United States District Court, D. Arizona
G. Campbell United States District Judge
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
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.
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
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.
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.
The ALJ's Five-Step Evaluation Process.
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).
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.
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.
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.
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.
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.
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.
Weighing of Medical Source Evidence.
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).
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).
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.
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).
Hassan Kahn, M.D.
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
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 ...