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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Bryon D Muldner, No. CV-16-01652-PHX-JAT Plaintiff, 10 11 v. 12 Commissioner Administration, ORDER 13 of Social Security Defendant. 14 15 Pending before the Court is Plaintiff’s appeal of the denial of his claim for social 16 security disability benefits. On appeal, Plaintiff raises four claims of error: 1) that the 17 Administrative Law Judge (“ALJ”) failed to give sufficient reasons to not fully credit 18 Plaintiff’s symptom testimony, 2) that the ALJ failed to give sufficient reasons to not 19 give full weight to the opinions of two of Plaintiff’s treating physicians (Dr. Reinhart and 20 Dr. Feinstein), 3) that the opinion of the ALJ lacks sufficient specificity; and 4) the ALJ 21 erred in denying Plaintiff’s request for subpoenas as to certain examining or non- 22 examining physicians. The Court will address each claim of error in turn. 23 I. Review of ALJ Decision 24 The ALJ’s decision to deny benefits will be overturned “only if it is not supported 25 by substantial evidence or is based on legal error.” Magallanes v. Bowen, 26 881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted). “Substantial evidence” means 27 more than a mere scintilla, but less than a preponderance. Reddick v. Chater, 28 157 F.3d 715, 720 (9th Cir. 1998). 1 “The inquiry here is whether the record, read as a whole, yields such evidence as 2 would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. 3 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether 4 there is substantial evidence to support a decision, the Court considers the record as a 5 whole, weighing both the evidence that supports the ALJ’s conclusions and the evidence 6 that detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720. “Where evidence is 7 susceptible of more than one rational interpretation, it is the ALJ’s conclusion which 8 must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences 9 logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see 10 Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is 11 because “[t]he trier of fact and not the reviewing court must resolve conflicts in the 12 evidence, and if the evidence can support either outcome, the court may not substitute its 13 judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). 14 The ALJ is responsible for resolving conflicts in medical testimony, determining 15 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 16 (9th Cir. 1995). Thus, if on the whole record before the Court, substantial evidence 17 supports the ALJ’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 18 498, 501 (9th Cir. 1989). On the other hand, the Court “may not affirm simply by 19 isolating a specific quantum of supporting evidence.” Id. (quotation and citation omitted). 20 Finally, the Court is not charged with reviewing the evidence and making its own 21 judgment as to whether Plaintiff is or is not disabled. Rather, the Court’s inquiry is 22 constrained to the reasons asserted by the ALJ and the evidence relied on in support of 23 those reasons. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 24 II. Claims of Error on Appeal 25 A. 26 The parties agree that (under Ninth Circuit precedent), because the ALJ did not 27 find evidence of malingering, the ALJ was required to give clear and convincing reasons 28 to not credit Plaintiff’s symptom testimony. (Doc. 25 at 11 (albeit arguing that Ninth Plaintiff’s Symptom Testimony -2- 1 Circuit precedent is inconsistent with federal law); Doc. 18 at 22). The ALJ dedicated 2 multiple pages of the opinion to why he did not find Plaintiff’s symptom testimony 3 credible, linking particular testimony to particular discrediting other evidence of record. 4 On appeal, Plaintiff acknowledges that the ALJ “advanced several rationales for finding 5 symptom testimony not credible,” but nonetheless argues that none of the rationales are 6 sufficient to be clear and convincing. (Doc. 18 at 23). 7 By way of example, in one paragraph of his opinion, the ALJ found the following: 8 Claimant testified he had back pain, which was always present, and neck pain that 9 woke him up at night, and that on a typical day he lied down 8 to 16 times per day adding 10 up to a couple of hours per day. (Doc. 12-3 at 25).1 The ALJ found this testimony 11 inconsistent with third-party testimony, Claimant’s own testimony, and the medical 12 evidence; specifically: 13  Claimant’s mother’s testimony that claimant could prepare his own 14 meals, perform chores (like cleaning his room and bathroom), taking 15 out the garbage, loading and unloading the dishwasher, loading the 16 laundry, and picking up after the dog.  Claimant’s mother’s testimony that claimant had no issues with 17 18 personal care. 19  Claimant’s testimony that he runs errands, including grocery 20 shopping, shopping with his father, and running errands with his 21 friend. 22  Claimant’s testimony that he can use public transportation and that 23 he can drive. Further Claimant drove himself and went alone to the 24 consultative examination. 25  Dr. DeFelice’s testimony that Claimant had a GAF score of at least 26 50, Claimant’s substance abuse was in sustained remission, Claimant 27 was cognitively intact, and that Claimant had no significant 28 1 The page numbers reflect this Court’s record, not the ALJ’s page numbering. -3- 1 2 limitations other than with detailed tasks. Id. 3 The ALJ’s opinion has 9 single spaced pages giving equally detailed explanations 4 of what Claimant claimed as a symptom, and what evidence of record contradicted that 5 testimony. (Doc. 12-3 at 25-26, 28-34). While the Court will not undertake to reproduce 6 the entire opinion of the ALJ in this Order, the Court finds that those 9 singles spaced 7 pages detailing Plaintiff’s symptom testimony and the evidence of record that conflicted 8 with Plaintiff’s symptom testimony provide many clear and convincing reasons why the 9 ALJ did not find the severity of Plaintiff’s symptom testimony to be credible. 10 B. 11 The Ninth Circuit distinguishes between the opinions of three types of physicians: 12 (1) those who treat the claimant (“treating physicians”); (2) those who examine but do not 13 treat the claimant (“examining physicians”); and (3) those who neither examine nor treat 14 the claimant (“non-examining physicians”). Lester v. Chater, 81 F.3d 821, 830–31 (9th 15 Cir. 1995). As a general rule, the opinion of an examining physician is entitled to greater 16 weight than the opinion of a non-examining physician, but less than a treating physician. 17 Andrews, 53 F.3d at 1040–41. Treating Physician Testimony 18 An “ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 533 19 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). An ALJ may reject the 20 opinion of a treating physician, even when that opinion is contradicted by other medical 21 evidence of record, only if the ALJ provides “specific and legitimate reasons that are 22 supported by substantial evidence in the record.” Lester, 81 F.3d at 830–31. 23 When reviewing an ALJ’s determination, the Court must uphold an ALJ’s 24 decision—even if the ALJ could have been more specific in the opinion—if the Court can 25 reasonably infer why ALJ the rejected an opinion. Molina v. Astrue, 674 F.3d 1104, 1121 26 (9th Cir. 2012) (“Even when an agency explains its decision with less than ideal clarity, 27 we must uphold it if the agency’s path may reasonably be discerned.”) (internal 28 quotations and citation omitted). Moreover, “if evidence exists to support more than one -4- 1 rational interpretation, [the court] must defer to the [ALJ’s] decision” Batson, 359 F.3d at 2 1193; see also Osenbrock v. Apel, 240 F.3d 1157, 1162 (9th Cir. 2001). 3 1. Dr. Reinhart 4 Plaintiff claims the ALJ erred in giving only little weight to the opinions of Dr. 5 Reinhart. The ALJ gave multiple reasons for not fully crediting Dr. Reinhart’s opinion. 6 (Doc. 12-3 at 34). Specifically, the ALJ did not fully credit Dr. Reinhart’s opinion 7 because the opinion: 1) was based on claimant’s subjective complaints; 2) appeared to be 8 sympathetic; and 3) was contradicted by other examining and non-examining doctors 9 whose opinions were: A) supported by medically acceptable laboratory and clinical 10 findings; and B) consistent with the record as a whole. (Id.). 11 The ALJ may properly discount an opinion of a treating physician that is based on 12 the Plaintiff’s subjective complaints if the ALJ properly discounts Plaintiff’s symptom 13 testimony. Tommasetti, 533 F.3d at 1041. Here, as stated above, the ALJ properly 14 discounted Plaintiff’s symptom testimony. Therefore, the fact that Dr. Reinhart’s opinion 15 was based on Plaintiff’s self-reported symptoms was a specific and legitimate reason 16 supported by substantial evidence of record to not fully credit Dr. Reinhart’s opinion. 17 Next, Plaintiff argues it was error for the ALJ to conclude that Dr. Reinhart’s 18 opinion was sympathetic to Plaintiff. (Doc. 18 at 17). Specifically, Plaintiff argues that 19 Dr. Reinhart’s opinion was not sympathetic but was based on multiple physical 20 examinations. (Id.). However, the flaw in Plaintiff’s argument is that the ALJ did not 21 raise lack of examinations as a reason for discounting Dr. Reinhart’s opinion. Instead, 22 the ALJ noted that the result of those examinations seemed inconsistent with the severity 23 of the limitations ultimately found by Dr. Reinhart, which suggested that the limitations 24 found by Dr. Reinhart were sympathetic to Plaintiff’s self-reported symptoms. This 25 conclusion was not error. 26 Finally, Plaintiff argues it was error that the ALJ rejected Dr. Reinhart’s opinion 27 because it was inconsistent with other doctor’s opinions and not supported by laboratory 28 or clinical findings. Plaintiff argues that Dr. Reinhart’s opinion being inconsistent with -5- 1 other doctors’ opinions is not a specific and legitimate reason to not fully credit Dr. 2 Reinhart’s opinion. (Doc. 18 at 17-18). The Court disagrees. The ALJ may reject a 3 doctor’s opinion that is not supported by the record as a whole, which would include the 4 opinions of all the other doctors who reached a different conclusion. Batson, 359 F.3d at 5 1195. Further, the ALJ is responsible for resolving conflicts in the medical testimony, 6 and this Court cannot substitute its judgment for that of the ALJ. Matney, 981 at 1019. 7 Additionally, Dr. Reinhart’s opinion not being supported by any objective medical 8 findings, and instead being supported by only Plaintiff’s subjective complaints, is a 9 further specific and legitimate reason to discount the opinion. The conclusion is 10 particularly true when Dr. Reinhart’s ultimate opinions are not supported by even his own 11 clinical observations (for example, Dr. Reinhart ordered an EEG of Plaintiff which 12 should no epileptiform activity). (Doc. 25 at 8); see also Connett, 340 F.3d at 874-75 13 (finding the fact that a treating physician’s opinion was not supported by his own 14 treatment notes was a specific and legitimate reason to not credit the opinion). 15 Based on all of the foregoing, the Court finds the ALJ gave specific and legitimate 16 reasons supported by substantial evidence of record to not fully credit the opinions of Dr. 17 Reinhart or the limitations found by Dr. Reinhart. 18 2. Dr. Feinstein 19 The ALJ gave no weight to Dr. Feinstein’s opinion because: 1) it was not 20 consistent with Dr. Feinstein’s own medical records, including his own clinical and 21 examination findings; 2) it was based on Plaintiff subjective complaints; 3) it was not 22 consistent with all of the medical records in the case; 4) it was contradicted by the 23 opinions of other examining doctors (whom the ALJ gave greater weight); and 5) the 24 limitations found by Dr. Feinstein were inconsistent with Plaintiff’s self-reported 25 activities of daily living. (Doc. 12-3 at 35). 26 Reasons 1 through 4 listed in the preceding paragraph are specific and legitimate 27 reasons to not credit Dr. Feinstein’s testimony for the same legal reasons that they were 28 specific and legitimate reasons to not credit Dr. Reinhart’s testimony as discussed above. -6- 1 Further, reason 5 (that Dr. Feinstein’s diagnosed limitations were inconsistent with 2 Plaintiff’s own recounting of his daily activities) is an additional specific and legitimate 3 reason to not credit Dr. Feinstein’s opinion. See Morgan v. Com’r of Soc. Sec. Admin., 4 169 F.3d 595, 601–02 (9th Cir. 1999) (considering an inconsistency between a treating 5 physician’s opinion and a claimant’s daily activities a specific and legitimate reason to 6 discount the treating physician’s opinion). 7 Thus, the ALJ gave specific and legitimate reasons supported by substantial 8 evidence of record to not credit the opinions and limitations of Dr. Feinstein; therefore, 9 there was no error. 10 C. 11 Plaintiff dedicates a total of seven lines of his brief to arguing that the ALJ’s 12 opinion as a whole is not specific enough to deny benefits. (Doc. 18 at 15). The Court 13 finds that the ALJ’s 18 page single spaced decision is sufficiently specific to support the 14 ALJ’s findings and conclusions. Accordingly, the Court rejects this claim of error on 15 appeal. Specificity 16 D. 17 Finally, Plaintiff argues that the ALJ committed a procedural error by discrediting 18 the treating physicians without allowing Plaintiff to subpoena certain examining and non- 19 examining physicians.2 (Doc. 18 at 26-27). The ALJ spent the first 2 pages of his 20 opinion explaining why he did not find subpoenas for these physicians to be necessary. 21 (Doc. 12-3 at 19-20). Subpoenas 22 Specifically, the ALJ denied the request for subpoenas because, “Here, I found the 23 requested information was not necessary for adjudication of the case.” (Doc. 12-3 at 20). 24 The ALJ found that the subpoenas: 1) sought qualifications information about the 25 physicians that was already readily available; 2) sought information about the length of 26 the examinations which Plaintiff himself could testify about; and 3) sought to confirm the 27 28 2 Some subpoenas sought live testimony, while others sought to have certain written interrogatories answered. (Doc. 12-3 at 19). -7- 1 state of the law, which the ALJ was capable of doing without testimony. (Doc. 12-3). 2 Thus, the ALJ concluded that all of this information was not necessary to the adjudication 3 of the case. 4 The Ninth Circuit Court of Appeals has stated: “A claimant in a disability hearing 5 is not entitled to unlimited cross-examination, but rather ‘such cross-examination as may 6 be required for a full and true disclosure of the facts.’ 5 U.S.C. § 556(d). The ALJ, 7 therefore, has discretion to decide when cross-examination is warranted.” 8 Schweiker, 719 F.2d 301, 302 (9th Cir. 1983). Solis v. 9 In this case, as recounted above, the ALJ found that the questions to be posed to 10 the physicians by Plaintiff were not necessary for the decision in this case. On appeal, 11 Plaintiff still offers no argument regarding what relevant evidence would have been 12 gained by allowing the subpoenas. (Doc. 18 at 27). Thus, the Court finds the ALJ did 13 not err in denying the subpoenas. 14 III. Conclusion 15 Based on the foregoing, 16 IT IS ORDERED that the decision of the Administrative Law Judge is affirmed 17 18 and the Clerk of the Court shall enter judgment accordingly.3 Dated this 20th day of June, 2017. 19 20 21 22 23 24 25 26 27 28 3 To the extent a mandate is required, the judgment shall serve as the mandate. -8-

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