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Gross v. Commissioner of Social Security Administration

United States District Court, D. Arizona

November 2, 2017

Susan Gross, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          Honorable G. Murray Snow United States District Judge.

         Pending 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.


         On 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).

         The ALJ undertook the five-step sequential evaluation to determine Ms. Gross's claim of disability[1] 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).

         Next, at step four, the ALJ determined Ms. Gross's residual function capacity (“RFC”).[2] 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).

         In his 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. 22-28).

         Ms. 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.


         I. Standard of Review

         A 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).

         The ALJ 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).

         II. Analysis

         Ms. 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).

         A. The ALJ Justifiably Discredited Ms. Gross's Treating Physicians

         An ALJ 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)).

         If the 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.

         1. Dr. Purush

         The ALJ 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).

         When a 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).

         Dr. 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.

         An ALJ 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 ...

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