Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bergin v. Berryhill

United States District Court, D. Arizona

July 28, 2017

Brian Bergin, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          David G. Campbell United States District Judge

         Plaintiff Brian Bergin 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 not supported by substantial evidence and is based on legal error, the Commissioner's decision will be vacated and the matter remanded for further administrative proceedings.

         I. Background.

         On April 23, 2012, Plaintiff applied for disability insurance benefits and supplemental security income, alleging disability beginning August 1, 2011. On September 11, 2014, he appeared with his attorney and testified at a hearing before an administrative law judge (“ALJ”). A vocational expert also testified. On January 23, 2015, the ALJ issued a decision that Plaintiff was not disabled within the meaning of the Social Security Act. The Appeals Council denied 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). A 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, a 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 this 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.

         The ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). In reviewing the ALJ's reasoning, the court is “not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).

         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, but at step five, the burden shifts to the Commissioner. 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, 2012, and that he has not engaged in substantial gainful activity since August 1, 2011. At step two, the ALJ found that Plaintiff has the following severe impairments: “lumbar degenerative disc disease, history of pulmonary hypertension, coronary artery disease, obesity, copd, status post lumbar surgeries, hypertension, degenerative joint disease of the knees, hypothyroidism, hypoganidism, diverticular disease, and anemia.” A.R. 24.

         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 “residual functional capacity to perform the full range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a).” A.R. 28. The ALJ further found that Plaintiff is capable of performing past relevant work as a customer service clerk. A.R. 32.

         At step five, the ALJ concluded, without explanation, “claimant has not been under a disability, as defined in the Social Security Act, from August 1, 2011, through the date of this decision.” A.R. 32.

         IV. Analysis.

         Plaintiff argues that the ALJ's decision is defective for four reasons: (1) she assigned less weight to the opinion of Plaintiff's treating physician, Dr. Hassan Kahn, than was proper; (2) she erred in weighing opinion evidence from Dr. Walter Bell, a non-examining, non-treating physician; (3) she erred in weighing Plaintiff's symptom testimony; and (4) she erred by rejecting the report of Plaintiff's mother. See Doc. 14.

         A. Weighing of Medical Source Evidence.

         1. Legal Standard

         The Commissioner is responsible for determining whether a claimant meets the statutory definition of disability, and need not credit a physician's conclusion that the claimant is “disabled” or “unable to work.” 20 C.F.R. § 404.1527(d)(1). But the Commissioner generally must defer to a physician's medical opinion, such as statements concerning the nature or severity of the claimant's impairments, what the claimant can do, and the claimant's physical or mental restrictions. § 404.1527(a)(2), (c).

         In determining how much deference to give a physician's medical opinion, 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 the 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, 53 F.3d at 1040-41; 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 a treating or examining physician's medical opinion is not contradicted by another doctor, the opinion can be rejected only for clear and convincing reasons. Lester, 81 F.3d at 830 (citation omitted). Under this standard, the ALJ may reject a treating or examining physician's opinion if it is “conclusory, brief, and unsupported by the record as a whole[ ] or by objective medical findings, ” Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004), or if there are significant discrepancies between the physician's opinion and her clinical records, Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

         When a treating or examining physician's opinion is contradicted by another doctor, it can be rejected “for specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citation omitted). To satisfy this requirement, the ALJ must set 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). Under either standard, “[t]he 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 v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).

         2. Hassan Kahn, M.D.

         Dr. Kahn has been Plaintiff's treating physician since at least 2010. A.R. 317 (August 2010 Treatment Record for Plaintiff completed by Dr. Kahn). On April 24, 2014, Dr. Kahn provided a medical source statement and opined that, in an eight hour work day, Plaintiff is limited to two hours of sitting, less than two hours standing or walking, and lifting or carrying less than ten pounds. A.R. 480-81. Dr. Kahn also opined that it is necessary for Plaintiff to alternate positions roughly every 20 minutes, and that each position change would require a rest period of 5-9 minutes. Id. Additionally, he concluded that Plaintiff would suffer moderately severe additional limitations due to pain and fatigue, and that he would miss over six days per month as a result of his medical condition. Id. Dr. Kahn stated that he had reviewed treatment notes from other providers. Id.

         The ALJ assigned “minimal weight” to Dr. Kahn's opinion. His entire explanation was as follows: “Although Dr. Kahn was a treating source, his opinion was not supported by the medical evidence of record, and was certainly not supported by the claimant's reported activities of daily living. Dr. Kahn's opinion would render the claimant bedridden, which was not supported ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.