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Strawn v. Berryhill

United States District Court, D. Arizona

August 7, 2017

CHADWICK PAUL STRAWN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          H. Russel Holland United States District Judge

         This is an action for judicial review of the denial of disability benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff Chadwick Paul Strawn has timely filed his opening brief, [1] to which defendant Nancy A. Berryhill has responded.[2] Oral argument was not requested and is not deemed necessary.

         Procedural Background

         On July 23, 2010, plaintiff filed applications for disability benefits under Title II and Title XVI of the Social Security Act. Plaintiff alleged that he became disabled on July 8, 2010. Plaintiff alleges that he is disabled because of seronegative spondylo-arthopathy, lumbar spinous, degenerative disk disorder, and left hip pain. Plaintiff's applications were denied, and he requested a hearing. After a hearing, an administrative law judge (ALJ) denied plaintiff's applications on May 22, 2012. Plaintiff filed a request for review of the ALJ's unfavorable decision, and on February 18, 2014, the Appeals Council remanded the case to the ALJ for further proceedings. On July 18, 2014, a second administrative hearing was held. After that hearing, the ALJ again denied plaintiff's applications. Plaintiff sought review of this unfavorable decision, and on July 25, 2016, the Appeals Council denied plaintiff's request for review, thereby making the ALJ's February 19, 2015 decision the final decision of the Commissioner. On September 23, 2016, plaintiff commenced this action in which he asks the court to find that he is entitled to disability benefits.

         General Background

         Plaintiff was born on July 16, 1966. He was 47 years old at the time of the July 2014 administrative hearing. Plaintiff has a 10th grade education. Plaintiff lives in a house with his mother. Plaintiff's past relevant work includes work as an order puller and a telephone technical support manager.

         The ALJ's Decision

         The ALJ first determined that plaintiff “meets the insured status requirements of the Social Security Act through December 31, 2015.”[3]

         The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.[4]

         At step one, the ALJ found that plaintiff had “not engaged in substantial gainful activity since July 8, 2010, the alleged onset date....”[5]

         At step two, the ALJ found that plaintiff had “the following severe impairments: degenerative disc disease; left anterior labral tear; femoral acetabular impingement; ankylosing spondylitis; spondyloarthopathy; status post right colectomy and sigmoid resection; [Crohn's] disease; short bowel syndrome; depressive disorder; and an anxiety disorder, not otherwise specified....”[6]

         At step three, the ALJ found that plaintiff did “not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1....”[7] The ALJ considered Listings 1.02 (major dysfunction of a joint), 1.04 (disorders of the spine), 5.01 (digestive system impairments), 5.06 (inflammatory bowel disease), 5.07 (short bowel syndrome), 12.04 (depressive, bipolar and related disorders), and 12.06 (anxiety and obsessive-compulsive disorders). The ALJ considered whether the paragraph B criteria were met and found that plaintiff had no restrictions in activities of daily living; moderate difficulties with social functioning; moderate difficulties with regard to concentration, persistence or pace; and no episodes of decompensation.[8] The ALJ also considered whether the paragraph C criteria were met and found that they were not.[9]

         “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's RFC.” Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009). The ALJ found that plaintiff had

the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except for the following additional limitations: The claimant is capable of standing and walking for 4 hours and sitting for 6 hours during an 8-hour workday. He is capable of occasionally climbing ramps and stairs; however [he is] precluded from climbing ladders, ropes and scaffolds. He is capable of frequent balancing, stooping, kneeling, crouching and crawling. The claimant should not be exposed to hazards such as moving machinery and unprotected heights. He requires ready access to a restroom, which is defined as a workstation within a five-minute walk from a restroom. The claimant retains his ability to perform simple, routine and repetitive work tasks with no public contact. He is precluded from a fast-paced production rate position but is able to perform goal-oriented work that allows for some variability in ... work [pace].[10]

         The ALJ found plaintiff's pain and symptom statements less than credible because plaintiff's “continued unemployment [may be] due to reasons unrelated to his alleged impairments[;] he “has a long history of conservative treatment for back pain[;]” the medical evidence did not support his allegations; and his depression and anxiety “have been effectively treated by counseling and medication.”[11]

         The ALJ “was unable to assign significant” weight to the opinions of Dr. Michels.[12] The ALJ gave little weight[13] to the opinions of Dr. Young, [14] Dr. Fina, [15] Dr. Kalena, [16] and Nurse Mona.[17] The ALJ gave some weight[18] to the third-party testimony of Sheila Riggs, plaintiff's mother.[19] And, the ALJ gave minimal weight[20] to the testimony of Michael Arciero, plaintiff's former boss at Coastal Web Online.[21]

         At step four, the ALJ found that plaintiff was “unable to perform any past relevant work....”[22]

         At step five, the ALJ found that “there are jobs that exist in significant numbers in the national economy that the claimant can perform[, ]” including working as a call out operator or an addresser.[23] This finding was based on the testimony of the vocational expert.[24]

         The ALJ concluded that plaintiff “has not been under a disability, as defined in the Social Security Act, from July 8, 2010, through the date of this decision....”[25]

         Standard of Review

         Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner....” The court “properly affirms the Commissioner's decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence supports the ALJ's decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the Commissioner's decision. Id. But, the Commissioner's decision cannot be affirmed “‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).

         Discussion

         Plaintiff first argues that the ALJ erred in rejecting Dr. Michels' opinions. On April 11, 2012, Dr. Michels opined that plaintiff could occasionally and frequently lift/carry less than 10 pounds; could stand/walk for less than 2 hours; could sit for less than one-half hour; needs to alternate between sitting and standing every 15-30 minutes; could occasionally crawl and reach; could frequently climb, balance, kneel, handle, do fine manipulation, and feel; could continuously stoop and crouch; and should avoid heights, moving machinery, and temperature extremes.[26] On July 7, 2014, Dr. Michels opined that plaintiff could occasionally and frequently lift/carry less than 10 pounds; could stand/walk less than 2 hours; could sit less than 6 hours; would need to alternate sitting and standing every 1/2 hour; could never climb, crouch, crawl, or reach; could occasionally balance, stoop, kneel, and feel; could frequently handle and do fine manipulation; and should avoid heights, moving machinery, and temperature extremes.[27] Dr. Michels also opined that plaintiff's pain would frequently interfere with concentration and attention and frequently cause him to “experience deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere)[.]”[28]

         Dr. Michels was a treating physician. “As 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). “At least where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for ‘clear and convincing' reasons.” Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). “[I]f the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing ‘specific and legitimate reasons' supported by substantial evidence in the record for so doing.” Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Dr. Michels' opinions were contradicted by Dr. Fina's and Dr. Kalena's opinions.[29] Thus, the ALJ was required to provide specific and legitimate reasons for rejecting Dr. Michels' opinions.

         The ALJ rejected Dr. Michels' opinions because 1) “[t]he course of treatment is not what would be expected if the claimant were as limited as Dr. Michel[s] reported[, ]” 2) “the claimant's activity level is inconsistent with the reported restrictions[, ]” and 3) “there are inconsistencies within the opinions[.]”[30] Plaintiff argues that these were not specific and legitimate reasons.

         The ALJ's first reason, that the course of treatment was not what would be expected, was not a specific reason. The ALJ did not offer any specifics as to what treatment would be expected if plaintiff had the limitations that Dr. Michels found. “[T]he complete lack of meaningful explanation gives this court nothing with which to assess [this reason's] legitimacy.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006).

         As for the second reason, that the limitations assessed by Dr. Michels were inconsistent with plaintiff's reported activity level, defendant argues that this was a legitimate reason because Dr. Michels found that plaintiff could only sit for 30 minutes even though plaintiff reported that he could go fishing for 3-4 hours. But, as plaintiff is quick to point out, he reported that “I fish because it allows me to be able to lie down when I need to or walk around or stand.”[31] The other activities that the ALJ pointed to, such as plaintiff helping his mother and father with chores and gardening, are not inconsistent with the limitations that Dr. Michels assessed. The fact that plaintiff engaged in some limited activities does not mean that he was not as limited as Dr. Michels opined. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (finding that “a holistic review of the record does not reveal an inconsistency between the treating providers' opinions and Ghanim's daily activities. Although Ghanim performed some basic chores and occasionally socialized, the record also reveals that he relied heavily on his caretaker, struggled with social interactions, and limited himself to low-stress environments”).

         The ALJ's third reason, that there were inconsistencies in Dr. Michels' opinions, is not sufficiently specific for the court to review. The ALJ did not identify what the inconsistencies were in Dr. Michels' opinion but rather just stated that there were inconsistencies. Without any explanation from the ALJ as to what inconsistencies she found in Dr. Michels' opinions, there is nothing for the court to review.

         Defendant also contends that the ALJ found that Dr. Michels' opinions were inconsistent with his treatment records, but there is no such finding in the ALJ's decision. The court can only “review the reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Here, none of the reasons the ALJ asserted for rejecting Dr. Michels' opinions were specific and legitimate.

         Plaintiff next argues that the ALJ erred in rejecting Dr. Young's opinion. Dr. Young opined that

[c]ognitively, [plaintiff] presents as an individual who has the average ability to learn. His memory function appears to be largely intact. Organization and planning skills appear to be adequate. His concentration and persistence is affected by his level of pain that he is experiencing, general discomfort, and secondary effects of his medications. He also gets discouraged and anxious about his present circumstances and limitations. He has very limited social contact outside of his immediate family. He is adapting as best he can to his present circumstances. He needs an environment where there is considerable flexibility in execution of duties and responsibilities.[32]

         Dr. Young was an examining source. “The opinion of an examining doctor ... can only be rejected for specific and legitimate reasons that are supported by substantial ...


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