United States District Court, D. Arizona
Theresa K. Scholin, Plaintiff,
Commissioner of the Social Security Administration, Defendant.
HONORABLE G. MURRAY SNOW UNITED STATES DISTRICT JUDGE
before the Court is the appeal of Plaintiff Theresa K.
Scholin ("Scholin"), which challenges the Social
Security Administration's decision to deny benefits.
(Doc.11.) For the reasons set forth below, this Court affirms
the decision of the ALJ.
September 19, 2011, Theresa Scholin filed an application for
disability insurance benefits, alleging a disability onset
date of February 1, 2005. (Tr. 22.) Her claim was initially
denied on January 20, 2012, and it was denied again upon
reconsideration on November 21, 2012. (Tr. 22.) Scholin then
filed a written request for a hearing and she testified
before ALJ Patricia Bucci on January 3, 2014. (Tr. 22.) On
March 13, 2014, the ALJ issued a decision finding Scholin not
disabled. (Tr. 36.)
evaluating whether Scholin was disabled, the ALJ undertook
the five-step sequential evaluation for determining
disability.(Tr. 12.) At step one, the ALJ found
that Scholin had not engaged in substantial gainful activity
since her application date. (Tr. 24.) At step two, the ALJ
determined that Scholin suffered from the following severe
impairments: obesity, diabetes mellitus, chronic dermatitis,
chronic obstructive pulmonary disease
("COPD")/asthma, JOB syndrome, mild cervical
degenerative disc disease, depressive disorder, and
poly-substance abuse. (Tr. 24.) She also found that Scholin
suffered from numerous nonsevere impairments, including
status post right knee surgery, gastroesophageal reflux
disease, irritable bowel syndrome, right shoulder disorder,
restless leg syndrome, osteopenia, and hepatitis C. (Tr. 25.)
At step three, the ALJ determined that none of these
impairments, either alone or in combination, met or equaled
any of the Social Security Administration's listed
point, the ALJ reached step four and made a determination of
Scholin's residual functional capacity
("RFC")[ concluding that Scholin could
"perform light work as defined in 20 CFR 404.1567(b),
except the Claimant should never climb ladders, ropes or
scaffolds." (Tr. 27.) In making this finding, the ALJ
found that Scholin's subjective testimony was "not
entirely credible." (Tr. 28.) The ALJ gave little to no
weight to the treating physicians, Drs. Drachler, Monroe,
Ebner and Brown. (Tr. 33-34.) Instead, she relied on the
testimony of state agency's reviewing physicians,
Scholin's work history, her "generally unpersuasive
appearance and demeanor while testifying at the hearing,
" and the "greater weight of the entire evidence of
record" which demonstrated inconsistencies in Ms.
Scholin's testimony and statements to her health care
providers (Tr. 33-34.) However, she noted that "minimal
weight is afforded to the mental assessments of these
reviewing physicians, as greater weight is afforded to the
treating notes and clinical findings, which reflect the
claimant's mental impairment is indeed severe."
Appeals Council declined to review the decision. (Tr. 1-5.)
Scholin filed the complaint underlying this action on
November 17, 2015 seeking this Court's review of the
ALJ's denial of benefits. (Doc. 1.) The matter is now
fully briefed before this Court. (Docs. 12, 16.)
Standard of Review
reviewing federal court will only address the issues raised
by the claimant in the appeal from the ALJ's
decision.See Lewis v. Apfel, 236 F.3d
503, 517 n.13 (9th Cir. 2001). A federal court may set aside
a denial of disability benefits only if that denial is either
unsupported by substantial evidence or based on legal error.
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
2002). Substantial evidence is "more than a scintilla
but less than a preponderance." Id. (quotation
omitted). "Substantial evidence is relevant evidence
which, considering the record as a whole, a reasonable person
might accept as adequate to support a conclusion."
Id. (quotation omitted).
is responsible for resolving conflicts in testimony,
determining credibility, and resolving ambiguities. See
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
"When the evidence before the ALJ is subject to more
than one rational interpretation, we must defer to the
ALJ's conclusion." Batson v. Comm'r of Soc.
Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This
is so because "[t]he [ALJ] and not the reviewing court
must resolve conflicts in evidence, and if the evidence can
support either outcome, the court may not substitute its
judgment for that of the ALJ." Matney v.
Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations
A. The ALJ Did Not Make a Prejudicial Error in
Rejecting the Opinions of the Treating Physicians.
treating physician's medical opinion as to the nature and
severity of an individual's impairment must be given
controlling weight if that opinion is well-supported and not
inconsistent with the other substantial evidence in the case
record." Edlundv. Massanari, 253 F.3d 1152,
1157 (9th Cir. 2001), as amended on reh 'g (Aug.
9, 2001); see Lester v. Chafer, 81 F.3d 821, 830
(9th Cir. 1995), as amended (Apr. 9, 1996) ("As
a general rule, more weight should be given to the opinion of
a treating source than to the opinion of doctors who do not
treat the claimant."). If a treating physician's
opinion is "not contradicted by another doctor, it may
be rejected only for clear and convincing reasons."
Lester, 81 F.3d at 830. An "ALJ need not accept
a treating physician's opinion which is 'brief and
conclusionary in form with little in the way of clinical
findings to support [its] conclusion.' "
Magallanes v. Bowen, 881 F.2d 747');">881 F.2d 747, 751 (9th Cir.
1989) (quoting Young v. Heckler, 803 F.2d 963');">803 F.2d 963, 968
(9th Cir. 1986)). However, even if a treating physician's
"assessments are of the 'check-box' form and
contain almost no detail or explanation, " they should
not be dismissed if the "record supports [the
physician's] opinions because they are consistent both
with Claimant's testimony at the hearing and with [the
physician's] own extensive treatment notes."
Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir.
2014). If the treating physician's opinion is
contradicted by another doctor, the ALJ still cannot reject
the treating physician's opinion unless she provides
"specific and legitimate reasons supported by
substantial evidence in the record." Lester, 81
F.3d at 831 (internal quotations omitted). "Sheer
disbelief is no substitute for substantial evidence, "
and thus the ALJ must specify what evidence she is relying on
to reject the treating physician's opinion. Benecke
v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004).
"The opinion of a nonexamining physician cannot by
itself constitute substantial evidence that justifies the
rejection of the opinion of either an examining physician
or a treating physician." Lester, 81
F.3d at 831. The ALJ may cite to diagnostic test results,
contrary reports from examining physicians, and
"testimony from the claimant that conflicted with her
treating physician's opinion" to provide specific
and legitimate reasons for rejecting the opinion of a
treating physician. Id. at 831.
is determined that an ALJ made an error while considering the
weight of a treating physician's opinion, the next step
is to determine whether the error was prejudicial. See
Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d
1155, 1162 (9th Cir. 2008) (applying the harmless error
standard after determining that two of the ALJ's reasons
supporting his adverse credibility finding were invalid).
Ninth Circuit precedents "do not quantify the degree of
certainty needed to conclude that an ALJ's error was
harmless." Marsh v. Colvin, 792 F.3d 1170, 1173
(9th Cir. 2015). The general rule is that an error is
harmless where a court can "conclude from the record
that the ALJ would have reached the same result absent the
error." Molina v. Astrue, 674 F.3d 1104, 1115
(9th Cir. 2012). Furthermore, "the more serious the
ALJ's error, the more difficult it should be to show the
error was harmless." Id.
April 29, 2013, Dr. Drachler, Ms. Scholin's treating
pulmonologist, filled out a checkbox questionnaire in which
he concluded that Ms. Scholin was not able to sustain a
normal work position due to the functional limitations caused
by her pulmonary conditions.(Tr. 1414.) Dr. Drachler found that
Ms. Scholin could not sit or stand for more than an hour at a
time during an eight hour work day. (Id.) She also
could not lift or carry more than five pounds at a time, and
her symptoms were likely to cause frequent interruptions
throughout her work day. (Tr. 1412-13.) Ultimately, Dr.
Drachler opined that Ms. Scholin's conditions would
require her to be absent from work more than three times a
month. (Tr. 1413.) The ALJ rejected the opinion of Dr.
Drachler because the ALJ found that 1) the claimant did not
see Drachler regularly, 2) Drachler relied too heavily on the
claimant's subjective reports of symptoms, 3)
Drachler's findings were inconsistent with the
claimant's "admitted daily activities, " and 4)
Drachler's findings were contradicted by the opinions of
other examining and nonexamining physicians for the state
agency. (Tr. 33-34.)
findings were contradicted by the state agency physicians,
and thus the ALJ needed to provide "specific and
legitimate reasons supported by substantial evidence in the
record." Lester, 81 F.3d at 831 (internal
quotations omitted). However, the fact that his opinion was
contradicted by the state agency physicians "cannot by
itself constitute substantial evidence that justifies ...