United States District Court, D. Arizona
Shawn C. Moseley, Plaintiff,
Commissioner of Social Security Administration, Defendant.
Honorable G. Murray Snow United States District Judge.
before the Court is Plaintiff Shawn C. Moseley's appeal,
which challenges the Social Security Administration's
decision to deny benefits. (Doc. 14.) For the reasons set
forth below, this Court affirms.
March 29, 2015, Mr. Shawn Moseley filed an application for
disability insurance benefits, alleging a disability onset
date of September 10, 2012. (Tr. 18.) His claim was initially
denied on July 16, 2015, and it was denied again upon
reconsideration on October 6, 2015. (Id.) Mr.
Moseley then filed a written request for a hearing and he
testified before Administrative Law Judge (“ALJ”)
Patricia Bucci on February 3, 2016. (Tr. 18.) On
February 22, 2016, the ALJ issued a decision finding Mr.
Moseley not disabled. (Tr. 35.)
evaluating whether Mr. Moseley was disabled, the ALJ
undertook the five-step sequential evaluation for determining
disability. (Tr. 15-16.) At step one, the ALJ found
that Mr. Moseley had not engaged in substantial gainful
activity since September 10, 2012. (Tr. 20.) At step two, the
ALJ determined that Mr. Moseley suffered from the following
severe impairments: degenerative disk disease status-post
lumbar fusion, chronic mild compression of the thoracic and
lumbar spine, obesity, and post-traumatic stress disorder.
(Tr. 21.) At step two, the ALJ also determined that Mr.
Moseley's hypertension, hyperlipidemia, gastroesophageal
reflux disease, sleep apnea, and left foot neuroma were
non-severe. (Id.) At step three, the ALJ determined
that none of Mr. Moseley'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
Mr. Moseley's residual functional capacity
(“RFC”),  concluding that while Mr. Moseley could
not perform his past relevant work, he could “perform a
limited range of light work. Specifically, the claimant can
lift and carry 20 pounds occasionally and 10 pounds
frequently; stand and/or walk for four hours in an eight-hour
workday; and sit for six hours of an eight-hour
workday.” (Tr. 24.) The ALJ also specified that
“the claimant is limited to occasional interaction with
the public, coworkers, and supervisors. Moreover, he can work
in the vicinity of others, but not in tandem, and would be
limited to occasional exposure of excessive loud
noise.” (Id.) Finally, at step five the ALJ
determined that Mr. Moseley could perform jobs that exist in
significant numbers in the national economy, specifically as
a sorter or an assembler. (Tr. 35.)
Appeals Council declined to review the decision. (Tr. 1-3.)
Mr. Moseley filed the complaint underlying this action on
July 12, 2016 seeking review of the ALJ's denial of
benefits. (Doc. 1.) The matter is now fully briefed. (Docs.
14, 15, 16.)
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 Committed Non-Prejudicial Error by Failing to Address
Some Impairments During the Step-Two Analysis
Moseley contends that the ALJ erred by failing to categorize
his sacroiliac (“SI”) joint disorder, left thigh
neuropathy, and left foot neuroma as severe. In order to be
considered severe, an impairment “must have lasted or
must be expected to last for a continuous period of at least
12 months.” 20 C.F.R. § 404.1509. “In the
absence of a showing that there is a ‘medically
determinable physical or mental impairment, ' an
individual must be found not disabled at step 2 of the
sequential evaluation process.” S.S.R. 96-4P, 1996 WL
374187, at *1 (July 2, 1996). Furthermore, “[n]o
symptom or combination of symptoms can be the basis for a
finding of disability, no matter how genuine the
individual's complaints may appear to be, unless there
are medical signs and laboratory findings demonstrating the
existence of a medically determinable physical or mental
Moseley concedes in his Reply that he “did not claim a
prejudicial error at step 2.” (Doc. 16 at 1.) This
amounts to a concession that substantial evidence supports
the ALJ's determinations despite whatever errors she may
have made. Thus there is no need for further analysis of Mr.
Moseley's objection to the ALJ's analysis at step
two, as even if error is present, he concedes that it would
not constitute reversible error under the harmless error
standard. See Burch v. Barnhart, 400 F.3d 676, 684
(9th Cir. 2005) (affirming the ALJ following application of
the harmless error standard to an error at step two). The
findings of the ALJ at step two are affirmed.
Weighing Medical Opinions
in this circuit distinguish among the opinions of three types
of physicians: (1) those who treat the claimant (treating
physicians); (2) those who examine but do not treat the
claimant (examining physicians); and (3) those who neither
examine nor treat the claimant (nonexamining
physicians).” Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995), as amended (Apr. 9, 1996). The
opinions of treating physicians are entitled to greater
weight than the opinions of examining physicians, whose
opinions are in turn entitled to greater weight than
nonexamining physicians. Id. “[T]he
Commissioner must provide ‘clear and convincing'
reasons” for rejecting the uncontradicted opinion of a
treating or examining physician. Id. However, if a
treating or examining physician's opinion is
contradicted, then his opinion may be “rejected for
specific and legitimate reasons that are supported by
substantial evidence in the record.” Id. at
Rappoport has treated Mr. Moseley for reoccurring back pain
since 2009. He opined that Mr. Moseley has severe limitations
that preclude him from employment. Specifically, he
determined that Mr. Moseley can sit and stand for less than
two hours at a time, and that Mr. Moseley would need to
switch positions every twenty minutes. (Tr. 859.) Dr.
Rappoport also determined that Mr. Moseley's severe pain
would force him to miss more than six days of work per month,
and that he would be off-task for more than twenty percent of
the work day due to his pain levels. (Tr. 860.)
“afford[ed] minimal weight to the opinions of Dr.
Rappoport.” (Tr. 30.) In doing so, the ALJ noted that
1) it appeared that Dr. Rappoport relied on the
claimant's subjective complaints, 2) Dr. Rappoport's
treatment notes were inconsistent with such severe
limitations and 3) Dr. Rappoport's findings were
inconsistent with the most recent objective medical evidence.
(Tr. 30-31.) Mr. Moseley contends that these rationales are
insufficient for discrediting Dr. Rappoport's opinions.
failed to support his assertion that Dr. Rappoport relied too
heavily on the claimant's subjective reports. “An
ALJ may reject a treating physician's opinion if it is
based to a large extent on a claimant's self-reports that
have been properly discounted as incredible, ” but this
generally applies where there is “little independent
analysis or diagnosis.” Tommasetti v. Astrue,
533 F.3d 1035, 1041 (9th Cir. 2008). Further, “when an
opinion is not more heavily based on a patient's
self-reports than on clinical observations, there is no
evidentiary basis for rejecting the opinion.”
Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir.
2014). The record in this case reflects that Mr.
Moseley's medical conditions were verified through
diagnostic tests beyond the claimant's self-reported
symptoms, and the ALJ offered no basis for his assertion that
Dr. Rappoport relied too heavily on Mr. Moseley's
self-reports. Thus, the ALJ erred in considering this factor
while weighing Dr. Rappoport's opinion.
properly considered, however, the contradictions between Dr.
Rappoport's treatment notes and his disability assessment
in determining how much weight to give to Dr. Rappoport's
medical opinion. “[C]onflict between treatment notes
and a treating provider's opinions may constitute an
adequate reason to discredit the opinions of a treating
physician or another treating provider.”
Ghanim, 763 F.3d at 1161. The ALJ noted that in
September of 2014 Dr. Rappoport described an MRI of Mr.
Moseley's lumbar spine as “pristine, ” and
that Dr. Rappoport could not detect any neural compression at
that time. (Tr. 30-31, 325.) The ALJ went on to note that in
December of 2014, Dr. Rappoport explained that while Mr.
Moseley did appear to have some tenderness over both SI
joints, he did not believe that this pain was coming from his
lumbar spine because Mr. Moseley's symptoms did not
correlate with such a finding even if an EMG test suggested
that it was the cause. (Tr. 30-31, 323.) Despite these
findings, Dr. Rappoport ultimately opined that Mr.
Moseley's status-post lumbar spine fusion was an
impairment that affected his ability to function. (Tr. 859.)
The ALJ properly considered these inconsistences while
weighing Dr. Rappoport's opinion. (Tr. 30-31, 325, 859.)
also properly considered the inconsistency between the extent
of the limitations contained in Dr. Rappoport's opinion
and the objective medical evidence. An ALJ may properly
reject the opinion of a treating physician if it is
inconsistent with the objective medical evidence of the
record. See Batson, 359 F.3d at 1195
(“Further, an ALJ may discredit treating
physicians' opinions that are conclusory, brief, and
unsupported by the record as a whole, or by objective medical
findings” (citation omitted)). The ALJ specifically
noted that Dr. Rappoport's opinion was contradicted by
the most recent MRI of Mr. Moseley's lumbar spine, taken
in October of 2015, which demonstrated only “mild wedge
compression fractures and no central canal stenosis.”
(Tr. 31, 779.) Likewise, the ALJ also noted that the most
recent MRI of Mr. Moseley's SI joints “revealed
unremarkable findings, ” which is at odds with the
extreme limitations noted by Dr. Rappoport. (Tr. 31, 776.)