United States District Court, D. Arizona
Z. BOYLE, UNITED STATES MAGISTRATE JUDGE
Kay Lee Carroll 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 not supported by substantial
evidence and is based on legal error, the Commissioner's
decision will be vacated and the matter remanded for further
February 6, 2013, Plaintiff applied for disability insurance
benefits and supplemental security income, alleging
disability beginning March 24, 2012. On December 30, 2014,
she appeared with her attorney and testified at a hearing
before the ALJ. A vocational expert also testified. On April
21, 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
noct 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 March 31,
2015, and that she has not engaged in substantial gainful
activity since March 24, 2012. At step two, the ALJ found
that Plaintiff has the following severe impairments:
“degenerative disc disease/degenerative joint disease
of the lumbar spine, obesity, residual of left wrist
fracture, affective disorder, and anxiety disorder.”
(AR 15.) 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 (lifting and carrying 20 pounds occasionally and
ten pounds frequently; sitting for at least six hours out of
eight; and standing/walking for at least six hours out of
eight) as defined in 20 CFR 404.1567(b) except the claimant
can never crawl, climb ropes, ladders, or scaffolds. She can
occasionally stoop, kneel and crouch. With her left arm, the
claimant can occasionally push and pull and frequently reach
overhead. The claimant can occasionally engage in handling,
fingering gross and fine manipulation with the left. The
claimant can frequently feel on the left. She is right hand
dominant. However, the claimant should avoid concentrated
exposure to unprotected heights. She is able to understand,
remember, and carry out simple to moderately complex
instructions and tasks.
(AR 17.) The ALJ further found that Plaintiff is unable to
perform any of her past relevant work. At step five, the ALJ
concluded that, considering Plaintiff's age, education,
work experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that Plaintiff could perform.
argues the ALJ's decision is defective for four reasons:
(1) the ALJ erred in giving little weight to Plaintiff's
treating physicians, (2) the ALJ did not properly consider
the opinions of the examining doctors, (3) the ALJ erred in
finding Plaintiff's hip pain and bilateral knee pain were
non-severe, and (4) the ALJ erroneously discounted the
testimony of Plaintiff's husband, Carson E. Carroll, Jr.
(Doc. 23 at 11-16.) The Court will address each argument
Weighing of Medical Source Evidence.
argues that the ALJ improperly weighed the medical opinions
of the following medical sources: Laurel A. Retay, D.O, and
Elizabeth Gioia, PhD. 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).
Laurel A. Retay, D.O.
Laurel Retay has served as Plaintiff's primary care
physician for over eight years. (Doc. 23 at 7.) Dr. Retay has
diagnosed Plaintiff with “anxiety, bone problems left
arm, back, knees, neck, right shoulder, and hips.” (AR
597.) Dr. Retay concludes that these conditions limit
Plaintiff to standing and walking fewer than two hours in an
eight-hour workday; sitting fewer than 2 hours in an
eight-hour workday; and lifting and carrying fewer than ten
pounds. (AR 597.) Further, Dr. Retay states that
Plaintiff's disabilities require that she have the
freedom to shift at will between sitting or standing/walking;
that she needs to lie down at unpredictable times during an
eight-hour workday; that she is limited in her ability to use
stairs; and that her disabilities would cause her to be
absent from work more than three times a month. (AR 597.)
Retay's medical opinion was contradicted by the opinions
of Drs. Karine Lancaster, M.D and Janet G. Rodgers, M.D.
(Compare AR 73-75, 89-91 with 597-600.) Dr.
Lancaster opined Plaintiff had greater abilities than those
identified in Dr. Retay's opinion. Specifically, Dr.
Lancaster found that Plaintiff has the following limitations:
Plaintiff may occasionally lift/carry 20 pounds; Plaintiff
may frequently lift/carry 10 pounds; Plaintiff can stand
and/or walk for a total of about 6 hours in an 8-hour
workday; Plaintiff can sit for a total of about 6 hours in an
8-hour workday; Plaintiff should never climb ladders/ropes/or
scaffolds; Plaintiff should never crawl; Plaintiff can
occasionally stoop, kneel, or crouch. (AR 73-75.)
Rodgers also opined that Plaintiff had greater abilities than
those identified in Dr. Retay's opinion. Specifically,
Dr. Rodgers found that Plaintiff has the following
limitations: Plaintiff may occasionally lift/carry 20 pounds;
Plaintiff may frequently lift/carry 10 pounds; Plaintiff can
stand and/or walk for a total of about 6 hours in an 8hour
workday; Plaintiff can sit for a total of about 6 hours in an
8-hour workday; Plaintiff is unlimited climbing ramps and
stairs; Plaintiff should never climb ladders/ropes/or
scaffolds; Plaintiff should never crawl; Plaintiff can
occasionally stoop, kneel, or crouch.
Drs. Lancaster's and Rodgers' medical opinions
contradicted the opinion of Dr. Retay, the ALJ could discount
Dr. Retay's opinion for specific and legitimate reasons
supported by substantial evidence. Lester, 81 F.3d
decision, the ALJ states that:
The undersigned affords [Dr. Retay's] opinion little
weight because it is not consistent with the medical evidence
that shows the claimant has a non-antalgic gait. It is also
inconsistent with the claimant's attendance at college.
The last examination (prior to December 12, 2013) performed
by [Dr. Retay] was on February 13, 2013, and included only
the heart and lungs (Exhibit 4F/2). There were no visits of
record from February 13, 2013 to December 19, 2013, when no
examination was conducted and the purpose of the visit was to
refill medications (Exhibit 13F). There was only one further
visit of record on August 14, 2014 and no examination results
were recorded (Exhibit 14F). Additionally, it appears this
statement was primarily based on the claimant's
subjective complaints rather than the objective and clinical
findings. For example, Dr. [Retay] uses the first person when
[she] discusses the claimant's limitation with respect to
stairs. Specifically [she] states, “stairs are
difficult because I have fallen on stairs” (Exhibit
(AR 20.) In short, the ALJ discounted Dr. Retay's opinion
for four reasons: (1) it is not consistent with the medical
evidence in the record, (2) it is inconsistent with
Plaintiff's attendance at college, (3) treatment gaps
exist between the time Dr. Retay treated Plaintiff and the
time she provided her opinion, and (4) Dr. Retay's
opinion is based on Plaintiff's subjective complaints.
The Court will consider each reason below.
Consistent with the Medical Record.
ALJ's first reason for discounting the opinions of Dr.
Retay is that her opinion “is not consistent with
medical evidence that shows Plaintiff has a non-antalgic
gait” and ...