Nolte v. Astrue

Filing 19

ORDER, affirming the Commissioner's denial of benefits. Signed by Judge Frederick J Martone on 9/26/12. (REW)

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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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Larry C.K. Nolte,

No. CV 11-02010-PHX-FJM
ORDER

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The court has before it plaintiff's opening brief (doc. 13), defendant's response (doc.
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17), and plaintiff's reply (doc. 18). Plaintiff was 30 years old on December 31, 2003, the
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alleged onset date of disability. He is a high school graduate and previously worked as an
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automobile painter. He began receiving treatment from his primary care physician Dr. Pena
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in 2003. In March 2004, he visited the emergency room at Mayo Clinic complaining of pain.
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His medical tests from that visit were normal. He saw a rheumatologist in April 2004 for
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fibromyalgia treatment. Rather than follow up with the specialist, plaintiff returned to Dr.
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Pena for treatment. Plaintiff was also treated for insomnia, weight loss, depression, and
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headaches in 2004. Plaintiff filed an application for Disability Insurance Benefits and
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Supplemental Security Income in 2004. An ALJ denied his request for benefits on
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September 15, 2006, and the Appeals Council denied review.
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The ALJ followed the required five-step procedure in finding that plaintiff was not
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disabled within the meaning of the Social Security Act. See 20 C.F.R. §§ 416.920(a),

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404.1520(a). The ALJ determined that plaintiff had not performed substantial gainful

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activity since December 31, 2003, and his fibromyalgia and sleeping disorder were severe

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but did not meet or equal a listed impairment. Although he could not perform his past work,

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the ALJ concluded that he could perform a reduced range of light work and a significant

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number of available jobs existed for which he was qualified.

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Judge Teilborg granted in part and denied in part the parties' cross-motions for

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summary judgment on June 26, 2008. He found that the ALJ had given clear and convincing

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reasons for rejecting Dr. Pena's evaluation and plaintiff's subjective testimony, but

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committed reversible error in failing to address the testimony of plaintiff's wife. Tr. at 292-

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302. He remanded the case for further development of the record on this issue "[b]ecause

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a reasonable ALJ could (but would not be required to) find Plaintiff disabled on the basis of

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this testimony." Tr. at 302.

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Plaintiff filed a new claim on October 16, 2006, which was consolidated with the prior

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claim on remand. Both claims allege the same onset date and same impairments. A new ALJ

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held a hearing and, on September 3, 2009, determined that plaintiff is not disabled. He did

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not limit his review to the specific issue of lay testimony, which was the subject of the

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remand order. Instead, he conducted the entire five-step analysis. In step one, the ALJ

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determined that plaintiff has not been gainfully employed since December 31, 2003. The

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ALJ found at step two that plaintiff's fibromyalgia, chronic pain, and insomnia are severe

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impairments when considered in combination, but under step three they do not meet or equal

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a listed impairment. Next, the ALJ assessed plaintiff's residual functional capacity ("RFC")

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and found that plaintiff could perform a reduced range of light or sedentary work. At steps

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four and five, the ALJ found that although plaintiff cannot perform his past relevant work,

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jobs for which he is qualified are available in significant numbers. Plaintiff contends that the

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ALJ improperly rejected his testimony about the severity of his pain and fatigue, improperly

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rejected his treating physician's opinion, and failed to consider his wife's statements. These

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are the same claims raised by plaintiff in his prior appeal to this court.
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We "disturb the denial of benefits only if the decision 'contains legal error or is not

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supported by substantial evidence.'" Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.

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2008) (citation omitted). "Substantial evidence is such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion." Id. (internal quotation marks and

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citation omitted). The "evidence must be more than a mere scintilla but not necessarily a

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preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "Where evidence

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is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be

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upheld." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

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II

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Lay witness testimony about a plaintiff's symptoms cannot be disregarded without

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specific reasons. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The ALJ

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considered plaintiff's wife's testimony on remand. He discounted her testimony because he

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concluded that it was inconsistent with the evidence of record. Tr. at 281. Throughout the

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decision, the ALJ discussed evidence which is inconsistent with the wife's testimony and

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which suggests that plaintiff is not totally precluded from working. For example, plaintiff's

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wife said that he slept one to three hours per night. Id. Yet plaintiff said he gets about four

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hours of sleep per night. Id. at 279. His wife stated that performing small household chores

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causes him severe pain the next day. Id. at 281. Yet plaintiff reported being able to do

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chores such as "prepare meals [and] maintain a clean residence." Id. at 280. The

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inconsistencies provide sufficient reasons for not fully crediting plaintiff's wife's testimony

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about his symptoms. The ALJ did not err in disregarding plaintiff's wife's testimony.

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III

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Neither party discusses the weight, if any, to be given to the first ALJ's decision and

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this court's prior order. Judge Teilborg remanded for further analysis of a single issue. In

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all other respects, he affirmed the ALJ's decision. He explicitly found that the ALJ provided

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clear, convincing, and specific reasons for rejecting the treating physician's assessment and

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plaintiff's subjective testimony concerning his pain. Tr. at 300. An administrative agency
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is bound to follow the instructions of the reviewing court on remand. See Sullivan v.

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Hudson, 490 U.S. 877, 886, 109 S. Ct. 2248, 2254-55 (1989). Courts reviewing Social

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Security cases after a limited remand have refused to re-examine issues settled by a district

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court's prior order. See, e.g., Hulsey v. Astrue, 622 F.3d 917, 925 (8th Cir. 2010) (law of the

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case doctrine applies to administrative agencies on remand, including Social Security

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proceedings); Ischay v. Barnhart, 383 F. Supp. 2d 1199, 1216 (C.D. Cal. 2005) ("the doctrine

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of the law of the case and the rule of mandate apply to matters remanded to the Agency for

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further proceedings").

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The ALJ exceeded the scope of the remand order by reconsidering the case de novo.

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Five circumstances exist under which a court has discretion to depart from the law of the case

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doctrine and the rule of mandate: the first decision was clearly erroneous; an intervening

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change in the law has occurred; the evidence on remand is substantially different; other

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changed circumstances exist; or, a manifest injustice would otherwise result. United States

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v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997). None of these circumstances exists here.

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On remand, the ALJ held a second hearing and plaintiff submitted additional medical

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records, but no substantially different evidence has been adduced. Although plaintiff filed

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an intervening claim, his complaints are the same. Judge Teilborg's order is a final decision

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on the issues of the treating physician's opinion and plaintiff's subjective testimony. It is

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entitled to preclusive effect.

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Even if we did not credit the first decision, the second administrative decision

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provides clear and convincing reasons for discrediting plaintiff's subjective testimony.

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Plaintiff visited a physician for insomnia in 2005. The physician diagnosed restless leg

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syndrome and stated that his insomnia could partly be due to this condition. But plaintiff

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never returned for a follow-up appointment or received treatment for restless leg syndrome.

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The ALJ discussed this failure to seek treatment in his decision and it weighs against finding

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plaintiff credible. Additionally, he noted that a state nonexamining consultant had opined

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that plaintiff is only "partially credible." These are clear and convincing reasons, supported

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by the record, to discount his subjective complaints.
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The ALJ also provides clear and convincing reasons for discounting Dr. Pena's

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opinion finding plaintiff disabled. Dr. Pena filled out check-the-box forms on January 14,

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2005; January 27, 2005; July 24, 2006; and April 3, 2007 in which he concluded that plaintiff

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was disabled. Tr. at 183-84, 186-88, 206-07, app'x 1. The severity of some restrictions

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varied, but Dr. Pena found that plaintiff could sit less than one hour, stand and walk no more

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than two hours, lift and carry less than ten pounds, never be around unprotected heights or

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moving machinery, and never drive automotive equipment. Dr. Pena's last opinion, in

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November 2007, was the notation on a prescription pad that plaintiff is "not able to work +

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is totally disabled due to fibromyalgia, depression." Tr. at 168.

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When the opinion of a treating physician is contradicted by the opinions of non-

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treating physicians, the ALJ may reject it only if he gives specific, legitimate reasons for

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doing so that are based on substantial evidence. Reports of nonexamining advisors may

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serve as substantial evidence when they are supported by and consistent with other evidence

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in the record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). Dr. Holland, an

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examining physician, determined that plaintiff had no limitations in sitting, standing, or

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walking, could occasionally lift and carry 20-30 pounds and frequently lift and carry 10-15

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pounds, and could occasionally climb. Dr. Glodek, a nonexamining consultant, determined

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that plaintiff was capable of a range of light work. Dr. Finch, an examining psychologist,

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opined that plaintiff's impairments did not prevent him from working. These reports are

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consistent with one another and other evidence in the record. To the extent they are

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inconsistent with evidence from plaintiff and his wife, such evidence was properly

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discounted as not credible.

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A treating physician's opinion may be given less weight if it is based mainly on

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plaintiff's subjective complaints and those complaints have been properly discounted.

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Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999). The ALJ

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properly discounted plaintiff's accounts of his symptoms and limitations. The ALJ gave

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specific, legitimate reasons for rejecting Dr. Pena's opinion.

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IV
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Based on the foregoing, we conclude that the ALJ's determination that plaintiff is not

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disabled, and therefore not eligible for benefits, is supported by substantial evidence in the

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record. Accordingly, IT IS ORDERED AFFIRMING the Commissioner's denial of

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benefits.

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DATED this 26th day of September, 2012.

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