United States District Court, D. Arizona
Honorable John Z. Boyle, United States Magistrate Judge.
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.
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.
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 non-disability 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 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.) 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
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.
Weighing of Medical Opinion Evidence.
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
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.” 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).
Allan Mallace, M.D.
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.)
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