Holbrook v. Berryhill

          ORDER

          Honorable John Z. Boyle, United States Magistrate Judge.

         Plaintiff Ticey Lynne Holbrook 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 not supported by substantial evidence and is based on legal error, the Commissioner's decision will be vacated and the matter remanded for an award of benefits.

         I. Background.

         On December 30, 2013, Plaintiff applied for disability insurance benefits. On January 13, 2014, Plaintiff applied for Supplemental Security Income. In both applications Plaintiff alleges disability beginning March 2, 2013. On March 17, 2016, Plaintiff appeared with her attorney and testified at a hearing before the ALJ. A vocational expert also testified. On April 26, 2016, 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.

         II. Legal Standard.

         The 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 omitted).

         Harmless 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 non-disability determination. Id. The claimant usually bears the burden of showing that an error is harmful. Id. at 1111.

         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, but at step five, the burden shifts to the Commissioner. 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 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. Id.

         At step one, the ALJ found that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2017, and that she has not engaged in substantial gainful activity since March 2, 2013. At step two, the ALJ found that Plaintiff has the following severe impairments: ankylosing spondylitis, osteoarthritis, status post hip arthroscopy, and headaches. (AR 23.)^[1] 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. (AR 24.) At step four, the ALJ found that Plaintiff has the RFC to perform “a range of sedentary work.” (AR 25.) the ALJ further found that Plaintiff can: occasionally carry 20 pounds, frequently carry 10 pounds, stand an walk up to two hours, sit for six hours, and occasionally crawl, frequently balance, stoop, crouch, kneel, climb ramps or stairs, frequently handle and finger with her dominant hand, tolerate occasional exposure to moving mechanical part and unprotected heights. The ALJ found Plaintiff is unable to climb ladders, ropes, or scaffolds. (AR 25.) At step five, the ALJ concluded that, considering Plaintiff's age, education, work experience, and residual functional capacity, Plaintiff could perform her past work as a receptionist. (AR 29.)

         IV. Analysis.

         Plaintiff argues the ALJ's decision is defective for two reasons: (1) the ALJ erred by rejecting the assessments by Plaintiff's treating providers and instead favored the opinions of the non-examining state agency doctors (2) the ALJ erred by rejecting Plaintiff's symptom testimony absent specific, clear, and convincing reasons supported by substantial evidence in the whole record.

         A. Weighing of Medical Opinion Evidence.

         Plaintiff argues that the ALJ improperly weighed the medical opinions of Allan Mallace, M.D. and Mellissa Pannell, FNP-BC. The Court will address the ALJ's treatment of the opinions below.

         1. Legal Standard.

         The 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).

         An ALJ 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.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 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 m e e t s 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).

         1. Allan Mallace, M.D.

         Dr. Mallace served as Plaintiff's treating physician between May 2014 and November 2015, and treated Plaintiff no less than nine times during that period. (AR 429, 426, 424, 422, 600, 598, 595, 592, 590.) On May 14, 2014, Plaintiff first saw Dr. Mallace, and reported a “15 month history of joint pain.” (AR 429.) After a single system musculoskeletal exam (SSME), Dr. Mallace noted that the “lower extremity show[s] severe tenderness or restriction” in Plaintiff's right thigh. (AR 430.) On May 28, 2014, Dr. Mallace noted that Plaintiff's “pain is severe[, ]” and that the SSME “shows some tenderness dorsum.” (AR 426.) He also noted “[n]o swelling or decreased range of motion zone peripheral skelton[sic]” and “[l]ow back tenderness.” (AR 426.)

         In July 2014, Dr. Mallace noted Plaintiff had “chronic pains that are severe despite multiple diagnostic and therapeutic attempts.” (AR 424.) He also noted her wrists were “swollen and tender.” (AR 424.) Dr. Mallace stated the SSME showed “good ranges of motion [in her] wrists hands elbows and shoulder with severe tenderness [in her] right hemipelvis and right buttock area with tenderness [in her] right leg on weightbearing.” (AR 425.) He also ...