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Schott v. Commissioner of Social Security Administration

United States District Court, D. Arizona

November 5, 2019

Raymond James Schott, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          Honorable John J. Tuchi, United Stated District Judge.

         At issue is the denial of Plaintiff's Application for Title II Disability Insurance Benefits by Defendant. Plaintiff filed a Complaint (Doc. 1) seeking judicial review of that denial, and the Court now considers Plaintiff's Opening Brief (Doc. 12, “Pl. Br.”), Defendant's Response Brief (Doc. 13, “Def. Br.”), Plaintiff's Reply Brief (Doc. 16), and the Administrative Record (Doc. 11, “R.”). Because the Court finds the decision free of legal error and supported by substantial evidence in the record, it will affirm the decision.

         I. BACKGROUND

         On November 9, 2011 Plaintiff was working in demolition when a gas-powered saw he was using exploded in his hands. (Pl. Br. at 3.) As a result, he sustained “12% TBSA [total body surface area] third degree burns involving his lower arms, chest, and face.” (Pl. Br. at 3.) Because of the severity of the burns and a concern for compartment syndrome, Plaintiff underwent various surgical treatments, including debridement, bilateral medial forearm fasciotomies to prevent tissue death due to decreased blood flow, and xenografting to aid in the closing of the incisions from the other surgeries. (Pl. Br. at 3; R. at 846.) From November 9, 2011 to April 29, 2013, Plaintiff was granted a closed period of disability for impairments resulting from his burns and an “anxiety related disorder.”[1] (R. at 70.) He then filed an application on February 20, 2015 for a second closed period of disability from November 17, 2013 to February 1, 2016, which is the subject of this appeal. (Pl. Br. at 2.) That application was denied initially on July 2, 2015 and upon reconsideration on January 8, 2016. (R. at 10.) A hearing was held before Administrative Law Judge (“ALJ”) Carla Waters on September 28, 2017 during which Plaintiff, represented by his attorney, testified about his impairments and symptoms. (R. at 10.) In her decision (R. at 10-21) issued on April 25, 2018, the ALJ found Plaintiff was not disabled and had the residual functional capacity (“RFC”) to perform “light work” as defined in 20 C.F.R. § 404.1567(b). (R. at 14, 20.) In determining this RFC, the ALJ relied on the medical opinions of Dr. Krishna Mallik, Dr. Jason Fritzell, and Dr. Aaron Bowen. (R. at 20.) The decision was upheld by the Appeals Council on November 28, 2018. (R. at 1-3.)

         The issues presented to this Court for review are: (1) whether the ALJ erred in assigning “minimal weight” to the opinions of Dr. Scott, a treating physician, and Dr. Peachey, an examining physician, and instead assigning “great weight” to the opinion of a non-treating, non-examining physician, Dr. Krishna Mallik in formulating Plaintiff's RFC; and (2) whether the ALJ erred in rejecting Plaintiff's pain and symptom testimony. This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).


         In determining whether to reverse an ALJ's decision, the district court reviews only those issues raised by the party challenging the decision.[2] 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, but less than a preponderance; it is relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. To determine 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).

         To determine whether a claimant is disabled for purposes of the 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 the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is presently 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. 20 C.F.R. § 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. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. Id. At step four, the ALJ assesses the claimant's RFC and determines whether the claimant is still capable of performing past relevant work. 20 C.F.R. § 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 she determines whether the claimant can perform any other work in the national economy based on the claimant's RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.

         III. ANALYSIS

         A. The ALJ did not err in rejecting Plaintiff's symptom and pain testimony.

         In evaluating a claimant's pain and symptom testimony, the ALJ must engage in a two-step analysis. First, she must determine whether claimant has produced objective medical evidence of an underlying impairment. Second, unless there is evidence that the claimant is malingering, the ALJ must provide specific, clear, and convincing reasons for rejecting pain and symptom testimony associated with the underlying impairment. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Here, because the ALJ found underlying impairments of “nerve damage in both arms, third degree burns, muscle spasms, and the inability to hold objects due to lack of strength in hands and arms” (R. at 15) and cited no evidence of malingering, she must provide specific, clear, and convincing reasons to reject Plaintiff's pain and symptom testimony.

         “An ALJ [is not] required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). General findings pertaining to a claimant's credibility, however, are not sufficient. See Lester v. Chater, 81 F.3d 821 (9th Cir. 2005). Rather, “the ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). In doing so, the ALJ need not engage in “extensive” analysis, but should, at the very least “provide some reasoning in order for [a reviewing court] to meaningfully determine whether [her] conclusions were supported by substantial evidence.” Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). Moreover, if the ALJ explains her decision “with less than ideal clarity, a reviewing court will not upset the decision on that account if [her] path may reasonably be discerned.” Alaska Dept. of Envtl. Conservation v. E.P.A., 540 U.S. 461, 497 (2004); see Brown-Hunter, 806 F.3d at 492 (applying this rule to the social security context). The ALJ may consider “[the claimant's] reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains.” Light v. Soc. Sec. Admin., Comm'r, 119 F.3d 789, 792 (9th Cir. 1997).

         Here, the ALJ rejected Plaintiff's statements as “not entirely consistent with the medical evidence and other evidence in the record.”[3] (R. at 15.) In support of this conclusion, the ALJ makes numerous references to specific evidence in the record, including objective medical evidence as well as Plaintiff's activities, and also notes statements made by Plaintiff.

         The ALJ cites two EMGs performed on May 29, 2012 and February 21, 2013, [4]which, according to Plaintiff's treating physician, Dr. Jeffrey Scott, were “normal, ” despite the fact that “[Plaintiff] alleged during this time, he had very little improvement in his hands.” (R. at 16, 17, 824.) The ALJ also noted that Plaintiff scored 5/5 on muscle and grip strength tests performed by an examining physician, Dr. John Peachey. (R. at 19, 894.) The ALJ further noted that “[i]n spite of his constant complaints about hand impairments, the [Plaintiff] said on April 25, 2015 that he coaches an adult softball league, worked as a welder in October, and plays golf, ” citing records from Plaintiff's psychiatric evaluation. (R. at 17, 879.) During this evaluation, Plaintiff also stated that he was no longer able to play baseball because he is “in pain all of the time.” (R. at 881.) However, the ALJ referenced treatment notes from a July 22, 2015 visit to Mountain Park Health Center[5] in which the physician noted some edema of ...

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