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Powers v. Commissioner of Social Security Administration

United States District Court, D. Arizona

March 7, 2018

Sharon Powers, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          Honorable G. Murray Snow United States District Judge

         Pending before the Court is Plaintiff Sharon Powers's appeal of the Social Security Administration's (SSA) decision to deny disability insurance benefits (Doc. 14). For the following reasons, the Court vacates the ALJ's decision and remands for consideration in accordance with this opinion.

         BACKGROUND

         Sharon Powers filed for disability benefits on July 11, 2012, alleging a disability date of May 23, 2012. Ms. Powers's application for SSA disability benefits asserts a strained lumbar region, asthma, left-side hip pain, numbness on left leg, learning disability, lower back spurs, and mild rotair scoliosis of the lumbar spine. (Tr. 230). Her claim was denied on November 29, 2012; reconsideration was denied on September 11, 2013. Ms. Powers requested a hearing from an administrative law judge (ALJ), which was held on February 5, 2015. The ALJ determined that Ms. Powers had severe impairments of: degenerative disc disease of the cervical spine, lumbar spine disease, paroxysmal atrial fibrillation, and knee osteoarthritis. (Tr. 20). With these impairments taken into account, the ALJ found that Ms. Powers had the residual functional capacity (RFC) to perform light work with restrictions on the activities that could be performed. (Tr. 23). Because the ALJ determined that Ms. Powers could perform her past relevant work or other work that exists in the national economy, the ALJ found that Ms. Powers was not disabled under the Social Security Act. (Tr. 26-28). The Appeals Council denied the request to review, making the Commissioner's decision final. (Tr. 1-4). Ms. Powers now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

         DISCUSSION

         I. Legal Standard

         A reviewing federal court will address only the issues raised by the claimant in the appeal from the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n. 13 (9th Cir. 2001). A federal court may set aside a denial of disability benefits when that denial is either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less than a preponderance.” Id. (quotation omitted). It is “relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion.” Id. (quotation omitted).

         The ALJ is responsible for resolving conflicts in testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). When evidence is “subject to more than one rational interpretation, [courts] must defer to the ALJ's conclusion.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the reviewing court must resolve conflicts in evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981, F.2d 1016, 1019 (9th Cir. 1992) (citations omitted).

         II. Analysis

         Plaintiff alleges that the ALJ erred by (1) discounting the weight afforded to Ms. Powers's treating physicians; (2) discounting Ms. Powers's credibility with regards to her symptoms and their severity; (3) denying Ms. Power's request to subpoena the consultative examiner; and (4) discounting the weight afforded to a third-party report by Gary Powers.[1]

         A. Weight Afforded to Treating Physicians

         A “treating physician” is one who actually treats the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). When a treating doctor's opinion is not contradicted by another doctor, it may only be rejected for clear and convincing reasons. Id. If a treating doctor's opinion is contradicted by another doctor, it may only be rejected for “specific and legitimate reasons supported by substantial evidence in the record for so doing.” Id. (citations omitted). Ms. Powers's treating physician--Doctor Mark Goldberg and Physician Assistant Kurt Giles[2]--submitted reports opining that Ms. Powers was disabled and unable to work. (Tr. 439-44, 485-86, 800-01). The ALJ gave both opinions “less weight” for a number of reasons: (1) failure to discuss that pain medication relieves pain; (2) the relatively mild treatment that was accepted by the Claimant; (3) the record's failure to “indicate significant physical findings on examination;” and (4) the lack of support for the opinion that the claimant can only stand or walk less than two hours a day. (Tr. 25-26).

         The ALJ's determinations may be supported by substantial evidence in the record, but the ALJ did not properly explain the basis for her rejection of Dr. Goldberg and P.A. Giles's opinions. A Claimant's improvement due to medication can be a reason to discount the credibility of a treating physician. See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits.”). In this case, however, while there is considerable support in the record for the fact that pain medication alleviated at least some of Ms. Powers's pain, (Tr. 587, 608, 610, 620, 622, 674, 677, 681, 687, 693), the same records indicate a continued level of pain despite the medication and therapy. Thus, in this instance the ALJ cannot simply discount the doctor's opinion by noting that he failed to account for the fact that his records indicate that therapy and medication relieved the pain, when that is an oversimplification of the doctor's records to the point of misstatement. To use the positive affect of medication and therapy as a basis for discounting the doctor's opinion, the ALJ must demonstrate that she has correctly characterized the doctor's medical records as a whole and adequately explain why the medical records demonstrate the treating physician's opinion should be afforded less weight.

         Similarly, the record reflects that a surgical treatment was offered to Ms. Powers but she elected to decline it. (Tr. 563, 822, 828). The ALJ found that Ms. Powers's choice to decline the surgery demonstrated a conservative treatment plan inconsistent with permanent disability. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir.) (“We have previously indicated that evidence of ‘conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment.”). The ALJ failed to discuss that there were significant risks associated with the surgery. Without more explanation from the ALJ, the assertion that the choice to decline a risky surgery necessarily results in a finding of non-disability is error. See Fair v. Bowen, 885 ...


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