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Bullard v. Berryhill

United States District Court, D. Arizona

November 7, 2018

M.A. Bullard, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          David G. Campbell Senior United States District Judge

         Plaintiff, M.A. Bullard, seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security which denied her disability insurance benefits under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. For reasons set forth below, the Court will vacate the Commissioner's decision and remand for an award of benefits.

         I. Background.

         Plaintiff is a 51 year-old woman with an eighth grade education. A.R. 38. She previously worked as housekeeper, salesperson, and a cleaning person. A.R. 39-40. Plaintiff applied for disability benefits on January 2, 2014, alleging disability beginning January 1, 2013. A.R. 17. Plaintiff later amended her alleged onset date to July 28, 2014. A.R. 17. On May 17, 2016, Plaintiff and a vocational expert appeared and testified at a hearing before the ALJ. A.R. 36-57. On September 29, 2016, the ALJ issued an unfavorable decision, finding Plaintiff not disabled within the meaning of the Social Security Act. A.R. 27-28. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on November 3, 2017. 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 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. (internal citations and quotation marks 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) (citations omitted). 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). 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 met the insured status requirements of the Social Security Act through December 31, 2018, and that she had not engaged in substantial gainful activity since July 28, 2014. A.R. 19. At step two, the ALJ found that Plaintiff had the following severe impairments: lumbar spine degenerative disc disease and obesity.[1] A.R. 20. 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 22. At step four, the ALJ found that Plaintiff had the RFC to perform light work, including her past work as a housekeeper and salesclerk. A.R. 22, 27.

         IV. Analysis.

         Plaintiff argues the ALJ's decision is defective for three reasons: (1) the ALJ erred in rejecting Dr. Yamaguchi's assessment; (2) the ALJ rejected Plaintiff's symptom testimony without specific, clear, and convincing reasons, supported by substantial evidence; and (3) the ALJ erred by determining Plaintiff's RFC without giving reasons supported by substantial evidence.

         A. Medical Opinion Evidence.

         1. Legal Standard.

         A physician's opinion may be a treating source, examining source, or non-examining source. See 20 C.F.R. § 404.1527 (evaluating opinion evidence for claims filed before March 2017); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating physician is one who provides or has provided the claimant with medical treatment or evaluation, or who has an ongoing treatment relationship with the claimant. Id. at § 404.1527(a)(2). Generally, an ALJ should give 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, 53 F.3d at 1040-41; see also 20 C.F.R. § 404.1527(c)(2)-(6) (factors ALJ considers when evaluating opinion 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)). “The ALJ must do more than offer his conclusions. He must set forth his 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. Yamaguchi.

         The ALJ gave Dr. Yamaguchi's opinion no weight. A.R. 26. Because Dr. Yamaguchi is a treating physician whose opinion is not contradicted by another doctor, the ALJ could discount his opinion only for clear and convincing reasons. Lester, 81 F.3d at 830-31.

         On August 31, 2016, Dr. Yamaguchi completed a check-box form indicating that Plaintiff was significantly disabled. He opined that Plaintiff could continuously sit for only 30 minutes; continuously stand for only 30 minutes; sit for two hours or less in an eight-hour workday; stand and walk for two hours or less in an eight-hour workday; rarely lift ten pounds; rarely carry five pounds; rarely stoop, squat, crawl, climb, and reach; occasionally handle, grip or grasp, and push or pull hand controls; rarely perform fingering and fine manipulation; and not use her feet for repetitive movements. A.R. 793-95. Dr. Yamaguchi opined that Plaintiff would have a total restriction around unprotected heights, moving machinery, exposure to dust, fumes, and gases, and exposure to marked changes in temperature or humidity. Id. Dr. Yamaguchi also opined that Plaintiff would have a moderate restriction with occupational driving. Id.

         The ALJ identified several reasons for giving the opinion no weight: it (1) was inconsistent with objective medical findings in the record; (2) was so extreme that Plaintiff would be bedridden, when she was not; (3) included no contemporaneous treatment records; (4) did not list any current diagnosis of conditions which supported Plaintiff's extreme limitations; (5) did not include any indication of a need for a handheld device, such as a cane, even though the form included a space for such an indication; and (6) appeared to be based on claimant's subjective complaints rather than objective clinical findings. A.R. 25-26.

         With respect to his first basis, the ALJ identified two medical findings: (1) a lumbar spine x-ray in April 2014, which showed mild curvature in the lumbar spine, minimal hypertrophic degenerative changes, no fractures or focal osseous lesions, no subluxations and only mild facet arthropathy at ¶ 5 to S1 (A.R. 330); and (2) a lumbar spine MRI in July 2015, showing no severe spinal canal or neural foraminal narrowing, normal alignment of the lumbar spine, normal lumbar vertebrae in appearance and signal without fracture or focal lesions, and mild degenerative disc disease at all levels, with the exception of L1-L2, which had moderate degenerative disc disease (A.R. 383). The ALJ attempted to ...


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