United States District Court, D. Arizona
Honorable John Z. Boyle, United States Magistrate Judge.
Ana Patricia Pangburn Ramirez seeks review under 42 U.S.C.
§ 405(g) of the final decision of the Commissioner of
Social Security (“the Commissioner”), which
denied her disability insurance benefits and supplemental
security income under sections 216(i), 223(d), and
1614(a)(3)(A) of the Social Security Act. Because the
decision of the Administrative Law Judge (“ALJ”)
is supported by substantial evidence and is not based on
legal error, the Commissioner's decision will be
September 19, 2012, Plaintiff applied for disability
insurance benefits and supplemental security income, alleging
disability beginning August 28, 2012. On January 12, 2015,
she appeared with her attorney and testified at a hearing
before the ALJ. A vocational expert also testified. On April
8, 2015, the ALJ issued a decision that Plaintiff was not
disabled within the meaning of the Social Security Act. The
Appeals Council denied Plaintiff's request for review of
the hearing decision, making the ALJ's decision the
Commissioner's final decision.
district court reviews only those issues raised by the party
challenging the ALJ's decision. See Lewis v.
Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court
may set aside the Commissioner's disability determination
only if the determination is not supported by substantial
evidence or is based on legal error. Orn v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is
more than a scintilla, less than a preponderance, and
relevant evidence that a reasonable person might accept as
adequate to support a conclusion considering the record as a
whole. Id. In determining whether substantial
evidence supports a decision, the court must consider the
record as a whole and may not affirm simply by isolating a
“specific quantum of supporting evidence.”
Id. As a general rule, “[w]here the evidence
is susceptible to more than one rational interpretation, one
of which supports the ALJ's decision, the ALJ's
conclusion must be upheld.” Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations
error principles apply in the Social Security Act context.
Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.
2012). An error is harmless if there remains substantial
evidence supporting the ALJ's decision and the error does
not affect the ultimate nondisability determination.
Id. The claimant usually bears the burden of showing
that an error is harmful. Id. at 1111.
is responsible for resolving conflicts in medical testimony,
determining credibility, and resolving ambiguities.
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995). In reviewing the ALJ's reasoning, the court is
“not deprived of [its] faculties for drawing specific
and legitimate inferences from the ALJ's opinion.”
Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir.
The ALJ's Five-Step Evaluation Process.
determine whether a claimant is disabled for purposes of the
Social Security Act, the ALJ follows a five-step process. 20
C.F.R. § 404.1520(a). The claimant bears the burden of
proof on the first four steps, but at step five, the burden
shifts to the Commissioner. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999).
first step, the ALJ determines whether the claimant is
engaging in substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i). If so, the claimant is not disabled and
the inquiry ends. Id. At step two, the ALJ
determines whether the claimant has a “severe”
medically determinable physical or mental impairment. §
404.1520(a)(4)(ii). If not, the claimant is not disabled and
the inquiry ends. Id. At step three, the ALJ
considers whether the claimant's impairment or
combination of impairments meets or medically equals an
impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt.
404. § 404.1520(a)(4)(iii). If so, the claimant is
automatically found to be disabled. Id. If not, the
ALJ proceeds to step four. At step four, the ALJ assesses the
claimant's residual functional capacity
(“RFC”) and determines whether the claimant is
still capable of performing past relevant work. §
404.1520(a)(4)(iv). If so, the claimant is not disabled and
the inquiry ends. Id. If not, the ALJ proceeds to
the fifth and final step, where he determines whether the
claimant can perform any other work based on the
claimant's RFC, age, education, and work experience.
§ 404.1520(a)(4)(v). If so, the claimant is not
disabled. Id. If not, the claimant is disabled.
one, the ALJ found that Plaintiff meets the insured status
requirements of the Social Security Act through December 31,
2017, and that she has not engaged in substantial gainful
activity since August 28, 2012. At step two, the ALJ found
that Plaintiff has the following severe impairments:
“chronic anal fissure, migraines, diabetes mellitus,
obesity, sleep apnea, and depression.” (AR 18.) At step
three, the ALJ determined that Plaintiff does not have an
impairment or combination of impairments that meets or
medically equals an impairment listed in Appendix 1 to
Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ found
that Plaintiff has the RFC to perform:
light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except that the claimant can occasionally lift 50 pounds and
occasionally lift 25 pounds; the claimant can stand or walk
for 4 hours in an 8-hour workday and sit for 6 hours in an
8-hour workday; the claimant can occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl but never
climb ladders, ropes or scaffolds; the claimant should avoid
moderate exposure to extreme cold and excessive noise, use of
hazardous machinery not including motor vehicles and moderate
exposure to unprotected heights; the claimant is able to work
in positions where the complexity of the tasks are learned
and performed by rote with few variables and little judgment
required; and the claimant is able to work in jobs where
interpersonal contact is incidental to the work performed and
supervision is simple, direct, and concrete.
further found that Plaintiff is unable to perform any of his
past relevant work. At step five, the ALJ concluded that,
considering Plaintiff's age, education, work experience,
and RFC, there are jobs that exist in significant numbers in
the national economy that Plaintiff could perform.
argues the ALJ erred in his decision by: (1) rejecting the
assessments of Plaintiff's treating physician, in favor
of according “significant weight” to the opinion
of a state agency reviewer; (2) rejecting the assessment of
the psychiatric consultative examiner, instead assigning
“significant weight” to opinions of non-examining
reviewers; (3) rejecting Plaintiff's symptom testimony;
(4) failing to account for Plaintiff's moderate
limitations in concentration, persistence, or pace in the
determination of Plaintiff's RFC; and (5) finding
Plaintiff was not disabled “based on the assumption
[she] could perform jobs as an assembler and packer, jobs
that required light exertional capacities.” (Doc. 25.)
The Court will address each argument below.
Weighing of medical source evidence.
first argues that the ALJ improperly weighed the medical
opinions of Plaintiff's treating physician, Dr. Christine
Harter, and of the state's psychiatric consultative
examiner, Dr. Sharon Steingard. The Court will address the
ALJ's treatment of each opinion below.
Ninth Circuit distinguishes between the opinions of treating
physicians, examining physicians, and non-examining
physicians. See Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995). Generally, an ALJ should give greatest
weight to a treating physician's opinion and more weight
to the opinion of an examining physician than to one of a
non-examining physician. See Andrews v. Shalala, 53
F.3d 1035, 1040-41 (9th Cir. 1995); see also 20
C.F.R. § 404.1527(c)(2)-(6) (listing factors to be
considered when evaluating opinion evidence, including length
of examining or treating relationship, frequency of
examination, consistency with the record, and support from
objective evidence). If it is not contradicted by another
doctor's opinion, the opinion of a treating or examining
physician can be rejected only for “clear and
convincing” reasons. Lester, 81 F.3d at 830
(citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.
1988)). A contradicted opinion of a treating or examining
physician “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
(citing Andrews, 53 F.3d at 1043).
can meet the “specific and legitimate reasons”
standard “by setting out a detailed and thorough
summary of the facts and conflicting clinical evidence,
stating his interpretation thereof, and making
findings.” Cotton v. Bowen, 799 F.2d 1403,
1408 (9th Cir. 1986). But “[t]he ALJ must do more than
offer [her] conclusions. [She] must set forth [her] own
interpretations and explain why they, rather than the
doctors', are correct.” Embrey, 849 F.2d
at 421-22. The Commissioner is responsible for determining
whether a claimant meets the statutory definition of
disability and does not give significance to a statement by a
medical source that the claimant is “disabled” or
“unable to work.” 20 C.F.R. § 416.927(d).
Christine Harter, M.D.
Harter was Plaintiff's treating physician from at least
September 2011 through April 2014. (See AR 338-39,
528.) During that time period, Dr. Harter regularly provided
Plaintiff with treatments intended to assist her with her
headaches, including administering “repeated
chemodenervation injections” and prescribing medication
such as Topiramate, Imitrex, and Migranal. (See AR
436, 433, 430, 427, 424, 421, 538, 535, 532, 529.) On March
27, 2013, Dr. Harter completed a Headache Residual Functional
Capacity Questionnaire, in which she answered
“yes” to the form question: “[d]uring times
[Plaintiff] has a headache, would [Plaintiff] be precluded
from performing even basic work activities and need a break
from the workplace.” (AR 412.) On January 5, 2015, Dr.
Harter completed a second Headache Residual Functional
Capacity Questionnaire in which she reaffirmed that opinion,
again answering “yes” to the same question. (AR
January 5, 2015, Dr. Harter completed a Medical Assessment Of
Ability To Do Work Related Physical Activities. (AR 737.)
Therein, Dr. Harter indicates Plaintiff has the following
exertional limitations: (1) “[o]ccasionally lift and/or
carry: 10 lbs;” (2) “[f]requently lift and/or
carry: less than 10 lbs;” (3) “[s]tand and/or
walk (with normal breaks) for a total of: at least 2 hours in
an 8 hour work day;” and (4) “[s]it (with normal
breaks) for a total of” four hours “in an 8 hour
work day.” (AR 737.) Dr. Harter further opines that
Plaintiff must alternate sitting and standing due to her
symptoms, and is required to change positions approximately
every 15 minutes. (AR 737 (answering the Assessment's
question of “how often” must Plaintiff alternate
sitting and standing with the following hand-written answer:
“anxiety disorder, restless. BIPOLAR. Changes positions
[every] 15 min. treated w[ith] lamotrigine”).)
same Assessment, Dr. Harter recommends the following postural
limitations: Plaintiff can never (1) climb, (2) balance, (3)
stoop, (4) crouch, or (6) crawl, and (7) may only
occasionally kneel. (AR 738.) Just below the checkboxes where
Dr. Harter selects these limitations, Dr. Harter hand-writes
the following explanation: “DIZZY, makes her fall
w[ith] most of above activities.” (AR 738.) Dr. Harter
further opines that Plaintiff has significant manipulative
limitations in both hands. (AR 738.) Specifically, Dr. Harter
pronounces that Plaintiff can only occasionally engage in
“handling (simple grasping, gross manipulation)”,
“fine manipulation”, or “feeling (skin
reception);” but finds Plaintiff can continuously
engage in “reaching.” (AR 738.)
Harter's Assessment also states that Plaintiff has the
following environmental limitations caused by her
impairments: (1) heights, (2) moving machinery, (3)
temperature extremes, (4) chemicals, and (6) noise. (AR 739.)
In another hand-written explanation below these limitations,
Dr. Harter explains that Plaintiff's “migraines
[are] worsened by the above.” (AR 739.)
found that Dr. Harter's medical opinion is contradicted
by the opinion of Dr. Herbert Meites, M.D. (AR 25.) Dr.
Meites is a non-examining state reviewer that did not treat
or examine Plaintiff. On July 11, 2013, Dr. Meites provided a
Disability Determination Explanation following review of
Plaintiff's available records. (AR 100-16.) Therein, Dr.
Meites opined that Plaintiff had the following exertional
limitations: (1) “Occasionally (occasionally is
cumulatively 1/3 or less of an 8 hour day) lift and/or carry
(including upward pulling): 50 lbs;” (2)
“Frequently (frequently is cumulatively more than 1/3
up to 2/3 of an 8 hour day) lift and/or carry (including
upward pulling): 25 lbs;” (3) “Stand and/or walk
(with normal breaks) for a total of: 4 hours;” (4)
“Sit (with normal breaks) for a total of: About 6 hours
in an 8-hour workday;” and (5) “Push and/or pull
(including operation of hand and/or foot controls): Unlimited
other than shown for lift and/or carry.” (AR 109.) Dr.
Meites further indicates that Plaintiff has the following
postural limitations: (1) “Climbing Ramps/stairs:
Occasionally, ” (2) “Climbing
Ladders/ropes/scaffolds: Occasionally, ” (3)
“Balancing: Occasionally, ” (4) “Stooping
(i.e., bending at the waist): Occasionally, ” (5)
“Kneeling: Occasionally, ” (6) “Crouching
(i.e., bending at the knees): Occasionally, ” and (7)
“Crawling: occasionally.” (AR 109-10, 125-26.)
Dr. Meites did not find Plaintiff to have
“manipulative, ” “visual, ” or
“communicative” limitations. (See AR
110.) Dr. Meites indicated the following environmental
limitations: (1) “Extreme cold: Avoid even moderate
exposure, ” (2) “Extreme heat: Unlimited, ”
(3) “Wetness: Unlimited, ” (4) “Humidity:
Unlimited, ” (5) “Noise: Avoid even moderate
exposure, ” (6) “Vibration: Unlimited, ”
(7) “Fumes, odors, dusts, gases, poor ventilation,
etc.: Unlimited, ” and (8) Hazards (machinery, heights,
etc.): Avoid even moderate exposure.” (AR 110, 126.)
Dr. Meites further recommended that “Given
[Plaintiff's] complaints w[ith] regards to
med[dication]s, [Plaintiff] should not be required to engage
in [more than] occasional postural activities or 4 h[ou]rs
standing.” (AR 111.)
the ALJ found that Dr. Harter's medical opinion is
contradicted by the opinion of Dr. Herbert Meites, M.D (AR
25), and that Dr. Meites opined Plaintiff had greater
abilities than those identified in Dr. Harter's opinion
(AR 23). Accordingly, the ALJ could discount Dr. Harter's
opinion for specific and legitimate reasons supported by
substantial evidence. Lester, 81 F.3d at 830-31.
decision, the ALJ provides several reasons for discounting
Dr. Harter's opinion in favor of Dr. Meites's
opinion. First, the ALJ states that Dr. Meites's opinion
was more consistent with the overall record, while Dr.
Harter's was inconsistent. Second, the ALJ states that
Dr. Harter's opinion “appeared to be based [only]
on the [Plaintiff's] subjective complaints.” Third,
the ALJ states that Dr. Harter's opinion on
Plaintiff's manipulative limitations in her hands is not
supported by any medically determinable impairment.
Furthermore, the ALJ notes that the record contained no
objective testing with regard to Plaintiff's headaches,
such as MRI, CT, MRA, or EEG. (AR 25.)
briefs, Plaintiff argues that the ALJ erred in rejecting Dr.
Harter's opinion. Specifically, Plaintiff contends that
(1) Dr. Harter's opinion is not inconsistent with the
medical record; (2) Dr. Harter's opinion was based on
more than just Plaintiff's subjective complaints; and (3)
Dr. Harter's finding of manipulative limitations in
Plaintiff's hands are supported by the record . (Doc. 25
at 15.) The Court will discuss each of Plaintiff's
Inconsistency with the medical record.
first argues that the ALJ, as a layperson, was not qualified
to find that Dr. Harter's opinion was inconsistent with
the medical record, and that the ALJ did not identify any
perceived inconsistencies. (Doc. 25 at 12.) The Court
disagrees. A fair reading of the ALJ's decision reveals
that the ALJ identified several inconsistencies between Dr.
Harter's opinion and the medical record. Specifically,
the ALJ notes that Dr. Harter's opinion is based largely
on Plaintiff's subjective complaints, contains no
objective testing to support her diagnosis of Plaintiff, and
is contradicted by the medical opinion of Dr. Meites. (Doc.
extent Plaintiff argues that each of these reasons fails in
their own right, the Court discusses those arguments below.
claimant's subjective description of symptoms in
necessarily relied on by a doctor when determine a conditions
severity. Engquist v. Colvin, No.
CV-11-02455-PHX-GMS, 2013 WL 1409923, at *7 (D. Ariz. Apr. 8,
2013) (“Determining the severity of [a condition]
necessarily involves significant reliance on the
claimant's description of the symptoms, the opinions of
the doctor-especially a specialist-should be given great
weight.”); see also Benecke v. Barnhart, 379
F.3d 587, 594 (9th Cir. 2004) (finding that an ALJ erred by
discounting a claimant's treating physicians'
opinions, which diagnosed the claimant with fibromayalgia,
because those opinions relied on the claimant's
subjective symptom testimony).
ALJ may reject a treating physician's opinion when it is
based solely on the claimant's subjective complaints, and
the claimant's testimony is determined not to be
credible. Tonapetyan v. Halter, 242 F.3d 1144, 1149
(9th Cir. 2001) (“The ALJ rejected [treating physician]
Dr. Ngaw's opinion for lack of objective support, noting
that Dr. Ngaw relied only on [claimant] Tonapetyan's
subjective complaints and on testing within Tonapetyan's
control. Because the present record supports the ALJ in
discounting Tonapetyan's credibility . . . [the ALJ] was
free to disregard Dr. Ngaw's opinion, which was premised
on her subjective complaints.”); see also
Engquist, 2013 WL 1409923, at *7 (“Still, the
[doctors'] opinions-especially those on the issue of
disability-must have a basis in the medical evidence for the
ALJ to be required to give them credit.”).
argues that the ALJ engaged in unsupported speculation when
he discounted the opinion of Dr. Harter because her opinion
“appeared to be based [only] on the [Plaintiff's]
subjective complaints.” (Doc. 25 at 13.) The Court
disagrees. The record shows that Dr. Harter regularly
provided Plaintiff with treatments intended to assist her
with her headaches, including administering “repeated
chemodenervation injections” and prescribing medication
such as Topiramate, Imitrex, and Migranal. (See AR
436, 433, 430, 427, 424, 421, 538, 535, 532, 529.) But these
treatments were conducted based on Plaintiff's subjective
report of symptoms. No objective testing was conducted.
argues that Dr. Harter relied on more than her subjective
complaints, and that the ALJ erred by discounting her opinion
for its reliance on Plaintiff's subjective complaints.
(See Doc. 25 at 13 n. 13, 14 (citing Ghanim v.
Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (holding the
ALJ improperly discounted the opinions of four sources that
were based on their observations, diagnoses, and
prescriptions, in addition to the plaintiff's
self-reports); Regennitter v. Comm'r of Soc. Sec.
Admin., 166 F.3d 1294, 1300 (9th Cir. 1999) (holding the
ALJ improperly discounted the opinion of a psychologist that
did not take the plaintiff's statements at face value,
but had “confirmed his complaints with his mother, . .
. conducted extensive objective psychological testing [and]
explained in detail how the results of each test supported
his diagnoses.”); Davis v. Colvin, No.
CV-13-00679-TUC-CRP, 2015 WL 5730581, at *6-8 (D. Ariz. Sept.
30, 2015) (holding the ALJ improperly rejected the opinion of
a treating source which was based not only on the
plaintiff's subjective reports of symptoms but also on
the source's own observations and those of other doctors,
who diagnosed both mental and physical impairments);
Ferranti v. Colvin, No. CV-13-02345-PHX-DJH, Order,
Doc. 27 at 8 (D. Ariz. Mar. 16, 2015) (holding the ALJ
improperly speculated that the source had relied too heavily
on the plaintiff's self-report, while there was evidence
of plaintiff's post-surgery difficulties and numerous
attempts to obtain relief)).)
argument is not persuasive, and the instant case is easily
distinguished from those listed above. Unlike the treating
physicians' opinions in those cases, which the courts
found to be supported by additional objective evidence, Dr.
Harter's opinion is exclusively based on Plaintiff's
self-reports. Specifically, Dr. Harter's diagnosis is
based on Plaintiff's headache questionnaires and migraine
diaries (AR 378-81, 414-15, 444-46), and Dr. Harter's
notes point to no other support for ...