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 XVI of the Social Security Act, 42
U.S.C. §§ 1381-1383f. Plaintiff Karen Marlene
Pontzious has timely filed her opening brief,  to which
defendant, Nancy A. Berryhill, the acting Commissioner of the
Social Security Administration, has responded. Oral argument was
not requested and is not deemed necessary.
11, 2012, plaintiff filed an application for disability
benefits under Title XVI of the Social Security Act.
Plaintiff originally alleged that she became disabled on
March 1, 2005. However, this date was later amended to May
11, 2012. Plaintiff alleges that she is disabled due to
rheumatoid arthritis, ADHD, depression, chronic pain,
insomnia, and anxiety. Plaintiff's application was denied
initially and on reconsideration. After an administrative
hearing on January 9, 2015, the administrative law judge
(ALJ) denied plaintiff's claims. On September 19, 2016,
the Appeals Council denied plaintiff's request for
review, thereby making the ALJ's March 10, 2015 decision
the final decision of the Commissioner. On November 18, 2016,
plaintiff commenced this action in which she asks the court
to find that she is entitled to disability benefits.
was born on January 23, 1961. She was 51 years old on the
date her benefits application was filed. Plaintiff has a high
school education. Plaintiff's past relevant work includes
work as a nurse assistant and a dorm counselor.
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 May 12, 2012, the
two, the ALJ found that plaintiff had “the following
severe impairments: cervical and lumbar degenerative disc
disease; arthritis; depression; and
anxiety.” The ALJ found plaintiff's fracture of
the tip of her sacrum, bursitis, and urinary frequency
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 1.04
(disorders of the spine), 14.09 (arthritis), 12.04 (affective
disorder), and 12.06 (anxiety related disorders). The ALJ
considered the “paragraph B” criteria and found
that plaintiff had mild restriction in activities of daily
living; moderate difficulties in social functioning; moderate
difficulties with regard to concentration, persistence, or
pace; and no episodes of decompensation, which had been of
extended duration. The ALJ also found that the
“paragraph C” criteria had not been
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 light work as
defined in 20 CFR 416.967(b) except that she is limited to
frequent climbing of ramps and stairs, balancing, stooping,
crouching, kneeling and crawling but no climbing ladders,
ropes, and scaffolds; she should avoid concentrated exposure
to nonweather related extreme cold and heat, excessive
vibration, dangerous machinery with moving or mechanical
parts, and unprotected heights that are high or exposed; she
is limited to simple, routine, and repetitive tasks; and she
is further limited to minimal interaction with the public and
only occasional interaction with co-workers and supervisors,
but she can still be in the vicinity of others.
found plaintiff's pain and symptom statements less than
credible because they were not supported by the objective
medical evidence, because her impairments have been managed
with conservative treatment, because of noncompliance with
treatment, because of a gap in treatment from 2010 to 2012
for her mental impairments, because her mental impairments
improved with treatment, and because her statements were
inconsistent with her reported daily
activities. The ALJ also found plaintiff's pain
and symptom statements less than credible because of
plaintiff's sporadic work history and because
“[h]er testimony and presentation has been vague,
exaggerated, and inconsistent.”
gave significant weight to the opinions of Dr.
Disney and Dr. Bargan.The ALJ gave some
weight to the opinion of Dr.
Baugh. The ALJ gave partial weight to the
opinion of Dr. Cano. The ALJ gave minimal weight to the
opinion of Dr. Stonecipher.The ALJ gave minimal weight to
the opinions of Dr. Joseph and Dr. Tromp. The ALJ gave
little weight to the opinion of Dr.
Emery and minimal weight to
plaintiff's GAF scores.The ALJ did not mention the
opinion of Dr. Zuess. The ALJ also did not mention Dr.
Downs' opinion. The ALJ gave minimal
weight to the lay testimony of plaintiff's
four, the ALJ found that plaintiff was “unable to
perform any past relevant work....”
step five, the ALJ found that “there are jobs that
exist in significant numbers in the national economy that the
claimant can perform[, ]” including routing clerk,
marker, and cleaner/housekeeper. 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, since May
11, 2012, the date the application was
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.
Stonecipher's opinion. On January 5, 2015, Dr.
Stonecipher opined that plaintiff could occasionally
lift/carry 20 pounds; could frequently lift/carry 10 pounds;
could stand/walk for less than 2 hours; could sit for six
hours; would need to alternate sitting and standing very
frequently; could never climb, balance, kneel, crouch, or
crawl; could occasionally stoop, handle, do fine
manipulation, feel, and reach; and should avoid heights and
moving machinery. Dr. Stonecipher also opined that
plaintiff had moderately severe pain which would constantly
interfere with attention and concentration and would result
“in [a] failure to complete tasks in a timely manner
(in work settings or elsewhere)[.]”
Stonecipher 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.
Stonecipher's opinion was contradicted by Dr.
Disney's and Dr. Bargan's opinions; so, the ALJ was
required to give specific and legitimate reasons for
rejecting his opinion. Plaintiff argues that none of the
reasons given by the ALJ were legitimate.
first reason given by the ALJ was that Dr. Stonecipher's
opinion was not consistent with the other medical evidence of
record, including his own treatment notes. The ALJ noted that
Dr. Stonecipher's treatment notes reflected that
plaintiff's symptoms seem to be well
controlled. The ALJ cited to an October 1, 2014
treatment note in which Dr. Stonecipher noted that
plaintiff's rheumatoid arthritis “seems well
controlled” with methotrexate and a January 23, 2014
treatment note from a provider other than Dr. Stonecipher
that does not state, one way or another, whether
plaintiff's symptoms were well controlled. The ALJ's
reference to a single treatment note from Dr. Stonecipher is
insufficient support for the ALJ's finding that Dr.
Stonecipher's opinion was inconsistent with his treatment
notes. The ALJ also did not explain exactly how Dr.
Stonecipher's opinion was inconsistent with his treatment
notes but rather simply concluded that it was. “The 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.” Reddick v. Chater,
157 F.3d 715, 725 (9th Cir. 1998). The first reason given by
the ALJ was not legitimate.
second reason given by the ALJ for rejecting Dr.
Stonecipher's opinion was that it “appears largely
sympathetic and based on the claimant's subjective
complaints....” This was not a legitimate reason
because an “ALJ ‘may not assume that doctors
routinely lie in order to help their patients collect
disability benefits.'” Davis v. Colvin,
Case No. CV-13-00679-TUC-CRP, 2015 WL 5730581, at *5 (D.
Ariz. Sept. 30, 2015) (quoting Lester 81 F.3d at
832). “While the Commissioner may introduce evidence of
actual improprieties, the ALJ cited no such evidence here and
none is apparent in the record.” Id. In
addition, basing a medical opinion, at least in part, on the
patient's subjective complaints “hardly undermines
[the] opinion as to [the patient's] functional
limitations, as ‘[a] patient's report of
complaints, or history, is an essential diagnostic
tool.'” Green-Younger v. Barnhart, 335
F.3d 99, 107 (2d Cir. 2003) (quoting Flanery v.
Chater, 112 F.3d 346, 350 (8th Cir. 1997)).
third reason given by the ALJ for rejecting Dr.
Stonecipher's opinion was that he did not provide any
explanation for his opinion “as it is set forth on a
standard form.” This was not a legitimate reason
because a check-the-box form may be supported by a
physician's treatment notes. Garrison v. Colvin,
759 F.3d 995, 1013 (9th Cir. 2014). Dr. Stonecipher's
three years of treatment notes provide adequate support for
his opinion as these notes show that plaintiff had ongoing
symptoms of joint pain, neck pain and back pain with
radiculopathy for which she was prescribed significant pain
medications. Moreover, the Ninth Circuit has noted that
“there is no authority that a ‘check-the-box'
form is any less reliable than any other type of form;
indeed, agency physicians routinely use these types of forms
to assess the intensity, persistence, or limiting effects of
impairments.” Trevizo v. Berryhill, 871 F.3d
664, 677 n.4 (9th Cir. 2017).
fourth reason given by the ALJ was that Dr. Stonecipher did
not “have a long term treating relationship” with
plaintiff. This was not a legitimate reason because
Dr. Stonecipher treated plaintiff over a three-year period
during which he saw her ten times.
fifth reason given by the ALJ was that Dr. Stonecipher was a
general practitioner rather than a specialist. “While
this fact alone is not a reason to reject a [medical]
assessment, it is true that more weight generally is given to
the opinion of a specialist about issues within that
specialist's area of expertise than to the opinion of a
source who is not a specialist.” Stivers v.
Colvin, Case No. 3:15-cv-00270-BAS-NLS, 2016 WL 8731091,
at *10 (S.D. Cal. Jan. 15, 2016) (citation omitted). Here,
there were no opinions from any specialists that were
contrary to Dr. Stonecipher's opinion. But even if this
were a legitimate reason, it was the only legitimate reason
given by the ALJ for rejecting Dr. Stonecipher's opinion
and thus it provides insufficient support for the ALJ's
rejection of Dr. Stonecipher's opinion.
next argues that the ALJ erred in rejecting Dr. Joseph's
and Dr. Tromp's opinions. Dr. Joseph examined plaintiff
on October 10, 2012. He opined that plaintiff
is likely to respond to minimal stress with a high level of
emotionality, anxiety and uncontrolled crying. As a result,
she will have difficulty with short term memory. Ms.
Pontzious would likely require frequent repetition of
instruction to learn new detailed tasks. Because of high
levels of anxiety and emotionality, Ms. Pontzious would have
considerable difficulty maintaining attention and
concentration on work-related tasks. She is likely to find
this frustrating and distressing and in turn experience
continuing or higher levels of emotionality. In my opinion
Ms. Pontzious' primary barrier to maintaining employment
is emotional instability. She exhibits very limited stress
tolerance and is likely to respond to an addition of minimal
stress with significant anxiety, reaching panic levels at
times and uncontrolled crying. She would likely respond to
corrective feedback by feeling unfairly singled out for
mistreatment. She is likely to respond defensively, with
irritability and agitation. I do not believe Ms. Pontzious
would be capable of maintaining emotional stability and
appropriate social behavior in the typical work setting.
Because of distraction associated with anxiety and
generalized emotionality, in ... the best of circumstances
Ms. Pontzious would be slow to recognize and respond to
workplace hazards. She is likely to respond to crisis or
emergency situations with a high level of anxiety and
confusion. I do not believe she would be capable of making
quick decisions and exercising good judgment in such
Tromp evaluated plaintiff on June 6, 2013. She opined that
anxiety, tearfulness and agitation will likely impact her
memory and comprehension for anything other than simple
tasks. ... Her anxiety and emotional lability will likely
interfere [with sustained concentration and persistence.] ...
[S]he would have trouble interacting socially in any setting.
She is too easily upset and she becomes tearful, loud and
agitated easily. She seems to escalate on her own unless
redirected. She has poor stress tolerance, persecutory
ideation, and is highly agitated and may overreact or react
with excessive anxiety, which may lead to
the opinion of a treating doctor, the opinion of an examining
doctor, even if contradicted by another doctor, can only be
rejected for specific and legitimate reasons that are
supported by substantial evidence in the record.”
Lester, 81 F.3d at 830-31. Plaintiff argues that
none of the reasons given by the ALJ for rejecting Dr.
Joseph's and Dr. Tromp's opinions, which the ALJ
considered together, were legitimate reasons supported by
first reason the ALJ gave for rejecting Dr. Joseph's and
Dr. Tromp's opinions was that “[t]heir assessments
are based on one examination during which they both appeared
to rely heavily on the claimant's subjective complaints
and presentation. It is noted that at both examinations she
was agitated and weeping, whereas at other times she was
noted to be calm....” This was not a legitimate
reason. First of all, if rejecting an examining
physician's opinion simply because the doctor only saw
the claimant once was a legitimate reason, then there would
be no role for examining physician's opinions in the
Social Security disability regime, which is not the case.
ALJs often rely on examining physicians' opinions when
assessing the functional capacity of claimants. In addition,
as discussed above, basing a medical opinion, at least in
part, on the patient's subjective complaints
“hardly undermines [the] opinion as to [the
patient's] functional limitations, as ‘[a]
patient's report of complaints, or history, is an
essential diagnostic tool.'”
Green-Younger, 335 F.3d at 107 (quoting
Flanery, 112 F.3d at 350). Moreover, it was not
clear why the ALJ was troubled by the fact that plaintiff was
agitated and weeping during her exams, but was reported to be
calm during other exams. It is also worth noting that both
Dr. Joseph and Dr. Tromp considered plaintiff's
credibility and found her credible. Dr. Joseph noted that
appeared to give an honest effort to provide information. She
was very irritable and agitated; and became defensive when
asked for clarification on interview questions. She initially
said her anxiety and depression began in 2005; after she was
diagnosed with rheumatoid arthritis. She later described
anxiety[, ] depression, uncontrolled crying occurring
following her son's death in 1998 and after her father
was diagnosed with cancer in 2001. These inconsistencies
appeared to be a matter of lack of insight and being a poor
historian; rather than purposeful
Tromp “agree[d] with Dr. Joseph that [plaintiff was]
genuine and sincere and that her difficulty with self report
is the result of limited insight and intense focus on her
distress. It does not appear purposeful.”
second reason the ALJ gave for rejecting Dr. Joseph's and
Dr. Tromp's opinions was that their “findings are
inconsistent with the overall record, indicating that the
claimant has realized improvement in her symptoms with
medication and that, despite disabling symptoms, she has been
noncompliant with treatment.” This was not a legitimate
the ALJ's finding that plaintiff's mental health
improved with treatment, the ALJ cited to an August 16, 2012
Verde Valley Guidance treatment note that indicated that
plaintiff was “[d]oing much better on increased
zoloft” and a July 25, 2013 Verde Valley
Guidance treatment note that “prozac seems to be
helpful[.]” But this is insufficient evidence to
support the ALJ's finding, particularly given that there
are three years of mental health treatment notes that show
that plaintiff's symptoms varied over time.
the ALJ's finding that plaintiff had not been compliant
with treatment, the ALJ cited to treatment notes from Verde
Valley Guidance that indicated that plaintiff decided on her
own to stop taking some of her medication,  that
plaintiff had no-showed for appointments,  and that
plaintiff's service attendance was poor and her level of
engagement was poor. However, the Ninth Circuit has observed
that “it is a questionable practice to chastise one
with a mental impairment for the exercise of poor judgment in
seeking rehabilitation.” Nguyen v. Chater, 100
F.3d 1462, 1465 (9th Cir. 1996) (citation omitted). Thus, the
ALJ's finding that plaintiff was noncompliant with mental
health treatment does not constitute substantial evidence
supporting the ALJ's rejection of the opinions of Drs.
Joseph and Tromp.
third reason the ALJ gave for rejecting Dr. Joseph's and
Dr. Tromp's opinions was that plaintiff “was not
particular[ly] forthright with the examiners about her
substance abuse and history, thus limiting their overall
impression of the claimant.” Dr. Joseph noted that
plaintiff “said following her son's death, in 1998,
she began using methamphetamine. She continued using until
she was charged with DUI in 2005. She completed court-ordered
treatment and has been sober since that time. She denied any
issues with alcohol or other drugs.” Dr. Tromp
noted that plaintiff denied current substance abuse but that
“[i]n the past she used cannabis for years but has not
used since 1998. She also used crystal meth for a couple of
years, and the last time was in 2005. She denies any other
substance abuse.” Yet as the ALJ noted, plaintiff had
admitted to using methamphetamine once in May
2012 and she tested positive for marijuana
once in 2013.
inconsistencies were not a legitimate reason to reject Dr.
Joseph's and Dr. Tromp's opinions. The ALJ seemed to
believe that if Dr. Joseph and Dr. Tromp had known that
plaintiff had been less than honest about her drug use, then
they might have reached different opinions as to
plaintiff's functional capacity. But this is pure
speculation on the ALJ's part. And if the ALJ really had
this concern, then she should have developed the record on
this issue. “The ALJ in a social security case has an
independent ‘duty to fully and fairly develop the
record and to assure that the claimant's interests are
considered.'” Tonapetyan v. Halter, 242
F.3d 1144, 1150 (9th Cir. 2001) (quoting Smolen v.
Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)).
“”The ALJ's ...