United States District Court, D. Arizona
Honorable Diane J. Humetewa United States District Judge
before the Court is Plaintiff Omar Soto's
(“Plaintiff”) appeal of the Administrative Law
Judge's (“ALJ”) denial of his application for
Supplemental Security Income. (Doc. 13). Plaintiff argues
that the ALJ erred in three ways: (1) by failing to properly
weigh the relevant medical opinion evidence; (2) by
improperly determining that Plaintiff's depression was
not a severe impairment; and (3) by failing to provide clear
and convincing reasons for discounting Plaintiff's
testimony regarding the severity of his symptoms. Defendant
has filed a Response (Doc. 14) and Plaintiff has filed a
Reply. (Doc 17). For the reasons stated herein the Court
affirms the ALJ's decision.
Standard of Review
ALJ's disability determination should be upheld unless it
contains legal error or is not supported by substantial
evidence.” Garrison v. Colvin, 759 F.3d 995,
1009 (9th Cir. 2014) (citing Stout v. Comm'r, Soc.
Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); 42
U.S.C. §§ 405(g), 1383(c)(3)).
“‘Substantial evidence' means more than a
mere scintilla, but less than a preponderance; it is such
relevant evidence as a reasonable person might accept as
adequate to support a conclusion.” Id.
(internal quotation marks and citation omitted). In
determining whether substantial evidence supports the
ALJ's decision, a district court considers the record as
a whole, weighing both the evidence that supports and that
which detracts from the ALJ's conclusions. Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998). “Where
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). If the
evidence can reasonably support either affirming or reversing
the ALJ's decision, “the court may not substitute
its judgment for that of the ALJ.” Id. at
Alleged Error in Allocating Weight of Physician
Ninth Circuit “distinguish[es] among the opinions of
three types physicians: (1) those who treat the claimant
(treating physicians); (2) those who examine but do not treat
the claimant (examining physicians); and (3) those who
neither examine nor treat the claimant (non examining
physicians).'” Id. (quoting Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1995)). Depending
upon the nature of the patient-physician relationship, the
weight to be afforded the physicians' opinions varies.
See 20 C.F.R. § 416.927(c)(2)(i) and (ii). A
treating physician's opinion is generally entitled to
more weight than that of a non-treating physician,
“since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal
picture” of a claimant's medical impairments.
See 20 C.R.R. § 404.1527(c)(2). In this
hierarchy, “[w]hile the opinion of a treating physician
is . . . entitled to greater weight than that of an examining
physician, the opinion of an examining physician is entitled
to greater weight than that of a non-examining
physician.” Garrison, 759 F.3d at 1012 (citing
Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198
(9th Cir. 2008).
a treating physician's opinion is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the] case record, [it will be given] controlling
weight.'” Ghanim v. Colvin, 763 F.3d 1154,
1160 (9th Cir. 2015) (quoting Orn v. Astrue, 495
F.3d 625, 631 (9th Cir. 2007) (internal quotations omitted)
(alterations in original); see also 20 C.F.R. §
404.1527(c)(2)). At the same time though, “[a]n ALJ may
discredit treating physicians' opinions that are
conclusory, brief, and unsupported by the record as a
whole or by objective medical findings.”
Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir.
2014) (quoting Batson v. Comm'r of Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (emphasis
added by Burrell Court) (citation omitted)).
However, “[a]n ALJ may only reject a treating
physician's contradicted opinions by providing specific
and legitimate reasons that are supported by substantial
evidence.” Ghanim, 763 F.3d at 1162 (internal
quotation marks and citations omitted). When there are
conflicting medical opinions, the ALJ must determine
credibility and resolve the conflict. Thomas v.
Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002).
argues the ALJ erred when she (1) rejected the testimony and
opinion of Plaintiff's treating primary care physician,
Dr. Jessica Holmes; and (2) afforded determinative weight to
opinions from the state agency reviewing and examining
assigned “little weight” to treating physician
Dr. Holmes because (1) Plaintiff “only saw [her] on a
handful of occasions”; and (2) her opinions were
“inconsistent with treatment notes, which indicated
that the claimant's sensation was intact and that his
neuropathy responded well to treatment.” (AR 34). The
Court finds this assessment is supported by specific and
legitimate reasons and substantial evidence in the record.
First, contrary to Plaintiff's objections, an ALJ may
properly consider the length of the treatment relationship
and the frequency of examination in determining the weight to
give to the opinions of a treating physician. See 20
C.F.R. §§ 404.1527(c)(2)(i)-(ii). Here, the ALJ
expressed concern that Plaintiff had only started seeing Dr.
Holmes in January 2014, and only on a handful of occasions
(AR 34), thus drawing into question one of the primary
reasons treating physician opinions are often afforded such
deferential status in benefit determinations. See 20
C.F.R. § 404.1527(c)(2)(i) (“Generally, the longer
a treating source has treated you and the more times you have
been seen by a treating source, the more weight we will give
to the source's medical opinion”). Second, the
ALJ's observation as to the frequency of visits to Dr.
Holmes was made in conjunction with the finding that Dr.
Holmes' opinions, which amounted to several check-box
forms (see AR 722-27), were not well-supported
because they were inconsistent with her own treatment notes.
(AR 34; AR 789-809). The ALJ gave several, specific examples
of noted inconsistencies in the record. (See
generally AR 34). Thus, the Court finds the ALJ properly
evaluated the medical opinion evidence from Dr. Holmes.
because the ALJ properly discounted Dr. Holmes' opinion
evidence, the ALJ did not error in relying on opinion
evidence from state agency consultants Drs. Jones, Dickstein
and Griffith in assessing Plaintiff's residual functional
capacity(“RFC”), opinions which were
also properly evaluated. The ALJ afforded these opinions from
examining and non-examining consultants “partial
weight.” The ALJ specifically found the opinions of
non-examining consultants Drs. Dickstein and Griffith to be
consistent with Plaintiff's RFC. See Tonapetyan v.
Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (opinions of
non-examining medical consultants can amount to substantial
evidence as long as other evidence in the record supports
their findings). The ALJ further found that examining
consultant Dr. Jones' opinion was supported by the
objective evidence and treatment notes. Id.
(opinions of examining medical consultants can alone amount
to substantial evidence because they rest on the doctor's
own independent examination of the claimant). In combination,
these findings amount to substantial evidence. Moreover,
having properly discounted Plaintiff's treating physician
evidence, the ALJ properly relied on these opinions in making
Alleged Error in Finding Plaintiff's Depression was Not a
next argues that the ALJ erred in finding that he did not
suffer from severe mental impairments where the limitations
noted by psychologist Dr. Marcel Van Eerd would make it
impossible to perform any sustained work. The ALJ found
Plaintiff's depression to be non-severe at step two. (AR
27). In doing so, the ALJ assessed Plaintiff's (1)
activities of daily living; (2) social functioning; (3)
concentration, persistence, or pace (“CPP”); and
(4) episodes of decompensation. The ALJ found that Plaintiff
had no limitations in activities of daily living or social
functioning, only mild limitations in CPP, and no episodes of
decompensation. (AR 27-28). See 20 C.F.R.
§§ 404.1520, 416.920. The ALJ also considered and
properly discounted Dr. Van Eerd's opinion in finding
Plaintiff's mental impairments non-severe. The ALJ found
that Dr. Van Eerd's opinion was inconsistent with
Plaintiff's reported activities of daily living, which
reflected that Plaintiff was able to take care of his
personal needs and household chores, such as cooking,
cleaning, shopping, and paying bills. (AR 544). She further
found that Dr. Van Eerd's conclusions were inconsistent
with his own findings. For example, although Dr. Van Eerd
found that Plaintiff's understanding and memory were
fair, his attention and concentration were adequate, and his
judgment and insight were regularly fair to good, the doctor
concluded that Plaintiff was limited to short, simple tasks.
(AR 544). The ALJ properly discounted Dr. Van Eerd's
opinions with specific and legitimate reasons. As such, the
ALJ did not error in finding Plaintiff's depression was
non-severe at step two.
Alleged Error in ...