United States District Court, D. Arizona
G. Campbell United States District Judge.
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.
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.
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
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.
The ALJ's Five-Step Evaluation Process.
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).
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.
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.
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.
Step Two Analysis.
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.
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
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
Weighing of Medical Source Evidence.
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.
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).
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).
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.
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).
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.
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
The ALJ' First Reason.
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).
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
The ALJ's Second Reason.
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
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.
The ALJ's Third Reason.
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)).
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.
The ALJ's Fourth Reason.
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.
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 ...