United States District Court, D. Arizona
Holly M. B., Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
G, CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE
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
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.
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).
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). 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 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[.]
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.
Medical Opinion Evidence.
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.
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).
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.
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.
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
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.
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).
rational explanation of the correct approach was provided in
Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir.
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
Id. at 1140 (quotation marks and citations omitted).
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
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.
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.
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.
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.
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 ...