Muldner v. Colvin

Filing 29

ORDER - The decision of the Administrative Law Judge is affirmed and the Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 06/20/2017. (KAS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bryon D Muldner,

No. CV-16-01652-PHX-JAT

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Pending before the Court is Plaintiff’s appeal of the denial of his claim for social

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security disability benefits. On appeal, Plaintiff raises four claims of error: 1) that the

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Administrative Law Judge (“ALJ”) failed to give sufficient reasons to not fully credit

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Plaintiff’s symptom testimony, 2) that the ALJ failed to give sufficient reasons to not

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give full weight to the opinions of two of Plaintiff’s treating physicians (Dr. Reinhart and

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Dr. Feinstein), 3) that the opinion of the ALJ lacks sufficient specificity; and 4) the ALJ

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erred in denying Plaintiff’s request for subpoenas as to certain examining or non-

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examining physicians. The Court will address each claim of error in turn.

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I.

Review of ALJ Decision

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The ALJ’s decision to deny benefits will be overturned “only if it is not supported

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by substantial evidence or is based on legal error.” Magallanes v. Bowen,

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881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted). “Substantial evidence” means

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more than a mere scintilla, but less than a preponderance. Reddick v. Chater,

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157 F.3d 715, 720 (9th Cir. 1998).

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“The inquiry here is whether the record, read as a whole, yields such evidence as

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would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v.

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Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether

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there is substantial evidence to support a decision, the Court considers the record as a

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whole, weighing both the evidence that supports the ALJ’s conclusions and the evidence

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that detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720. “Where evidence is

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susceptible of more than one rational interpretation, it is the ALJ’s conclusion which

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must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences

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logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see

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Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is

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because “[t]he trier of fact and not the reviewing court must resolve conflicts in the

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evidence, and if the evidence can support either outcome, the court may not substitute its

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judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).

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The ALJ is responsible for resolving conflicts in medical testimony, determining

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credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039

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(9th Cir. 1995). Thus, if on the whole record before the Court, substantial evidence

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supports the ALJ’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d

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498, 501 (9th Cir. 1989). On the other hand, the Court “may not affirm simply by

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isolating a specific quantum of supporting evidence.” Id. (quotation and citation omitted).

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Finally, the Court is not charged with reviewing the evidence and making its own

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judgment as to whether Plaintiff is or is not disabled. Rather, the Court’s inquiry is

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constrained to the reasons asserted by the ALJ and the evidence relied on in support of

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those reasons. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

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II.

Claims of Error on Appeal

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A.

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The parties agree that (under Ninth Circuit precedent), because the ALJ did not

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find evidence of malingering, the ALJ was required to give clear and convincing reasons

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to not credit Plaintiff’s symptom testimony. (Doc. 25 at 11 (albeit arguing that Ninth

Plaintiff’s Symptom Testimony

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Circuit precedent is inconsistent with federal law); Doc. 18 at 22). The ALJ dedicated

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multiple pages of the opinion to why he did not find Plaintiff’s symptom testimony

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credible, linking particular testimony to particular discrediting other evidence of record.

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On appeal, Plaintiff acknowledges that the ALJ “advanced several rationales for finding

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symptom testimony not credible,” but nonetheless argues that none of the rationales are

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sufficient to be clear and convincing. (Doc. 18 at 23).

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By way of example, in one paragraph of his opinion, the ALJ found the following:

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Claimant testified he had back pain, which was always present, and neck pain that

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woke him up at night, and that on a typical day he lied down 8 to 16 times per day adding

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up to a couple of hours per day. (Doc. 12-3 at 25).1 The ALJ found this testimony

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inconsistent with third-party testimony, Claimant’s own testimony, and the medical

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evidence; specifically:

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 Claimant’s mother’s testimony that claimant could prepare his own

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meals, perform chores (like cleaning his room and bathroom), taking

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out the garbage, loading and unloading the dishwasher, loading the

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laundry, and picking up after the dog.
 Claimant’s mother’s testimony that claimant had no issues with

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personal care.

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 Claimant’s testimony that he runs errands, including grocery

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shopping, shopping with his father, and running errands with his

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friend.

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 Claimant’s testimony that he can use public transportation and that

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he can drive. Further Claimant drove himself and went alone to the

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consultative examination.

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 Dr. DeFelice’s testimony that Claimant had a GAF score of at least

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50, Claimant’s substance abuse was in sustained remission, Claimant

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was cognitively intact, and that Claimant had no significant

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The page numbers reflect this Court’s record, not the ALJ’s page numbering.
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limitations other than with detailed tasks.
Id.

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The ALJ’s opinion has 9 single spaced pages giving equally detailed explanations

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of what Claimant claimed as a symptom, and what evidence of record contradicted that

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testimony. (Doc. 12-3 at 25-26, 28-34). While the Court will not undertake to reproduce

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the entire opinion of the ALJ in this Order, the Court finds that those 9 singles spaced

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pages detailing Plaintiff’s symptom testimony and the evidence of record that conflicted

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with Plaintiff’s symptom testimony provide many clear and convincing reasons why the

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ALJ did not find the severity of Plaintiff’s symptom testimony to be credible.

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B.

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The Ninth Circuit distinguishes between the opinions of three types of physicians:

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(1) those who treat the claimant (“treating physicians”); (2) those who examine but do not

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treat the claimant (“examining physicians”); and (3) those who neither examine nor treat

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the claimant (“non-examining physicians”). Lester v. Chater, 81 F.3d 821, 830–31 (9th

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Cir. 1995). As a general rule, the opinion of an examining physician is entitled to greater

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weight than the opinion of a non-examining physician, but less than a treating physician.

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Andrews, 53 F.3d at 1040–41.

Treating Physician Testimony

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An “ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 533

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F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). An ALJ may reject the

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opinion of a treating physician, even when that opinion is contradicted by other medical

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evidence of record, only if the ALJ provides “specific and legitimate reasons that are

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supported by substantial evidence in the record.” Lester, 81 F.3d at 830–31.

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When reviewing an ALJ’s determination, the Court must uphold an ALJ’s

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decision—even if the ALJ could have been more specific in the opinion—if the Court can

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reasonably infer why ALJ the rejected an opinion. Molina v. Astrue, 674 F.3d 1104, 1121

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(9th Cir. 2012) (“Even when an agency explains its decision with less than ideal clarity,

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we must uphold it if the agency’s path may reasonably be discerned.”) (internal

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quotations and citation omitted). Moreover, “if evidence exists to support more than one

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rational interpretation, [the court] must defer to the [ALJ’s] decision” Batson, 359 F.3d at

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1193; see also Osenbrock v. Apel, 240 F.3d 1157, 1162 (9th Cir. 2001).

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1.

Dr. Reinhart

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Plaintiff claims the ALJ erred in giving only little weight to the opinions of Dr.

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Reinhart. The ALJ gave multiple reasons for not fully crediting Dr. Reinhart’s opinion.

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(Doc. 12-3 at 34). Specifically, the ALJ did not fully credit Dr. Reinhart’s opinion

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because the opinion: 1) was based on claimant’s subjective complaints; 2) appeared to be

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sympathetic; and 3) was contradicted by other examining and non-examining doctors

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whose opinions were: A) supported by medically acceptable laboratory and clinical

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findings; and B) consistent with the record as a whole. (Id.).

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The ALJ may properly discount an opinion of a treating physician that is based on

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the Plaintiff’s subjective complaints if the ALJ properly discounts Plaintiff’s symptom

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testimony. Tommasetti, 533 F.3d at 1041. Here, as stated above, the ALJ properly

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discounted Plaintiff’s symptom testimony. Therefore, the fact that Dr. Reinhart’s opinion

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was based on Plaintiff’s self-reported symptoms was a specific and legitimate reason

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supported by substantial evidence of record to not fully credit Dr. Reinhart’s opinion.

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Next, Plaintiff argues it was error for the ALJ to conclude that Dr. Reinhart’s

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opinion was sympathetic to Plaintiff. (Doc. 18 at 17). Specifically, Plaintiff argues that

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Dr. Reinhart’s opinion was not sympathetic but was based on multiple physical

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examinations. (Id.). However, the flaw in Plaintiff’s argument is that the ALJ did not

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raise lack of examinations as a reason for discounting Dr. Reinhart’s opinion. Instead,

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the ALJ noted that the result of those examinations seemed inconsistent with the severity

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of the limitations ultimately found by Dr. Reinhart, which suggested that the limitations

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found by Dr. Reinhart were sympathetic to Plaintiff’s self-reported symptoms. This

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conclusion was not error.

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Finally, Plaintiff argues it was error that the ALJ rejected Dr. Reinhart’s opinion

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because it was inconsistent with other doctor’s opinions and not supported by laboratory

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or clinical findings. Plaintiff argues that Dr. Reinhart’s opinion being inconsistent with

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other doctors’ opinions is not a specific and legitimate reason to not fully credit Dr.

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Reinhart’s opinion. (Doc. 18 at 17-18). The Court disagrees. The ALJ may reject a

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doctor’s opinion that is not supported by the record as a whole, which would include the

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opinions of all the other doctors who reached a different conclusion. Batson, 359 F.3d at

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1195. Further, the ALJ is responsible for resolving conflicts in the medical testimony,

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and this Court cannot substitute its judgment for that of the ALJ. Matney, 981 at 1019.

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Additionally, Dr. Reinhart’s opinion not being supported by any objective medical

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findings, and instead being supported by only Plaintiff’s subjective complaints, is a

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further specific and legitimate reason to discount the opinion.

The conclusion is

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particularly true when Dr. Reinhart’s ultimate opinions are not supported by even his own

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clinical observations (for example, Dr. Reinhart ordered an EEG of Plaintiff which

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should no epileptiform activity). (Doc. 25 at 8); see also Connett, 340 F.3d at 874-75

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(finding the fact that a treating physician’s opinion was not supported by his own

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treatment notes was a specific and legitimate reason to not credit the opinion).

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Based on all of the foregoing, the Court finds the ALJ gave specific and legitimate

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reasons supported by substantial evidence of record to not fully credit the opinions of Dr.

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Reinhart or the limitations found by Dr. Reinhart.

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2.

Dr. Feinstein

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The ALJ gave no weight to Dr. Feinstein’s opinion because: 1) it was not

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consistent with Dr. Feinstein’s own medical records, including his own clinical and

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examination findings; 2) it was based on Plaintiff subjective complaints; 3) it was not

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consistent with all of the medical records in the case; 4) it was contradicted by the

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opinions of other examining doctors (whom the ALJ gave greater weight); and 5) the

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limitations found by Dr. Feinstein were inconsistent with Plaintiff’s self-reported

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activities of daily living. (Doc. 12-3 at 35).

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Reasons 1 through 4 listed in the preceding paragraph are specific and legitimate

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reasons to not credit Dr. Feinstein’s testimony for the same legal reasons that they were

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specific and legitimate reasons to not credit Dr. Reinhart’s testimony as discussed above.

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Further, reason 5 (that Dr. Feinstein’s diagnosed limitations were inconsistent with

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Plaintiff’s own recounting of his daily activities) is an additional specific and legitimate

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reason to not credit Dr. Feinstein’s opinion. See Morgan v. Com’r of Soc. Sec. Admin.,

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169 F.3d 595, 601–02 (9th Cir. 1999) (considering an inconsistency between a treating

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physician’s opinion and a claimant’s daily activities a specific and legitimate reason to

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discount the treating physician’s opinion).

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Thus, the ALJ gave specific and legitimate reasons supported by substantial

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evidence of record to not credit the opinions and limitations of Dr. Feinstein; therefore,

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there was no error.

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C.

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Plaintiff dedicates a total of seven lines of his brief to arguing that the ALJ’s

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opinion as a whole is not specific enough to deny benefits. (Doc. 18 at 15). The Court

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finds that the ALJ’s 18 page single spaced decision is sufficiently specific to support the

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ALJ’s findings and conclusions. Accordingly, the Court rejects this claim of error on

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appeal.

Specificity

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D.

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Finally, Plaintiff argues that the ALJ committed a procedural error by discrediting

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the treating physicians without allowing Plaintiff to subpoena certain examining and non-

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examining physicians.2 (Doc. 18 at 26-27). The ALJ spent the first 2 pages of his

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opinion explaining why he did not find subpoenas for these physicians to be necessary.

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(Doc. 12-3 at 19-20).

Subpoenas

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Specifically, the ALJ denied the request for subpoenas because, “Here, I found the

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requested information was not necessary for adjudication of the case.” (Doc. 12-3 at 20).

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The ALJ found that the subpoenas: 1) sought qualifications information about the

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physicians that was already readily available; 2) sought information about the length of

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the examinations which Plaintiff himself could testify about; and 3) sought to confirm the

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Some subpoenas sought live testimony, while others sought to have certain
written interrogatories answered. (Doc. 12-3 at 19).
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state of the law, which the ALJ was capable of doing without testimony. (Doc. 12-3).

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Thus, the ALJ concluded that all of this information was not necessary to the adjudication

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of the case.

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The Ninth Circuit Court of Appeals has stated: “A claimant in a disability hearing

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is not entitled to unlimited cross-examination, but rather ‘such cross-examination as may

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be required for a full and true disclosure of the facts.’ 5 U.S.C. § 556(d). The ALJ,

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therefore, has discretion to decide when cross-examination is warranted.”

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Schweiker, 719 F.2d 301, 302 (9th Cir. 1983).

Solis v.

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In this case, as recounted above, the ALJ found that the questions to be posed to

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the physicians by Plaintiff were not necessary for the decision in this case. On appeal,

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Plaintiff still offers no argument regarding what relevant evidence would have been

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gained by allowing the subpoenas. (Doc. 18 at 27). Thus, the Court finds the ALJ did

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not err in denying the subpoenas.

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III.

Conclusion

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Based on the foregoing,

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IT IS ORDERED that the decision of the Administrative Law Judge is affirmed

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and the Clerk of the Court shall enter judgment accordingly.3
Dated this 20th day of June, 2017.

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To the extent a mandate is required, the judgment shall serve as the mandate.
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