United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge.
before the Court is Plaintiff Susan Gross's appeal of the
Social Security Administration's decision to deny
disability benefits. (Doc. 1). For the reasons set forth
below, this Court affirms the decision.
January 5, 2012, Ms. Gross filed an application for
disability insurance benefits, claiming onset of disability
from November 28, 2011. (Tr. 16). She claimed disability due
to degeneration of the lumbar disc and cervical spine,
depression, anxiety, and arthritis. (Tr. 189). The Social
Security Administration denied the claim on July 5, 2012 and
on reconsideration on May 30, 2013. (Tr. 16). Ms. Gross
requested a hearing with an Administrative Law Judge
(“ALJ”) and testified before ALJ Earl Cates on
April 8, 2014 and January 13, 2015. (Tr. 16).
undertook the five-step sequential evaluation to determine
Ms. Gross's claim of disability and concluded that she was
not disabled under governing law. (Tr. 13-37). At step one,
the ALJ found that Ms. Gross has not engaged in substantial
gainful activity since November 28, 2011. (Tr. 18). At step
two, the ALJ concluded that Ms. Gross did not suffer from
medically determinable mental impairments of cognitive
disorder, depression, and anxiety, but that she did suffer
from degenerative disc disease of the lumbar spine, from
associated lumbago and paresthesias, and from degenerative
disc disease of the cervical spine. (Tr. 18-19). At step
three, the ALJ determined that none of the impairments met or
equaled one of the Social Security Administration's
listed impairments for benefits. (Tr. 22).
at step four, the ALJ determined Ms. Gross's residual
function capacity (“RFC”). He concluded that
she could perform medium work as defined in 20 C.F.R.
404.1567(c), except that she could frequently lift or carry
11-20 pounds and occasionally lift or carry 21-50 pounds.
(Tr. 22). The ALJ also concluded that Ms. Gross is capable of
working in her previous positions as a real estate sales
agent, medical secretary, nurse assistant, and cardiac
monitor technician. (Tr. 28).
review, the ALJ discredited Ms. Gross's treating
physicians and relied on the opinions of other examining
physicians. (Tr. 22-28). He also discredited Ms. Gross's
subjective testimony about the severity of her symptoms. (Tr.
Gross sought review from the Appeals Council, but the Appeals
Council declined to review the ALJ's decision. (Tr. 2).
Ms. Gross subsequently filed this appeal.
Standard of Review
reviewing federal court will 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).
is responsible for resolving conflicts in testimony,
determining credibility, and resolving ambiguities. See
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.'”
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007) (quoting 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).
Gross argues the ALJ erred when he (A) rejected the medical
opinions of treating physicians; (B) afforded weight to the
medical opinions of non-treating physicians; and (C)
discredited Ms. Gross's subjective testimony. (Doc. 17).
The ALJ Justifiably Discredited Ms. Gross's Treating
must give a treating physician's medical opinion
controlling weight concerning a claimant's impairment
“if that opinion is well-supported and not inconsistent
with the other substantial evidence in the case
record.” Edlund v. Massanari, 253 F.3d 1152,
1157 (9th Cir. 2001), as amended on reh'g (Aug.
9, 2001); see Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995), as amended (Apr. 9, 1996)
(“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.”). However, an
“ALJ need not accept a treating physician's opinion
which is ‘brief and conclusionary in form with little
in the way of clinical findings to support [its]
conclusion.'” Magallanes v. Bowen, 881
F.2d 747, 751 (9th Cir. 1989) (quoting Young v.
Heckler, 803 F.2d 963, 968 (9th Cir.1986)).
treating physician's opinion is contradicted by another
doctor, an ALJ can reject the treating physician's
opinion only if she provides “specific and legitimate
reasons supported by substantial evidence in the
record.” Lester, 81 F.3d at 831 (internal
quotations omitted). “Sheer disbelief is no substitute
for substantial evidence, ” and thus, an ALJ must
specify which evidence supports the decision to reject the
treating physician's opinion. Benecke v.
Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). An ALJ may
cite to diagnostic test results, contrary reports from
examining physicians, and conflicting testimony from the
claimant to reject the opinion of a treating physician.
Benecke, 379 F.3d at 594.
rejected Dr. Purush's medical opinion because he started
treating Ms. Gross one year after the alleged onset date; the
opinion was inconsistent with her history and objective
medical evidence; and the opinion was inconsistent with her
improvement from medical treatment. (Tr. 28).
treating physician first examines a patient after the alleged
onset date, an ALJ may reject the retrospective assessment if
the opinion is conclusory and does not consider the previous,
relevant medical history. Johnson v. Shalala, 60
F.3d 1428, 1432- 33 (9th Cir. 1995).
Purush first met with Ms. Gross on November 27, 2012, (Tr.
1231), one year after the alleged onset date, and he
completed a physical capacities evaluation more than two
years later on January 7, 2015. (Tr. 2275-76). At the 2012
appointment, Dr. Purush reviewed Ms. Gross's medical
records and only instructed her to continue current
medications, exercise, and not do any heavy lifting. (Tr.
1234). He conducted the 2015 evaluation telephonically and
relied on “advanced cerebral atrophy, abnormal EKG,
abnormal vision, lumbar degeneration, and early onset
dementia” to reach his conclusion that Ms. Gross was
disabled. (Tr. 2276). Because the evaluation conflicts with
his initial appointment, does not reference medical evidence
prior to their first appointment, and is otherwise
conclusory, the ALJ reasonably discredited Dr. Purush's
later medical opinion.
may reject a treating physician's opinion because it is
inconsistent with objective medical evidence. Because of back
pain, Ms. Gross visited the emergency room on November 28,
2011, the alleged onset date of disability. (Tr. 426). The
doctor ordered x-rays and noted that they showed “no
significant fracture or abnormality.” (Tr. 427). The
doctor noted that Ms. Gross “has a normal mental
status” and “has no anxiety, depression or
agitation.” (Tr. 427). Lastly, the doctor prescribed no
work for two days. (Tr. 427). A follow-up MRI confirmed that
Ms. Gross suffered from ...