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Moseley v. Commissioner of Social Security Administration

United States District Court, D. Arizona

July 6, 2017

Shawn C. Moseley, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          Honorable G. Murray Snow United States District Judge.

         Pending 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.


         On 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.)

         In evaluating whether Mr. Moseley was disabled, the ALJ undertook the five-step sequential evaluation for determining disability.[1] (Tr. 15-16.) At step one, the ALJ found that Mr. Moseley had not engaged in substantial gainful activity since September 10, 2012.[2] (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.)

         At that point, the ALJ reached step four and made a determination of Mr. Moseley's residual functional capacity (“RFC”), [3] 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.)

         The 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.)


         I. Legal Standard

         A 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).

         The ALJ 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).

         II. Analysis

         A. The ALJ Committed Non-Prejudicial Error by Failing to Address Some Impairments During the Step-Two Analysis

         Mr. 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 impairment.” Id.

         Mr. 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.

         B. Weighing Medical Opinions

         “Cases 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 830-31.

         1. Dr. Rappoport

         Dr. 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.)

         The ALJ “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.

         The ALJ 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.

         The ALJ 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.)

         The ALJ 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.)

         2. ...

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