United States District Court, D. Arizona
Russel Holland United States District Judge
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,
which defendant Nancy A. Berryhill has
responded. Oral argument was not requested and is not
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.
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.
first determined that plaintiff “meets the insured
status requirements of the Social Security Act through
December 31, 2015.”
then applied the five-step sequential analysis used to
determine whether an individual is disabled.
one, the ALJ found that plaintiff had “not engaged in
substantial gainful activity since July 8, 2010, the alleged
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
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....” 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. The ALJ also considered whether
the paragraph C criteria were met and found that they were
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 ...
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
“was unable to assign significant” weight to the
opinions of Dr. Michels. The ALJ gave little
weight to the opinions of Dr. Young,
Dr. Fina,  Dr. Kalena,  and Nurse
Mona. The ALJ gave some weight to the
third-party testimony of Sheila Riggs, plaintiff's
mother. And, the ALJ gave minimal
weight to the testimony of Michael Arciero,
plaintiff's former boss at Coastal Web
four, the ALJ found that plaintiff was “unable to
perform any past relevant work....”
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. This finding was based on the
testimony of the vocational expert.
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
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.
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. 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. 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
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. Thus, the ALJ was required to
provide specific and legitimate reasons for rejecting Dr.
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[.]” Plaintiff argues that these were not
specific and legitimate reasons.
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).
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.” 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
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
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
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
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 ...