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Cotton v. Colvin

United States District Court, D. Arizona

March 7, 2017

Paul Mitchell Cotton, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          ORDER

          DAVID G. CAMPBELL UNITED STATES DISTRICT JUDGE.

         Plaintiff Paul Mitchell Cotton seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (“the Commissioner”), which denied him 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 decision of the Administrative Law Judge (“ALJ”) is based on legal error, the Commissioner's decision will be vacated and the matter remanded for further administrative proceedings.

         I. Background.

         On August 5, 2009, Plaintiff applied for disability insurance benefits and supplemental security income, alleging disability beginning December 21, 2008. Plaintiff subsequently amended his claim to a closed period of disability, from September 6, 2008 through June 30, 2010. In March 2012, the ALJ issued an unfavorable decision. In May 2013, the Social Security Administration Appeals Council vacated and remanded. A second hearing occurred on October 17, 2014, where Plaintiff appeared by video with his attorney and testified before the ALJ. A vocational expert also testified. On January 23, 2015, the ALJ found 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. 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 Act 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 claimant usually bears the burden of showing that an error is harmful. Id. at 1111.

         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)(ii). 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 he 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 March 31, 2014, and that he has not engaged in substantial gainful activity during the period of September 6, 2008 through June 30, 2010. At step two, the ALJ found that Plaintiff has the following severe impairments: lumbar degenerative disc disease, hepatitis C, coronary arthrosclerosis status post stent, and history of methamphetamine, crack cocaine, LSD, alcohol, and marijuana use. 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. At step four, the ALJ found that Plaintiff has the RFC to perform “the full range of medium work as defined in 20 CFR 404.1567(c).” A.R. 17. The ALJ further found that Plaintiff has no past relevant work. At step five, the ALJ concluded that, considering Plaintiff's age, education, work experience, and residual functional capacity between September 6, 2008 and June 30, 2010, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed.

         IV. Analysis.

         Plaintiff argues the ALJ's decision is defective for four reasons: (1) the ALJ erred in rejecting the assessment of Plaintiff's treating physician, Kyle Norris, M.D., by conflating his assessment with one of a treating physician assistant; (2) the ALJ erred in finding that Plaintiff was “not entirely credible” in the absence of specific, clear, and convincing reasons supported by substantial evidence; (3) the ALJ erred in determining Plaintiff's work capacities without articulated reasons supported by substantial evidence; and (4) the ALJ erred in relying on the medical vocational guidelines in Appendix 2 of the regulations, commonly known as the “grids, ” to determine that Plaintiff could have performed a significant number of jobs in the national economy.

         A. Weighing of Medical Source Evidence.

         Plaintiff argues that the ALJ improperly weighed the medical opinions of Dr. Kyle Norris and Mr. Greg Harris, PAC, by conflating the two opinions and failing to even mention the latter by name.

         1. Legal Standard

         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 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 v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995); 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 it is not contradicted by another doctor's opinion, the opinion of a treating or examining physician can be rejected only for clear and convincing reasons. Lester, 81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

         A contradicted opinion of a treating or examining physician can be rejected only for “specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043). An ALJ meets this standard “by setting 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). “The 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, 849 F.2d at 421-22.

         2. Kyle Norris, M.D. and ...


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