United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
Harold Newton seeks review under 42 U.S.C. § 405(g) of
the final decision of the Commissioner of Social Security,
which denied him disability insurance benefits and
supplemental security income under §§ 216(i),
223(d), and 1614(a)(3)(A) of the Social Security Act. The
Court finds that the administrative law judge's
(“ALJ”) decision is based on reversible legal
error, and will remand for further proceedings.
is a 48 year old male who previously worked as an industrial
cleaner, construction apprentice, warehouse worker, and
grounds keeper. A.R. 33-34. Plaintiff applied for disability
insurance benefits and supplemental security income in
September and October 2013, alleging disability beginning on
January 30, 2013. A.R. 20. On February 23, 2016, Plaintiff
testified at a hearing before an ALJ. Id. A
vocational expert also testified. Id. On September
20, 2016, the ALJ issued a decision that Plaintiff was not
disabled within the meaning of the Social Security Act. A.R.
20-36. This became the Commissioner's final decision when
the Appeals Council denied Plaintiff's request for review
on September 26, 2017. A.R. 1-5.
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) he is not currently working, (2)
he has a severe impairment, and (3) this impairment meets or
equals a listed impairment or (4) his residual functional
capacity (“RFC”) prevents his performance of any
past relevant work. If the claimant meets his burden through
step three, the Commissioner must find him disabled. If the
inquiry proceeds to step four and the claimant shows that he
is incapable of performing past relevant work, the
Commissioner must show at step five that the claimant is
capable of other work suitable for his 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,
2018, and had not engaged in substantial gainful activity
since January 30, 2013. A.R. 22. At step two, the ALJ found
that Plaintiff had the following severe impairments:
degenerative disc disease of the lumbar spine, type-two
diabetes mellitus, and obesity. A.R. 23. 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, but that Plaintiff was unable to
perform his past relevant work as an industrial cleaner,
construction apprentice, warehouse worker, or grounds keeper.
A.R. 26, 33-34. At step five, the ALJ concluded that,
considering Plaintiff's age, education, work experience,
and RFC, he was able to perform the requirements of
occupations like call-out operator, document preparer, and
addressing clerk. A.R. 34-35.
makes three arguments: (1) the ALJ erroneously weighed the
medical opinion evidence, (2) the ALJ erroneously relied on
vocational expert testimony that conflicted with the
Dictionary of Occupational Titles, and (3) the ALJ
erroneously discredited Plaintiff's symptom testimony.
Doc. 12 at 11-25.
Medical Opinion Evidence.
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. [She] must set forth [her]
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).
Valerie Ohman is a treating physician who offered multiple
opinions regarding Plaintiff's ability to work. A.R.
30-32. Plaintiff challenges only the ALJ's rejection of
her July 2013 opinion that Plaintiff “was unable to do
[desk work] because he was unable to stand or sit for greater
than 15 minutes.” A.R. 31. Because this opinion is
inconsistent with those of multiple other physicians (A.R.
31-32), it can be rejected for “specific and legitimate
reasons supported by substantial evidence in the record,
” Lester, 81 F.3d at 830-31.
discredited Dr. Ohman's opinion for three reasons. The
ALJ first noted that “treatment records from July and
August 2013 only noted numbness in [Plaintiff's] feet
due to back pain, but no other objective evidence to support
these restrictions.” A.R. 31. “Objective medical
evidence is medical signs, laboratory findings, or
both[.]” 20 C.F.R. § 404.1513(a)(1). Plaintiff
contends that the ALJ ignored Plaintiff's report of right
leg weakness to a physician in July 2013 and the fact that
Dr. Ohman had a long treating relationship. Doc. 12 at 12.
But a subjective report of weakness and long treatment
history do not amount to medical signs or laboratory
findings. Plaintiff also notes that “the doctor's
file contains numerous records that document [Plaintiff] was
suffering from lumbar radiculopathy.” Id. But
this conclusory assertion, made without citations to the
record, is insufficient to establish error. Plaintiff finally
notes that Dr. Ohman's opinion is consistent with
Plaintiff's use of opioid medication. Id.
Defendant contends that medication prescriptions do not
amount to objective evidence (Doc. 17 at 4), and the Court
agrees. Opioid prescriptions are not medical signs or
laboratory findings. See 20 C.F.R. §
404.1513(a)(1). These medications reflect a method of
treatment that certainly supports Plaintiff's allegations
of pain, but they are not objective test results that support
Dr. Ohman's opined limitations. Plaintiff's citation
to Social Security regulations is unavailing. Doc. 18 at 4
(quoting 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3)
(describing how the Commissioner, not a physician, evaluates
a claimant's symptoms)). The Court accordingly finds that
this is a specific and legitimate reason to undermine Dr.
next noted in a single sentence that Dr. Ohman's opinion
“is inconsistent with the opinion that was rendered
just three days prior.” A.R. 31. That opinion, rendered
by Physician's Assistant (“P.A.”) Sandra
Murphy, concludes that Plaintiff required significant work
restrictions, but was capable of sedentary desk work. A.R.
418. The ALJ's one-sentence citation to a conflicting
opinion from a different medical source is insufficient to
undermine Dr. Ohman's opinion. The ALJ provides no
explanation of why the opinion from P.A. Murphy undermines
Dr. Ohman's opined limitations.
finally reasoned, in another single sentence, that Plaintiff
“testified that he worked a[s] a janitor, with
significant walking and lifting, which was demonstrative of
his physical capacity.” A.R. 31. Again, the ALJ does
not explain how this testimony undermines Dr. Ohman's
opined limitations. Nor does it acknowledge that
Plaintiff's work was only part-time from February to July
2013 and that Plaintiff quit when he could no longer perform
the physical requirements of the job. See A.R.
the ALJ committed error in improperly weighing a medical
opinion, that error will be harmless if the Court can
“conclude from the record that the ALJ would have
reached the same result absent the error.”
Molina, 674 F.3d at 1115; see also Marsh v.
Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015). Two of the
ALJ's three reasons to discredit Dr. Ohman's opinion
fall well short of the “detailed and thorough”
analysis the Ninth Circuit requires. Revels, 874
F.3d at 654. Although one reason is specific and legitimate,