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Dorsett v. Colvin

United States District Court, D. Arizona

March 3, 2017

Christine E Dorsett, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          ORDER

          David G. Campbell United States District Judge.

         Plaintiff Christine Dorsett seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security which denied her disability insurance benefits and supplemental security income under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. Because the ALJ's decision contains reversible error and there are no substantial grounds for doubting that Plaintiff is disabled, the Court will reverse and remand for an award of benefits.

         I. Background.

         Plaintiff is a 59 year-old female who previously worked as a case worker and substance abuse counselor. A.R. 120, 620. On March 17, 2008, Plaintiff applied for disability insurance benefits and supplemental security income, alleging disability beginning February 15, 2008. A.R. 620. On May 6, 2010, ALJ Michael D. Tucevich issued a decision that Plaintiff was not disabled within the meaning of the Social Security Act. A.R. 343. Plaintiff sought review with the Appeals Council, which remanded the case to the ALJ on August 14, 2012. A.R. 350. On September 9, 2013, Plaintiff appeared with her attorney and testified at a hearing before ALJ Claudia L Rosen-Underwood. A.R. 101. She appeared again with her attorney at a supplemental hearing on March 25, 2014. A.R. 101. At these hearings, a medical expert and two vocational experts testified. A.R. 101. On May 30, 2014, ALJ Rosen-Underwood issued a decision that Plaintiff was not disabled within the meaning of the Social Security Act. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision.

         II. Legal Standard.

         The district 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). 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). Substantial evidence is more than a scintilla, less than a preponderance, and relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. In determining whether substantial evidence supports a decision, the court must consider the record as a whole and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. (internal citations and quotation marks omitted). As a general rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains substantial evidence supporting the ALJ's decision and the error does not affect the ultimate nondisability determination. Id.

         The ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). In reviewing the ALJ's reasoning, the court is “not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).

         III. The ALJ's Five-Step Evaluation Process.

         To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, and the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

         At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. § 404.1520(a)(4). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity (“RFC”) and determines whether the claimant is still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where the ALJ determines whether the claimant can perform any other work based on the claimant's RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.

         At step one, the ALJ found that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2013, and that she has not engaged in substantial gainful activity since February 15, 2008. A.R. 104. At step two, the ALJ found that Plaintiff has the following severe impairments: bilateral sensorineural hearing loss; cervical, thoracic, and lumbar degenerative disc disease; and fibromyalgia. A.R. 105. While the ALJ acknowledged that the record contains evidence of asthma, obesity, status post gastric bypass, diabetes mellitus, macular degeneration, diabetic retinopathy, mood disorder NOS, personality disorder NOS, and status post cataract removal, she found that these conditions did not impose more than minimal limitations on the claimant and thus are not severe impairments. A.R. 105-06. 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. A.R. 108. At step four, the ALJ found that Plaintiff has the RFC to perform sedentary work in an inside office-type environment. A.R. 108. The ALJ further found that Plaintiff is able to perform any of her past relevant work as a caseworker and substance abuse counselor. At step five, the ALJ concluded that, considering Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Plaintiff could perform. A.R.S. 120.

         IV. Analysis.

         Plaintiff argues the ALJ's decision is defective because it is based on legal error and not supported by substantial evidence. Doc. 17 at 6. More specifically, Plaintiff argues that the ALJ erred at step two when she found Plaintiff's eye and mental impairments to be not severe. Doc. 17 at 6, 26. Plaintiff also contends that the ALJ made erroneous credibility determinations and medical opinion evaluations, and erroneously found that Plaintiff could perform jobs in light of her vision and hearing loss.

         A. Step Two Analysis.

         Step two is “a de minimis screening device [used] to dispose of groundless claims, ” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), and an ALJ may find that a claimant lacks a medically severe impairment or combination of impairments only when his conclusion is “clearly established by medical evidence.” S.S.R. 85-28 (1985). Impairments are considered “not severe” when “the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.” Smolen, 80 F.3d at 1290.

         The ALJ found evidence in the record of Plaintiff's macular degeneration and mood and personality disorders, but found these impairments not severe because they “do not impose more than minimal limitation in the claimant's ability to perform basic work activities.” A.R. 106. The ALJ explained in some detail why he did not find Plaintiff's visual and mental impairments to be severe. Concerning Plaintiff's vision, the ALJ relied on evidence in the record that Plaintiff has good vision in her right eye, her macular degeneration is stable, and her vision improves with the use of frosted glasses. A.R. 106. The ALJ also stressed that Plaintiff engages in activities like watching TV, reading, and using public transportation, and that she had a driver's license and drove in the past. A.R. 106. With regard to Plaintiff's mental impairments, the ALJ noted that:

mental status examinations consistently found [Plaintiff] alert and oriented with good eye contact, neutral to relaxed and euthymic mood, appropriate affect, intact memory, and fair to good insight, judgment, and concentration. She consistently denied anger/impulse problems. Of significance, the claimant denied side effects of medication. The claimant was seen on average every 2-3 months, which suggests her symptoms were not so severe as to warrant consistent professional medical management. Moreover, she informed a provider she was doing well and maintaining euthymic mood with medication. Furthermore, she requested to be prescribed the same medication without changes, which also implies that regimen was relatively effective. As well, [Plaintiff] informed treating professionals she has had these symptoms for at least 25 years, yet she was able to work at levels exceeding substantial gainful activity and earn a bachelor's degree.

         A.R. 107.

         Plaintiff argues that the ALJ erred by “equating good visual acuity in one eye with no impairment.” Doc. 17 at 6 (emphasis omitted). Plaintiff also alleges that the ALJ erred by finding her mental impairments to be non-severe. Id. at 26. Error at this step may be harmless, however, if the ALJ goes on to discuss the ailments that he deemed non-severe when formulating the RFC. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Because the ALJ proceeded to analyze the effects of Plaintiff's mental illness and macular degeneration during the RFC assessment, the Court concludes that any error at step two was harmless.

         B. Weighing of Medical Source Evidence.

         Plaintiff argues that the ALJ improperly weighed the medical opinions of the following medical sources: Joel Edelstein, D.O., Sharon Steingard, D.O., Lisa Chiles, O.D., Anita Schadlu, M.D., Matthew Doust, M.D., Sanford Goldstein, physical therapist, Sabina Scott, Au.D., Mary Jean Tan, Physician's Assistant. The Court will address the ALJ's treatment of each opinion below.

         1. Legal Standard.

         The Commissioner is responsible for determining whether a claimant meets the statutory definition of disability, and need not credit a physician's conclusion that the claimant is “disabled” or “unable to work.” 20 C.F.R. § 404.1527(d)(1). But the Commissioner generally must defer to a physician's medical opinion, such as statements concerning the nature or severity of the claimant's impairments, what the claimant can do, and the claimant's physical or mental restrictions. § 404.1527(a)(2), (c).

         In determining how much deference to give a physician's medical opinion, 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 the greatest weight to a treating physician's opinion and more weight to the opinion of an examining physician than a non-examining physician. See Andrews, 53 F.3d at 1040-41; see also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when evaluating opinion evidence, including length of examining or treating relationship, frequency of examination, consistency with the record, and support from objective evidence).

         If a treating or examining physician's medical opinion is not contradicted by another doctor, the opinion can be rejected only for clear and convincing reasons. Lester, 81 F.3d at 830 (citation omitted). Under this standard, the ALJ may reject a treating or examining physician's opinion if it is “conclusory, brief, and unsupported by the record as a whole[ ] or by objective medical findings, ” Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004), or if there are significant discrepancies between the physician's opinion and her clinical records, Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

         When a treating or examining physician's opinion is contradicted by another doctor, it can be rejected “for specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citation omitted). To satisfy this requirement, the ALJ must set 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). Under either standard, “[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 v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).

         2. Dr. Edelstein.

         Dr. Edelstein has been Plaintiff's treating physician since at least 2010. A.R. 1330. In 2010, Dr. Edelstein provided a medical opinion that Plaintiff could not sustain full time employment due to headaches, fibromyalgia, diabetic radiculopathy, and macular degeneration. A.R. 1389. Dr. Edelstein provided an additional opinion in 2013 which stated that, during an eight-hour work day, Plaintiff would be limited to sitting for two hours, walking for less than two hours, and lifting or carrying less than fifteen pounds. A.R. 2154. He further opined that Plaintiff would need to alternate between sitting, standing, and walking at least every 45 minutes, and that she would have significantly limited use of her hands and feet while working. A.R. 2154. Additionally, he concluded that Plaintiff would suffer moderately severe additional limitations due to pain and fatigue, and that she would miss over six days per month as a result of her medical conditions. A.R. 2155. He noted that he had reviewed treatment notes from other providers, and that prescribed medications cause Plaintiff moderately severe side effects. A.R. 2155. Dr. Edelstein provided a third medical opinion in 2014 identifying almost identical impairments based on findings of degenerative disc disease, chronic pain syndrome, fibromyalgia, visual impairment/macular degeneration, hearing impairment, and bipolar disorder. A.R. 2545. Dr. Edelstien added that Plaintiff would be further limited by dizziness and medication side effects, including sedation, lack of focus, and fatigue. A.R. 2546.

         The ALJ assigned “little weight” to Dr. Edelstien's opinions, finding that (1) his treatment notes do not support a finding of fibromyalgia; (2) his conclusions rest on “an assessment of impairments outside the doctor's area of expertise”; (3) he unduly relied on Plaintiff's subjective reports of symptoms and limitations; and (4) his course of treatment has not been “consistent with what one would expect if the claimant was truly disabled”. A.R. 117-38. The limitations assessed by Dr. Edelstein are inconsistent with those assessed by the state agency physicians. A.R. 991-92, 1004-05, 1100-18, 1140-45. Therefore, the Court must determine whether the ALJ's reasons for rejecting Dr. Edelstein's opinions are specific and legitimate reasons supported by substantial evidence. Cotton, 799 F.2d at 1408.

         a. The ALJ' First Reason.

         The ALJ asserts that Dr. Edelstein's “own treatment notes do not support a finding of fibromyalgia, as there is no mention of any trigger points.” A.R. 117. But “the 2010 diagnostic criteria [for fibromyalgia] do not require a specific number of tender points in specific locations.” Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1005 (9th Cir. 2015); S.S.R. 12-2P (2012) (making clear that tender point findings are not necessary where patient has a history of widespread pain and repeated manifestations of six or more fibromyalgia symptoms not attributable to another malady). The Ninth Circuit has made clear that an ALJ errs when she “effectively require[es] objective evidence for [fibromyalgia, ] a disease that eludes such measurement.” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (quoting Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003)) (alterations and quotations omitted).

         Even more significantly, the ALJ already found Plaintiff's fibromyalgia to be a severe impairment at step two. A.R. 105. Thus, her criticism of Dr. Edelstein's diagnosis is irrelevant. The ALJ does not provide any specific and legitimate reasons for why she gave little weight to Dr. Edelstein's opinion regarding Plaintiff's limitations resulting from fibromyalgia. She mentions that the “physician's examinations are routinely fairly unremarkable[, ]” but such a statement provides little information about alleged insufficiencies in Dr. Edelstein's opinion. As a result, the Court concludes that the ALJ's first reason for giving little weight to Dr. Edelstein was not legitimate or supported by substantial evidence.

         b. The ALJ's Second Reason.

         The ALJ found that Dr. Edelstein's assessment addresses areas outside his area of expertise. A.R. 117. The ALJ appears to be referring to Dr. Edelstein's findings related to Plaintiff's visual and mental impairments. A.R. 117-18. Generally, “the opinions of a specialist about medical issues related to his or her area of specialization are given more weight than the opinions of a nonspecialist.” Smolen, 80 F.3d at 1285 (citing 20 C.F.R. § 404.1527(d)(5)). The Ninth Circuit has made clear, however, that a physician's opinion cannot be disregarded simply because it addresses a topic outside his or her expertise. Lester, 81 F.3d at 833. As the Ninth Circuit explained:

the treating physician's opinion as to the combined impact of the claimant's limitations-both physical and mental-is entitled to special weight. . . . An integral part of the treating physician's role is to take into account all the available information regarding all of his patient's impairments- including the findings and opinions of other experts. The treating physician's continuing relationship with the claimant makes him especially qualified to evaluate reports from examining doctors, to integrate the medical information they provide, and to form an overall conclusion as to functional capacities and limitations, as well as to prescribe or approve the overall course of treatment.

Id. Given this guidance, the Court concludes that the ALJ's second reason for discounting Dr. Edelstein's assessment, although specific, was not legitimate or supported by substantial evidence.

         c. The ALJ's Third Reason.

         The ALJ found that Dr. Edelstein's opinion “relied quite heavily on the subjective report of symptoms and limitations provided by [Plaintiff], and seemed to uncritically accept as true most, if not all, of what [Plaintiff] reported.” A.R. 117. A physician's reliance on a claimant's “subjective complaints hardly undermines his opinion as to her functional limitations, as a patient's report of complaints, or history, is an essential diagnostic tool.” Green-Younger, 335 F.3d at 107 (internal citations and quotations omitted). “If a treating provider's opinions are based ‘to a large extent' on an applicant's self-reports and not on clinical evidence, ” however, and “the ALJ finds the applicant not credible, the ALJ may discount the treating provider's opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)).

         The Court finds below that the ALJ erred in finding Plaintiff not credible. In addition, an ALJ must “explain how she reached the conclusion that a physician's opinion was largely based on self-reports.” Castilleja v. Colvin, No. 2:14-CV-3105-RMP, 2016 WL 6023846, at *5 (E.D. Wash. Jan. 27, 2016) (internal quotation marks omitted). Here, the ALJ merely asserts that Dr. Edelstein's opinions relied on Plaintiff's subjective reports. She provides no basis for this finding, and fails to identify which of Dr. Edelstein's findings this conclusion relates to. The ALJ's conclusory statement is not the “detailed and thorough summary of the facts and conflicting clinical evidence” required before the ALJ may reject Dr. Edelstein's opinion. Cotton, 799 F.2d at 1408. What is more, a review of Dr. Edelstein's reports show notations of his observations, diagnoses, and prescriptions, as well as Plaintiff's descriptions of her own symptoms. The Court concludes that the ALJ's third reason was not legitimate.

         d. The ALJ's Fourth Reason.

         Finally, the ALJ found that Dr. Edelstein's treatment was not “consistent with what one would expect if [Plaintiff] were truly disabled.” A.R. 118. But the ALJ provides almost no explanation for this conclusion, nor does she identify which of Plaintiff's conditions were insufficiently treated. In fact, the ALJ acknowledges elsewhere that Plaintiff “sought treatment through a pain management clinic and [] underwent thoracic and cervical epidural steroid injections, as well as lumbar facet joint medial branch block injections.” A.R. 111. The record also indicates that Dr. Edelstein himself prescribed several different medications and treatments, including Toradol injections, Vicodin, Lyrica, Tramadol, Opana, MS Contin, Kenalog injections, and Fentanyl patches. A.R. 941, 949, 1080, 1084, 1088, 2049, 2053. The ALJ provides no explanation as to why these are not adequate treatments. She simply states that there is “no evidence of hospitalizations, physical therapy, surgery, or other similar treatment for [Plaintiff's] pain.” A.R. 111. Because the ALJ does not explain why the extensive pain-management treatments Plaintiff did receive were insufficient to support Dr. Edelstein's opinions, the Court concludes that her fourth reason is not specific or legitimate.

         3. Dr. Steingard.

         Dr. Steingard examined Plaintiff in January 2011 at the request of the State agency. A.R. 114. Dr. Steingard diagnosed Plaintiff with mood disorder, NOS; anxiety disorder, NOS; and personality disorder, NOS; among others. A.R. 1628. She concluded that Plaintiff's conditions would impose limitations on her ability to perform substantial work activity for a continuous period of 12 months. A.R. 1628. She noted that Plaintiff “will have problems with concentration if she is experiencing episodes of panic” and that she “appears able to perform simple and repetitive tasks.” A.R. 1629. She also concluded that Plaintiff does not appear ...


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