United States District Court, D. Arizona
Honorable John Z. Boyle United States Magistrate Judge
Carol Christian seeks review under 42 U.S.C. § 405(g) of
the final decision of the Commissioner of Social Security
(“the Commissioner”), which denied her disability
insurance benefits and supplemental security income under
sections 216(i), 223(d), and 1614(a)(3)(A) of the Social
Security Act. Because the decision of the Administrative Law
Judge (“ALJ”) is not supported by substantial
evidence and is based on legal error, the Commissioner's
decision will be vacated and the matter remanded for an
further proceedings consistent with this Order.
August 20, 2014, Plaintiff applied for disability insurance
benefits and supplemental security income, alleging
disability beginning June 1, 2011. On February 8, 2017, she
appeared with her attorney and testified at a hearing before
the ALJ. A vocational expert also testified. On April 13,
2017, the ALJ issued a decision that Plaintiff was not
disabled within the meaning of the Social Security Act. The
Appeals Council denied Plaintiff's request for review of
the hearing decision, making the ALJ's decision the
Commissioner's final decision.
district court reviews only those issues raised by the party
challenging the ALJ's decision. See Lewis v.
Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court
may set aside the Commissioner's disability determination
only if the determination is not supported by substantial
evidence or is based on legal error. Orn v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is
more than a scintilla, less than a preponderance, and
relevant evidence that a reasonable person might accept as
adequate to support a conclusion considering the record as a
whole. Id. In determining whether substantial
evidence supports a decision, the court must consider the
record as a whole and may not affirm simply by isolating a
“specific quantum of supporting evidence.”
Id. As a general rule, “[w]here the evidence
is susceptible to more than one rational interpretation, one
of which supports the ALJ's decision, the ALJ's
conclusion must be upheld.” Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations
error principles apply in the Social Security Act context.
Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.
2012). An error is harmless if there remains substantial
evidence supporting the ALJ's decision and the error does
not affect the ultimate non-disability determination.
Id. The claimant usually bears the burden of showing
that an error is harmful. Id. at 1111.
The ALJ's Five-Step Evaluation Process.
determine whether a claimant is disabled for purposes of the
Social Security Act, the ALJ follows a five-step process. 20
C.F.R. § 404.1520(a). The claimant bears the burden of
proof on the first four steps, but at step five, the burden
shifts to the Commissioner. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999).
first step, the ALJ determines whether the claimant is
engaging in substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i). If so, the claimant is not disabled and
the inquiry ends. Id. At step two, the ALJ
determines whether the claimant has a “severe”
medically determinable physical or mental impairment. §
404.1520(a)(4)(ii). If not, the claimant is not disabled and
the inquiry ends. Id. At step three, the ALJ
considers whether the claimant's impairment or
combination of impairments meets or medically equals an
impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt.
404. § 404.1520(a)(4)(iii). If so, the claimant is
automatically found to be disabled. Id. If not, the
ALJ proceeds to step four. At step four, the ALJ assesses the
claimant's residual functional capacity
(“RFC”) and determines whether the claimant is
still capable of performing past relevant work. §
404.1520(a)(4)(iv). If so, the claimant is not disabled and
the inquiry ends. Id. If not, the ALJ proceeds to
the fifth and final step, where he determines whether the
claimant can perform any other work based on the
claimant's RFC, age, education, and work experience.
§ 404.1520(a)(4)(v). If so, the claimant is not
disabled. Id. If not, the claimant is disabled.
one, the ALJ found that Plaintiff meets the insured status
requirements of the Social Security Act through September 30,
2016, and that she has not engaged in substantial gainful
activity since June 1, 2011. (AR at 20.) At step two, the ALJ
found that Plaintiff has the following severe impairments:
unspecified myalgia/myositis, history of obesity, status-post
gastric bypass, mild degenerative changes of the cervical
spine, depressive disorder, generalized anxiety disorder, and
post-traumatic stress disorder. (Id.) At step three,
the ALJ determined that Plaintiff does not have an impairment
or combination of impairments that meets or medically equals
an impairment listed in Appendix 1 to Subpart P of 20 C.F.R.
Pt. 404. At step four, the ALJ found that Plaintiff has the
RFC to perform:
light work as defined in 20 CFR 404.1567(b) except lift and
carry 20 pounds occasionally, ten pounds frequently; stand or
walk for six hours out of eight; sit for six hours out of
eight; can occasionally climb stairs and ramps, never ropes,
ladders, and scaffolds; occasionally stoop, kneel, crouch,
and crawl; should avoid concentrated exposure to extreme cold
and heat, loud noise, and vibration; should avoid even
moderate exposure to unprotected heights and moving and
dangerous machinery; in addition she is unable to understand,
remember, and carry out simple instructions and tasks; and
should not work in a setting that requires constant or
regular contact with the general public or more than
infrequent handling of customer complaints.
(Id. at 22.)
further found that Plaintiff is unable to perform any of his
past relevant work. At step five, the ALJ concluded that,
considering Plaintiff's age, education, work experience,
and residual functional capacity, there are jobs that exist
in significant numbers in the national economy that Plaintiff
argues the ALJ's decision is defective for two reasons:
(1) the weight given to the assessments of the treating
providers, and (2) the analysis of Ms. Christian's
credibility. (Doc. 10 at 12, 17.) The Court will address each
Weighing of Medical Source Evidence.
argues that the ALJ improperly weighed the medical opinions
of the following medical sources: Dr. Jane Barnwell, M.D.,
Dr. Kenneth Epstein, M.D., Dr. Heather Boyle, M.D., and Ms.
Angela Rees, M.C.C., L.A.C. (Id. at 12-17.) The
Court will discuss the ALJ's treatment of each opinion
Ninth Circuit distinguishes between the opinions of treating
physicians, examining physicians, and non-examining
physicians. See Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995). Generally, an ALJ should give greatest
weight to a treating physician's opinion and more weight
to the opinion of an examining physician than to one of a
non-examining physician. See Andrews v. Shalala, 53
F.3d 1035, 1040-41 (9th Cir. 1995); see also 20
C.F.R. § 404.1527(c)(2)-(6) (listing factors to be
considered when evaluating opinion evidence, including length
of examining or treating relationship, frequency of
examination, consistency with the record, and support from
objective evidence). If it is not contradicted by another
doctor's opinion, the opinion of a treating or examining
physician can be rejected only for “clear and
convincing” reasons. Lester, 81 F.3d at 830
(citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.
1988)). A contradicted opinion of a treating or examining
physician “can only be rejected for specific and
legitimate reasons that are supported by substantial evidence
in the record.” Lester, 81 F.3d at 830-31
(citing Andrews, 53 F.3d at 1043).
can meet the “specific and legitimate reasons”
standard “by setting out a detailed and thorough
summary of the facts and conflicting clinical evidence,
stating his interpretation thereof, and making
findings.” Trevizo v. Berryhill, 871 F.3d 664,
675 (9th Cir. 2017) (quotations omitted). But
“[t]he ALJ must do more than offer [his] conclusions.
[He] must set forth [his] own interpretations and explain why
they, rather than the doctors', are correct.”
Embrey, 849 F.2d at 421-22. The Commissioner is
responsible for determining whether a claimant meets the
statutory definition of disability and does not give
significance to a statement by a medical source that the
claimant is “disabled” or “unable to
work.” 20 C.F.R. § 416.927(d).
Dr. Jane Barnwell, M.D.
March 28, 2014, Dr. Jane Barnwell, M.D., who is board
certified in Physical Medicine and Rehabilitation, began
treating Plaintiff. (AR 702.) Between March 2014 and March
2016, Dr. Barnwell continued treating Plaintiff on a
consistent basis. (See AR 705-95.) On March 4, 2015,
Dr. Barnwell completed a Fibromyalgia Questionnaire (AR
589-93), in which she opined that Plaintiff is only able to
sit less than one hour, stand and walk less than one hour,
lift no objects of any weight, and has no ability to use her
hands in the workplace. (AR 589-93.) Dr. Barnwell further
opined that these limitations “apply as far back
as” June 1, 2011, Plaintiff's alleged disability
16, 2015, Dr. Barnwell wrote a detailed narrative report of
Plaintiff's condition. (AR 702-03.) In that report, Dr.
Barnwell again found extreme limitations in terms of physical
activity and endurance; moreover, Dr. Barnwell concluded that
Plaintiff was incapable of working for at least the last 12
months and her condition was not likely to improve. (AR
Barnwell's medical opinion is contradicted by the opinion
of the state's reviewing providers Dr. Lloyd Anderson,
M.D. and Dr. Martha Goodrich, M.D. Drs. Anderson and Goodrich
opined that Plaintiff had greater abilities than those
identified in Dr. Barnwell's opinion. The ALJ can
therefore discount Dr. Barnwell's opinion for specific
and legitimate reasons supported by substantial evidence.
Lester, 81 F.3d at 830-31.
the ALJ assigns little weight to Dr. Barnwell's medical
opinion, and provides three reasons for doing so: (1) Dr.
Barnwell's opinion that Plaintiff was impaired on June 1,
2011, is “speculative at best” because she did
not start treating Plaintiff until March 28, 2014 (AR 25);
(2) Dr. Barnwell's opinion conflicts with Plaintiff's
report that she was studying to be a Certified Nurse
Assistant (AR 402, 592-93); and (3) Dr. Barnwell's
opinion is inconsistent with her own findings in the record.
Speculative Regarding Limitations Prior to
ALJ's first reason for discounting Dr. Barnwell's
medical opinion is that it is “speculative at
best” regarding Plaintiff's condition prior to
March 2014, when Dr. Barnwell first started treating
Plaintiff. (Id. at 25.) The duration of the
treatment relationship and the frequency and nature of the
patient contact is relevant in weighing medical opinion
evidence. Benton v. Barnhart, 331 F.3d 1030, 1038-39
(9th Cir. 2003).
Court finds that the ALJ's first reason for discounting
Dr. Barnwell's opinion is not specific or legitimate. To
be sure, Dr. Barnwell met with and examined Plaintiff for the
first time on March 28, 2014, so Dr. Barnwell had no
first-hand knowledge of the first three years of
Plaintiff's alleged disability; but neither did any other
consulting or examining physician, including the State Agency
physicians, to whom the ALJ gave great weight. The Court
finds the ALJ's first reason is not legitimate for
discounting Dr. Barnwell's opinion.
because the ALJ provided other legally sufficient reasons for
discounting Dr. Barnwell's opinion, to the extent the ALJ
erred on this point, the error was harmless. See
Molina, 674 F.3d at 1111 (an error is harmless if there
remains substantial evidence supporting the ALJ's
decision and the error does not affect the ultimate
Inconsistent with Record as a Whole.
ALJ's second reason for discounting Dr. Barnwell's
medical opinion is that the record does not support the
limitations in Dr. Barnwell's assessment. (AR 25.) An ALJ
may give less weight to a doctor's opinion when it is
inconsistent with the overall record. 20 C.F.R. §
404.1527(c)(4); Messinger v. Comm'r of Soc. Sec.
Admin., No. CV-16-02529-PHX-DGC, 2017 WL 2351663, at *4
(D. Ariz. May 31, 2017) (“When evaluating a
physician's opinion, an ALJ may consider inconsistencies
between the physician's treatment and the physician's
the ALJ found Dr. Barnwell assessment that Plaintiff could
not use her hands (AR 592-593), inconsistent with Dr.
Barnwell's treatment reports which frequently find that
Plaintiff had normal strength and fine motor control in her
hands. (AR 707, 710, 713, 718, 721, 724). The Court finds
this to be a specific and legitimate reason for discounting
Dr. Barnwell's medical opinion.
argues that “the ALJ does not explain how the normal
exam findings that are cited conflict with Dr. Barnwell's
limitations.” (Doc. 16 at 3.) ...