Newton v. Commissioner of Social Security Administration

          ORDER

          David G. Campbell Senior United States District Judge.

         Plaintiff 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.

         I. Background.

         Plaintiff 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.

         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) 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).

         At step 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.

         IV. Analysis.

         Plaintiff 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.

         A. Medical Opinion Evidence.

         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. [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).

         1. Dr. Ohman.

         Dr. 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.

         The ALJ 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. Ohman's opinion.

         The ALJ 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.

         The ALJ 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. 58-59.^[1]

         Even if 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, the ...