Christian v. Commissioner of Social Security Administration

          ORDER

          Honorable John Z. Boyle United States Magistrate Judge

         Plaintiff 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.

         I. Background.

         On 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.

         II. Legal Standard.

         The 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 omitted).

         Harmless 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.

         III. The ALJ's Five-Step Evaluation Process.

         To 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).

         At the 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. Id.

         At step 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.)

         The ALJ 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 could perform.

         IV. Analysis.

         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 argument below.

         A. Weighing of Medical Source Evidence.

         Plaintiff 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 below.

         1. Legal Standard.

         The 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).

         An ALJ 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).

         2. Dr. Jane Barnwell, M.D.

         On 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 onset det.

         On July 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 703-04.)

         Dr. 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.

         Here, 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.

         a. Speculative Regarding Limitations Prior to Treatment.

         The 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).

         The 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.

         However, 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 non-disability determination).

         b. Inconsistent with Record as a Whole.

         The 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 recommended limitations.”).

         Here, 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.

         Plaintiff 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.) ...