United States District Court, D. Arizona
Russel Holland, United States District Judge.
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 Patrick Mark Ragan has timely
filed his opening brief,  to which defendant, Nancy Berryhill,
has timely responded. Oral argument was not requested and is not
February 3, 2014, plaintiff filed an application for
disability benefits under Title II of the Social Security
Act, alleging that he became disabled on January 22, 2014.
Plaintiff alleged that he was disabled due to lower back
surgeries and fusion, neck surgeries and fusion, aortic
aneurism, trouble with lungs, underdeveloped bronchi tubes,
and chronic obstructive pulmonary disease (COPD).
Plaintiff's application was denied initially and upon
reconsideration. Plaintiff requested a hearing. After the
administrative hearing on March 24, 2017, an administrative
law judge (ALJ) denied plaintiff's application. Plaintiff
sought review of the ALJ's unfavorable decision. On July
26, 2018, the Appeals Council denied plaintiff's request
for review, thereby making the ALJ's September 12, 2017
decision the final decision of the Commissioner. On September
19, 2018, plaintiff commenced this action in which he asks
the court to review the Commissioner's final decision.
was born on January 18, 1954. He was 63 years old at the time
of the administrative hearing. Plaintiff has a GED.
Plaintiff's past relevant work was as a space scheduler
for a city convention center.
first determined that plaintiff met “the insured status
requirements of the Social Security Act through September 30,
then applied the five-step sequential analysis used to
determine whether an individual is disabled.
one, the ALJ found that plaintiff had “not engaged in
substantial gainful activity since February 1, 2014, the
alleged onset date. . . .”
two, the ALJ found that plaintiff had “the following
severe impairments: status post lumbar decompression of L1-L5
with fusion L1-L4, status post left hip replacement, status
post fusion C2-T1, obesity and chronic obstructive pulmonary
disease (COPD). . . .” The ALJ found plaintiff's
aortic aneurysm and hypertension non-severe.
three, the ALJ found that plaintiff did “not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. . .
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 plaintiff had
the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) except the claimant can
occasionally lift or carry 10 pounds and frequently lift or
carry less than ten pounds. He is capable of standing and
walking two hours and sitting six hours out of an eight-hour
day with normal breaks. The claimant can occasionally
balance, stoop, kneel, crouch, crawl, and climb ramps or
stairs, but never climb ladder[s], ropes, or scaffolds. He
should also avoid concentrated exposure to pulmonary
irritants and cannot perform outside (outdoor) work
considered plaintiff's pain and symptom statements and
found them not entirely consistent with the medical evidence
and other evidence in the record. More specifically, the ALJ
found that plaintiff's statements were inconsistent with
his daily activities. The ALJ also noted that plaintiff had
continued to work for many years “despite [his] alleged
continuing pain” related to his orthopedic problems and
that he did not seek pain management “after the alleged
last unsuccessful surgeries.” In addition, the ALJ
noted that plaintiff had significant improvement after both
his lumbar surgery and his hip replacement. The ALJ also
noted that plaintiff had retired from his last job rather
than quitting due to his medical condition. The ALJ also
found some inconsistencies in plaintiff's hearing
testimony regarding how often he had to lay down during the
day.Finally, the ALJ observed that plaintiff
“did not change position during the [administrative]
hearing every five to ten minutes from sitting to standing,
walking or some other position and walked more than 30
seconds into the hearing room from the reception
gave little weight to the opinions of Dr.
Mirza. The ALJ considered Dr. Johnson's
opinions but she did not expressly assign a specific weight
to his opinions. The ALJ gave Dr. Kabins' opinion
little weight because the question of whether plaintiff is
disabled is reserved to the Commissioner.
four, the ALJ found that plaintiff was “capable of
performing past relevant work as a space scheduler. This work
does not require the performance of work-related activities
precluded by the claimant's residual functional capacity.
. . .”
the ALJ concluded that plaintiff had “not been under a
disability, as defined in the Social Security Act, from
February 1, 2014, through the date of this decision. . .
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.
first argues that the ALJ erred as to Dr. Mirza's
opinions. The ALJ considered three opinions from Dr. Mirza, a
September 2014 opinion, a March 2015 opinion, and a June 2015
September 8, 2014, Dr. Mirza opined that plaintiff's
shortness of breath resulted in extreme limitations in terms
of his ability to walk on level ground at the same pace as
others his age, speak easily, carry out short, simple
instructions, understand and remember detailed instructions,
interact appropriately with the public, co-workers, or
supervisors, and respond appropriately to work pressures in a
usual work setting. Dr. Mirza also opined that
plaintiff's shortness of breath would cause extreme
interference with his work production.Dr. Mirza
opined that plaintiff could sit for one hour, could
stand/walk for less than one hour, and could occasionally
lift/carry ten pounds. Dr. Mirza also opined that plaintiff
could occasionally stoop; could never crawl, climb, or reach;
could frequently do simple grasping; could occasionally
push/pull controls; could never do fine manipulation, could
not use his feet for repetitive motions, could not be around
unprotected heights or moving machinery; could not do
occupational driving; and could not be exposed to dust,
fumes, gases, and marked changes in temperature or
humidity. Finally, Dr. Mirza opined that
plaintiff's fatigue would severely impact his ability to
function at work.
January 21, 2015, Dr. Mirza opined that plaintiff was totally
disabled and unable to work at both his regular occupation
and any other occupation.
16, 2015, Dr. Mirza opined that plaintiff's shortness of
breath caused moderate limitations as to his ability to walk
on level ground at the same pace with others his age and
understand and remember detailed instructions; and marked
limitations as to his ability to speak easily, carry out
short, simple instructions, interact appropriately with the
public, co-workers, or supervisors, respond appropriately to
work pressures in a usual work setting, and with work
production. Dr. Mirza explained that plaintiff's
nebulizer treatments would require that he be off task for
two hours each work day. Dr. Mirza opined that plaintiff would
miss thirty days of work per month due to his shortness of
breath. He also opined that plaintiff could sit
for two hours and stand/walk for two hours. Dr. Mirza
opined that plaintiff could rarely lift/carry five pounds;
could rarely stoop, squat, crawl, climb, or reach; could
frequently do simple grasping; could occasionally push/pull
controls and do fine manipulation; could use his feet for
repetitive movements; could never work around unprotected
heights or moving machinery; and had mild restrictions as to
occupational driving, exposure to dust, fumes, gases, and
marked changes in temperature or humidity.
Mirza was a treating physician. “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)).
rejected Dr. Mirza's opinions because they “appear
to be inconsistent with one another[, ]” they were
“inconsistent with the medical evidence[, ]” they
had been “rendered several years ago[, ]” and
they were not consistent with Dr. Mirza's treatment
records. Plaintiff argues that these were not
legitimate reasons for rejecting Dr. Mirza's opinions.
the first reason, that the opinions were inconsistent, the
ALJ pointed out that in 2014, Dr. Mirza opined that
plaintiff's shortness of breath caused extreme
limitations, but that in June 2015, he found that
plaintiff's shortness of breath only caused moderate to
marked limitations. This was not a legitimate reason because
the ALJ failed to explain how the improvement that Dr. Mirza
found would invalidate his opinions. It is entirely possible
that a claimant's limitations might improve as his
impairments respond to treatment.
the second reason, that Dr. Mirza's opinions were
“inconsistent with the medical evidence[, ]” the
ALJ explained that the record showed that plaintiff had
“an excellent outcome following [his] lumbar
reconstructive surgery. . . .” But this has little to do
with many of the limitations assessed by Dr. Mirza, which
primarily were limitations flowing from plaintiff's COPD.
connection with the second reason, the ALJ also noted that
Dr. Mirza was “treating the claimant for the aortic
aneurysm and not the COPD.” Plaintiff argues that the
record reflects that Dr. Mirza was treating him for all his
conditions, including COPD. By way of example, plaintiff
cites to a September 2014 treatment note, but this treatment
note is not from Dr. Mirza, but rather from Dr.
may consider how much a source knows about a particular
impairment when considering what weight to give a medical
opinion. See 20 C.F.R. § 404.1527(c)(2)(ii)
(“Generally, the more knowledge a treating source has
about your impairment(s) the more weight we will give to the
source's medical opinion”). Dr. Mirza opined that
plaintiff had significant limitations related to his COPD,
yet plaintiff had a pulmonologist who was treating his COPD.
Dr. Mirza was not plaintiff's primary treating source for
his COPD. The fact that Dr. Mirza was not the
primary treating source for plaintiff's COPD was a
legitimate reason for the ALJ to discount Dr. Mirza's
the third reason, that Dr. Mirza's opinions had been
rendered several years earlier, the ALJ explained that made
the opinions of “dubious relevance to [plaintiff's]
current functioning.” Dr. Mirza's 2015 opinion
was rendered approximately two years prior to the ALJ's
decision in 2017. A two-year-old opinion is not necessarily
stale. Moreover, as will be discussed in more detail below,
if the ALJ believed that she did not have current medical
opinions in the record,  she should have obtained a more
up-to-date opinion. This was not a legitimate reason to
reject Dr. Mirza's opinions.
the fourth reason, that Dr. Mirza's opinions were
inconsistent with his treatment notes, the ALJ explained that
“[r]eview of Dr. Mirza's progress notes reveal[s]
little abnormalities reported” and that
[t]here is no evidence in any of the progress notes from the
claimant's medical providers that he experienced
shortness of breath while sitting in the examination room,
that he was unable to speak without becoming short of breath
or that shortness of breath adversely affected his ability to
understand, remember or concentrate or relate to
however, points out that Dr. Mirza and other providers noted
that he had shortness of breath or complained of shortness of
breath. Plaintiff also argues that observations
in an examining room are not the same as an assessment of a
claimant's capacity to work. Thus, plaintiff argues that
this was not a legitimate reason to reject Dr. Mirza's
as defendant concedes,  there is evidence in the record that
plaintiff complained of shortness of breath to Dr. Mirza and
other providers, that does not mean that this was not a
legitimate reason for the ALJ to reject Dr. Mirza's
opinions. Dr. Mirza's opinions, which contained
significant limitations, were inconsistent with his treatment
notes, which were almost entirely devoid of any clinical
findings. This was a legitimate reason for the ALJ
to reject Dr. Mirza's opinions.
gave two legitimate reasons for rejecting Dr. Mirza's
opinions. The ALJ did not err in rejecting Dr. Mirza's
next argues that the ALJ erred as to Dr. Johnson's
opinions. The record contains two opinions from Dr. Johnson,
one from January 9, 2015 and one from March 3, 2015.
Plaintiff only challenges the ALJ's rejection of the
March 3, 2015 opinion.
March 3, 2015, Dr. Johnson opined that plaintiff could sit
for two hours; could stand/walk for two hours; could
occasionally lift up to five pounds; could never carry any
weight; could rarely stoop, squat, crawl, climb, or reach;
could rarely do simple grasping, pushing/pulling of controls,
and fine manipulation; could use his feet for repetitive
movements; could never be around unprotected heights or
moving machinery; could have no exposure to dust, fumes, or
gases; and was moderately restricted as to occupational
driving and exposure to marked changes in temperature or
rejected Dr. Johnson's March 2015 opinion because Dr.
Johnson had no further contact with plaintiff after his hip
replacement surgery except for routine follow up and because
it appeared that Dr. Johnson “relied too heavily on the
subjective report of symptoms and limitations provided by the
claimant[.]” As for the first reason, plaintiff
argues that the ALJ is imposing a requirement that does not
exist, namely that in order for a medical opinion to be
valid, the treating doctor must have an ongoing treatment
relationship. As for the second reason, that Dr. Johnson
appeared to rely too heavily on plaintiff's subjective
reports, plaintiff argues that this is speculation on the
ALJ's part and there is no basis in the record for such
speculation. As the Ninth Circuit has observed, an ALJ should
“not assume that doctors routinely lie in order to help
their patients collect disability benefits.”
Lester, 81 F.3d at 832 (citation omitted).
even if the ALJ erred as to Dr. Johnson's March 2015
opinion, this error was harmless. Dr. Johnson stated that the
limitations he assessed were temporary, not
permanent. Thus, even if the ALJ had given Dr.
Johnson's March 2015 opinion great weight, it would not
have changed the ALJ's nondisability determination.
next argues that the ALJ erred because her RFC was not based
on any medical opinions. The ALJ rejected the opinions of Dr.
Mirza, Dr. Johnson, and Dr. Kabins, and she did not mention
the opinions from the two non-examining