Dingman v. Commissioner of Social Security Administration

          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 ...