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Fultz v. Commissioner of Social Security Administration

United States District Court, D. Arizona

July 17, 2018

Denise Fultz, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          David G. Campbell United States District Judge.

         Plaintiff 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.

         I. Background.

         Plaintiff 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.

         II. Legal Standard.

         The 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. 2002).

         Harmless 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).

         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, 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).

         At step 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. 25, 30.

         IV. Analysis.

         Plaintiff 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.

         A. Dr. Abrams.

         The 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).

         In 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 objective evidence).

         If a 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).

         When a 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).

         Dr. 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.

         1. November 2013 Opinion.

         Dr. 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 ...

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