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Buckley v. Berryhill

United States District Court, D. Arizona

March 28, 2019

Lance Buckley, Plaintiff,
v.
Nancy A. Berryhill, Defendant.

          ORDER

          HONORABLE LYNNETTE C. KIMMINS, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 further proceedings.

         PROCEDURAL HISTORY

         Buckley 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.)

         FACTUAL HISTORY

         Buckley 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.

         The ALJ 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 perform:

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.)

         STANDARD OF REVIEW

         The 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), 416.920(a)(4).

         “The 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).

         DISCUSSION

         Buckley 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.

         Appeals Council

         Buckley 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 issue now.

         Credibility

         Buckley 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).

         Initially, “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).

         In his 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).

         The ALJ 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.)

         To 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.

         Only 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 ...


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