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Dominguez v. Berryhill

United States District Court, D. Arizona

March 26, 2019

Ramona Dominguez, Plaintiff,
Nancy A. Berryhill, Deputy Commissioner of Social Security for Operations, Defendant.



         This is an action for judicial review of the denial of disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff Ramona Dominguez has timely filed her opening brief, [1] to which defendant, Nancy A. Berryhill, [2] has timely responded. Oral argument was not requested and is not deemed necessary.

         Procedural Background

         On April 30, 2011, plaintiff filed an application for disability benefits under Title II of the Social Security Act, alleging that she became disabled on April 29, 2011. Plaintiff later amended her onset date of disability to September 26, 2011. Plaintiff alleged that she was disabled due to back pain, arthritis, anxiety, and depression. Plaintiff's application was denied initially and upon reconsideration. Plaintiff requested a hearing. After an administrative hearing on January 15, 2013, an administrative law judge (ALJ) denied plaintiff's application. Plaintiff sought review of the ALJ's March 29, 2013, unfavorable decision. On August 25, 2014, the Appeals Council denied plaintiff's request for review. Plaintiff sought judicial review and on March 4, 2015, the court, pursuant to a stipulated motion, remanded the matter to the agency for further proceedings. Upon remand, a second administrative hearing was held on March 2, 2017. After that hearing, the ALJ again denied plaintiff's application. On May 8, 2018, the Appeals Counsel denied plaintiff's request for review, thereby making the ALJ's March 29, 2017 decision the final decision of defendant. On July 8, 2018, plaintiff commenced this action in which she asks the court to review defendant's final decision.

         General Background

         Plaintiff was born on May 8, 1966. She was 50 years old at the time of the second administrative hearing. Plaintiff lives with her adult children. Plaintiff has a high school education and completed two years of college. Plaintiff's past relevant work includes work as a case worker aide, a case worker, and a behavioral health technician.

         The ALJ's Decision

         The ALJ first determined that plaintiff “last met the insured status requirements of the Social Security Act on December 31, 2016.”[3]

         The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.[4]

         At step one, the ALJ found that plaintiff “did not engage in substantial gainful activity during the period from her alleged onset date of April 29, 2011 through her date last insured of December 31, 2016. . . .”[5]

         At step two, the ALJ found that “[t]hrough the date last insured, the claimant had the following severe impairments: degenerative disc disease, degenerative changes of the neck, and obesity. . . .”[6] The ALJ found plaintiff's hypertension nonsevere.[7] The ALJ found that fibromyalgia was not a medically determinable impairment.[8] The ALJ found plaintiff's depression and anxiety nonsevere.[9] The ALJ considered the “paragraph B” criteria and found that plaintiff had mild limitations as to understanding, remembering, or applying information; no limitation in the area of interacting with others; mild limitations as to concentration, persistence, or pace; and no limitations as to adapting or managing oneself.[10]

         At step three, the ALJ found that “[t]hrough the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]”[11]

         “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's RFC.” Bray v. Comm'r of Social Security Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009). The ALJ found

that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant could frequently stoop and climb ramps and stairs. The claimant could never climb ladders, ropes, or scaffolds. However, the claimant could occasionally kneel, crouch, or crawl. She could withstand occasional exposure to heat and vibration. However, she should avoid all exposure to unprotected heights and moving machinery.[12]

         The ALJ found plaintiff's pain and symptom statements less than credible because they were not supported by the medical evidence, because she responded well to treatment, and because her statements were inconsistent with her daily activities.[13]

         The ALJ give little weight to Dr. Johnson's opinions.[14] The ALJ gave partial weight[15]to Dr. Chaffee's opinion, [16] Dr. Hirsch's opinion, [17] Dr. Goerss' opinion, [18] and Dr. Gawo's opinion.[19]

         At step four, the ALJ found that “[t]hrough the date last insured, the claimant was capable of performing past relevant work as a case aide.”[20]

         Although the ALJ was not required to do so, the ALJ made an alternative step five finding. The ALJ found that “there were other jobs that existed in significant numbers in the national economy that the claimant also could have performed, ” including, working as a cashier, a school bus monitor, or an office helper.[21]

         The ALJ thus concluded that plaintiff “was not under a disability, as defined in the Social Security Act, at any time from April 29, 2011, the alleged onset date, through December 31, 2016, the date last insured. . . .”[22]

         Standard of Review

         Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner. . . .” The court “properly affirms the Commissioner's decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence supports the ALJ's decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the Commissioner's decision. Id. But, the Commissioner's decision cannot be affirmed “‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).


         Plaintiff first argues that the ALJ erred as to Dr. Johnson's opinions. On September 26, 2011, Dr. Johnson opined that plaintiff could sit for one hour; could stand/walk for one hour; could not bend, stoop, or climb; could occasionally push/pull; and could occasionally lift/carry 10 pounds.[23] On November 14, 2012, Dr. Johnson opined that plaintiff could sit for 2 hours; could stand/walk for 2 hours; could occasionally lift/carry 10 pounds; could never stoop, squat, crawl, or climb; could occasionally reach; could frequently grasp, push/pull controls and do fine manipulation; could use her feet for repetitive motions; should never work around unprotected heights and moving machinery; had moderate restrictions as to driving automobile equipment and exposure to marked changes in temperature or humidity; and had mild restrictions as to exposure to dust, fumes, and gases.[24] Dr. Johnson also opined that plaintiff's pain would cause her to be off task 11-15% of the time.[25]

         Dr. Johnson was a treating physician, but the ALJ gave his opinions little weight.[26]“As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “At least where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for ‘clear and convincing' reasons.” Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). “[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. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Dr. Johnson's opinions were contradicted by Dr. Hirsch's, Dr. Goerss', and Dr. Gawo's opinions. Thus, the ALJ was required to provide specific and legitimate reasons for giving little weight to Dr. Johnson's opinions.

         The ALJ gave Dr. Johnson's opinions little weight because they were “inconsistent with the medical evidence which indicates that claimant did not have difficulty balancing[, ]” because he “appeared to rely heavily on the claimant's subjective report of symptoms and limitations[, ]” and because plaintiff's “gait was typically normal. . . .”[27] The ALJ also rejected Dr. Johnson's opinions because they were inconsistent “with Dr. Chang's[28] “statement that the claimant ‘continue to manage her pain conservatively. . . .'”[29] Plaintiff argues that these were not specific and legitimate reasons.

         The ALJ first rejected Dr. Johnson's opinions because the medical evidence did not indicate that plaintiff had difficulty balancing. Dr. Johnson did not assess plaintiff's ability to balance. Thus, whether the medical evidence did or did not reflect any difficulty with balancing is largely irrelevant to Dr. Johnson's opinions. The first reason given by the ALJ for rejecting Dr. Johnson's opinions was not legitimate.

         The second reason given by the ALJ for rejecting Dr. Johnson's opinions was that he appeared to rely on plaintiff's subjective reports. Plaintiff argues that this was not a legitimate reason because her physical examinations revealed objective findings that supported Dr. Johnson's assessed limitations, findings such as pain with lumbar facet joint and sacroiliac joint loading maneuvers, tenderness to palpation of the lumbar and cervical spine, painful and limited lumbar range of motion, muscle spasms, and positive straight leg raising testing.[30] But, these objective findings were by doctors other than Dr. Johnson. That said, Dr. Johnson's exams included objective findings such as a limited range of motion in plaintiff's back with any movement, tenderness over paralumbar areas, and back tenderness.[31]And, there is nothing in the record to suggest that Dr. Johnson relied on plaintiff's subjective complaints rather than on his own examinations of plaintiff. Dr. Johnson's “treatment records do not indicate that [he] was acting as [p]laintiff's agent or was so sympathetic to [p]laintiff as to impair his professional judgment.” Cowart v. Acting Comm'r of Social Security Admin., Case No. CV-17-03351-PHX-ESW, 2018 WL 4057612, at *4 (D. Ariz. Aug. 27, 2018). “If a treating provider's opinions are based ‘to a large extent' on an applicant's self-reports and not on clinical evidence, and the ALJ finds the applicant not credible, the ALJ may discount the treating provider's opinion.” Ghanim v. Colvin, 763 ...

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