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Ragan v. Berryhill

United States District Court, D. Arizona

May 16, 2019

Patrick Mark Ragan, Plaintiff,
v.
Nancy A. Berryhill, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER

          H. Russel Holland, United States District Judge.

         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 Patrick Mark Ragan has timely filed his opening brief, [1] to which defendant, Nancy Berryhill, has timely responded.[2] Oral argument was not requested and is not deemed necessary.

         Procedural Background

         On 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.

         General Background

         Plaintiff 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.

         The ALJ's Decision

         The ALJ first determined that plaintiff met “the insured status requirements of the Social Security Act through September 30, 2019.”[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 had “not engaged in substantial gainful activity since February 1, 2014, the alleged onset date. . . .”[5]

         At step 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). . . .”[6] The ALJ found plaintiff's aortic aneurysm and hypertension non-severe.[7]

         At step 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. . . .”[8]

         “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 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 activity.[9]

         The ALJ 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.[10] 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.”[11] In addition, the ALJ noted that plaintiff had significant improvement after both his lumbar surgery and his hip replacement.[12] The ALJ also noted that plaintiff had retired from his last job rather than quitting due to his medical condition.[13] The ALJ also found some inconsistencies in plaintiff's hearing testimony regarding how often he had to lay down during the day.[14]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 area.”[15]

         The ALJ gave little weight to the opinions of Dr. Mirza.[16] The ALJ considered Dr. Johnson's opinions but she did not expressly assign a specific weight to his opinions.[17] The ALJ gave Dr. Kabins' opinion little weight because the question of whether plaintiff is disabled is reserved to the Commissioner.[18]

         At step 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. . . .”[19]

         Thus, 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. . . .”[20]

         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)).

         Discussion

         Plaintiff 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 opinion.[21]

         On 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.[22] Dr. Mirza also opined that plaintiff's shortness of breath would cause extreme interference with his work production.[23]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.[24] 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.[25] Finally, Dr. Mirza opined that plaintiff's fatigue would severely impact his ability to function at work.[26]

         On January 21, 2015, Dr. Mirza opined that plaintiff was totally disabled and unable to work at both his regular occupation and any other occupation.[27]

         On June 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.[28] Dr. Mirza explained that plaintiff's nebulizer treatments would require that he be off task for two hours each work day.[29] Dr. Mirza opined that plaintiff would miss thirty days of work per month due to his shortness of breath.[30] He also opined that plaintiff could sit for two hours and stand/walk for two hours.[31] 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.[32]

         Dr. 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)).

         The ALJ 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.[33] Plaintiff argues that these were not legitimate reasons for rejecting Dr. Mirza's opinions.

         As for 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.[34] 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.

         As for 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. . . .”[35] But this has little to do with many of the limitations assessed by Dr. Mirza, which primarily were limitations flowing from plaintiff's COPD.

         In connection with the second reason, the ALJ also noted that Dr. Mirza was “treating the claimant for the aortic aneurysm and not the COPD.”[36] 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. Newman.[37]

         The ALJ 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.[38] 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 opinions.

         As for 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.”[39] 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, [40] she should have obtained a more up-to-date opinion. This was not a legitimate reason to reject Dr. Mirza's opinions.

         As for 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 others.[41]

         Plaintiff, however, points out that Dr. Mirza and other providers noted that he had shortness of breath or complained of shortness of breath.[42] 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 opinions.

         While, as defendant concedes, [43] 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.[44] This was a legitimate reason for the ALJ to reject Dr. Mirza's opinions.

         The ALJ gave two legitimate reasons for rejecting Dr. Mirza's opinions. The ALJ did not err in rejecting Dr. Mirza's opinions.

         Plaintiff 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.

         On 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 humidity.[45]

         The ALJ 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[.]”[46] 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).

         But 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.[47] 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.

         Plaintiff 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 physicians.[48] ...


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