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Leavell v. Commissioner of Social Security Administration

United States District Court, D. Arizona

December 17, 2019

Stacey L. Leavell, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE.

         At issue is Defendant's denial of Plaintiff's application for Title II disability insurance benefits under the Social Security Act (“Act”). Plaintiff filed a Complaint (Doc. 1) seeking judicial review of the denial, and the Court now considers Plaintiff's Opening Brief (Doc. 12, “Pl. Br.”), Defendant's Response (Doc. 16, “Def. Br.”), Plaintiff's Reply (Doc. 19), and the Administrative Record (Doc. 11, “R.”). Because the Court finds legal error in the decision, it reverses and remands for further administrative proceedings.

         I. BACKGROUND

         Plaintiff filed her application on October 29, 2013, alleging disability beginning March 30, 2010 (later amended to January 7, 2012), and was denied initially on April 7, 2014 and upon reconsideration on November 4, 2014.[1] (R. at 18.) Plaintiff requested a hearing before an administrative law judge (“ALJ”), which was held on February 25, 2016. (R. at 18.) On June 29, 2016, the ALJ issued her decision finding Plaintiff not disabled, which was upheld by the Appeals Council on November 30, 2017. (R. at 1-3, 18-36.) In reaching this conclusion, the ALJ found Plaintiff was capable of the following:

[T]he claimant had the residual functional capacity [“RFC”] to perform light work as defined in 20 CFR § 404.1567(b). She could lift and carry 20 pounds occasionally and 10 pounds frequently, and push/pull as much as she could lift and carry. The claimant could sit for six hours, but needed to alternate to standing for 10 minutes after every hour of sitting; stand for six hours, but needed to alternate to sitting for 10 minutes after every hour of standing; and walk for six hours, but needed to alternate to sitting for 10 minutes after every our of walking. She could frequently use foot controls bilaterally and frequently use hand controls bilaterally. The claimant could frequently handle bilaterally and frequently finger bilaterally. She could occasionally climb ramps and stairs, stoop, kneel, and crawl; never climb ladders and scaffolds; and frequently balance and crouch. The claimant could never be around unprotected heights and moving mechanical parts; could have frequent exposure to humidity and wetness; and needed to avoid concentrated exposure to extreme cold and heat. In addition to normal breaks, the claimant would have been off-task five percent of the time in an eight-hour workday. She was also limited to performing simple, routine tasks and making simple work-related decisions.

(R. at 25.) In formulating the RFC, the ALJ gave “great weight” to the opinions of state agency medical consultants, Michael Keer, D.O. and Erika Wavak, M.D., but only “little weight” to the opinions of all treating physicians, rejected Plaintiff's subjective pain and symptom testimony, and only gave “some weight” to subjective testimony from Plaintiff's husband, Brian Leavell. (R. at 26, 32.) A vocational expert (“VE”) testified that an individual with the above RFC could perform work in the national economy as a booth cashier, office helper, or routing clerk. (R. at 35, 75-76.) Thus, the ALJ found Plaintiff not disabled.

         Plaintiff brings this appeal alleging the ALJ committed materially harmful error by: (1) rejecting Plaintiff's symptom testimony in the absence of specific, clear, and convincing reasons supported by substantial evidence in the record as a whole; (2) basing the unfavorable decision solely on medical opinions from state agency doctors who completed assessment forms as part of the initial and reconsideration determinations, which were based on only a limited record review; and (3) giving “little weight”[2] to lay evidence in third party agency reports from Plaintiff's husband. (Pl. Br. at 1-2.)

         II. LEGAL STANDARD

         This Court has jurisdiction pursuant to 42 U.S.C. § 405(g), which provides that a reviewing court may affirm, modify, or reverse the decision of the Commissioner, with or without remanding the cause for a rehearing. The district court reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set aside the decision only if it 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.; see also Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997) (“[T]he key question is not whether there is substantial evidence that could support a finding of disability, but whether there is substantial evidence to support the Commissioner's actual finding that claimant is not disabled.”). Even if the decision contains a legal error, the Court will not reverse the decision where the error is “harmless” as “inconsequential to the ultimate nondisability determination” or where the ALJ's “path may reasonably be discerned, even if the [ALJ] explains [her] decision with less than ideal clarity.” Alaska Dept. of Envtl. Conservation v. E.P.A., 540 U.S. 461, 497 (2004); Treichler v. Comm'r of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014). The Court “must consider the record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn, 495 F.3d at 630. “Where 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).

         III. ANALYSIS

         To determine whether a claimant is “disabled” under the Act, the ALJ employs a five-step process. See 20 C.F.R. § 404.1520(a)(4). The burden of proof is on the claimant for the first four steps but shifts to the ALJ at the fifth step. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must show she is not presently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). Second, she must show she suffers from a “severe medically determinable” impairment(s). Id. § 404.1520(a)(4)(ii). Third, she must show that the impairment meets or equals an impairment in appendix 1 of subpart P of 20 C.F.R § 404. Id. § 404.1520(a)(4)(iii). However, if the claimant fails to satisfy step three, she can still make out a prima facie case of disability at step four by showing she is unable to perform any past relevant work and by meeting steps one and two. Id. § 404.1520(a)(4)(iv). The ALJ determines if the claimant met step four by assessing the claimant's RFC. Id. At the fifth and final step, the burden shifts to the ALJ to show that the claimant is able to perform other work that exists in the national economy based on the claimant's RFC, age, education, and work experience. Id. §§ 404.1520(a)(4)(v), 404.1560(c)(1).

         A. The opinions of the state examiners qualify as “substantial evidence.”

         Plaintiff alleges the ALJ erred “by basing the unfavorable decision solely on medical opinions from state agency doctors who completed assessment forms as part of the initial and reconsideration determinations, which were based on only a limited record review.” (Pl. Br. at 10.) The crux of Plaintiff's argument is that “[t]he sole medical basis for the ALJ decision, whether the nonexamining reviewers' opinions or the ALJ's own opinion, was insubstantial evidence.” (Pl. Br. at 16.)

         In assessing a claimant's RFC, the ALJ must evaluate each medical opinion in the record, assign a weight to each, and resolve any conflicts between them. 20 C.F.R. § 404.1527(c); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). Generally, opinions of treating physicians are entitled to the greatest weight; opinions of examining, non-treating physicians are entitled to lesser weight; and opinions of non- examining physicians are entitled to the least weight. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).[3] If an ALJ is to depart from this general hierarchy, the ALJ must articulate “specific and legitimate reasons supported by substantial evidence” when crediting the opinion of a non-examining physician over one of a treating physician where the opinions are inconsistent. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). However, “[t]he opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining ...


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