United States District Court, D. Arizona
A. M. Holmes, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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.
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.
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) 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).
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. 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
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.
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
Weighing of Medical Source Evidence.
argues that the ALJ improperly weighed the medical opinions
of Dr. Patel and Nurse Practitioner Banziger.
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).
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.
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).