United States District Court, D. Arizona
G. Campbell United States District Judge.
Denise Fultz seeks review under 42 U.S.C. § 405(g) of
the final decision of the Commissioner of Social Security,
which denied her disability insurance benefits under
§§ 216(i) and 223(d) of the Social Security Act.
The Court finds that the administrative law judge's
(“ALJ”) decision is based on legal error, and
will remand for further proceedings.
is a 66 year old female who previously worked as a vice
president, manager of human resources, and human resources
administrator. A.R. 30, 42. Plaintiff applied for disability
insurance benefits on October 10, 2013, alleging disability
beginning on August 16, 2011. A.R. 18. On June 24, 2015,
Plaintiff testified at a hearing before an ALJ. Id.
A vocational expert also testified. Id. On November
24, 2015, the ALJ issued a decision that Plaintiff was not
disabled within the meaning of the Social Security Act. A.R.
18-31. This became the Commissioner's final decision when
the Appeals Council denied Plaintiff's request for review
on July 14, 2017. A.R. 1-6.
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 determination only if it 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.
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. (citation omitted). 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.
error principles apply in the Social Security 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
not affect the ultimate nondisability determination.
Id. “The burden is on the party claiming error
to demonstrate not only the error, but also that it affected
[her] substantial rights.” Ludwig v. Astrue,
681 F.3d 1047, 1054 (9th Cir. 2012).
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, and the burden shifts to the
Commissioner at step five. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999). To establish disability, the
claimant must show that (1) she is not currently working, (2)
she has a severe impairment, and (3) this impairment meets or
equals a listed impairment or (4) her residual functional
capacity (“RFC”) prevents her performance of any
past relevant work. If the claimant meets her burden through
step three, the Commissioner must find her disabled. If the
inquiry proceeds to step four and the claimant shows that she
is incapable of performing past relevant work, the
Commissioner must show at step five that the claimant is
capable of other work suitable for her RFC, age, education,
and work experience. 20 C.F.R. § 404.1520(a)(4).
one, the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act through December 31,
2016, and has not engaged in substantial gainful activity
since August 16, 2011. A.R. 20. At step two, the ALJ found
that Plaintiff had the following severe impairments: cervical
and lumbar degenerative disc disease with lumbar spinal
stenosis, status post right shoulder clavicle excision and
decompression in 2013, status post repair of a left shoulder
rotator cuff tear in 2011, and obesity. A.R. 20. The ALJ
acknowledged that the record contained evidence of cystocele,
urinary incontinence, fecal incontinence, and anxiety, but
found that these were not severe impairments. A.R. 21-25. At
step three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that meets or
medically equals a listed impairment. A.R. 25. At step four,
the ALJ found that Plaintiff had the RFC to perform sedentary
work with some additional limitations, and was able to
perform her past relevant work as a vice president, manager
of human resources, and human resources administrator. A.R.
makes three arguments: (1) the ALJ erred by rejecting her
treating physician's opinions, (2) the ALJ improperly
credited opinions of the state agency reviewing physicians,
and (3) the ALJ erroneously discredited Plaintiff's
symptom testimony. Doc. 14 at 9-22. Defendant summarizes the
ALJ's decision, but offers few specific counterarguments.
See Doc. 15.
Commissioner is responsible for determining whether a
claimant meets the statutory definition of disability, and
need not credit a physician's conclusion that the
claimant is “disabled” or “unable to
work.” 20 C.F.R. § 404.1527(d)(1). But the
Commissioner generally must defer to a physician's
medical opinion, such as statements concerning the nature or
severity of the claimant's impairments, what the claimant
can do, and the claimant's physical or mental
restrictions. § 404.1527(a)(1), (c).
determining how much deference to give a physician's
medical opinion, 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
the greatest weight to a treating physician's opinion and
more weight to the opinion of an examining physician than 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)(1)-(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
treating or examining physician's medical opinion is not
contradicted by another doctor, the opinion can be rejected
only for clear and convincing reasons. Lester, 81
F.3d at 830. Under this standard, the ALJ may reject a
treating or examining physician's opinion if it is
“conclusory, brief, and unsupported by the record as a
whole or by objective medical findings, ” Batson v.
Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th
Cir. 2004) (citation omitted), or if there are significant
discrepancies between the physician's opinion and her
clinical records, Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005).
treating or examining physician's opinion is contradicted
by another doctor, it can be rejected for “specific and
legitimate reasons that are supported by substantial evidence
in the record.” Lester, 81 F.3d at 830-31. To
satisfy this requirement, the ALJ must set out “a
detailed and thorough summary of the facts and conflicting
clinical evidence, stating his interpretation thereof, and
making findings.” Revels v. Berryhill, 874
F.3d 648, 654 (9th Cir. 2017) (quotation marks and citation
omitted). Under either standard, “[t]he ALJ must do
more than offer [her] conclusions. He must set forth his own
interpretations and explain why they, rather than the
doctors', are correct.” Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quotation
marks and citation omitted).
Abrams is a treating physician who issued two opinions that
Plaintiff was unable to work. A.R. 613-14, 826-27. Because
these opinions are inconsistent with those of the state
agency non-examining physicians, they can be rejected for
“specific and legitimate reasons supported by
substantial evidence in the record.” Lester,
81 F.3d at 830-31.
November 2013 Opinion.
Abrams opined in November 2013 that Plaintiff's physical
limitations prevented her from doing any work. A.R. 613-14.
The ALJ discredited this opinion because it “was
provided within one month of the claimant's lumbar
procedure and the claimant had not yet recovered.” A.R.
29. Plaintiff contends that this reason is insufficient
because Dr. Abrams did not limit his opinion to any period of
time, and there is no evidence that subsequent improvement
rendered this opinion invalid. Doc. 14 at 11. The Court
agrees. The problem is a lack of ...