United States District Court, D. Arizona
G. A. Leusch, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
G, Campbell Senior United States District Judge.
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.
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.
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).
The ALJ's Sequential 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). 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.
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
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. Id. at
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.
Medical Opinion Evidence. 1. Legal Standard.
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.
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).
Dr. John Kearney.
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
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. 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.
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.
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.
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.
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).
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.
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.
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 ...