United States District Court, D. Arizona
Honorable John Z. Boyle, United States Magistrate Judge.
Keri Lee seeks review under 42 U.S.C. § 405(g) of the
final decision of the Commissioner of Social Security
(“the Commissioner”), which denied her disability
insurance benefits and supplemental security income under
sections 216(i), 223(d), and 1614(a)(3)(A) of the Social
Security Act. Because the decision of the Administrative Law
Judge (“ALJ”) is supported by substantial
evidence and is not based on legal error, the
Commissioner's decision will be affirmed.
September 10, 2013, Plaintiff applied for disability
insurance benefits and supplemental security income, alleging
disability beginning September 10, 2013. On June 10, 2015,
she appeared with her attorney and testified at a hearing
before the ALJ. A vocational expert also testified. On
September 3, 2015, the ALJ issued a decision that Plaintiff
was not disabled within the meaning of the Social Security
Act. The Appeals Council denied Plaintiff's request for
review of the hearing decision, making the ALJ's decision
the Commissioner's final decision.
district 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. 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
error principles apply in the Social Security Act context.
Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.
2012). An error is harmless if there remains substantial
evidence supporting the ALJ's decision and the error does
not affect the ultimate nondisability determination.
Id. The claimant usually bears the burden of showing
that an error is harmful. Id. at 1111.
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.
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, but at step five, the burden
shifts to the Commissioner. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999).
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.
one, the ALJ found that Plaintiff meets the insured status
requirements of the Social Security Act through September 10,
2013, and that she has not engaged in substantial gainful
activity since that date. (AR 18.) At step two, the ALJ found
that Plaintiff has the following severe impairments:
“asthma, chronic obstructive pulmonary disease
(“COPD”), Raynaud's syndrome, Ehlers-Danlos
Syndrome, lumbar and cervical degenerative disc disease,
rochaneric bursitis, obesity, social phobia, posttraumatic
stress disorder (“PTDS”), and major depressive
disorder (“MDD”).” (Id.) At step
three, the ALJ determined that Plaintiff does not have an
impairment or combination of impairments that meets or
medically equals an impairment listed in Appendix 1 to
Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ found
the following capabilities with respect to Plaintiff's
residual functional capacity:
Lift and/or carry up to 20 pounds occasionally and 10 pounds
frequently . . . standing and/or walking for four hours, and
sitting for six hours, in an eight hour workday, with normal
breaks . . . occasionally perform balancing, stooping,
kneeling, crouching, crawling, and climbing of ramps and
stairs, with no climbing of ladders, ropes, or scaffolds . .
. occasional exposure to non-weather related extreme cold and
heat, humidity, poorly ventilated areas, and hazards such as
unprotected heights that are high or exposed, moving
mechanical parts, and dangerous machinery . . . occasional
exposure to pulmonary irritants such as fumes, odors, dusts,
and gases . . . tasks that can be learned by demonstration
within 30 days, and minimal interaction with co-workers and
supervisors . . . work in the vicinity of others but not in
tandem with others . . . minimal in person interaction with
(AR at 22.) The ALJ further found that Plaintiff has no past
relevant work. (Id.) At step five, the ALJ concluded
that, considering Plaintiff's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that Plaintiff could perform. (Id.)
argues the ALJ's decision is defective for two reasons:
(1) the ALJ committed materially harmful error by rejecting
the assessments from Plaintiff's treating primary care
physician and physician assistant, Dr. Cunningham and PAC
Sessler, and from Plaintiff's treating pulmonary nurse
practitioner, Judith Newell, N.P., and (2) the ALJ committed
materially harmful error by rejecting Plaintiff's symptom
testimony in the absence of specific, clear, and convincing
reasons supported by substantial evidence in this record as a
whole. The Court will address each argument.
Weighing of Medical Source Evidence.
argues that the ALJ improperly weighed the medical opinions
of treating physician Dr. Cunningham, physician's
assistant Sheri Sessler, and nurse practitioner Judith
Newell. The Court will address the ALJ's treatment of
each opinion below.
Ninth Circuit distinguishes between the opinions of treating
physicians, examining physicians, and non-examining
physicians. See Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995). Generally, an ALJ should give greatest
weight to a treating physician's opinion and more weight
to the opinion of an examining physician than to one of a
non-examining physician. See Andrews v. Shalala, 53
F.3d 1035, 1040-41 (9th Cir. 1995); see
also 20 C.F.R. § 404.1527(c)(2)-(6) (listing
factors to be considered when evaluating opinion evidence,
including length of examining or treating relationship,
frequency of examination, consistency with the record, and
support from objective 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)). A contradicted opinion of a treating or examining
physician “can only be rejected for specific and
legitimate reasons that are supported by substantial evidence
in the record.” Lester, 81 F.3d at 830-31
(citing Andrews, 53 F.3d at 1043).
can meet the “specific and legitimate reasons”
standard “by setting out a detailed and thorough
summary of the facts and conflicting clinical evidence,
stating his interpretation thereof, and making
findings.” Cotton v. Bowen, 799 F.2d 1403,
1408 (9th Cir. 1986). But “[t]he 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).
Dr. Cunningham, M.D. ...