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Leusch v. Berryhill

United States District Court, D. Arizona

January 11, 2019

G. A. Leusch, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.


          David G, Campbell Senior United States District Judge.

         Plaintiff G.A. Leusch seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (“the Commissioner”), which denied his disability insurance benefits and supplemental security income under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. For the following reasons, the Court will vacate the Commissioner's decision and remand for an award of benefits.

         I. Background.

         Plaintiff is a 55-year-old man with a ninth-grade education. A.R. 48. He previously worked as a cabinet maker. A.R. 60. Plaintiff applied for disability benefits on September 24, 2013, alleging disability beginning June 20, 2012. A.R. 21. On October 7, 2015, Plaintiff and a vocational expert (“VE”) appeared and testified at a hearing before the ALJ. A.R. 42-69. On June 1, 2016, Plaintiff, a VE, and a medical expert (“ME”) appeared before the ALJ at a supplemental hearing. A.R. 99-127. On September 28, 2016, the ALJ issued an unfavorable decision, finding Plaintiff was not disabled within the meaning of the Social Security Act. A.R. 21-34. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on February 13, 2018. A.R. 1-7.

         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 whole record. Id. In determining whether substantial evidence supports a decision, the Court must consider the whole record 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 Sequential 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 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.

         At step one, the ALJ found that Plaintiff met the insured status requirements of the Social Security Act through June 30, 2014, and that he had not engaged in substantial gainful activity since June 20, 2012. A.R. 24. At step two, the ALJ found that Plaintiff had the following severe impairments: bilateral carpal tunnel syndrome status post left release; history of left cubital tunnel syndrome status post decompression; lumbar spine spondylosis; and cervical spine spondylosis, status post fusion. Id. 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. Id. At step four, the ALJ determined that Plaintiff had the RFC to perform medium work and that:

the claimant can lift and/or carry fifty pounds occasionally, twenty-five pounds frequently; . . . has no limitation with regard to sitting with normal breaks; . . . can stand or walk for six hours with normal breaks; [and] can frequently finger with the dominant left upper extremity.

A.R. 24. The ALJ concluded that Plaintiff could perform his past relevant work as a cabinet maker, and that he was not disabled within the meaning of the Social Security Act from June 20, 2012 through September 28, 2016.[1] Id. at 34.

         IV. Discussion.

         Plaintiff argues that the ALJ's decision is defective for two reasons: (1) the ALJ erred in rejecting assessments by Plaintiff's two treating physicians, Dr. Kearney and Dr. Amrani, and giving great weight to the non-examining ME, Dr. Schmitter; and (2) the ALJ rejected Plaintiff's symptom testimony without specific, clear, and convincing reasons supported by substantial evidence. Doc. 14 at 18, 25.

         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. 20 C.F.R. § 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). 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)). “Even if the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing ‘specific and legitimate reasons' supported by substantial evidence in the record for so doing.” Id. “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Magallanes, 881 F.2d at 751.

         “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. John Kearney.

         The ALJ gave Dr. Kearny's opinion little weight. A.R. 32. Because Dr. Kearney is a treating physician whose opinion is contradicted by another doctor, the ALJ could discount his opinion by giving specific and legitimate reasons that are supported by substantial evidence. Lester, 81 F.3d at 830.

         a. Opinion.

         On May 29, 2015, Dr. Kearney completed a check-box form indicating that Plaintiff had moderately severe pain which seriously affected his ability to function and prohibited him from working. A.R. 846-47. He opined that Plaintiff had the following impairments: carpal tunnel syndrome, cubital tunnel syndrome, cervical radiculopathy, and lumbar radiculopathy. Id.[2] In an eight-hour work day, Dr. Kearney opined that Plaintiff could sit for six hours; stand and walk 2-3 hours; lift and carry 10-15 pounds; never use his left hand; frequently use his right hand; occasionally use his feet, bend, reach, stoop, and balance; and never crawl, climb, crouch, or kneel. Id.

         On September 23, 2015, Dr. Kearney completed another form indicating that Plaintiff had right and left carpal tunnel syndrome. A.R. 896-97. He opined that Plaintiff could sit for six hours; stand and walk for six hours; lift 15-20 pounds; carry 20-30 pounds; use his hands less than occasionally; and that these restrictions were present as of June 20, 2012. Id. On October 2, 2015, Dr. Kearney responded to questions about his previous opinion, stating that he treats Plaintiff only for hand conditions and that Plaintiff's condition would require 10-15 minute breaks after periods of using his hands. A.R. 898.

         The ALJ identified two reasons for giving the opinions little weight: (1) Plaintiff's medical records did not support the severity of limitations assessed by Dr. Kearney; and (2) Dr. Kearney is a board-certified sports and family medicine, nonsurgical practitioner. A.R. 32.

         b. First Reason.

         With respect to his first reason, the ALJ stated that physical examinations revealed negative Tinel's and Phalen's tests on the left hand, a negative Spurling's test on the left, and normal ulnar and radial sensation on the left. A.R. 32. The ALJ cited one exhibit for this proposition, which includes medical records from two visits at the same treatment facility. A.R. 1018-24. The first visit was on September 23, 2015 with Dr. Kearney. A.R. 1021-24. Plaintiff reported a pain level of 9 in both hands, and Dr. Kearney noted numbness, tingling, joint swelling, and stiffness. A.R. 1021. Dr. Kearney diagnosed Plaintiff with radiculopathy in the cervicothoracic region and assessed left carpal tunnel syndrome, and stated that Plaintiff “still clearly seem[ed] to be symptomatic from a component of recalcitrant carpal tunnel syndrome.” Dr. Kearney wanted Plaintiff to follow up regarding hand surgery. A.R. 1023. The second visit was a month later on November 4, 2015. Plaintiff reported a pain level of 5 in his left hand and that his pain was dull, aching, and worsening. A.R. 1018-19. Without further explanation, the notes state, “LUE: Durkan's, - Tinel's at wrist, - Phalen's, Tinel's at elbow, elbow flexion test, - Spurling's, decreased sensation in median/ulnar/radial distributions.” A.R. 1019. The assessment also states:

Because of conflicting evidence, it is not clear if . . . symptoms are due to nerve problems originating at the wrist and elbow or in the neck. I do not know if revision CTR and ulnar nerve transposition will help . . . . He will go ahead with the nerve stimulator test and see if this helps him.


         Plaintiff argues that the ALJ's cited medical records support rather than contradict Dr. Kearney's opinion about his limitations. Doc. 14 at 21. Plaintiff cites Dr. Kearney's September conclusion that he remained symptomatic and the November examination showing a positive Durkan's test at Plaintiff's left upper extremity, positive Tinel's sign at the elbow, and decreased sensation in the median, ulnar, and radial distributions. Id. at 21-22 (citing A.R. 1019-23).

         The ALJ failed to explain why the cited examination results contradicted Dr. Kearney's assessment, even though one of the examinations was conducted by Dr. Kearney and consistent with his opinions about Plaintiff's limitations, and the second was only a month later at the same facility and remained consistent with Plaintiff's reported pain and symptoms. It is true that the November examination only pertained to Plaintiff's right hand and showed negative Tinel's, Phalen's, and Spurling's results. A.R. 1019. But the examination also yielded positive Durkan's, Tinel's at the elbow, elbow flexion, and showed decreased sensation in Plaintiff's left median, ulnar, and radial distributions. Id. The ALJ cited no evidence explaining the significance of these findings. And he failed to state his interpretation of the mixed results, why his interpretation was correct and Dr. Kearney's incorrect, and why his interpretation rendered Dr. Kearney's assessment unsupported. Although the ALJ set out a thorough discussion of the record (A.R. 27-33), he failed to make specific findings about evidence supporting or contradicting Dr. Kearney's opinion and his interpretation of the evidence. See Magallanes, 881 F.2d at 751.

         b. Second Reason.

         The ALJ's second reason for discrediting Dr. Kearney's opinion was that Dr. Kearney was board-certified in sports and family medicine and was not a surgical practitioner. A.R. 32. The ALJ noted that the ME was board-certified in orthopedic surgery. A.R. 30-31. Defendant does not seem to defend this rationale. See Doc. 18 at 17-19.

         While specialization in the relevant field is a factor in determining a medical opinion's weight, it is not controlling. See 20 C.F.R. § 404.1527(c)(5). The ALJ should consider the “kinds and extent of examinations and testing the [treating] source has performed or ordered from specialists and independent laboratories.” § 404.1527(c)(2)(ii). Board certification was not required for Dr. Kearney to offer an opinion on Plaintiff's condition, and the ALJ could not discredit Dr. Kearney's opinion for this ...

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