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Ramirez v. Commissioner of Social Security Administration

United States District Court, D. Arizona

February 28, 2018

Ana Patricia Pangburn Ramirez, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          Honorable John Z. Boyle, United States Magistrate Judge.

         Plaintiff 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 affirmed.

         I. Background.

         On 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.

         II. Legal Standard.

         The 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 omitted).

         Harmless 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.

         The ALJ 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. 1989).

         III. The ALJ's Five-Step Evaluation Process.

         To 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).

         At the 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. Id.

         At step 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.

(AR 20.)

         The ALJ 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.

         IV. Analysis.

         Plaintiff 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.

         A. Weighing of medical source evidence.

         Plaintiff 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.

         1. Legal Standard.

         The 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).

         An ALJ 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).

         2. Christine Harter, M.D.

         Dr. 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 735.)

         Also on 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”).)

         In that 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.)

         Dr. 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.)

         The ALJ 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.)

         Additionally, 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.)

         Because 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.

         In his 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.)

         In her 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 arguments.

         a. Inconsistency with the medical record.

         Plaintiff 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. 25.)

         To the extent Plaintiff argues that each of these reasons fails in their own right, the Court discusses those arguments below.

         b. Subjective complaints.

         A 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).

         But an 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.”).

         Plaintiff 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.

         Plaintiff 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)).)

         Plaintiff's 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 ...


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