Forbes v. Commissioner of Social Security Administration ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eric David Forbes, No. CV-19-05609-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Eric David Forbes (“Plaintiff”)’s appeal of the 16 Social Security Administration’s denial of his application for disability insurance benefits 17 (Doc. 1). The Administrative Law Judge (“ALJ”)’s decision is remanded. 18 BACKGROUND 19 On February 24, 2015, Plaintiff filed an application for a period of disability and 20 Social Security Disability benefits, alleging disability beginning January 17, 2013. His 21 claims were denied initially and upon reconsideration. Plaintiff then requested a hearing 22 before an ALJ. The ALJ conducted a hearing on the matter and issued a written decision 23 denying benefits on September 19, 2018. Plaintiff appealed the ALJ’s decision to the 24 Appeals Council, which denied his request for review. This appeal followed. 25 In evaluating whether Plaintiff was disabled, the ALJ undertook the five-step 26 sequential evaluation for determining disability.1 After establishing that Plaintiff had not 27 1 Disability claims are evaluated using a five-step sequential analysis. 20 C.F.R. § 404.1520. At step one, the ALJ determines whether a claimant is currently engaged in 28 substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and evaluates whether the claimant has a medically severe impairment or 1 engaged in substantial gainful activity since his alleged onset date of disability (step one), 2 the ALJ determined that Plaintiff had severe medically determinable impairments, 3 including Lance Adams syndrome, chronic obstructive pulmonary disease, unspecified 4 neurocognitive and anxiety disorders, and history of cardiac arrest, hypoxia, and induced 5 coma (step two). At step three, the ALJ concluded that Plaintiff’s impairments did not meet 6 or medically equal the criteria of a presumptively disabling impairment. The ALJ then 7 determined that Plaintiff could not perform any past relevant work (step four). However, 8 at step five, the ALJ drew upon vocational expert testimony and found that Plaintiff was 9 not disabled because he could perform at least a reduced range of sedentary work, citing 10 addresser, surveillance system monitor, and order clerk as representative unskilled 11 sedentary occupations. 12 I. Standard of Review 13 In an appeal from an ALJ’s decision, a reviewing federal court will address only the 14 issues raised in the appeal. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The 15 court may set aside a denial of disability benefits only if that denial is either unsupported 16 by substantial evidence or based on legal error. Thomas v. Barnhart, 278 F.3d 947, 954 17 (9th Cir. 2002). “Substantial evidence is relevant evidence which, considering the record 18 as a whole, a reasonable person might accept as adequate to support a conclusion.” Id. 19 (quotation omitted). It is “more than a scintilla but less than a preponderance.” Id. 20 (quotation omitted). As the ALJ is responsible for resolving conflicts in testimony, 21 determining credibility, and resolving ambiguities, see Andrews v. Shalala, 53 F.3d 1035, 22 1039 (9th Cir. 1995), “[w]hen the evidence before the ALJ is subject to more than one 23 rational interpretation, we must defer to the ALJ’s conclusion,” Batson v. Comm’r of Soc. 24 Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). “[T]he court may not substitute its 25 combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or 26 equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, App. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses 27 whether the claimant can perform her past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the residual 28 functional capacity (“RFC”) to perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 1 judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) 2 (citations omitted). 3 II. Analysis 4 Plaintiff argues the ALJ did not properly evaluate the medical opinions of record 5 because the ALJ did not defer to the opinion of Plaintiff’s treating physicians Dr. Srivadee 6 Oravivattanakul and Dr. Eric Foltz, and that even if the ALJ properly concluded that Dr. 7 Foltz and Dr. Oravivattanakul’s opinions were not entitled to controlling weight, the ALJ 8 erred by failing to properly weigh the opinions consistent with the factors in 20 C.F.R. 9 § 404.1527. 10 When presented with conflicting medical opinions, an ALJ “must determine 11 credibility and resolve the conflict.” Batson, 359 F.3d at 1195. A treating physician’s 12 opinion is generally given more weight than a non-treating physician’s opinion. See 20 13 C.F.R. § 404.1527. However, “an ALJ may discredit treating physicians’ opinions that are 14 conclusory, brief, and unsupported by the record as a whole . . . or by objective medical 15 findings.” Thornsberry v. Astrue, No. 10-CV-2459 JLS WVG, 2012 WL 628238, at *3 16 (S.D. Cal. Feb. 27, 2012), aff’d sub nom. Thornsberry v. Colvin, 552 F. App’x 691 (9th 17 Cir. 2014). In addition, an ALJ may reject opinions of treating physicians if they are not 18 “well-supported” or if they are inconsistent with other substantial evidence in the record, 19 so long as the ALJ provides “‘specific and legitimate reasons’ supported by substantial 20 evidence in the record.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). By 21 “summariz[ing] the facts and conflicting clinical evidence in detailed and thorough fashion, 22 stating his interpretation and making findings,” the ALJ will meet the standard required, 23 even if he “d[oes] not recite the magic words, ‘I reject [the treating physician’s] opinion . 24 . . because . . .” Magallanes v. Bowen, 881 F.2d 747, 755, 757 (9th Cir. 1989). The findings 25 of a nontreating, nonexamining physician can amount to substantial evidence if other 26 evidence in the record supports those findings. Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 27 1996). 28 However, even when “there is substantial evidence contradicting a treating 1 physician’s opinion such that it is no longer entitled to controlling weight, the opinion is 2 nevertheless ‘entitled to deference.’ To determine the amount of deference, the opinion 3 ‘must be weighed using all of the factors provided in 20 C.F.R. [§] 404.1527.’” Elgrably 4 v. Comm’r of Soc. Sec. Admin., No. CV-17-04760-PHX-JAT, 2018 WL 5264074, at *8 (D. 5 Ariz. Oct. 23, 2018) (quoting Weiskopf v. Berryhill, 693 F. App’x 539, 541 (9th Cir. 2017)). 6 Those factors include: the length of the treatment relationship and the frequency of 7 examination by the treating physician; the nature and extent of the treatment relationship 8 between the patient and the treating physician; the amount of relevant evidence supporting 9 the opinion and the quality of the explanation provided; the consistency of the medical 10 opinion with the record as a whole; the specialty of the physician providing the opinion; 11 and “[o]ther factors,” such as the degree of understanding a physician has of the Social 12 Security Administration’s disability programs and their evidentiary requirements and the 13 degree of her familiarity with other information in the case record. Id. 14 Here, the ALJ accorded reduced weight to Plaintiff’s treating physicians based on 15 specific and legitimate reasons supported by substantial evidence in the record. The ALJ 16 found that Dr. Foltz’s January 4, 2016 opinion limiting Plaintiff to standing and walking 17 for no more than two hours was not supported by Plaintiff’s “positive response to treatment 18 for Lance-Adams syndrome, his only occasional complaints of dyspnea on exertion, and 19 the lack of objective notes of drowsiness,” and that Dr. Foltz’s opinion regarding Plaintiff’s 20 interpersonal relations was “less” than “somewhat” supported because Plaintiff “has 21 generally been noted as pleasant and cooperative and reported no problems getting along 22 with others.” (Doc. 12-3 at 57.) The ALJ did not credit Dr. Foltz’s August 19, 2015 and 23 September 17, 2015 opinions that Plaintiff could not work any hours in an eight-hour 24 workday because they were contradicted by Dr. Foltz’s own subsequent opinion that 25 Plaintiff could work eight hours in an eight-hour workday. In according “some” weight to 26 Dr. Foltz’s opinion, the ALJ did not “substitute . . . his own interpretation of the medical 27 evidence for the opinion of medical professionals,” Velasquez v. Berryhill, 2017 WL 28 2273191 at *3 (C.D. Cal. May 23, 2017); rather, he relied upon objective medical evidence 1 in the record, such as the opinions of examining healthcare providers Paul Bendheim, 2 M.D., Robert Gordon, D.O., Jefferey Levison, M.D., and Rupal Mohan, P.C., none of 3 whom concluded that Plaintiff’s limitations would keep him from working altogether. 4 The ALJ also appropriately accorded reduced weight to Dr. Oravivattanakul’s 5 opinion that Plaintiff could not engage in competitive full-time employment. Even though 6 the ALJ agreed with Dr. Oravivattanakul’s suggestion that “significant limitations arise 7 from [Plaintiff’s] impairment and medication side effects,” he reasoned that Dr. 8 Oravivattanakul’s conclusion that Plaintiff could not work was an issue reserved to the 9 Commissioner. 20 C.F.R. § 404.1527 (“Opinions on some issues, such as [whether a 10 petitioner meets the statutory definition of disability], are not medical opinions . . . but are, 11 instead, opinions on issues reserved to the Commissioner. . . . We will not give any special 12 significance to the source of an opinion on issues reserved to the Commissioner.”); see also 13 McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (“A treating physician’s evaluation 14 of a patient’s ability to work may be useful or suggestive of useful information, but a 15 treating physician ordinarily does not consult a vocational expert or have the expertise of 16 one.”). Moreover, the ALJ noted that Dr. Oravivattanakul’s opinion was contradicted by 17 the second opinion of Dr. Foltz and the opinion of Dr. Bendheim, an examining clinician, 18 and that her opinion was “somewhat undermined by [Plaintiff’s] favorable response to 19 treatment for Lance-Adams syndrome” and the fact that her opinion did not include specific 20 functional limitations. (Doc. 12-3 at 57.) Indeed, Dr. Oravivattanakul’s opinion is 21 somewhat conclusory, stating tersely after providing a summary of Plaintiff’s symptoms 22 and the side effects of his medication that “[d]ue to the symptoms, patient is unable to [sic] 23 full time, competitive work.” (Doc. 12-11 at 167.) 24 This case is like Valentine v. Commissioner of the Social Security Administration, 25 in which the ALJ “identified a contradiction in [the treating physician’s] opinion” and 26 “noted evidence in the record . . . that showed [the plaintiff’s] ‘improved functioning at 27 work[’] . . . and encouraging comments he received from company officials,” consistent 28 with the opinions of an examining physician and an evaluating physician. 574 F.3d 685, 1 692–93 (9th Cir. 2009). The Valentine court found that the ALJ rejected the treating 2 physician’s opinion “for specific and legitimate reasons supported by substantial 3 evidence.” Id. As in McLeod v. Astrue, 640 F.3d 881, 884 (9th Cir. 2011), although both 4 treating physicians in this case concluded that Plaintiff is suffering from a challenging 5 medical condition “based on his symptom reports, their examinations, and objective 6 medical tests,” Dr. Foltz “thought [Plaintiff] could do sedentary work, and Dr. 7 [Oravivattanakul] thought [Plaintiff] could not work at all.” And like in McLeod, “[a]s for 8 the ALJ rejecting Dr. [Oravivattanakul’s] opinion on whether [Plaintiff] could work at any 9 job . . . this determination is for the Social Security Administration to make, not a 10 physician.” Id. As did the ALJs in Valentine and McLeod, the ALJ in Plaintiff’s case 11 accorded reduced weight to Plaintiff’s treating physicians based “‘specific and legitimate 12 reasons’ supported by substantial evidence in the record.” Lester, 81 F.3d at 830. 13 Nevertheless, in rejecting Dr. Foltz’s first opinion and Dr. Oravivattanakul’s 14 opinion, the ALJ erred in his “fail[ure] to apply the appropriate factors in determining the 15 extent to which the opinion[s] should be credited.” Trevizo v. Berryhill, 871 F.3d 664, 676 16 (9th Cir. 2017). Unlike in Trevizo, in which the court noted that that the ALJ “did not offer 17 ‘specific and legitimate’ reasons for rejecting [the primary treating physician’s] opinion” 18 and “pointed to nothing in [the primary treating physician’s] treatment notes or elsewhere 19 in the clinical record that contradicted the treating physician’s opinion,” here, the ALJ 20 appropriately demonstrated that the treating physicians’ opinions were “‘inconsistent with 21 the other substantial evidence in [Plaintiff’s] case record,’ such that [they] should not be 22 given dispositive weight, 20 C.F.R. § 404.1527(c)(2).’” Id. at 676–77. But, as the Trevizo 23 court noted, the fact that ALJ did not consider factors such as the length of the treating 24 relationship, the frequency of examination, or the nature and extent of the treatment 25 relationship in evaluating either opinion “alone constitutes reversible legal error.” Id. at 26 676; see also 20 C.F.R. § 404.1527(c)(2) (“When we do not give the treating source’s 27 medical opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and 28 (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this 1 || section in determining the weight to give the medical opinion.”). Thus, although the ALJ 2|| properly provided specific and legitimate reasons for rejecting the treating physicians’ || opinions, the Court must remand for the ALJ to properly determine the level of deference || that should be accorded the opinions of Dr. Foltz and Dr. Oravivattanakul in light of the 5 || explicit consideration of all the factors in 20 C.F.R. § 404.1527. 6 CONCLUSION 7 The ALJ decision to accord reduced weight to the opinions of Plaintiff's treating 8 || physicians is not “unsupported by substantial evidence or based on legal error.” Thomas v. 9|| Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the ALJ erred by failing to consider 10]| all the 20 C.F.R. § 404.1527 factors in determining the level of deference afforded those opinions. 12 IT IS THEREFORE ORDERED that the ALJ’s decision is REMANDED for the 13} ALJ to properly conduct this balancing and determine the level of deference that should be accorded the opinions of Dr. Foltz and Dr. Oravivattanakul in light of the explicit consideration of all the factors in 20 C.F.R. § 404.1527. 16 Dated this 31st day of July, 2020. 17 Wi, 18 A Whacrsay Sooo) 19 Chief United States District Judge 20 21 22 23 24 25 26 27 28 -7-