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Scholin v. Commissioner of Social Security Administration

United States District Court, D. Arizona

March 6, 2017

Theresa K. Scholin, Plaintiff,
v.
Commissioner of the Social Security Administration, Defendant.

          ORDER

          HONORABLE G. MURRAY SNOW UNITED STATES DISTRICT JUDGE

         Pending 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.

         BACKGROUND

         On 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.)

         In evaluating whether Scholin was disabled, the ALJ undertook the five-step sequential evaluation for determining disability.[1](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 impairments. (Id.)

         At that point, the ALJ reached step four and made a determination of Scholin's residual functional capacity ("RFC")[[2] 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." (Id.)

         The 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.)

         DISCUSSION

         I. Standard of Review

         A reviewing federal court will only address the issues raised by the claimant in the appeal from the ALJ's decision.[3]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).

         The ALJ 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 omitted).

         II. Analysis

A. The ALJ Did Not Make a Prejudicial Error in Rejecting the Opinions of the Treating Physicians.

         "A 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.

         If it 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.

         1. Dr. Drachler

         On 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.[4](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.)

         Drachler's 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 ...


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