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Holly M. B. v. Berryhill

United States District Court, D. Arizona

January 18, 2019

Holly M. B., Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.



         Plaintiff 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 52-year-old woman with a ninth-grade education. A.R. 41-42. She previously worked as a machine operator, personal trainer, cleaner, and floor attendant. A.R. 57-58. Plaintiff applied for disability benefits on August 22, 2011, alleging disability beginning July 12, 2009. A.R. 39. Plaintiff later amended her alleged onset date to August 1, 2011. A.R. 15, 39. On September 12, 2016, Plaintiff and a vocational expert appeared and testified at a hearing before an ALJ. A.R. 37-117. On January 13, 2017, the ALJ issued an unfavorable decision, finding Plaintiff not disabled within the meaning of the Social Security Act. A.R. 15-30. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on March 1, 2018. 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 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 September 30, 2014, and that she had not engaged in substantial gainful activity during the period from her amended alleged onset date of August 1, 2011 through September 30, 2014. A.R. 17-18. At step two, the ALJ found that Plaintiff had the following severe impairments: obesity; fibromyalgia; rheumatoid arthritis; Still's disease; arthritis of the knee; degenerative disc disease of the lumbar and cervical spine; bipolar disorder; mood disorder; and polysubstance dependence in reported remission. A.R. 18. 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 19. At step four, the ALJ found that Plaintiff could not perform past relevant work, but that Plaintiff had the RFC to perform sedentary work. A.R. 21, 28. The ALJ found that Plaintiff

can occasionally climb ramps or stairs, crouch, kneel, and crawl, can never climb ladders, ropes, or scaffolds, and can frequently balance. The claimant is limited to occasional exposure to dangerous machinery with moving mechanical parts or unprotected heights that are high or exposed. The claimant is limited to work that can be learned by demonstration within 30 days, and can occasionally interact with the public, coworkers, and supervisors. She can work in the vicinity of others[.]

A.R. 21.

         IV. Analysis.

         Plaintiff argues the ALJ's decision is defective for two reasons: (1) the ALJ erred in rejecting opinions by Plaintiff's treating physicians, Dr. Olubi and Dr. Naranja, and instead giving significant weight to the one-time examiner, Dr. Gomez, and the two consultative examiners; and (2) the ALJ rejected Plaintiff's symptom testimony without specific, clear, and convincing reasons supported by substantial evidence. Doc. 14 at 1-2.

         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)). “[I]f 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 [her] conclusions. [She] must set forth [her] 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. Olubi.

         The ALJ gave Dr. Olubi's opinion little weight. A.R. 26. Because Dr. Olubi is a treating physician whose opinion is contradicted by another doctor, the ALJ could discount his opinion for specific and legitimate reasons supported by substantial evidence. Lester, 81 F.3d at 830-31.

         On August 1, 2013, Dr. Olubi completed a check-box assessment. A.R. 870-73. He opined that, in an eight-hour work day, Plaintiff could sit for one hour; stand and walk for two hours; needs to change positions at least every 15 minutes; needs a ten-minute stretching break every 45 minutes; can frequently lift and carry ten pounds and occasionally lift and carry 11-20 pounds; can never lift and carry more than 21 pounds; and never stoop, squat, crawl, climb, or reach. Dr. Olubi opined that Plaintiff can frequently grasp and manipulate with both hands and occasionally push and pull with both hands; cannot use feet for repetitive movements; and has a total restriction around unprotected heights, moving machinery, occupational driving, exposure to dust fumes, gases, and marked changes in temperature or humidity. A.R. 870-71.

         Dr. Olubi also completed a Fibromyalgia assessment and indicated that Plaintiff has had the following symptoms since July 2010: generalized pain and tenderness, fatigue, presence of tender points, irritable bowel syndrome, sleep disorder or waking un-refreshed, memory impairments, anxiety, and depression. A.R. 872. Dr. Olubi's opinion indicated that Plaintiff's limitations would cause her to be off task more than 30% of an eight-hour work day, absent from work four days a month, and 50% less efficient than an average worker on a sustained basis. A.R. 873

         The ALJ identified several reasons for giving the opinion little weight: (1) it was provided as a check-box form without explanation or specific citation for the limitations asserted; (2) it was an extreme opinion and unsupported by Dr. Olubi's own clinical findings; (3) Dr. Olubi is a general practitioner, not a specialist; and (4) it appears to be based significantly on Plaintiff's subjective complaints. A.R. 26.

         a. First Reason.

         The Ninth Circuit has provided conflicting guidance on the effect of check-box forms. In Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012), the court stated that an “ALJ may permissibly reject check-off reports that [do] not contain any explanation of the bases of their conclusions.” Id. at 1111-12 (citation and quotation omitted). More recently, and without so much as citing Molina, the Ninth Circuit stated that ALJs may not “reject the responses of a treating physician without specific and legitimate reasons for doing so, even where those responses were provided on a ‘check-the-box' form, were not accompanied by comments, and did not indicate to the ALJ the basis for the physician's answers.” Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 2017).

         A rational explanation of the correct approach was provided in Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014):

An ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by the record as a whole or by objective medical findings. Indeed, Dr. Riley's assessments are of the “check-box” form and contain almost no detail or explanation. But the record supports Dr. Riley's opinions because they are consistent both with Claimant's testimony at the hearing and with Dr. Riley's own extensive treatment notes which, as discussed above, the ALJ largely overlooked. The ALJ clearly erred in his assessment of the medical evidence, overlooking nearly a dozen reports related to head, neck, and back pain.

Id. at 1140 (quotation marks and citations omitted).

         The Court does not entirely agree with the ALJ's conclusion that Dr. Olubi's opinion was “without explanation or specific citation for the limitations provided.” A.R. 26. Dr. Olubi described Plaintiff's limitations on the first page of the form, stating that she needs to change positions every 15 minutes and to take a ten-minute stretching break every 45 minutes (A.R. 870), and provided some explanation at the end of the form:

P[atien]t suffered [motor vehicle accident] ¶ 2010 [illegible] cervical disc herniation with radiculopathy and also clinical depression and anxiety. She also has a [history] of juvenile rheumatoid arthritis and fibromyalgia and she is on multiple medications to [illegible] her pain, depression and anxiety which overall affect her level of functioning.

A.R. 873.

         True, the check-box from included no specific citations to the record, but the ALJ's cited exhibit - 13F - includes not only Dr. Olubi's two assessments from August 2013, but also his treatment notes and tests from six examinations of Plaintiff from March to August 2013. A.R. 874-92. As explained in some detail in the next section, Dr. Olubi's treatment notes support his check-box opinion. Thus, although his opinion was conclusory and brief, it was not unsupported by the record as a whole, and the form of the opinion therefore is not a legitimate basis for discounting it. Burrell, 775 F.3d at 1140.

         b. Second Reason.

         The ALJ stated that Dr. Olubi's opinion was extreme and unsupported by his own clinical findings, “including the claimant's presentation in no acute distress, with normal ambulation, and normal physical examination findings.” A.R. 26 (citing A.R. 876, 889). In support, the ALJ cited two pages out of Plaintiff's six-month treatment history with Dr. Olubi. The ALJ also stated that “physical examinations of the claimant by the doctor were largely benign, ” and that there were “no clinical findings supportive of the manipulative restrictions opined.” A.R. 26.

         The first cited page is from the record of Plaintiff's August 2013 visit with Dr. Olubi. See A.R. 874-77. As the ALJ stated, the physical examination revealed normal ambulation and no acute distress. A.R. 876. But the examination hardly showed Plaintiff to be in normal physical health. It revealed that Plaintiff had neck pain with motion; limited range of motion in all neck planes; tenderness and limited range of motion in Plaintiff's joints, bones, and muscles; antalgic gait; and moderate limitation for flexion in Plaintiff's back. Id. Treatment notes indicated that Plaintiff reported fatigue, muscle aches, joint and back pain, weakness, and depression. A.R. 875.

         The second page cited by the ALJ is from Plaintiff's May 2013 visit with Dr. Olubi. See A.R. 886-91. That visit also showed normal ambulation, as the ALJ noted, but found an antalgic gait and moderate limitation for flexion in Plaintiff's back. A.R. 887-88.

         Plaintiff's treatment history with Dr. Olubi also reflects that in July she reported moderate and worsening lumbar back pain that interfered with sleep and work (A.R. 879), and her physical examination showed an antalgic gait and moderate limitation for flexion in her back (A.R. 880). In June, Plaintiff reported the same lumbar pain and also that sitting, walking, moving, bending over, and twisting aggravated her pain. A.R. 883. The June physical examination revealed an antalgic gait and limitations in the range of motion in Plaintiff's back. A.R. 884. And in April, Plaintiff reported fatigue, depression, breast pain and tenderness, but a full physical examination was not included. A.R. 983-93. The records show that Plaintiff was continuously prescribed as many as ten medications to treat ...

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