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Carroll v. Commissioner of Social Security Administration

United States District Court, D. Arizona

March 1, 2018

Kay Lee Carroll, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          JOHN Z. BOYLE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 administrative proceedings.

         I. Background.

         On 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.

         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 noct 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 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.

         IV. Analysis.

         Plaintiff 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 below.

         A. Weighing of Medical Source Evidence.

         Plaintiff 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.

         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. Laurel A. Retay, D.O.

         Dr. 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.)

         Dr. 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.)

         Dr. 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.

         Because 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 at 830-31.

         In his 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 9F).

(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.

         a. Consistent with the Medical Record.

         The 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 ...


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