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Henderson v. Commissioner of Social Security Administration

United States District Court, D. Arizona

March 8, 2019

Julie Henderson, Plaintiff,
Commissioner of Social Security Administration, Defendant.




         Plaintiff Julie Ann Henderson (“Henderson”) seeks review under 42 U.S.C. § 405(g) of the final decision of the Acting Commissioner of Social Security (“Commissioner”), which denied her application for disability benefits and supplemental security income. For the following reasons, the Court finds that the administrative law judge's (“ALJ”) decision was based on reversible legal error and remands for further proceedings.

         Henderson is a 54-year-old female who previously worked as a deli clerk, baker, and bus driver, and alleges she became disabled in June 2012. In September 2012, she filed an application for disability benefits. (A.R. 297-298.) The claim was denied initially on December 20, 2012 (A.R. 94) and again upon reconsideration on September 26, 2013 (A.R. 116). Henderson then filed a written request for hearing on October 16, 2013. (A.R. 198-199). On August 12, 2014, she appeared and testified at a hearing at which an impartial vocational expert also appeared and testified. (A.R. 74-93.) On September 29, 2014, the ALJ issued a decision that Henderson was not disabled within the meaning of the Social Security Act. (A.R. 161-173.) On April 18, 2016, the Appeals Council granted Henderson's request for review and remanded the case to the ALJ. (A.R. 181-182.) The ALJ conducted a new hearing on December 6, 2016 (A.R. 44-72) and issued a decision again determining that Henderson wasn't disabled (A.R. 21-35). Henderson requested review of the ALJ's decision, but the Appeals Council denied review on October 5, 2017. (A.R. 1-5.) At that point, the ALJ's decision became the Commissioner's final decision.


         The Court addresses only the issues raised by the claimant in the appeal from the ALJ's decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), as amended on reh'g (Aug. 9, 2001). The Court should uphold the ALJ's decision “unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is more than a mere scintilla but less than a preponderance.” Id. Put another way, “[i]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted). The Court should uphold the ALJ's decision “[w]here evidence is susceptible to more than one rational interpretation, ” but the Court “must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id. (citations and internal quotation marks omitted).

         “[H]armless error principles apply in the Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). “[A]n ALJ's error is harmless where it is inconsequential to the ultimate nondisability determination.” Id. (citations and internal quotation marks omitted). The Court must “look at the record as a whole to determine whether the error alters the outcome of the case.” Id. Importantly, however, the Court may not uphold an ALJ's decision on a ground not actually relied on by the ALJ. Id. at 1121.

         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. Id. § 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. Id. § 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. Id. § 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, which addresses whether the claimant can perform any other work based on the claimant's RFC, age, education, and work experience. Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled.


         At step one, the ALJ determined that Henderson met the insured status requirements of the Social Security Act through December 31, 2017 and had not engaged in substantial gainful activity since June 25, 2012. (A.R. 23.) At step two, the ALJ found that Henderson had the following severe impairments: degenerative changes of the spine; morbid obesity; unspecified myalgia/myositis; carpal tunnel syndrome; degenerative changes of the knees, left hip, and right ankle; asthma; depression; anxiety; and headaches. (A.R. 24.) The ALJ acknowledged that the record contained evidence of pulmonary embolism, chronic chest pain, transient ischemic attack, cardiac arrhythmia, primary snoring, onychomycosis, neck spasms, diabetes, restless leg syndrome, chronic sinusitis, bacterial vaginosis, hypertension, hematuria, noncardiac syncopal episodes, gastroesophageal reflux disease, plantar fasciitis, vertigo, and possible broken toes bilaterally, but found that these were not severe impairments. (A.R. 24-25.) The ALJ further noted that Henderson alleged she suffered from myocardial infarction, Crohn's disease, and fibromyalgia, but concluded those ailments weren't medically determinable impairments. (A.R. 25.) At step three, the ALJ determined that Henderson didn't have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. (A.R. 25-26.) At step four, the ALJ determined that Henderson had the RFC to perform light work, but with several exceptions. (A.R. 27-33.)[1] The ALJ found Henderson wasn't capable of performing her past relevant work, but could perform the occupations of mail clerk, routing clerk, and office helper. (A.R. 33-35.)

         In her opening brief, Henderson argues the ALJ erred by: (1) failing to discuss the treating physician opinion of Dr. Michael Musci; (2) improperly rejecting Henderson's pain and symptom testimony; and (3) identifying jobs that exceeded Henderson's RFC at step 5. (Doc. 14.) Henderson further argues that the matter should be remanded for a computation of benefits. (Id.)

         As explained below, although the Court disagrees with Henderson's first and third assignments of error-the ALJ's failure to address Dr. Musci's opinion was harmless and at least one of the jobs identified during step five was consistent with Henderson's limitations-the Court agrees the ALJ committed reversible legal error when discounting Henderson's pain and symptom testimony. The Court will remand for further proceedings, as opposed to remanding for an award of benefits, because further proceedings would serve a useful purpose and the record creates serious doubt as to whether Henderson is, in fact, disabled.


         I. Dr. Musci's Treatment Notes

         Henderson argues the ALJ committed reversible error by failing to address Dr. Michael Musci's treatment notes, which she contends constitute a medical opinion. (Doc. 14 at 9-10.)

         The Commissioner doesn't expressly argue that Dr. Musci's treatment notes don't qualify as a medical opinion. Instead, she argues that Dr. Musci's treatment notes “appear[] to be merely a recitation of Henderson's allegations, which the ALJ found not credible” and therefore the ALJ didn't need to address the notes because they weren't “significant” to his determination. (Doc. 18 at 4.) Additionally, the Commissioner argues that any error in failing to address Dr. Musci's treatment notes was harmless because the ALJ identified substantial evidence in his opinion that supports his reasoning. (Id. at 5.)

         An ALJ is required to consider all medical opinion evidence. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); 20 C.F.R. § 404.1527(c) (“Regardless of its source, we will evaluate every medical opinion we receive.”). Thus, if Dr. Musci's treatment notes constitute a “medical opinion, ” the ALJ committed error by failing to consider them. See Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996) (“We hold that the ALJ erred because he neither explicitly rejected the opinion of Dr. Brown, nor set forth specific, legitimate reasons for crediting Dr. Walter over Dr. Brown.”).

         “Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1). The regulation doesn't specify the form a medical opinion must take, and courts have concluded that a treatment note can constitute a medical opinion if it includes the type of information described in 20 C.F.R. § 404.1527(a)(1). Winschel v. Comm'r, 631 F.3d 1176, 1179 (11th Cir. 2011) (“The Commissioner argues that the ALJ was not required to consider the treating physician's treatment notes because they did not constitute a ‘medical opinion,' but this argument ignores the language of the regulations.”); Linehan v. Berryhill, 320 F.Supp.3d 304, 305 (D. Mass. 2018) (finding treatment notes to be a medical opinion where notes included a diagnosis and statements “reflect[ed] her professional judgment”); Wider v. Colvin, 245 F.Supp.3d 381, 391 (E.D.N.Y. 2017) (“Dr. Waldemar's notes explicitly include diagnoses and, arguably, statements reflecting judgments about the nature and severity of the Plaintiff's impairment. Therefore, the Court finds that Dr. Waldemar's notes were medical opinions under the definition of the Act. . . .”); Matthews v. Colvin, 2016 WL 2342862, *2 (D. Ariz. 2016) (“Dr. Jeppson's treatment notes reflect his judgment about the nature and severity of Matthews's impairments, her diagnosis and prognosis, and what she could still do despite those impairments. Therefore, the notes constitute a medical opinion.”).

         Applying these standards, the Court concludes that Dr. Musci's treatment notes contain medical opinions (and, thus, the ALJ should have considered them). First, Dr. Musci is an acceptable medical source because he is a licensed medical physician. Wider, 245 F.Supp.3d at 389 (citation omitted). Second, Dr. Musci's treatment notes include several statements that reflect judgments about the nature and severity of Henderson's impairments. For example, the notes include diagnoses and prognoses. (See A.R. 1046 [“[G]iven her history, she obviously does have a hypercoagulable condition and needs lifelong anticoagulation.”].) They also include Dr. Musci's opinions on limitations resulting from diagnoses. (See A.R. 1036 [“[Henderson] is considering elective surgery [for carpal tunnel] but I would caution her from being off anticoagulation for a long period of time. [Henderson] was told she would have to be off for 2 weeks and I think this is excessive. . . . It is probably best she avoid unnecessary elective procedures if possible.”].) Further, the treatment notes contain other medical judgments regarding the effects of Henderson's ailments. (See A.R. 1044 [“She has intact neurovascular status but is still using a wheelchair for ambulation, which is quite remarkable given her age and we would expect better recovery.”]; A.R. 1041 [explaining that Henderson's decision “to hold off on [knee] surgery . . . is a reasonable decision given the timing of the previous thrombotic event was less then [sic] one year ago and was life-threatening.”].)

         However, it is important to note that not every statement contained in Dr. Musci's treatment notes rises to the level of a medical opinion. For example, Henderson places heavy emphasis on the fact that the notes contain summaries of Henderson's self-reported symptoms. (Doc. 14 at 10, citing A.R. 1041.) Such summaries, however, are not medical opinions reflecting Dr. Musci's judgment concerning Henderson's impairments. Indeed, Dr. Musci is a hematologist who examined Henderson for deep vein thrombosis and pulmonary embolism, and he noted the “nature of [Henderson's] disability is from an orthopedic issue.” (A.R. 1041.) There's no evidence in any of the treatment notes that Dr. Musci conducted a physical examination of Henderson's knees. And it seems unlikely that Dr. Musci-a hematologist-would examine Henderson's musculoskeletal systems and render an opinion on the extent of her disabilities, especially when Dr. Musci knew Henderson had an orthopedist. (See A.R. 1041 [“Although she is clear for surgery from our standpoint, the decision between her and her orthopedic surgeon was to hold off on surgery at this time.”].) Thus, it's evident that some of the statements within Dr. Musci's notes are mere documentation of Henderson's reported symptoms, not medical opinions.

         This distinction is critical in this case. Although the ALJ should have addressed the portions of Dr. Musci's treatment notes that contain medical opinions (i.e., the portions dealing with Henderson's hematology-related conditions), Henderson isn't claiming she's entitled to benefits on account of her hematology-related conditions. Instead, her overarching complaint is that the ALJ improperly discounted her musculoskeletal and mental limitations. Thus, the ALJ's failure to consider Dr. Musci's medical opinions is harmless in the context of this case. Brown-Hunter v. Colvin, 806 F.3d 487, 49 (9th Cir. 2015) (an error is harmless where “it is inconsequential to the ultimate nondisability determination”).

         II. Whether the ALJ Erred in Analyzing ...

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