United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
before the Court is the appeal of Plaintiff Alice Ann
Shepherd, which challenges the Social Security
Administration's decision to deny benefits. (Doc. 15.)
For the reasons set forth below, this Court affirms.
October 16, 2012, Ms. Alice Shepherd filed an application for
supplemental security income, alleging a disability onset
date of March 1, 2009. (Tr. 14.) Her claim was initially denied
on January 31, 2013, and it was denied again upon
reconsideration on August 7, 2013. (Id.) Ms.
Shepherd then filed a written request for a hearing and she
testified before Administrative Law Judge (“ALJ”)
Sheldon Zisook on October 15, 2014. (Tr. 14, 27.) On
December 5, 2014, the ALJ issued a decision finding Ms.
Shepherd not disabled. (Tr. 27.)
evaluating whether Ms. Shepherd was disabled, the ALJ
undertook the five-step sequential evaluation for determining
disability. (Tr. 15-16.) At step one, the ALJ found
that Ms. Shepherd had not engaged in substantial gainful
activity since October 16, 2012, her application
date. (Tr. 25.) At step two, the ALJ determined
that Ms. Shepherd suffered from the following severe
impairments: history of right tibial fracture, status post
ORIF surgery, and an affective disorder. (Tr. 17.) At step
two, the ALJ also determined that Ms. Shepherd's asthma,
COPD, back and neck impairments are non-severe.
(Id.) At step three, the ALJ determined that none of
Ms. Shepherd's severe impairments equaled or met the
severity of any of the Social Security Administration's
listed impairments. (Id.)
point, the ALJ reached step four and made a determination of
Ms. Shepherd's residual functional capacity
(“RFC”),  concluding that while Ms. Shepherd could
not perform her past relevant work as a warehouse worker, she
could “perform light work as defined in 20 CFR
404.967(b), with unlimited lifting and carrying within light
lifting limits, no climbing ladders, ropes, and scaffolds,
and occasional climbing ramps and stairs, unlimited
balancing, and occasional stooping, kneeling, crouching, and
crawling.” (Tr. 19, 25.)
Appeals Council declined to review the decision. (Tr. 1-3.)
Ms. Shepherd filed the complaint underlying this action on
August 10, 2016 seeking this Court's review of the
ALJ's denial of benefits. (Doc. 1.)
Standard of Review
reviewing federal court need 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.
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). However, the Court “must consider the entire
record as a whole and may not affirm simply by isolating a
‘specific quantum of supporting evidence.' ”
Id. (citing Hammock v. Bowen, 879 F.2d 498,
501 (9th Cir. 1989)). Nor may the Court “affirm the
ALJ's . . . decision based on evidence that the ALJ did
not discuss.” Connett v. Barnhart, 340 F.3d
871, 874 (9th Cir. 2003).
The ALJ Properly Rejected Dr. Muse's Medical
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.” Lester v. Chater, 81 F.3d
821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996).
Although this is the general rule, an ALJ may properly reject
the opinion of a treating physician in favor of a
non-examining physician in certain circumstances. If the
opinion of a treating physician is not contradicted by
another physician, then the ALJ must provide clear and
convincing reasons for rejecting the opinion. Id.
However, if a treating physician's medical opinion is
contradicted by another physician, then the ALJ can reject
his opinion for “specific and legitimate reasons that
are supported by substantial evidence in the record.”
Id. at 831. In this case, the opinion of the
treating physician was contradicted by another physician, and
thus the second standard applies.
Muse opined that Ms. Shepherd had marked limitations in her
ability to remember locations and work-like procedures,
understand and remember instructions, perform activities on a
schedule, maintain normal attendance, sustain ordinary
routines, ask questions, and be aware of safety hazards. (Tr.
463-65.) He also found that she was moderately limited in
several other aspects of daily functioning, and that she
suffered from post-tramatic stress disorder, bipolar
disorder, and an anxiety disorder. (Id.) The ALJ in
this case rejected Dr. Muse's medical opinion because he
determined that it was 1) inconsistent with the objective
medical record, 2) inconsistent with Dr. Muse's own
treatment notes, and 3) inconsistent with the findings of Dr.
may discount the opinion of a treating physician if it is
inconsistent with the objective medical record as whole.
See Batson v. Comm'r of Soc. Sec. Admin., 359
F.3d 1190, 1195 (9th Cir. 2004) (“[A]n ALJ may
discredit treating physicians' opinions that are
conclusory, brief, and unsupported by the record as a whole,
or by objective medical findings.”) (internal citations
omitted). The ALJ specifically noted that Ms. Shepherd's
medical records explained that Ms. Shepherd “show[ed]
improved mental functioning and overall moderate symptomology
in the presence of pharmacological management, and no more
than moderate symptoms and limitations in mental
functioning.” (Tr. 25.) He also summarized the entirety
of Ms. Shephard's medical history in the first half of
his opinion, noting that with medication, Ms. Shepherd
appeared to be stable. (Tr. 25.) By Ms. Shepherd's own
admission, as long as she takes her medication, she is
“fine.” (Tr. 25, 458.) She “was also
assessed with a GAF of 55, consistent with no more than