Varela v. Commissioner of Social Security Administration ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Allison Mae Varela, No. CV-18-01335-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s appeal of her denial of her application for 16 social security disability benefits. Plaintiff raises 4 claims of error on appeal: 1) the ALJ 17 failed to give sufficient reasons for not crediting the opinions of a treating physician, Dr. 18 Anderson; 2) the ALJ failed to give sufficient reasons for not crediting Plaintiff’s symptom 19 testimony; 3) the ALJ failed to give sufficient reasons for not crediting the testimony of a 20 lay witness, B.N.; and 4) the ALJ posed an inadequate hypothetical to the vocational expert. 21 I. Legal Standard 22 A. Standard of Review on Appeal 23 The ALJ’s decision to deny benefits will be overturned “only if it is not supported 24 by substantial evidence or is based on legal error.” Magallanes v. Bowen, 881 F.2d 747, 25 750 (9th Cir. 1989) (internal quotation omitted). “Substantial evidence” means “more than 26 a mere scintilla, but less than a preponderance.” Reddick v. Chater, 157 F.3d 715, 720 (9th 27 Cir. 1998) (internal citation omitted). In other words, substantial evidence means “such 28 relevant evidence as a reasonable mind might accept as adequate to support [the ALJ’s] 1 conclusion.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). 2 “The inquiry here is whether the record, read as a whole, yields such evidence as 3 would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. 4 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (internal citation omitted). In determining 5 whether there is substantial evidence to support a decision, the Court considers the “record 6 as a whole, weighing both the evidence that supports the ALJ’s conclusions and the 7 evidence that detracts from the” ALJ’s conclusions. Reddick, 157 F.3d at 720. “Where 8 evidence is susceptible of more than one rational interpretation, it is the ALJ’s conclusion 9 which must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences 10 logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (internal citations 11 omitted); see Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 12 2004). This is because “[t]he trier of fact and not the reviewing court must resolve conflicts 13 in the evidence, and if the evidence can support either outcome, the court may not substitute 14 its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); 15 see Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). 16 The ALJ is responsible for resolving conflicts in medical testimony, determining 17 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 18 Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports the 19 ALJ’s decision and the decision is free from legal error, the Court must affirm it. See 20 Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989); see also 42 U.S.C. § 405(g) (2012). 21 On the other hand, the Court “may not affirm simply by isolating a specific quantum of 22 supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (internal quotation 23 and citation omitted). 24 Notably, the Court is not charged with reviewing the evidence and making its own 25 judgment as to whether Plaintiff is or is not disabled. See Connett v. Barnhart, 340 F.3d 26 871, 874 (9th Cir. 2003). Rather, the Court’s inquiry is constrained to the reasons asserted 27 by the ALJ and the evidence relied upon in support of those reasons. See id. 28 1 B. Definition of Disability 2 To qualify for disability benefits under the Social Security Act, a claimant must 3 show that, among other things, he is “under a disability.” 42 U.S.C. § 423(a)(1)(E). The 4 Social Security Act defines “disability” as the “inability to engage in any substantial gainful 5 activity by reason of any medically determinable physical or mental impairment which can 6 be expected to result in death or which has lasted or can be expected to last for a continuous 7 period of not less than 12 months.” Id. § 423(d)(1)(A). 8 A person is “under a disability only if his physical or mental impairment or 9 impairments are of such severity that he is not only unable to do his previous work but 10 cannot, considering his age, education, and work experience, engage in any other kind of 11 substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 12 C. The Five-Step Evaluation Process 13 To evaluate a claim of disability, the Social Security regulations set forth a five-step 14 sequential process. 20 C.F.R. § 404.1520(a)(4) (2016); see also Reddick, 157 F.3d at 721. 15 A finding of “not disabled” at any step in the sequential process will end the inquiry. 16 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof through the first four 17 steps, but the burden shifts to the Commissioner in the final step. Reddick, 157 F.3d at 721. 18 II. Claims of Error on Appeal 19 A. Treating Physician 20 1. Legal Standard 21 Plaintiff argues that the ALJ was required to given clear and convincing reasons for 22 not crediting the opinion of the treating physician. (Doc. 15 at 2). Defendant argues that 23 because the treating physician’s opinion is contradicted by other medical opinions of 24 record, the ALJ need only give specific and legitimate reasons, supported by substantial 25 evidence of record, for rejecting it. (Doc. 14 at 5). Plaintiff argues that in this case the 26 treating physician’s opinion is effectively uncontradicted because the only contradicting 27 medical opinions are from non-examining physicians; and, Plaintiff argues, non-examining 28 physician’s opinions are not “substantial evidence” of record. (Doc. 15 at 2). 1 The Ninth Circuit Court of Appeals has held that “The opinion of a nonexamining 2 physician cannot by itself constitute substantial evidence that justifies the rejection of the 3 opinion of either an examining physician or a treating physician.” Lester v. Chater, 81 4 F.3d 821, 831 (9th Cir. 1995). However, in that same opinion, the Court stated, “We have, 5 in some cases, upheld the Commissioner’s decision to reject the opinion of a treating or 6 examining physician, based in part on the testimony of a nonexamining medical advisor.” 7 Id. Specifically, the Court of Appeals has stated, “The opinions of non-treating or non- 8 examining physicians may also serve as substantial evidence when the opinions are 9 consistent with independent clinical findings or other evidence in the record.” Thomas v. 10 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 11 Based on the foregoing, the Court finds that the Court of Appeals has not held that 12 a non-examining medical source can never be a contradicting medical opinion that qualifies 13 as substantial evidence of record. While the Lester Court does state that the opinion of a 14 non-examining physician cannot be the only substantial evidence of record, the Court of 15 Appeals clearly states that the opinion of the non-examining physician is nonetheless 16 evidence on which the ALJ can rely in reaching a decision. Thus, this Court rejects 17 Plaintiff’s argument that the opinions of the non-examining physicians cannot be 18 considered as conflicting medical opinions. 19 Accordingly, because there are conflicting medical opinions of record in addition to 20 other evidence, the Court finds that the specific-and-legitimate-reasons-supported-by- 21 substantial-evidence-of-record standard applies. 22 2. Dr. Anderson’s Opinion 23 Plaintiff argues on appeal that the ALJ made an error of fact when considering Dr. 24 Anderson’s opinions. (Doc. 12 at 12). Plaintiff and the ALJ appear to agree that Dr. 25 Anderson was treating Plaintiff for a sleep condition.1 However, although neither the ALJ 26 1 The ALJ calls this condition “hypersomnia” when specifically discussing Dr. Anderson. (Doc. 11-3 at 39) (all citations are to this Court’s electronic record not the page numbers 27 in the administrative record). At another point, the ALJ calls this condition “sleep disorder/narcolepsy”. (Doc. 11-3 at 38). Plaintiff calls this condition “narcolepsy” on 28 appeal. (Doc. 12 at 12). Plaintiff does not argue that hypersomnia is not what Dr. Anderson was treating. (Doc. 12 at 12). Nonetheless, the Court has reviewed Dr. Anderson’s notes 1 nor Plaintiff cite anything for their respective conclusions, they disagree as to whether this 2 sleep condition is a physical condition versus a psychological condition. 3 Specifically, the ALJ stated: 4 On June 16, 2013, the claimant’s neurologist, Dr. [] Anderson, M.D., submitted a Physical Capacities Evaluation form on behalf of claimant 5 (citation omitted). … Dr. Anderson’s [opinion] is based primarily on psychological conditions for which the doctor is not qualified to render. 6 Furthermore, his findings are inconsistent with the medical evidence in which the claimant denied any psychological complaint (citation omitted). 7 Of particular note, the claimant herself testified she had no psychological or mental issues. Therefore, the undersigned affords this opinion no weight. 8 (Doc. 11-3 at 39). 9 On appeal, Plaintiff argues, without citation, “Contrary to the ALJ’s assertions, Dr. 10 Anderson is a neurologist and treated [Plaintiff] for narcolepsy, a condition which he 11 absolutely was qualified to address.” (Doc. 12 at 12). Plaintiff continues, “It is clear in 12 comparing Dr. Anderson’s treatment notes with his functional assessments that Dr. 13 Anderson was addressing the limitations related to [Plaintiff’s] narcolepsy and not, as the 14 ALJ asserts, any psychological condition.” (Doc. 12 at 12). 15 Defendant responds and makes two legal arguments. Specifically, Defendant 16 argues that a doctor rendering an opinion that is inconsistent with the record (Doc. 14 at 5- 17 6) and a doctor rendering an opinion outside his area of expertise (Doc. 14 at 6) are both 18 specific and legitimate reasons to give no weight to the doctor’s opinions. Legally, 19 Defendant is correct. However, unfortunately Defendant’s arguments are not responsive 20 to Plaintiff’s claim of error on appeal; namely, that the ALJ factually misunderstood Dr. 21 Anderson’s diagnosis. 22 It seems to the Court that the ALJ regarded Dr. Anderson’s treatment of Plaintiff as 23 psychological treatment. Thus, it would appear the ALJ regarded Dr. Anderson’s diagnosis 24 of hypersomnia and/or narcolepsy as psychologically based. Plaintiff argues on appeal that 25 this is a factual error and that the diagnosis and treatment was for a physical, not 26 psychological, condition. 27 and Dr. Anderson writes under Assessments: “Narcolepsy in conditions classified 28 elsewhere with calaplexy.” (Doc. 11-14 at 110; Doc. 11-14 at 113). But, in Dr. Anderson’s Physical Capacities Evaluation, he writes “hypersomnia.” (Doc. 11-14 at 116). 1 The Court has reviewed Dr. Anderson’s notes. (Doc. 11-14, Exhibits 23F, 24F, 27F, 2 28F, and 30F). In Dr. Anderson’s notes from Plaintiff’s first visit in September 2015, he 3 states his “Assessments” as: 1. Narcolepsy in conditions classified elsewhere, with 4 cataplexy; 2) Epilepsia partialis continua with intractable epilepsy; and 3) Carpal tunnel 5 syndrome. (Doc. 11-14 at 80 (Ex. 23F)). Dr. Anderson further noted Plaintiff’s mental 6 status was “normal.” (Doc. 11-14 at 79 (Ex. 23F)). Dr. Anderson then concludes, “This 7 is a 41-year-old female who more than likely has probable narcolepsy. I cannot rule out 8 seizure activity at night. It also appears that she has carpal tunnel syndrome. We will 9 perform her workup including laboratory test, brain imaging test, [] EEG, polysomnogram 10 test and multiple sleep [study] test.” (Doc. 11-14 at 80 (Ex. 23F)). None of these 11 statements by Dr. Anderson lead to the conclusion that Dr. Anderson was treating Plaintiff 12 for a psychological condition. 13 In his opinion, the ALJ specifically cited Exhibit 28F. The Court has reviewed 14 Exhibit 28F. This exhibit is a Physical Capacities Evaluation Dr. Anderson completed in 15 June 2016. (Doc. 11-14 at 115-116). This document contains Dr. Anderson’s assessment 16 and opinion regarding Plaintiff’s physical abilities. (Id.). It does not change or impact Dr. 17 Anderson’s prior and continuing diagnosis in any way. Therefore, the Court cannot find 18 substantial evidence of record in this document to conclude that Dr. Anderson was treating 19 Plaintiff for primarily a psychological condition. 20 Thus, because the Court cannot locate substantial evidence of record to support the 21 ALJ’s conclusion, the Court will reverse the decision in this case. Plaintiff argues that such 22 reversal should “credit-as-true” the opinions of Dr. Anderson (Doc. 12. at 13); and once 23 those opinions are credited, remand for an immediate award of benefits (Doc. 12 at 18). 24 However, as indicated above, the ALJ is responsible for resolving conflicts in medical 25 testimony and resolving ambiguities. Andrews, 53 F.3d at 1039. Here, the Court has 26 nothing but the arguments of counsel regarding whether hypersomnia (the basis for Dr. 27 Anderson’s Physical Capacities Evaluation (Doc. 11-14 at 115-116)) is a physical 28 1 || condition rather than a psychological one.” In other words, there is no medical opinion of || record supports Plaintiffs conclusion. 3 Thus, this case will be remanded for further development of the record and, as necessary, further expert testimony on the nature of the condition for which Dr. Anderson 5 || was treating Plaintiff. Specifically, considering “whether the record as a whole is free from 6|| conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and whether 7\|| the claimant’s entitlement to benefits is clear under the applicable legal rules,” the Court 8 || finds that “further administrative proceedings would be useful.” Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1103-04 (9th Cir. 2014) (citation omitted). 10 B. Other Claims of Error on Appeal 11 The Court has reviewed the other claims of error on appeal. The ALJ gave as a 12 || reason for discounting Plaintiff's symptom testimony and lay witness B.N.’s testimony that their testimony was inconsistent with the medical evidence of record. See (Doc. 14 at 11- 14], 14). Only after the ALJ reevaluates Dr. Anderson’s opinions on remand will it be clear 15 || whether this reason remains accurate. The same result applies for whether the hypothetical 16 || questions posed to the vocational expert adequately encompassed Plaintiff's residual functional capacity. Thus, the Court will remand this case for a de novo hearing and a new decision. 19} TI. Conclusion 20 Based on the foregoing, 21 IT IS ORDERED that this case is reversed and remanded as indicated above and 22 || the Clerk of the Court shall enter judgment accordingly. 23 Dated this 15th day of July, 2019. 25 James A. Teil org, Senior United States District Judge 27!) 2 Plaintiff attempts to rely on a sleep study performed by Dr. Anderson on May 9, 2017. (Doc. 1-1 at 7). However, this Court agrees with the Appeals Council that this study, 28 performed after the ALJ’s December 30, 2016 opinion (Doc. 11-3 at 42), is not evidence of Plaintiffs condition as of her claimed onset date of January 31, 2012 (Doc. 11-3 at 30). -7-