United States District Court, D. Arizona
HONORABLE LYNNETTE C. KIMMINS, UNITED STATES MAGISTRATE JUDGE
Lance Buckley filed this action pursuant to 42 U.S.C. §
405(g) seeking judicial review of a final decision by the
Commissioner of Social Security (Commissioner). (Doc. 1.)
Before the Court are Buckley's Opening Brief,
Defendant's Responsive Brief, and Buckley's Reply.
(Docs. 16, 17, 20.) The parties have consented to Magistrate
Judge jurisdiction. (Doc. 11.) Based on the pleadings and the
Administrative Record, the Court remands this matter for
filed an application for Disability Insurance Benefits (DIB)
and Supplemental Security Income (SSI) in February 2011.
(Administrative Record (AR) 318, 325.) He alleged disability
from April 1, 2010, which he later amended to October 30,
2009. (AR 318, 441.) Buckley's application was denied
upon initial review (AR 109-36) and on reconsideration (AR
150-81). A hearing was held on November 26, 2012 (AR 71-108),
after which the ALJ found that Buckley was not disabled
because he could perform other work available in the national
economy (AR 185-95). The Appeals Council granted
Buckley's request to review the ALJ's decision and
remanded for further proceedings. (AR 202-04.) A supplemental
hearing was held on March 30, 2016 (AR 39-69), after which
the ALJ again determined that Buckley was not disabled
because he could perform other work available in the national
economy (AR 17-31). The Appeals Council denied Buckley's
request to review the ALJ's second decision. (AR 1.)
was born on January 11, 1974, making him 35 years of age at
the onset date of his alleged disability. (AR 318.) Buckley
had worked as a truck driver and on a pig farm. (AR 399.)
Some of his impairments stem from a 2002 vehicle accident,
for which he has received worker's compensation.
found Buckley had several severe impairments: left shoulder
AC disruption, status post multiple surgeries, right knee
meniscal disruption, status post multiple surgeries, and
degenerative disc disease. (AR 19.) The ALJ determined
Buckley had the Residual Functional Capacity (RFC) to
light work . . . except the claimant can occasionally lift
and/or carry twenty pounds and frequently lift and/or carry
ten pounds. The claimant can stand and/or walk with normal
breaks for a total of four hours in an eight-hour day. The
claimant is able to sit, with normal breaks, for a total of
about six hours in an eight-hour day. The claimant's
ability to push and/or pull with his upper extremities is
unlimited other than for the weights listed above. The
claimant's ability to reach overhead is restricted
bilaterally. The claimant can occasionally climb ramps or
stairs. The claimant can never climb ladders, ropes or
scaffolds. The claimant can frequently balance, occasionally
stoop, kneel, crouch or crawl. The claimant is limited to
occasional left overhead reaching and occasional bilateral
overhead lifting. The claimant is able to engage in unlimited
bilateral handling, fingering or feeling.
(AR 24.) The ALJ concluded at Step Five, based on the
testimony of a vocational expert (VE), that Buckley could
perform work that exists in significant numbers in the
national economy. (AR 30-31.)
Commissioner employs a five-step sequential process to
evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520;
416.920; see also Heckler v. Campbell, 461 U.S. 458,
460-462 (1983). To establish disability the claimant bears
the burden of showing he (1) is not working; (2) has a severe
physical or mental impairment; (3) the impairment meets or
equals the requirements of a listed impairment; and (4)
claimant's RFC precludes him from performing his past
work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
At Step Five, the burden shifts to the Commissioner to show
that the claimant has the RFC to perform other work that
exists in substantial numbers in the national economy.
Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir.
2007). If the Commissioner conclusively finds the claimant
“disabled” or “not disabled” at any
point in the five-step process, she does not proceed to the
next step. 20 C.F.R. §§ 404.1520(a)(4),
ALJ is responsible for determining credibility, resolving
conflicts in medical testimony, and for resolving
ambiguities.” Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995) (citing Magallanes v.
Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings
of the Commissioner are meant to be conclusive if supported
by substantial evidence. 42 U.S.C. § 405(g). Substantial
evidence is “more than a mere scintilla but less than a
preponderance.” Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999) (quoting Matney v.
Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The
court may overturn the decision to deny benefits only
“when the ALJ's findings are based on legal error
or are not supported by substantial evidence in the record as
a whole.” Aukland v. Massanari, 257 F.3d 1033,
1035 (9th Cir. 2001). This is so because the ALJ “and
not the reviewing court must resolve conflicts in the
evidence, and if the evidence can support either outcome, the
court may not substitute its judgment for that of the
ALJ.” Matney, 981 F.2d at 1019 (quoting
Richardson v. Perales, 402 U.S. 389, 400 (1971));
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d
1190, 1198 (9th Cir. 2004). The Commissioner's decision,
however, “cannot be affirmed simply by isolating a
specific quantum of supporting evidence.” Sousa v.
Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing
Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.
1989)). Reviewing courts must consider the evidence that
supports as well as detracts from the Commissioner's
conclusion. Day v. Weinberger, 522 F.2d 1154, 1156
(9th Cir. 1975).
contends that five errors occurred at the administrative
level: (1) the Appeals Council erred in 2014 when it remanded
for further proceedings; (2) the ALJ failed to provide clear
and convincing reasons for rejecting Buckley's
credibility; (3) the ALJ erred in giving reduced weight to
the opinions of Nurse Practitioner Trujillo, Dr. Wilson, and
Physician's Assistant Rice; (4) the ALJ failed to give
any weight to treating physician Dr. John Ledington; and (5)
the ALJ erred in handling the VE testimony.
argues that, upon initial review in December 2014, the
Appeals Counsel should have remanded for benefits rather than
for further proceedings. In the face of Defendant's
argument - that this Court cannot review the Appeals
Council's December 2014 decision - Buckley failed to
offer a reply. (Doc. 20.) This Court has jurisdiction to
review the agency's “final decision.” 42
U.S.C. § 405(g). Because the Appeals Council declined
review the second time, the final administrative decision in
Buckley's case is the ALJ's April 2016 decision.
See Taylor v. Comm'r of Soc. Sec. Admin., 659
F.3d 1228, 1231 (9th Cir. 2011). Buckley timely sought review
of that decision before this Court and it is the only one at
argues the ALJ failed to provide clear and convincing reasons
to reject his testimony. In general, “questions of
credibility and resolution of conflicts in the testimony are
functions solely” for the ALJ. Parra v.
Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting
Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.
1982)). However, “[w]hile an ALJ may certainly find
testimony not credible and disregard it . . . [the court]
cannot affirm such a determination unless it is supported by
specific findings and reasoning.” Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 884-85 (9th Cir. 2006);
Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir.
1995) (requiring specificity to ensure a reviewing court the
ALJ did not arbitrarily reject a claimant's subjective
testimony); SSR 96-7p. “To determine whether a
claimant's testimony regarding subjective pain or
symptoms is credible, an ALJ must engage in a two-step
analysis.” Lingenfelter v. Astrue, 504 F.3d
1028, 1035-36 (9th Cir. 2007).
“the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying
impairment ‘which could reasonably be expected to
produce the pain or other symptoms alleged.'”
Id. at 1036 (quoting Bunnell, 947 F.2d at
344). The ALJ found Buckley had satisfied part one of the
test by proving an impairment that could produce the symptoms
alleged. (AR 24.) Next, if “there is no affirmative
evidence of malingering, the ALJ can reject the
claimant's testimony about the severity of her symptoms
only by offering specific, clear and convincing reasons for
doing so.” Tommasetti v. Astrue, 533 F.3d
1035, 1039 (9th Cir. 2008) (quoting Smolen v.
Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)).
Here, the ALJ did not make a finding of malingering.
Therefore, to support his discounting of Buckley's
assertions regarding the severity of his symptoms, the ALJ
had to provide clear and convincing, specific reasons.
See Garrison, 759 F.3d at 1014-15; Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2008) (quoting
Lingenfelter, 504 F.3d at 1036).
2011 function reports and his testimony from 2012 and 2106,
Buckley stated that his ability to lift, squat, bend, kneel,
walk, stair climb, and reach with his left arm was impaired
due to pain (AR 394, 430); he was unable to get out of his
bed due to headaches, which could last for several days and
occurred multiple times per week (AR 95, 99, 425-26); he
could sit or stand for 30 minutes at most (AR 86-87, 97); he
could only lift 5 pounds with his left arm (AR 94); and he
was in psychiatric treatment because of anxiety, paranoia,
and anger (AR 46-49).
cited the following reasons for finding Buckley not entirely
credible: he demonstrated improvement in functional ability
over time, consultative exams and IMEs noted a high level of
physical functioning, a treating physician concluded Buckley
could work, and medical evidence revealed grossly normal
physical findings (except for his right knee and left
shoulder). (AR 29.)
evaluate the ALJ's credibility finding, the Court finds
it necessary to set forth a partial time-line from the
Administrative Record. Buckley alleges an onset date of
October 30, 2009. That same day, he saw Dr. Washburn, who
referred him for surgery on his right knee. (AR 664.) The
surgery was done on January 5, 2010. (AR 662.) Dr. Washburn
determined that Buckley could not work through the end of
March due to that surgery. (AR 554-555.) In March, Dr.
Washburn concluded that Buckley's prior left shoulder
surgery had failed, and he performed a second surgery on May
5, 2010. (AR 546, 550.) An April 6, 2010 MRI, revealed a tear
in Buckley's right lateral meniscus and he was referred
to Dr. Washburn for a surgical consult. (AR 540, 548.) In
August, Dr. Washburn concluded that Buckley's left
shoulder surgery failed (again) while doing physical therapy
to rehabilitate it. (AR 539, 661.) That same month, Buckley
had a second surgery on his right knee for the meniscus tear.
(AR 538, 800.) Dr. Washburn performed another left shoulder
surgery in October 2010. (AR 658.) In April 2011, Dr.
Washburn released Buckley for part-time work (AR 798); not
until September 29, 2011, did Dr. Washburn rate him permanent
stationary and able to work full-time. (AR 651). Thus, for
the first two years after Buckley's alleged onset date,
he was unable to work according to Dr. Washburn because he
needed surgery or was rehabilitating from surgery.
four months later, in January 2012, Dr. Washburn documented
that Buckley could not work due to right knee instability.
(AR 650.) Dr. Washburn treated it conservatively but, in June
2012, recommended a diagnostic arthroscopy on the right knee
because the treatment had not worked. (AR 644.) On July 12,
2013, Dr. Washburn noted that Buckley “continue[d] to
be disabled by his conditions.” (AR 794.) The
recommended knee surgery did not occur until July 2013, due
to worker's compensation litigation. (AR 792, 795-797.)
In October 2013, Dr. Washburn determined Buckley could do
sedentary part-time work. (AR 774.) By February 2014, Dr.
Washburn concluded that Buckley remained “significantly
disabled” due to his knee and needed a knee
replacement. (AR 770-771.) Buckley's right knee was
replaced in March 2014 (AR 762); Dr. Washburn released ...