United States District Court, D. Arizona
ORDER
Honorable John Z. Boyle United States Magistrate Judge
Plaintiff
Patrick Keith Dingman seeks review under 42 U.S.C. §
405(g) of the final decision of the Commissioner of Social
Security (“the Commissioner”), which denied him
disability insurance benefits under sections 216(i), 223(d),
and 1614(a)(3)(A) of the Social Security Act. Because the
decision of the Administrative Law Judge (“ALJ”)
is supported by substantial evidence and is not based on
legal error, the Commissioner's decision will be
affirmed.
I.
Background.
On
February 11, 2011, Plaintiff applied for disability insurance
benefits and supplemental security income, alleging
disability beginning June 1, 2006. On October 3, 2012, he
appeared with his attorney and testified at a hearing before
the ALJ. A vocational expert also testified. At the hearing,
Plaintiff's counsel requested an amended onset date of
December 1, 2009. On October 23, 2012, the ALJ issued a
decision that Plaintiff was not disabled within the meaning
of the Social Security Act. The Appeals Council denied
Plaintiff's request for review of the hearing decision,
making the ALJ's decision the Commissioner's final
decision.
II.
Legal Standard.
The
district 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 Commissioner's disability determination
only if the determination 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 considering the record as a
whole. 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. 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) (citations
omitted).
Harmless
error principles apply in the Social Security Act 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 non-disability determination.
Id. The claimant usually bears the burden of showing
that an error is harmful. Id. at 1111.
The ALJ
is responsible for resolving conflicts in medical testimony,
determining credibility, and resolving ambiguities.
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995). In reviewing the ALJ's reasoning, the court is
“not deprived of [its] faculties for drawing specific
and legitimate inferences from the ALJ's opinion.”
Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir.
1989).
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, but at step five, the burden
shifts to the Commissioner. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999).
At the
first step, the ALJ determines whether the claimant is
engaging in substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i). If so, the claimant is not disabled and
the inquiry ends. Id. At step two, the ALJ
determines whether the claimant has a “severe”
medically determinable physical or mental impairment. §
404.1520(a)(4)(ii). If not, the claimant is not disabled and
the inquiry ends. Id. At step three, the ALJ
considers whether the claimant's impairment or
combination of impairments meets or medically equals an
impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt.
404. § 404.1520(a)(4)(iii). If so, the claimant is
automatically found to be disabled. Id. If not, the
ALJ proceeds to step four. At step four, the ALJ assesses the
claimant's residual functional capacity
(“RFC”) and determines whether the claimant is
still capable of performing past relevant work. §
404.1520(a)(4)(iv). If so, the claimant is not disabled and
the inquiry ends. Id. If not, the ALJ proceeds to
the fifth and final step, where he determines whether the
claimant can perform any other work based on the
claimant's RFC, age, education, and work experience.
§ 404.1520(a)(4)(v). If so, the claimant is not
disabled. Id. If not, the claimant is disabled.
Id.
At step
one, the ALJ found that Plaintiff meets the insured status
requirements of the Social Security Act through December 31,
2011, and that he has not engaged in substantial gainful
activity since June 1, 2006. At step two, the ALJ found that
Plaintiff has the following severe impairments:
“narcolepsy, sleep apnea, and obesity (20 CFR
404.1420(c)).” (AR 407.)
At step
three, the ALJ determined that, through the date of last
insured, Plaintiff did not have an impairment or combination
of impairments that meets or medically equals an impairment
listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. At
step four, the ALJ found that Plaintiff has the RFC to
perform:
at least light work and some medium exertion jobs as defined
in 20 CFR 404.1567(c) except the claimant could never climb
ladders, ropes or scaffolds. He must avoid hazards such as
moving machinery or unprotected heights.
(AR 408.)
The ALJ
further found that Plaintiff, through the date of last
insured, was unable to perform any of his past relevant work.
At step five, the ALJ concluded that, considering
Plaintiff's age, education, work experience, and residual
functional capacity, through the date last insured,
“there were jobs that existed in significant numbers in
the national economy that Plaintiff could have
performed.” (AR 414.)
IV.
Analysis.
Plaintiff
argues the ALJ's decision is defective for four reasons:
(1) “[t]he ALJ erred by omitting/rejecting the medical
opinions of Dr. Anderson, treating neurologist/sleep
specialist” (doc. 14 at 9-20); (2) the ALJ erred by
crediting two non-examining physician opinions with
significant weight (id. at 20); (3) “[t]he ALJ
erred by rejecting [Plaintiff's] symptom testimony”
(id. at 22-27); and (4) the ALJ erred “by not
finding cataplexy and hypersomnia were
‘severe'” medical impairments at step two
(id. at 9 n.5). The Court will address each argument
below;
b. Weighing of Medical Source Evidence.
Plaintiff
first argues that the ALJ improperly weighed the medical
opinions of his treating physician, Dr. Troy Anderson, and
examining physicians Drs. Larry Nichols, and Brian Briggs.
1.
Legal Standard.
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 greatest
weight to a treating physician's opinion and more weight
to the opinion of an examining physician than to one of 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)(2)-(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 it is not contradicted by another
doctor's opinion, the opinion of a treating or examining
physician can be rejected only for “clear and
convincing” reasons. Lester, 81 F.3d at 830
(citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.
1988)). A contradicted opinion of a treating or examining
physician “can only be rejected for specific and
legitimate reasons that are supported by substantial evidence
in the record.” Lester, 81 F.3d at 830-31
(citing Andrews, 53 F.3d at 1043).
An ALJ
can meet the “specific and legitimate reasons”
standard “by setting out a detailed and thorough
summary of the facts and conflicting clinical evidence,
stating his interpretation thereof, and making
findings.” Cotton v. Bowen, 799 F.2d 1403,
1408 (9th Cir. 1986). But “[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.” Embrey, 849 F.2d
at 421-22. The Commissioner is responsible for determining
whether a claimant meets the statutory definition of
disability and does not give significance to a statement by a
medical source that the claimant is “disabled” or
“unable to work.” 20 C.F.R. § 416.927(d).
2.
Dr. Troy Anderson, M.D.
A.
Treatment History and Medical Opinions.
Dr.
Anderson is a neurologist and sleep specialist who treated
Plaintiff from 2011 through 2016. (AR 238-66, 273-96, 385-93,
301-02, 691-713.) Dr. Anderson rendered eight medical
opinions on Plaintiffs functional limitations during that
time frame:
. In July 2011, Dr. Anderson opined that
Plaintiff could not be gainfully employed because of his
daytime sleepiness. Dr. Anderson also notes that, at that
time, Plaintiff had failed multiple medications for
narcolepsy and his daytime sleepiness persisted. (AR 301-02.)
. In April 2012, Dr. Anderson assessed work
limitations from narcolepsy and sleep apnea with four
narcoleptic episodes daily, symptoms lasting more than three
hours, severe daytime sleepiness, and a total restriction
from unprotected heights/moving machinery/driving automotive
equipment. Dr. Anderson again noted that medications had
failed. (AR 305-06.)
. In July 2012, Dr. Anderson again assessed
that Plaintiffs impairments would limit his ability to
perform work related activities. He notes that Plaintiff was
still suffering from narcolepsy and daytime sleepiness,
having one episode daily with symptoms lasting more than
three hours, and advising total restriction from unprotected
heights/moving machinery/driving automotive equipment. (AR
307-08.)
. In September 2012, Dr. Anderson assessed
that Plaintiff continued to have difficulties with daytime
sleepiness and cataplexy, and noted that Plaintiff could not
afford his medication. Nor could Plaintiff afford the
“MR angiogram” that Dr. Anderson ordered six
months prior. Dr. Anderson concludes that Plaintiff
“cannot perform work given his difficulties with severe
daytime sleepiness” and state that “[h]e is to
continue to refrain from driving and work with dangerous
equipment as well as work at heights.” (AR 385-86.)
. In August 2014, Dr. Anderson assessed that
Plaintiff “has improved in terms of enjoying his life
but has not improved to [sic] he can't go to work.”
(AR 702.) Dr. Anderson noted that Plaintiff experienced no
side effects with Provigil, and that he increased the
prescribed dosage of the drug to twice per day “to see
if we can get up to this point.” (Id.)
“In the meantime, we continue to support
disability.” (Id.)
. In August 2016, Dr. Anderson completed a
Medical Assessment of Ability to do Work-Related Physical
Activities. (AR 740-41.) Therein, he found that Plaintiffs
severe sleepiness precluded an 8-hour work day. (AR 740.)
Additionally, he found that Plaintiff, in an 8-hour work day,
had the following limitations: Plaintiff can sit for six
hours, stand/walk for six hours, lift 50 pounds or more,
carry 50 pounds or more, and Plaintiffs moderately severe
symptoms would cause him to miss 4-5 days of work per month.
(AR 740-41.) Dr. Anderson also notes that Plaintiffs
medication causes side effects including “chest
pain” and “palpation[.]” (AR 741.)
. In September 2016, Dr. Anderson completed
another Medical Assessment of Ability to do Work-Related
Physical Activities. (AR 742-43.) Therein, he found that
Plaintiffs Hypersomnia, which causes severe daytime
sleepiness, precluded Plaintiff from completing an 8-hour
work day. (AR 742.) Dr. Anderson added that Plaintiffs
symptoms severely impacted Plaintiffs concentration and
ability to stay on task, and that he would miss 5 days of
work per month due to his medical condition. (AR 742-43.) Dr.
Anderson also circled “None” in response to the
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