United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
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.
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.
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.
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
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
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.
Specific and Legitimate
Fifth Reason stated by ALJ
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.
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.
Substantial Evidence of Record
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).
First Reason Stated by ALJ
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.
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.
Second Reason Stated by ALJ
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
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)).
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