United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
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
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.
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
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)
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
Weight Afforded to Treating Physicians
“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--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).
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.
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 ...