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Owen v. Berryhill

United States District Court, W.D. Washington

January 12, 2018

MICHAEL A.H. OWEN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          ORDER AFFIRMING DEFENDANT'S DECISION TO DENY BENEFITS

          Theresa L. Fricke United States Magistrate Judge

         Plaintiff has brought this matter for judicial review of defendant's denial of his applications for disability insurance and supplemental security income (SSI) benefits. The parties have consented to have this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73; Local Rule MJR 13. For the reasons set forth below, the Court finds defendant's decision to deny benefits should be affirmed.

         FACTUAL AND PROCEDURAL HISTORY

         On January 17, 2014, plaintiff filed an application for disability insurance benefits and another one for SSI benefits, alleging in both applications that he became disabled beginning December 1, 2012. Dkt. 11, Administrative Record (AR) 12. Both applications were denied on initial administrative review and on reconsideration. Id. A hearing was held before an administrative law judge (ALJ), at which plaintiff appeared and testified as did a vocational expert. AR 29-71.

         In a decision dated October 15, 2015, the ALJ utilized the five step criteria, and decided the first four steps in plaintiff's favor. The ALJ determined at step five that the plaintiff is not disabled. According to the ALJ's decision, the plaintiff has the following severe impairments: left knee tendinopathy and chondromalacia patella; also high frequency hearing loss, lumbago, attention deficit hyperactivity disorder (ADHD), major depressive disorder, and panic disorder. AR 14.

         At step five, the ALJ found that plaintiff could perform other jobs existing in significant numbers in the national economy and therefore that he was not disabled. AR 12-24. Plaintiff's request for review was denied by the Appeals Council on January 10, 2017, making the ALJ's decision the final decision of the Commissioner, which plaintiff then appealed in a complaint filed with this Court on March 23, 2017. AR 1; Dkt. 3; 20 C.F.R. § 404.981, § 416.1481.

         Plaintiff seeks reversal of the ALJ's decision and remand for further administrative proceedings, arguing the ALJ erred: in evaluating the medical evidence in the record; in discounting plaintiff's testimony; in rejecting the lay witness evidence; in assessing plaintiff's residual functional capacity (“RFC”); and in finding plaintiff could perform other jobs existing in significant numbers in the national economy. For the reasons set forth below, the Court affirms the ALJ's decision.

         STANDARD AND SCOPE OF REVIEW

         The Court will uphold an ALJ's decision unless: (1) the decision is based on legal error; or (2) the decision is not supported by substantial evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). This requires “‘more than a mere scintilla, '” though “‘less than a preponderance'” of the evidence. Id. (quoting Desrosiers, 846 F.2d at 576). If more than one rational interpretation can be drawn from the evidence, then the Court must uphold the ALJ's interpretation. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). That is, “[w]here there is conflicting evidence sufficient to support either outcome, ” the Court “must affirm the decision actually made.” Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) (quoting Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)). The Court may not affirm by locating a quantum of supporting evidence and ignoring the non-supporting evidence. Orn v. Astrue, at 630.

         The Court must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court is required to weigh both the evidence that supports, and evidence that does not support, the ALJ's conclusion. Id. The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did not rely. Id. Only the reasons identified by the ALJ are considered in the scope of the Court's review. Id.

         I. The ALJ's Evaluation of the Medical Evidence For Determination of RFC at Step Five

         The plaintiff alleges that the ALJ erred in several respects concerning the assessment of Mr. Owen's residual functional capacity, and the ALJ's resulting decision (at step five) that plaintiff is not disabled. At step five of the sequential disability evaluation process, the ALJ must show there are a significant number of jobs in the national economy the claimant is able to perform. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. § 404.1520(e). The ALJ can do this through testimony of a vocational expert. Osenbrock v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2000).

         An ALJ's step five determination will be upheld if the weight of the medical evidence supports the hypothetical posed to the vocational expert. Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1987). The vocational expert's testimony therefore must be reliable in light of the medical evidence to qualify as substantial evidence. Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988). Accordingly, the ALJ's description of the claimant's functional limitations, which forms the residual functional capacity (RFC) determination, “‘must be accurate, detailed, and supported by the medical record.'” Id. (quoting Desrosiers, 846 F.2d at 578 (Pregerson, J., concurring)).

         The ALJ is responsible for determining credibility and resolving ambiguities and conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where the evidence is inconclusive, “questions of credibility and resolution of conflicts are functions solely of the [ALJ].” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such situations, “the ALJ's conclusion must be upheld.” Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). Determining whether inconsistencies in the evidence “are material (or are in fact inconsistencies at all) and whether certain factors are relevant to discount” medical opinions “falls within this responsibility.” Id. at 603.

         In resolving questions of credibility and conflicts in the evidence, an ALJ's findings “must be supported by specific, cogent reasons.” Reddick, 157 F.3d at 725. The ALJ can do this “by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Id. The ALJ also may draw inferences “logically flowing from the evidence.” Sample, 694 F.2d at 642. Further, the Court itself may draw “specific and legitimate inferences from the ALJ's opinion.” Magallanes v. Bowen, 881 F.2d 747, 755, (9th Cir. 1989).

         There are several categories of medical professionals that typically provide information that is reviewed during the Social Security application and appeal process. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). Some of the most common are: First, medical doctors in the role of treating physicians, who actually treated the claimant; second, medical doctors in the role of examining physicians, who examined but did not treat the claimant; third, medical doctors who are non-examining physicians and neither treated nor examined the claimant but reviewed medical records and other information; and fourth, acceptable medical sources who are medical professionals but do not fall into the category of any type of medical doctor; and fifth, other sources. Molina v. Astrue, 674 F.3d 1104, 1111-12 (9th Cir. 2012); Lester, 81 F.3d at 830; see, Leon v. Berryhill, 874 F.3d 1130, 1133-34 (nurse practitioner is an acceptable medical treating source for claims filed after March 27, 2017, under updated regulation 20 C.F.R. § 404.1527 and § 416.920c); Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) (treatment provider with a PhD in nursing was an “other source” under the pre-March 27, 2017 regulation even though she was the primary treating medical provider for plaintiff); Gomez, 74 F.3d at 971 (“acceptable medical sources” included in regulations are, among others, licensed physicians and licensed or certified psychologists); 20 C.F.R. § 404.1513(a)-(d), § 404.1529(a), (c), § 416.913.

         The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of either a treating or examining physician. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). Even when a treating or examining physician's opinion is contradicted, an ALJ may only reject that opinion “by providing specific and legitimate reasons that are supported by substantial evidence.” Id. However, the ALJ “need not discuss all evidence presented” to him or her. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted) (emphasis in original). The ALJ must only explain why “significant probative evidence has been rejected.” Id.; see also Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir. 1981); Garfield v. Schweiker, 732 F.2d 605, 610 (7th Cir. 1984).

         In general, more weight is given to a treating physician's opinion than to the opinions of those who do not treat the claimant. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). On the other hand, an ALJ need not accept the opinion of a treating physician, “if that opinion is brief, conclusory, and inadequately supported by clinical findings” or “by the record as a whole.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). An examining physician's opinion is “entitled to greater weight than the opinion of a nonexamining physician.” Lester, 81 F.3d at 830-31. A non-examining physician's opinion may constitute substantial evidence if “it is consistent with other independent evidence in the record.” Id. at 830-31; Tonapetyan, 242 F.3d at 1149.

         A. Dr. Phillips, treating physician

         In December 2013, plaintiff's treating physician, Vincent Phillips, M.D., completed a physical functional assessment form, in which he opined that plaintiff was limited to sedentary work. AR 287. The ALJ gave that opinion “little weight” because Dr. Phillips' evaluations of plaintiff “did not have the type of significant clinical abnormalities to substantiate” it, and because it was inconsistent with the clinical findings of Patrick J. Halpin, M.D., who examined plaintiff in December 2012 (AR 256), as well as with the “unremarkable diagnostic imaging” of plaintiff's left knee (AR 257). AR 21.

         In September 2015, Dr. Phillips filled out a Medical Source Statement concerning Mr. Owen's health status. AR 373-375. In that document, Dr. Phillips provided an opinion that Mr. Owen had a number of psychological and social limitations that were rated “moderate” in severity, seriously limiting his ability to perform the designated activity on a regular and sustained basis. AR 374-375. Dr. Phillips stated that these limitations would be continuous for 12 months or more, and that Mr. Owen had suffered from these limitations since age 5. Id. In addition, Dr. Phillips made a hand-written note identifying another condition: that Mr. Owen had a “severe injury. . . knee also.” AR 375. In a History and Physical Report #1 document prepared by Dr. Phillips dated 9-24-2015, Dr. Phillips opined that his assessment and plan regarding Mr. Owen's knee was: “Note: limited ROM Knee. . . .Pain in join, lower leg. . .acute on chronic for him. Continue the use of knee brace, ice, elevation of the knee. Get an xray of the knee. Tylenol and NSAIDS. Give muscle relaxant and tramadol for him to use for pain control as well. Order for a cane to use ambulating. Refer back to orthopedic for further care. . . .” AR 377.

         Plaintiff argues the ALJ's reasons for discounting Dr. Phillips' opinion lack substantial evidentiary support, because Dr. Phillips completed a chart on November 1, 2013, indicating limited left hip and knee range of motion (AR 288), and because he found limited left knee range of motion in September 2015 (AR 377). These two instances of limited range of motion - some three years apart - do not outweigh the other fairly benign clinical findings the ALJ noted. See AR 21 (citing AR 306-41, 352-72). To the extent conflicts or ambiguities in the ...


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