Harris v. Colvin

Filing 13

ORDER: The ALJ's decision is AFFIRMED. The Clerk of Court is directed to enter judgment accordingly. Signed by Judge G Murray Snow on 5/15/2017. (REK)

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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 Peggy Ann Harris, No. CV-16-01994-PHX-GMS Plaintiff, 10 11 v. 12 Commissioner Administration, ORDER 13 of Social Security Defendant. 14 15 Pending before the Court is the appeal of Plaintiff Peggy Ann Harris, which 16 challenges the Social Security Administration’s decision to deny benefits. (Doc. 1.) For 17 the reasons set forth below, the Court affirms the denial of benefits. 18 BACKGROUND 19 On July 5, 2012, Ms. Harris filed an application for disability insurance benefits, 20 alleging a disability onset date of May 1, 2012. (Tr. 23.) Her claim was initially denied 21 on January 7, 2013, and it was denied again upon reconsideration on September 6, 2013. 22 (Id.) Ms. Harris then filed a written request for a hearing and she testified before ALJ 23 Sheldon P. Zisook on May 22, 2014. (Id.) On October 14, 2014, the ALJ issued a 24 decision finding Ms. Harris not disabled. (Tr. 30.) 25 In evaluating whether Ms. Harris was disabled, the ALJ undertook the five-step 26 sequential evaluation for determining disability.1 (Tr. 23–24.) At step one, the ALJ 27 1 28 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: 1 found that Ms. Harris had not engaged in substantial gainful activity since May 1, 2012, 2 the alleged onset date. (Tr. 25.) At step two, the ALJ determined that Ms. Harris 3 suffered from paroxysmal supraventricular tachycardia (“PSVT”), which is a severe 4 impairment. (Tr. 25.) At step three, the ALJ determined that Ms. Harris’s PSVT did not 5 equal or meet the severity of any of the Social Security Administration’s listed 6 impairments. (Id.) 7 At that point, the ALJ reached step four and made a determination of Ms. Harris’s 8 residual functional capacity (“RFC”),2 concluding that Ms. Harris could “perform the full 9 range of light work as defined in 20 CFR 404.1567(b).” (Tr. 25–26.) In making this 10 finding, the ALJ found that Ms. Harris’s subjective testimony was “not entirely credible.” 11 (Tr. 27.) The ALJ gave little to no weight to the treating physicians, Drs. Griffin and 12 Cantor. (Tr. 28.) Instead, he gave great weight to the testimony of the state agency’s 13 reviewing physicians. (Tr. 29.) 14 The Appeals Council declined to review the decision. (Tr. 1–4.) However, in 15 doing so, the Appeals Council noted that it considered two questionnaires that were 16 previously omitted from the ALJ’s decision; a spinal impairment questionnaire submitted 17 18 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. 19 20 21 22 23 24 25 26 27 28 Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal quotation marks and citations omitted). 2 RFC is the most a claimant can do despite the limitations caused by her impairments. See S.S.R. 96–8p (July 2, 1996). -2- 1 by Dr. Michael Steingart and a cardiac impairment questionnaire submitted by 2 Dr. Stephen Cantor. (Tr. 2.) Ms. Harris filed the complaint underlying this action on 3 June 20, 2016, seeking this Court’s review of the ALJ’s denial of benefits. (Doc. 1.) The 4 matter is now fully briefed. (Docs. 11, 12.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DISCUSSION I. Standard of Review A reviewing federal court will generally only address the issues raised by the claimant in the appeal from the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). However, in certain instances, such as where the Appeals Council considered evidence not previously considered by the ALJ, the record may be supplemented. See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) (“[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner’s final decision for substantial evidence.”). A federal court may set aside a denial of disability benefits only if that denial is either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less than a preponderance.” Id. (quotation omitted). “Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion.” Id. (quotation omitted). The ALJ is responsible for resolving conflicts in testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the reviewing court must resolve conflicts in evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted). -3- 1 II. Analysis 2 A. 3 Once a claimant establishes that objective medical evidence illustrates an 4 impairment that could reasonably cause the symptoms alleged, “and there is no evidence 5 of malingering, ‘the ALJ can reject the claimant’s testimony about the severity of her 6 symptoms only by offering specific, clear and convincing reasons for doing so.’” 7 Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014) (quoting Smolen v. Chater, 80 8 F.3d 1273, 1282 (9th Cir. 2006)). This is the most stringent standard required in Social 9 Security cases. Id. To meet it, an ALJ must identify which testimony he considers not 10 credible, and “link that testimony to the particular parts of the record supporting [the 11 ALJ’s] non-credibility determination.” Id. The ALJ’s opinion “must be sufficiently 12 specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s 13 testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony 14 regarding pain.” Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (internal 15 quotations and citations omitted). The ALJ Properly Evaluated Ms. Harris’s Credibility.   16 When determining credibility, an ALJ may consider a variety of factors, including: 17 the treatment the claimant sought and received, the type of medication she takes, the 18 measures she’s taken to relieve her pain, and the location, duration, frequency, and 19 intensity of her pain. 20 C.F.R. § 404.1529(c)(3). An ALJ’s credibility determination 20 should focus on “the individual’s statements about his or her symptoms and the evidence 21 in the record that is relevant to the individual’s impairments” rather than conducting an 22 assessment on “an individual’s overall character or truthfulness in the manner typically 23 used during an adversarial court litigation.” S.S.R. 16-3p, 2016 WL 1119029, at *10 24 (Mar. 16, 2016). Additionally, “it is error to reject a claimant’s testimony merely because 25 symptoms wax and wane in the course of treatment.” Garrison, 759 F.3d at 1017. The 26 ALJ in this case discredited Ms. Harris’s testimony regarding her symptoms because he 27 determined that her testimony was contradicted by the activities she engaged in 28 throughout her disability, she improved throughout the course of a conservative treatment -4- 1 plan and the objective medical evidence did not indicate a severe disability. (Tr. 27.) For 2 the following reasons, this Court finds that the ALJ did not err in considering these 3 factors to discredit Ms. Harris’s testimony. 4 i. Activities of Daily Living 5 An ALJ “may engage in ordinary techniques of credibility evaluation, such as 6 considering claimant’s reputation for truthfulness and inconsistencies in claimant’s 7 testimony.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Therefore, if an 8 activity described by the claimant during her testimony is inconsistent with her alleged 9 limitations that may be grounds for discrediting her testimony. See Fair v. Bowen, 885 10 F.2d 597, 603 (9th Cir. 1989) (“If the claimant runs marathons, as an extreme example, 11 an ALJ could reasonably assume that the claimant’s pain is not so debilitating as to 12 prevent him from working.”). 13 concluding that daily activities are inconsistent with testimony about pain, because 14 impairments that would unquestionably preclude work and all the pressures of a 15 workplace environment will often be consistent with doing more than merely resting in 16 bed all day.” Garrison, 759 F.3d at 1016. However, “ALJs must be especially cautious in 17 In this case, the ALJ properly concluded that Ms. Harris’s activities contradicted 18 her alleged limitations. Ms. Harris testified that she was severely limited by her PSVT, 19 becoming “dizzy easily and gets fatigue[d] during the day.” (Tr. 26; Tr. 43.) At one 20 point during her hearing, Ms. Harris noted that “simply making a sandwich could raise 21 her blood pressure.” (Tr. 26; Tr. 48.) 22 Despite these limitations, the ALJ noted that Ms. Harris was capable of traveling 23 to Europe during her period of disability to spend a week hiking in Ireland. (Tr. 26.) At 24 her hearing, she claimed that she was forced to stop hiking and swimming for exercise 25 roughly a year prior to the May 2014 hearing. (Tr. 26; Tr. 53.) 26 inconsistent with her report to her doctor in March of 2014, where she claimed to still be 27 engaging in hiking and swimming for exercise. (Tr. 26; Tr. 888.) These are strenuous 28 outdoor activities, and the ALJ did not err in noting that these activities are beyond the -5- However, this is 1 capabilities of a claimant that allegedly has difficulty making sandwiches or completing 2 basic household tasks without becoming fatigued. The ALJ also noted that in her function 3 report, Ms. Harris claimed that she takes care of her husband,3 cooks, cleans, does light 4 exercise, shops and otherwise “engage[s] in a somewhat normal level of daily activity 5 and interaction.” (Tr. 27; Tr. 212.) While the evidence of Harris’s “daily activities may 6 also admit of an interpretation more favorable” to her, the “the ALJ's interpretation was 7 rational, and [this Court] must uphold the ALJ's decision where the evidence is 8 susceptible to more than one rational interpretation.” Burch, 400 F.3d at 680–81. The 9 ALJ’s citations to these instances of inconsistency provided “specific, clear and 10 convincing reasons” for discrediting Ms. Harris’s testimony, and therefore he did not err 11 in weighing this consideration. Garrison, 759 F.3d at 1015. ii. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Objective Medical Evidence and Improvement with Conservative Treatment “Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis.” Burch, 400 F.3d at 681; see Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant’s pain and its disabling effects.”). Furthermore, “evidence of conservative treatment is sufficient to discount a claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (internal quotation marks omitted); see also Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits.”). However, “it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.” Garrison, 759 F.3d at 1017. 3 Ms. Harris’s husband suffers from a traumatic brain injury (“TBI”), and Ms. Harris acts as his caregiver to help him “as needed.” (Tr. 213.) -6- 1 In discrediting Ms. Harris’s testimony, the ALJ noted that she received “routine, 2 conservative, and non-emergency treatment since the alleged onset date,” and obtained 3 marked improvement through those conservative measures. 4 attempts to characterize this analysis as penalizing her for not seeking more rigorous 5 treatment, but this misconstrues the ALJ’s analysis. The ALJ did not assert that Ms. 6 Harris is not disabled because she failed to seek alternative treatment; rather, he asserted 7 that her PSVT symptoms appeared to be controlled through conservative treatment, and 8 therefore her allegations that her condition continued to cause her severe distress are 9 contrary to the record. For example, the ALJ noted that on June 29, 2012, Ms. Harris 10 claimed that she saw a “dramatic improvement in palpitations since changing 11 medications.” By her own account, the palpitations she experienced were “reportedly 12 rare and last a maximum of 20 minutes.” (Tr. 27; Tr. 470.) The ALJ also referred to 13 Ms. Harris’s examinations by Dr. Levinson in August of 2013 and June of 2014. (Tr. 14 28.) 15 intermittently symptomatic, her situation [did] not appear serious or life threatening.” 16 (Tr. 679.) Likewise, her hypertension was deemed “moderately well controlled on [her] 17 current drug regime.” (Tr. 679.) 18 and rhythm without murmur,” and “recent Holter monitors and loop recorders show[ed] 19 no significant issues.” (Tr. 934–35.) An ALJ is permitted to consider whether the 20 claimant’s conditions may be treated and stabilized through conservative means during 21 the credibility analysis, and the ALJ did not err in doing so in this case. See also Johnson 22 v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (affirming an ALJ’s credibility 23 determination where the ALJ noted that the claimant’s doctor “prescribed only 24 conservative treatment in 1986, suggesting a lower level of both pain and functional 25 limitation.” (internal quotation omitted)). (Tr. 27.) Ms. Harris In 2013, Ms. Harris appeared “normal from head to toe,” and “although In 2014, her cardiac exam “reveal[ed] a regular rate 26 In supporting his assertions that Ms. Harris’s PSVT appeared to be controlled 27 through conservative treatment, the ALJ also cited to the lack of objective medical 28 evidence to support the extent of her alleged disability. First, he referenced medical -7- 1 records reflecting a thirty-day monitor Ms. Harris wore in September of 2012, which 2 showed supraventricular tachycardia to a maximum of 150 beats and did not show any 3 atrial fibrillation. (Tr. 27; Tr. 621.) He then noted that in February of 2013, a loop 4 monitor interrogation “revealed no episodes of tachycardia.” 5 Furthermore, an echocardiogram in 2014 was similarly uneventful despite Ms. Harris’s 6 continued reports of “[o]ngoing rate and rhythm control.” (Tr. 27; Tr. 906.) The lack of 7 objective medical evidence was one of numerous factors he relied on in discrediting Ms. 8 Harris’s testimony, and he specifically cited to the above tests in doing so. (Tr. 27.) 9 Therefore, his analysis of the medical evidence was not “vague” as Ms. Harris asserts, 10 and he did not err in considering the objective medical evidence while weighing the 11 credibility of her testimony. (Tr. 27; Tr. 716.) 12 Additionally, the findings of the ALJ are further supported by the introduction of 13 Dr. Cantor’s questionnaire from January of 2015. Although this questionnaire was not 14 available to the ALJ at the time of hearing, and thus he did not consider it in his decision, 15 it became part of the record when the Appeals Council considered it. See Brewes, 682 16 F.3d at 1163. In the questionnaire, Dr. Cantor opined that Ms. Harris could be classified 17 as Class I in New York Heart Association’s (“NYHA”) system. (Tr. 1037.) A patient 18 that is classified as “Class I” under NYHA’s system suffers “[n]o limitation of physical 19 activity. Ordinary physical activity does not cause undue fatigue, palpitation, dyspnea 20 (shortness of breath).” Classes of Heart Failure, www.heart.org, http://www.heart.org/ 21 HEARTORG/Conditions/HeartFailure/AboutHeartFailure/Classes-ofHeartFailure_UCM 22 _306328_Article.jsp#.WRTlhlXyuUk (last visited May 11, 2017). 23 questionnaire provides further support for the ALJ’s determination that the objective 24 medical evidence indicated that Ms. Harris’s PSVT was controlled through conservative 25 treatment throughout the period of alleged disability. 26 /// 27 /// 28 /// -8- Therefore, this 1 B. 2 The ALJ Did Not Commit Prejudicial Error by Rejecting the Opinions of the Treating Physicians. 3 “As a general rule, more weight should be given to the opinion of a treating source 4 than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 5 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). If the treating physician’s opinion 6 is contradicted by another doctor, the Commissioner cannot reject the treating physician’s 7 opinion unless he provides “specific and legitimate reasons supported by substantial 8 evidence in the record.” Id. (internal quotations omitted). 9 opinions in this case were contradicted by the state agency review physicians, who 10 opined that Ms. Harris is subject to “light limitations” due to her health conditions. (Tr. 11 29.) 12 disregarding Ms. Harris’s treating physicians. For the following reasons, this Court finds 13 that although the ALJ did err in one of his rationales, he did not commit prejudicial error 14 during this analysis, and thus his opinion is affirmed. 4 The treating physician’s Therefore, the ALJ needed to provide specific and legitimate reasons for i. 15 The Objective Medical Evidence 16 The ALJ justified disregarding the opinions of treating physicians Dr. Cantor and 17 Dr. Griffin because their opinions were contrary to the objective medical evidence in the 18 record. 19 inconsistent with the objective medical evidence of the record. See Batson, 359 F.3d at 20 1195 (“Further, an ALJ may discredit treating physicians’ opinions that are conclusory, 21 brief, and unsupported by the record as a whole, or by objective medical findings” 22 23 24 25 26 27 28 An ALJ may properly reject the opinion of a treating physician if it is 4 Ms. Harris contends that the ALJ also erred by “dismissing the medical opinions from the treating sources on the basis that the issue of disability is ‘reserved to the Commissioner.’ ” (Doc. 11 at 14.) This is not what the ALJ did; rather, the ALJ stated that he would not give that statement “special significance” or “controlling weight” because it reflects an “opinion on an issue reserved to the Commissioner.” (Tr. 28.) Such a statement is permissible, as an opinion that an individual is disabled under the statutory definition of disability is not a medical opinion. See 20 C.F.R. § 404.1527(d)(1) (including opinions that a claimant is disabled as one example of an opinion that is not a medical opinion, because the Commissioner is “responsible for making the determination or decision that [the claimant] meet[s] the statutory definition of disability.”). -9- 1 (citation omitted)). In making this determination, the ALJ cited to the objective medical 2 testing referenced above; the thirty-day heart monitor observed in 2012, the loop monitor 3 interrogation in 2013 “that revealed no episodes of tachycardia,” and the normal 4 echocardiogram from 2014. 5 physicians’ opinions were inconsistent with the medical evidence that demonstrated Ms. 6 Harris improved while undergoing conservative treatment and medication.5 (Tr. 29.) 7 The ALJ’s citations to these specific instances of inconsistency between the treating 8 physicians’ opinions and the medical record provided substantial evidence to support the 9 ALJ’s determination to discredit the opinions of the treating physicians, and thus the ALJ 10 (Tr. 27.) The ALJ also reiterated that the treating did not err in doing so.6 11 ii. Contradictions with Ms. Harris’s Activities 12 The ALJ discredited both physicians’ medical opinions on the basis that they were 13 “inconsistent with the claimant’s admitted activities of daily living.” (Tr. 29.) ALJs may 14 discredit a treating physician’s opinion to the extent that it contradicts the daily activities 15 of the claimant. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601–02 (9th 16 Cir. 1999) (upholding an ALJ’s rejection of a treating physician based, in part, on the 17 18 19 20 21 22 23 24 25 26 27 28 5 Ms. Harris objects to this reasoning for the same reasons that she objects to the ALJ considering her improvement throughout her conservative treatment in analyzing her credibility. However, as explained earlier, this argument mischaracterizes the ALJ’s analysis. His reasoning does not punish her for failing to seek more extreme treatment; his reasoning is based on the assumption that if her condition can be managed through conservative treatment, it is likely not as debilitating as alleged. See generally Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits.”). 6 Once again, although the ALJ did not have access to it at the time he wrote his opinion, Dr. Cantor’s subsequent questionnaire supports this finding. The questionnaire introduced to the Appeals Council is dated to apply from May 29, 2012 until January 1, 2015. These dates reflect a more recent medical opinion than the one cited by Ms. Harris, which indicated that Dr. Cantor thought she was disabled due to her condition. (Tr. 712; 625.) The more recent questionnaire reflects that Dr. Cantor does not believe that Ms. Harris is disabled; rather, this questionnaire indicated that Ms. Harris could sit for eight or more hours a day without any limitation, and that her symptoms would require her to be absent from work “less than one day a month.” (Tr. 1039, 1041.) The introduction of this questionnaire from Dr. Cantor presents further inconsistencies within his findings, and presents additional support for discounting his opinion and that of Dr. Griffin. - 10 - 1 inconsistencies between the treating psychologist’s “marked limitations” and the 2 claimant’s daily activities). 3 As discussed above, Ms. Harris admitted that she engages in hiking and swimming 4 to exercise, and she was capable of traveling to Ireland during the period of alleged 5 disability to engage in a week of extensive hiking. She also takes an active role in 6 maintaining her home and serves as the primary caretaker for her husband, who suffers 7 from a traumatic brain injury. (Tr. 213.) These activities do not align with Dr. Cantor’s 8 opinion, which claims that Ms. Harris is “only able to stand or walk for a total of one 9 hour” during an eight-hour period. (Tr. 712.) Likewise, such activities do not align with 10 Dr. Griffin’s assessment, which claims that Ms. Harris cannot stand or walk for a 11 collective total of more than two hours in an eight-hour period. (Tr. 711.) Ms. Harris’s 12 exercise activities and active lifestyle also challenge Drs. Griffin and Cantor’s assertions 13 that Ms. Harris’s health conditions prelude her ability to “meet the demands of full time 14 work.” (Tr. 711.) Therefore, the ALJ did not err in weighing this factor to discredit the 15 doctors’ opinions. 16 iii. Subjective Complaints 17 A physician’s reliance on a claimant’s “subjective complaints hardly undermines 18 his opinion as to her functional limitations, as a patient’s report of complaints, or history, 19 is an essential diagnostic tool.” Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 20 2003) (internal citations and quotations omitted). However, “[i]f a treating provider’s 21 opinions are based ‘to a large extent’ on an applicant’s self-reports and not on clinical 22 evidence, and the ALJ finds the applicant not credible, the ALJ may discount the treating 23 provider’s opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (quoting 24 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)). It is also error for an ALJ to 25 dismiss a summary of a treating physician’s opinion purely for being contained in a 26 questionnaire if it is based on the treating physician’s “significant experience” with the 27 claimant and “supported by numerous records.” Garrison, 759 F.3d at 1013. 28 - 11 - 1 The ALJ discredited the treating physicians opinions in part because he found that 2 their treatment notes were a summary of Ms. Harris’s “subjective complaints, diagnoses, 3 and treatment, but they failed to provide objective clinical or diagnostic findings to 4 support the functional assessment.” (Tr. 29.) The ALJ failed to note how the treatment 5 notes reflected this; Dr. Cantor’s questionnaire noted that the clinical evidence reflected 6 that Ms. Harris experienced fatigue, heart palpitations, and weakness. 7 Likewise, Dr. Griffin’s questionnaire reflected that he based his findings on diagnostic 8 cardiac testing. (Tr. 544.) The ALJ noted that these questionnaires were conclusory, and 9 they are admittedly vague, containing mostly one-word explanations. (Tr. 29.) However, 10 both of these doctors based these questionnaires on their “significant experience” with 11 Ms. Harris after years of treating her on a regular basis. For example, Dr. Griffin treated 12 Ms. Harris for the first time in 2002, (Tr. 543). 13 Ms. Harris is far shorter, he appears to have seen her once a month since 2012, giving rise 14 to numerous records to support his findings. (Tr. 712.) In a situation such as this, the 15 ALJ cannot dismiss the treating physicians’ opinions due to the form of their presentation 16 without providing substantial evidence for doing so. The ALJ erred by failing to provide 17 support for his assertion that the doctors opinions’ amounted to a summary of 18 Ms. Harris’s complaints beyond his critique of the form of their functional assessments. 19 (Tr. 29.) (Tr. 625.) While Dr. Cantor’s history with 20 Once it has been determined that an ALJ made an error during the review of a 21 claimant’s file, the next step is to determine whether the error was prejudicial. See 22 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (explaining 23 that an error is not prejudicial if “the ALJ’s decision remains legally valid, despite such 24 error.”) Ninth Circuit precedents “do not quantify the degree of certainty needed to 25 conclude that an ALJ’s error was harmless.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th 26 Cir. 2015). The ALJ’s error here was not prejudicial, and thus there is no need to remand 27 the case. The two preceding sections outline two other “specific and legitimate reasons 28 that are supported by substantial evidence in the record” for dismissing the findings of - 12 - 1 Drs. Griffin and Cantor, and thus the ALJ’s decision to deny benefits remains legally 2 valid. Lester, 81 F.3d at 831. Furthermore, the additional evidence considered by the 3 Appeals Council also indicates that this error was not prejudicial, as Dr. Cantor’s more 4 recent questionnaire indicates that Ms. Harris’s PSVT only arises to the level of a Class 1 5 on the NYHA classification system. 6 introduces additional inconsistencies within Dr. Cantor’s medical opinion that add further 7 support for the ALJ’s decision to discredit his assessment and that of Dr. Griffin. (Tr. 8 1037–1041.) Therefore, despite the ALJ’s error, there is no need to remand this case. 9 10 11 Dr. Cantor’s more recent questionnaire also IT IS THEREFORE ORDERED that the ALJ’s decision is AFFIRMED. The Clerk of Court is directed to enter judgment accordingly. Dated this 15th day of May, 2017. 12 13 14 Honorable G. Murray Snow United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 -

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