimate reason to discredit Dr. Dearing, namely that the diagnoses are outside his area of expertise. As to the other five reasons, Plaintiff seems to concede that such reasons could be specific and legitimate, but argues that the reasons are not supported by the record in this case.

         1. Specific and Legitimate

         a. Fifth Reason stated by ALJ

         Turning first to the doctor's area of expertise, Plaintiff argues that the ALJ cannot discredit a treating physician for giving an opinion outside his area of expertise. (Doc. 14 at 14 (citing Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995))). In Lester, the Court of Appeals stated that the treating physician was entitled to special weight, even for diagnoses outside his area of expertise, if the doctor was actually treating the condition. 81 F.3d at 833. The Court of Appeals also stated that the treating physician's opinion as to the impact of the combination of all of a plaintiff's limitations was also entitled to special weight. Id. Defendant counters and cites 20 C.F.R. § 404.1527(d)(5), which allows the ALJ to consider the doctor's specialty when determining what weight to give the opinion. (Doc. 15 at 7 n.2). Alternatively, Defendant argues that any error was harmless. (Id.).

         In this area, it appears that what the regulations permit the ALJ to consider and what the Ninth Circuit Court of Appeals permits the ALJ to consider in determining the weight to give an opinion are not exactly aligned. In this case, it appears the ALJ did give a reason for discounting the weight to be given to the treating physician's opinion that was impermissible under Lester. Accordingly, this was error. However, because the ALJ gave five additional permissible reasons, this Court agrees with Defendant that this error was harmless. See Stout v. Commissioner of Sec. Sec. Admin., 454 F.3d 1050, 1054-56 (9th Cir. 2006).

         2. Substantial Evidence of Record

         Next the Court must determine whether the ALJ's five other reasons are supported by substantial evidence in the record. Substantial evidence is more than a mere scintilla, but less than a preponderance. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. In determining whether there is substantial evidence to support a decision, this Court considers the record as a whole, weighing both the evidence that supports the ALJ's conclusions and the evidence that detracts from the ALJ's conclusions. Id. If there is sufficient evidence to support the ALJ's determination, the Court cannot substitute its own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). Additionally, the ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

         a. First Reason Stated by ALJ

         First, Plaintiff acknowledges that one basis the ALJ gave for giving little weight to the opinion of Dr. Dearing was that the doctor's ultimate opinions on Plaintiff's limitations were inconsistent with his own treatment notes and inconsistent with his own laboratory findings. (Doc. 14 at 13). Other than saying that Dr. Dearing's opinions are consistent with the medical record (which would presumably include Dr. Dearing's own record), Plaintiff makes no specific argument addressing this reason given by the ALJ.

         Conversely, Defendant points to multiple places in Dr. Dearing's treatment notes that support the ALJ's conclusion that Dr. Dearing's opinions are not supported by his clinical findings. For example, Dr. Dearing reported that Plaintiff had consistently normal physical exams during the relevant period. (Doc. 15 at 5 (citing Tr. 567, 57-68, 576, 582-83, 588, 600, 651, 656-57, 672, 694, 699)). Plaintiff denied having myalgias (muscle pain), arthralgias (joint pain), or muscle weakness. (Doc. 15 at 5 (citing Tr. 567, 770). Further, on the day Dr. Dearing completed the form on Plaintiff's residual functional capacity, Plaintiff's physical exam was normal, with Dr. Dearing finding that Plaintiff was oriented to person, place and tine, was well-developed and well-nourished, and had a normal range of motion and normal reflexes. (Doc. 15 at 5 (citing Tr. 588)). This evidence is substantial and supports the ALJ's first reason.

         b. Second Reason Stated by ALJ

         Second, Plaintiff argues that the ALJ's reason for rejecting the opinions of Dr. Dearing because they are inconsistent with other medical records is incorrect. Specifically, Plaintiff argues that Dr. Dearing's assessment of Plaintiff's mental limitations was consistent with Dr. Klink's opinion. (Doc. 14 at 14-15). Plaintiff further argues that Dr. Dearing's assessment of Plaintiff's physical limitations was consistent with the opinion of Dr. Bhalla. (Doc. 14 at 15). Finally, Plaintiff argued that Dr. Dearing's assessment of Plaintiff's physical limitations was consistent with her physical therapy and chiropractic treatment of back, foot and ankle pain. (Doc. 14 at 15).

         Defendant responds and notes that Dr. Klink's opinions did not cause Plaintiff to be disabled, but instead allowed for simple, routine work with repetitive tasks; thus, Defendant concludes that Dr. Dearing's opinion being consistent with Dr. Klink's opinion does not lead to a disability finding. (Doc. 15 at 8). Further, Defendant notes that Plaintiff's symptoms (once having 14 tender points, and once having only 8 tender points), Plaintiff's denial of having muscle pain, and the limited clinical findings by any doctor on arthritis were all inconsistent with Dr. Dearing's diagnosis of fibromyalgia and inflammatory arthritis. (Doc. 15 at 6 (citing Tr. 39, 507, 433, 607, 567, and 38)).

         All of the evidence cited by Defendant is substantial evidence to support the ALJ's decision. When there is conflict in the medical evidence, the ALJ must resolve the conflict; and here, there is substantial evidence to support the ALJ's ...


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