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Holmes v. Berryhill

United States District Court, D. Arizona

November 5, 2018

A. M. Holmes, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.



         Plaintiff A.M. Holmes seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (“the Commissioner”), which denied her disability insurance benefits and supplemental security income 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 based on legal error, the Commissioner's decision will be vacated and the matter remanded for further administrative proceedings.

         I. Background.

         Plaintiff is a thirty-two year-old female who previously worked as a caregiver, a cashier or checker, and a fast food worker. A.R. 28. On January 2, 2014, she applied for disability insurance benefits and supplemental security income, alleging disability beginning August 9, 2012. Id. On April 21, 2016, she appeared with her attorney and testified at a hearing before the ALJ. Id. A vocational expert also testified. Id. On May 23, 2016, the ALJ held that Plaintiff was not disabled within the meaning of the Social Security Act. Id. at 30. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. A.R. 1-3.

         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 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. 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 nondisability 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, 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 meets the insured status requirements of the Social Security Act through June 30, 2016, and that she has not engaged in substantial gainful activity since August 9, 2012. A.R. 19. At step two, the ALJ found that Plaintiff has the following severe impairments: tarsal tunnel involvement in the right lower extremity, degenerative disc disease, asthma, obesity, bipolar disorder, anxiety, and depression. Id. at 20. At step three, the ALJ determined that Plaintiff does 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.[1] Id. At step four, the ALJ found that Plaintiff has the following RFC:

To perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can sit six hours out of an eight hour day. The claimant can stand for six hour[s] out of an eight-hour day. The claimant can walk for six hours out of an eight-hour day. The claimant can occasionally lift and carry twenty pounds and frequently lift and carry ten pounds. The claimant can push and pull with the right lower extremity on an occasional basis only. The claimant can only occasionally climb, balance, stoop, kneel, crouch, and crawl. The claimant can have only occasional exposure to heights, moving machinery, humidity, dust, fumes, smoke, temperature extremes and vibrations. The claimant can only understand, remember and carry out complex and detailed job instructions and can only occasionally interact with coworkers or the public.

Id. at 22. The ALJ further found that Plaintiff is unable to perform any of her past relevant work. Id. at 26. Considering Plaintiff's age, education, work experience, and RFC, the ALJ found at step five that jobs exist in significant numbers in the national economy that Plaintiff could perform, such as housekeeper or cleaner, delivery maker, and routing clerk. Id. at 28.

         IV. Analysis.

         Plaintiff argues that the ALJ's decision is defective for three reasons: (1) the ALJ failed to consider the assessments of Plaintiff's treating psychiatrist, S. Patel, M.D., and treating psychiatric nurse practitioner, Linda Banziger, N.P.; (2) the ALJ rejected Plaintiff's symptom testimony without specific, clear, and convincing reasons supported by substantial evidence in the record as a whole; and (3) the ALJ ignored Plaintiff's limitations in concentration, persistence, and pace when she determined Plaintiff's RFC.

         A. Weighing of Medical Source Evidence.

         Plaintiff argues that the ALJ improperly weighed the medical opinions of Dr. Patel and Nurse Practitioner Banziger.

         1. Legal Standard.

         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).

         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, 53 F.3d at 1040-41; 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)). 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).

         An ALJ may discount the opinion of “other sources, ” such as a nurse practitioner, if she “provides reasons germane to each witness for doing so.” Popa v. Berryhill, 872 F.3d 901, 905 (9th Cir. 2017) (citing Molina, 674 F.3d at 1111) (internal quotations omitted); see also 20 C.F.R. § 404.1513(a)(3). The same factors that are used to evaluate the opinions of medical providers should be used to evaluate other medical sources. See Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017); see also § 404.1527(f).

         2. ...

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