Flesher v Astrue

Filing 21

ORDER that the ALJ's decision is affirmed. It is further ordered directing the Clerk of the Court to terminate this matter. Signed by Judge G Murray Snow on 06/01/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Michael J. Astrue, Commissioner of Social)
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Security,
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Defendant.
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Doug Flesher,

No. CV-10-722-PHX-GMS
ORDER

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Pending before the Court is the appeal of Plaintiff Doug Flesher, which challenges the

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Social Security Administration’s decision to deny benefits. (Doc. 15). For the reasons set

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forth below, the Court affirms that decision.

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BACKGROUND

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At the time of the Commissioner’s final decision in this case, Plaintiff was a 56-year

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old male with an eleventh grade education who had previously worked as a drywall laborer.

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On April 12, 2006, Plaintiff applied for supplemental security income, alleging a disability

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onset date of August 21, 2001. (R. at 9). Plaintiff claimed to be disabled due to back and

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neck problems, recurring bilateral hernias in his groin, and depression. Plaintiff’s claim was

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denied both initially on October 19, 2006, and upon reconsideration on March 27, 2007.

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(Id.). Plaintiff then appealed to an Administrative Law Judge (“ALJ”). (R. at 58) The ALJ

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conducted a hearing on the matter on February 25, 2008. (R. at 15–39). On April 4, 2008,

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the ALJ issued a decision, finding Plaintiff not disabled. (R. at 9–14).

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In evaluating whether Plaintiff was disabled, the ALJ undertook the five-step

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sequential evaluation for determining the existence of a disability.1 (R. at 9–14). At step one,

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the ALJ determined that Plaintiff had not engaged in substantial gainful activity since April

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12, 2006, the application date. (R. at 11). At step two, the ALJ determined that Plaintiff

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suffered from the following severe impairments: back disorder, history of hernias, arthritis,

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and history of alcohol abuse (with current usage). (Id.). The ALJ also determined that

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claimant’s wrist disorder does not meet the durational requirement, and that he has no

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medically determinable mental impairment. (Id.). At step three, the ALJ determined that

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none of these impairments, either alone or in combination, met or equaled any of the Social

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Security Administration’s listed impairments. (Id.)
At that point, the ALJ made a determination of Plaintiff’s residual functional capacity

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The five-step sequential evaluation of disability is set out in 20 C.F.R. § 404.1520
(governing disability insurance benefits) and 20 C.F.R. § 416.920 (governing supplemental
security income). Under the test:
A claimant must be found disabled if she proves: (1) that she is
not presently engaged in a substantial gainful activity[,] (2) that
her disability is severe, and (3) that her impairment meets or
equals one of the specific impairments described in the
regulations. If the impairment does not meet or equal one of the
specific impairments described in the regulations, the claimant
can still establish a prima facie case of disability by proving at
step four that in addition to the first two requirements, she is not
able to perform any work that she has done in the past. Once the
claimant establishes a prima facie case, the burden of proof
shifts to the agency at step five to demonstrate that the claimant
can perform a significant number of other jobs in the national
economy. This step-five determination is made on the basis of
four factors: the claimant’s residual functional capacity, age,
work experience and education.
Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal citations and quotations
omitted).
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(“RFC”),2 concluding that Plaintiff could perform “medium work as defined in 20 C.F.R.

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416.967(c).” (Id.). Specifically, the ALJ found that the claimant is “able to sit for six hours

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total in an eight-hour workday, stand for six hours total in an eight-hour workday, walk for

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six hours total in an eight-hour workday, and lift and/or carry 25 pounds frequently and 50

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pounds occasionally.” (Id. at 11). It was further determined that claimant “is able to do

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frequent bending and occasional climbing, crawling, and kneeling.” (Id.). The ALJ thus

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determined at step four that Plaintiff retained the RFC to perform his past relevant work as

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a construction helper, which the vocational expert testified is light to heavy in exertional

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level, because the claimant could do this work at the light to medium level of exertion. (R.

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at 13). Because the ALJ determined that Plaintiff could still perform his past relevant work

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in construction, there was no need to address whether Plaintiff was capable of making an

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adjustment to other jobs and whether such jobs existed in significant numbers in the national

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economy. See 20 C.F.R. § 416.920(a)(4)(iv). Given this analysis, the ALJ concluded that

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Plaintiff has not been under a disability since April 12, 2006. (Id. at 14).

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The Appeals Council declined to review the decision, making the ALJ’s decision final

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for purposes of judicial review under 42 U.S.C. § 405(g). (R. at 1); see 20 C.F.R. § 404.981

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(explaining the effect of a disposition by the Appeals Council). Plaintiff filed the complaint

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underlying this action on March 31, 2010, seeking this Court’s review of the ALJ’s denial

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of benefits.3 (Doc. 1). The matter is now fully briefed before this Court. (Doc. 15, 19, 20).

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DISCUSSION

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I.

Standard of Review

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The Court has the “power to enter, upon the pleadings and transcript of record, a

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judgment affirming, modifying, or reversing the decision of the Commissioner of Social

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RFC is the most a claimant can do despite the limitations caused by his impairments.
See S.S.R. 96-8p (July 2, 1996).
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Plaintiff was authorized to file this action by 42 U.S.C. § 405(g) (“Any individual,
after any final decision of the Commissioner of Social Security made after a hearing to which
he was a party . . . may obtain a review of such decision by a civil action . . . .”).
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Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). A

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reviewing federal court addresses only the issues raised by the claimant in the appeal from

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the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A federal

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court may “set aside a denial of benefits only if it is not supported by substantial evidence

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or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).

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“‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance, i.e.,

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such relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Id. (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

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The Court may not “substitute [its] own judgment for that of the ALJ.” Id. The ALJ

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is responsible for resolving conflicts in testimony, determining credibility, and resolving

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ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When the

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evidence before the ALJ is subject to more than one rational interpretation, [the Court] must

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defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1198

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(9th Cir. 2004). At the same time, the Court “must consider the entire record as a whole and

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may not affirm simply by isolating a ‘specific quantum of supporting evidence.’” Id. (citing

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Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). The Court also may not “affirm the

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ALJ’s . . . decision based on evidence that the ALJ did not discuss.” Connett v. Barnhart,

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340 F.3d 871, 874 (9th Cir. 2003); see also SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)

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(emphasizing the fundamental rule of administrative law that a reviewing court “must judge

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the propriety of [administrative] action solely by the grounds invoked by the agency” and

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stating that if “those grounds are inadequate or improper, the court is powerless to affirm the

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administrative action”). Even if the ALJ erred, however, “[a] decision of the ALJ will not

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be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

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2005).

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II.

Analysis

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Plaintiff argues that the ALJ erred by: (A) rejecting the opinions of treating physicians

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(Doc. 15 at 6–8), (B) misinterpreting evidence related to the claimant’s ability to work (Id.

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at 9–10), and (C) denying him benefits for, at least, a closed period of disability from April
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2005 to November 2006 due to his recurring hernias and need for multiple surgeries (Id.).

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A. ALJ’s Consideration of Treating Physicians’ Opinions

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Plaintiff’s first argument is that the ALJ improperly rejected the opinion of his treating

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physicians, Dr. Munoz and Dr. LeSueur. “The medical opinion of a claimant’s treating

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physician is entitled to ‘special weight.’” Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir.

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1989) (quoting Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988)). If, as here, another

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doctor counters the treating physician’s opinion, “the ALJ may not reject this opinion without

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providing ‘specific and legitimate reasons’ supported by substantial evidence in the record.”

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Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Lester v. Chater, 81 F.3d 821, 830

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(9th Cir. 1995)).4 “The ALJ can meet this burden by setting out a detailed and thorough

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summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and

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making findings.” Embrey, 849 F.2d at 421 (quotation omitted). Even so, “[t]he ALJ need

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not accept the opinion of any physician, including a treating physician, if that opinion is

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brief, conclusory, and inadequately supported by clinical findings.” Thomas v. Barnhart, 278

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F.3d 947, 957 (9th Cir. 2002).

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In making this analysis, a treating physician’s opinion is entitled to controlling weight

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if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques

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and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R.

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§ 404.1527(d)(2); 20 C.F.R. § 416.927(d). If the opinion is not well-supported by such

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techniques, or is inconsistent with other substantial evidence in the record, then the opinion

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will be weighed in light of several factors: (1) the length of the treatment relationship and the

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frequency of examination, (2) the nature and extent of the treatment relationship, (3)

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When a non-treating physician relies on the same clinical findings as a treating
physician, but differs only in his or her conclusions, the non-treating physician’s opinion is
not substantial evidence on its own. See Orn, 495 F.3d at 632. If, however, the non-treating
physician makes independent findings, then those independent findings are substantial
evidence. Id. Nonetheless, the “substantial evidence” threshold necessary to reject the
opinion of a treating physician can be reached by the opinion of even a non-examining
physician in concert with an abundance of evidence in the record. See Lester, 81 F.3d at 831.
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supportability by explanation and reference to relevant evidence, (4) consistency with the

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record as a whole, (5) specialization, and (6) any other factors tending to support or

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contradict the opinion. Id.

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Plaintiff contends that the ALJ gave insufficient weight to the opinion of two treating

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physicians, Dr. Munoz5 and Dr. LeSueur. Indeed, the ALJ states in his decision that “[w]ith

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regard to the opinion evidence, Dr. LeSueur’s opinions, both dated July 11, 2006, regarding

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the claimant’s ability to do work-related physical activities, is given little weight because the

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undersigned finds that such extreme limitations are not supported by the record as a whole.”

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(R. at 12–13). Plaintiff contends that the ALJ should have afforded more weight to Dr.

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LeSueur’s findings that claimant has a physical incapacity which prevents him from

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performing any substantially gainful employment and that he requires significant work

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restrictions as a result of his bilateral hernias and cervical spondylosis. (R. at 484). Because

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Dr. LeSueur’s opinion is controverted by the opinions of other physicians, including another

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treating physician, the ALJ may reject this treating physician’s opinions by offering specific

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and legitimate reasons supported by substantial evidence in the record.6 See Lester, 81 F.3d

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at 830–31. The ALJ explicitly cites lack of supportability by the record as a whole as his

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reason for discounting Dr. LeSueur’s opinion. (R. at 13); see 20 C.F.R. § 404.1527(d). The

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The Court rejects claimant’s assertion that the ALJ did not afford sufficient weight
to the opinion of Dr. Munoz because Plaintiff cites no part of the record to support his
arguments with respect to Dr. Munoz’s opinions regarding Plaintiff’s work restrictions. See
Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (rejecting
claimant’s argument where he “failed to argue this issue with any specificity in his briefing”).
On the contrary, the ALJ’s decision affords significant weight to Dr. Munoz’s opinion by
relying on Dr. Munoz’s report, dated November 13, 2006, which indicated that “the claimant
was doing well and was essentially asymptomatic after retroperitoneal repair of recurrent left
inguinal hernia and femoral hernia performed on October 12, 2006.” (R. at 12, 461). Both
parties incorrectly attribute this statement to Dr. LeSueur rather than to Dr. Munoz. See Doc.
19 at 13; Doc. 20 at 1.
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To the extent certain opinions are not controverted by other physicians, the Court
would nonetheless affirm because the ALJ offered clear and convincing reasons to reject Dr.
LeSueur’s opinion.
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ALJ explained his specific and legitimate reasons by citing inconsistencies between Dr.

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LeSueur’s opinions and abundant evidence in the record.

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The ALJ cited Dr. Hassman, who performed a consultative medical examination, and

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concluded that the claimant showed no evidence of neurological impairment or cervical

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radiculopathy and had a full range of motion of both upper extremities without pain and had

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normal grip strength of both hands.” (R. at 13, 442). The ALJ further relied on Dr.

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Hassman’s finding that claimant’s hernia repair operations were successful and caused only

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short-term limitations in his ability to function. (R. at 13, 461–62). In his examination with

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Dr. Hassman, Plaintiff also demonstrated no crepitus or instability of the knees or ankles and

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was able to bend at the knees and pick something up from the floor. (R. at 13, 442). Finally,

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the ALJ relied on Plaintiff’s disclosure to Dr. Hassman that he takes Vicodin as needed to

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conclude that claimant does not take pain medication on a regular basis. (R. at 13, 441).

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Aside from citing the findings of Dr. Hassman, the ALJ also afforded significant

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weight to the conclusions of Dr. Fahlberg, the State agency medical consultant, who found

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that the claimant had the residual capacity for medium work because his hernia was stable

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and his back and neck pain did not appear very limiting. (R. at 13, 448–455). The ALJ also

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relied on Dr. Fahlberg’s finding that the claimant requires no ambulatory devices to walk.

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(Id.). Notably, in addition to the opinions of these non-treating physicians, the ALJ also

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considered the determination of Dr. Munoz, another treating physician, who found that

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Plaintiff was essentially asymptomatic a month after his October 2006 hernia operation. (R.

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at 13, 461). When there is an evidentiary conflict between medical opinions of equal weight,

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such as between the two treating physicians in the instant case, the ALJ is entitled to resolve

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such conflict. See Magallanes v. Brown, 881 F.2d 747, 750 (9th Cir. 1989).

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Finally, the ALJ provided other detailed specific and legitimate reasons to conclude

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that Plaintiff’s limitations were not as extreme as Dr. LeSueur noted, including consideration

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of claimant’s daily activities. A claimant’s daily activities provide a relevant basis for

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rejecting a treating physician’s testimony. See Coley v. Astrue, 2010 WL 3220300, at *14,

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the treating physician’s marked limitations) (citing Rollins v. Massanari, 261 F.3d 853, 856

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(9th Cir. 2001)); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601–02 (9th Cir.

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1999)). For example, claimant could travel, hitchhike, live independently, drive, prepare

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meals, shop, and socialize with friends. Flesher’s ability to perform these activities undercuts

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Dr. LeSueur’s opinions regarding his capabilities.

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Because Dr. LeSueur’s opinion was controverted, in part, by non-treating physician

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opinions, the ALJ must have given specific and legitimate reasons supported by substantial

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evidence in the record for rejecting Dr. LeSueur’s opinions. See Orn, 495 F.3d at 632; Lester,

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81 F.3d at 830; Embrey, 849 F.2d at 421. The ALJ has done so here. The conflicting

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evidence discussed by the ALJ is supported by the record and could rationally be viewed as

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substantial evidence inconsistent with Dr. LeSueur’s RFC opinion. Weighing the evidence

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is the province of the ALJ, and as long as the ALJ’s inferences are reasonable this Court must

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defer to them. Batson, 359 F.3d at 1198; Andrews, 53 F.3d at 1039. Thus, the ALJ did not

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err by affording less weight to Dr. LeSueur’s opinion than to the other physicians’ residual

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functional capacity opinions.

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B. ALJ’s Interpretation of Evidence - Ability to Engage in Previous Work

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Plaintiff further contends that the ALJ misinterpreted the evidence presented regarding

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the claimant’s ability to engage in his previous work. (Doc. 15 at 9). Similar to his argument

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regarding the ALJ’s decision to afford little weight to the opinion of Dr. LeSueur, Plaintiff

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again argues that Dr. LeSueur’s July 11, 2006 findings on Plaintiff’s physical limitations

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should not have been discounted in favor of Dr. Fahlberg’s opinions. (Id. at 9–10). As

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previously discussed, the ALJ offered specific and legitimate reasons supported by

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substantial evidence in the record for rejecting Dr. LeSueur’s opinions. See discussion supra

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section II.A. Additionally, Plaintiff argues that the ALJ disregarded the vocational expert’s

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testimony regarding claimant’s ability to return to his previous work. However, the record

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does not support such a contention. Rather, in response to a question from Plaintiff’s

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attorney, the vocational expert, Mr. Mitchell, indicated that if Plaintiff’s claims about his

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“lifting, standing, walking type capacities, [and] truncal movement capacities” were found
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credible, then Plaintiff would have a sedentary capacity and would be unable to return to his

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prior work. (R. at 37–38). The ALJ determined that Plaintiff’s claims regarding the disabling

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limitations of his severe impairments was not in fact credible. Thus, after reasonably

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determining that Plaintiff could perform a limited range of medium work, the ALJ relied on

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Mr. Mitchell’s testimony that the work of a construction helper ranged from light to heavy

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in exertional level to conclude that Plaintiff could continue his previous work at the light to

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medium level. (R. at 13, 36). Because substantial evidence supports the ALJ’s conclusion

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that Plaintiff was not disabled, the Court does not disturb that decision.

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C. ALJ’s Interpretation of Evidence - Closed Period of Disability

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Finally, Plaintiff contends that even if he was not disabled through the time of the

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ALJ’s decision, he was at least disabled for the shorter time period between April 2005 to

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November 2006 due to the recurrence of his hernias and need for multiple surgeries, and

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therefore, is entitled to a closed period of disability. (Doc. 15 at 9). The twenty-month time

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period Plaintiff points to corresponds roughly to the period in which Plaintiff underwent

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three hernia surgeries: April 2005 (R. at 338), March 2006 (R. at 195), and October 2006 (R.

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at 463). As an initial matter, under the Social Security program, a claimant may only collect

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benefits beginning in the month following his initial application. 20 C.F.R. § 416.335 (2010).

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In light of the fact that claimant did not file until April 12, 2006, he would be ineligible to

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collect for the first thirteen months of this period even if he were disabled. He would only

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be eligible for the final seven months.

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Further, to be found disabled, a claimant must be physically or mentally “unable to

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engage in any substantial gainful activity . . . for a continuous period of not less than twelve

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months.” 42 U.S.C. § 1382c(a)(3). Substantial evidence supports the ALJ’s implicit finding

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that Plaintiff was not disabled during this period. First, the ALJ notes that Plaintiff is able to

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engage in significant physical and mental activity, including living independently, traveling,

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hiking, driving, preparing meals, shopping and socializing with friends. (R. at 13).

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Additionally, the ALJ relies on Dr. Hassman’s September 2006 examination of Plaintiff,

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which found that Plaintiff’s hernia operations caused only short-term limitations in his ability
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to function and that he had full range of motion of both upper extremities without pain. (R.

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at 442). After his left inguinal hernia surgery in April 2005, the record does not demonstrate

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that Plaintiff complained about severe groin pain again until January 2006. (R. at 415).

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Rather, his intervening doctors visits during this time involved complaints regarding his neck

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pains. (R. at 257, 418). Given that Plaintiff’s argument regarding eligibility for a closed

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period of disability involves the disabling effects of his hernia surgeries, the law prohibits

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combining the effects of the hernias with the unrelated effects of his neck condition in order

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to reach the twelve-month requirement. See 20 C.F.R. § 416.922(a) (“We cannot combine

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two or more unrelated severe impairments to meet the 12-month duration test. If you have

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a severe impairment(s) and then develop another unrelated severe impairment(s) but neither

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one is expected to last for 12 months, we cannot find you disabled, even though the two

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impairments in combination last for 12 months.”). Finally, the ALJ’s decision notes that on

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October 20, 2006, eighteen days after Plaintiff’s final surgery, Dr. Munoz found him to be

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“essentially asymptomatic.” (R. at 462). Therefore, substantial evidence supports the ALJ’s

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implicit finding that Plaintiff was not entitled to a closed period of disability from April 2005

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to

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November

2006

due

to

his

recurring

hernias.

The ALJ made no error of law and there is substantial evidence to support the ALJ’s
denial of benefits.

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IT IS HEREBY ORDERED that the ALJ’s decision is AFFIRMED.

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IT IS FURTHER ORDERED directing the Clerk of the Court to TERMINATE this

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matter.
DATED this 1st day of June, 2011.

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