Madsen v. Colvin

Filing 19

ORDER, the Commissioner's decision is affirmed; the Clerk is directed to enter judgment and terminate this action. Signed by Judge David G Campbell on 8/29/14. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Nels Leslie Madsen,

No. CV-13-08300-PCT-DGC
Plaintiff,

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v.

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ORDER

Carolyn W. Colvin,

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Defendant.

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Pursuant to 42 U.S.C. § 405(g), Plaintiff Nels Leslie Madsen seeks judicial review

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of the Commissioner’s decision finding him not disabled within the meaning of the

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Social Security Act. Doc. 16. The Court will affirm the decision.

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I.

Background.

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Plaintiff applied for disability and supplemental security insurance benefits in

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September 2010, alleging disability beginning in January 2008. Doc. 17 at 1. After a

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hearing on September 25, 2012, an administrative law judge (“ALJ”) issued an opinion

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on November 28, 2012, finding Plaintiff not disabled (A.R. 13-24). Plaintiff’s request for

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review was denied by the Appeals Council and the ALJ’s opinion became the

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Commissioner’s final decision. Doc. 17 at 1.

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II.

Legal Standard.

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The district court reviews only those issues raised by the party challenging the

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

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may set aside the Commissioner’s disability determination only if the determination is

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not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d

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625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a

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preponderance, and relevant evidence that a reasonable person might accept as adequate

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to support a conclusion considering the record as a whole. Id. In determining whether

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substantial evidence supports a decision, the court must consider the record as a whole

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and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id.

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As a general rule, “[w]here the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be

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upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

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A.

Five-Step Sequential Evaluation.

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To determine whether a claimant is disabled for purposes of the Social Security

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Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears

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the burden of proof on the first four steps, but at step five the burden shifts to the

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Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

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At the first step, the ALJ determines whether the claimant is engaging in

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substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not

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disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant

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has a “severe” medically determinable physical or mental impairment. § 404.1520(a)

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(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the

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ALJ considers whether the claimant’s impairment or combination of impairments meets

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or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt.

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404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id.

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If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant’s

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residual functional capacity (“RFC”) and determines whether the claimant is still capable

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of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not

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disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step,

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where he determines whether the claimant can perform any other work based on the

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claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the

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claimant is not disabled. Id. If not, the claimant is disabled. Id.

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At step one, the ALJ determined that Plaintiff meets the insured status

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requirements of the Social Security Act and that he has not engaged in substantial gainful

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activity since September 15, 2010. At step two, the ALJ found that Plaintiff has the

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following impairments which are severe when considered in combination: “low back pain

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due to degenerative changes; leg pain, status-post a motorcycle accident in January 2012

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resulting in tibial plateau fracture, treated initially with external fixation and later open

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reduction, internal fixation, and status-post another motorcycle accident in August 2012;

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gastroesophageal reflux disease (GERD); mild to moderate degenerative changes of the

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bilateral hips; depression; and drug and alcohol abuse, in questionable remission[.]”

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A.R. 15. At step three, the ALJ found that the Plaintiff does not have an impairment or

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combination of impairments that meets or medically equals an impairment listed in

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Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ found that Plaintiff

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has the RFC to perform light work with restrictions as defined in 20 C.F.R.. § 416.967(b).

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The ALJ found that Plaintiff has postural restrictions and is unable to climb, squat, kneel,

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crouch, or crawl, has lower extremity limitations consisting of no use of the legs or feet

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for pushing or pulling of foot or leg controls; needs a sit/stand option which allows him to

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alternate between sitting and standing while still performing his job duties; and is limited

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to unskilled work. At step five, the ALJ concluded that there are jobs that exist in

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significant numbers in the national economy that Plaintiff can perform.

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III.

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Analysis.
Plaintiff argues that the ALJ erred in rejecting the opinions of two treating

physicians, Drs. Nudelman and Heiner. Doc. 16 at 8.

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A.

Legal Standard.

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The Ninth Circuit distinguishes between the opinions of treating physicians,

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examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821,

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830 (9th Cir. 1995).

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physician’s opinion and more weight to the opinion of an examining physician than to

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one of a non-examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th

Generally, an ALJ should give greatest weight to a treating

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Cir. 1995); see also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when

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evaluating opinion evidence, including length of examining or treating relationship,

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frequency of examination, consistency with the record, and support from objective

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evidence). If it is not contradicted by another doctor’s opinion, the opinion of a treating

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or examining physician can be rejected only for “clear and convincing” reasons. Lester,

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81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

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contradicted opinion of a treating or examining physician “can only be rejected for

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specific and legitimate reasons that are supported by substantial evidence in the record.”

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Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043).

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An ALJ can meet the “specific and legitimate reasons” standard “by setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating his

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interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th

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Cir. 1986). But “[t]he ALJ must do more than offer [her] conclusions. [She] must set

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forth [her] own interpretations and explain why they, rather than the doctors’, are

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correct.” Embrey, 849 F.2d at 421-22.

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The Commissioner is responsible for determining whether a claimant meets the

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statutory definition of disability and does not give significance to a statement by a

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medical source that the claimant is “disabled” or “unable to work.”

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§ 416.927(d).

20 C.F.R.

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B.

Dr. Nudelman.

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Dr. Nudelman opined that Plaintiff was limited to a range of sedentary work.

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A.R. 270-72. More specifically, he opined that Plaintiff could never carry or lift more

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than 10 pounds, could never climb, and could only occasionally stoop, squat, or crawl.

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Id. Dr. Nudelman also opined that Plaintiff’s pain and fatigue moderately affected his

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ability to function. Id. at 272.

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The ALJ stated that Dr. Nudelman’s opinion was “contradicted by the opinions of

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other physicians of record” (A.R. 22), but did not specifically identify any contradictory

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opinions.

The Court need not determine whether the ALJ identified contradictory

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evidence elsewhere in his opinion because, in any event, the ALJ provided clear and

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convincing reasons to discount Dr. Nudelman’s opinion.

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Dr. Nudelman’s assessment form was completed on September 1, 2011. A.R.

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270-72.

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contained the following statements: “The patient wanted me to fill out a disability form

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for him. I do not have the expertise to do this. Basically I had asked him his opinion

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with regard to the questions and I answered them.” A.R. 22 (citing A.R. 273). The ALJ

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properly discounted this opinion: “The ALJ need not accept the opinion of any physician,

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including a treating physician, if that opinion is brief, conclusory, and inadequately

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The ALJ noted that Dr. Nudelman’s treatment notes from the same day

supported by clinical findings.” See Thomas, 278 F.3d at 957.

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The ALJ further noted that Dr. Nudelman’s progress notes do not support his

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opinion. A.R. 22. The Court agrees. Plaintiff identifies no treatment records that

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support the doctor’s opinion, and the treatment records reviewed by the Court do not

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contain any information that would support the limitations stated on the September 2011

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form. See A.R. 258-61, 273-78. The ALJ provided clear and convincing reasons for

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rejecting Dr. Nudelman’s opinion.

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C.

Dr. Heiner.

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Dr. Heiner, Plaintiff’s orthopedic surgeon, opined that Plaintiff was unable to

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perform even sedentary work due to his leg injuries. A.R. 314-16. The actual form

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completed by Dr. Heiner is quite confusing because several items are scribbled out, but it

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appears that he opined that Plaintiff could only occasionally carry up to five pounds. He

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also opined that Plaintiff could sit or stand continuously for only two hours at a time and

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that he could only be on his feet for a total of one hour in an eight hour workday. Dr.

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Heiner further opined that Plaintiff could never stoop, squat, crawl, or climb, and that he

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was totally restricted from working around unprotected heights or moving machinery.

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Dr. Heiner noted that Plaintiff’s pain and fatigue were moderately severe. Id.

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The ALJ gave little weight to Dr. Heiner’s opinion for several reasons. The ALJ

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noted that “no diagnostic or clinical findings” were included to support the opinion. A.R.

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22. He further noted that Dr. Heiner’s opinion was completed six months after Plaintiff

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was involved in a motorcycle accident and that nothing in the opinion indicated that the

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“opinion would meet the duration requirement of 12 continuous months despite

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treatment.” Id. The ALJ also found that the opinion “appears to rely on the subjective

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complaints of the [Plaintiff]” and noted that Plaintiff was “not entirely credible[.]” Id.

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Additionally, the ALJ observed that Plaintiff was riding his motorcycle “not long after

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[Dr. Heiner] gave his opinion.” Id. Finally, the ALJ stated that Dr. Heiner’s opinion did

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not meet the duration requirement because the “record does not contain any recent

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progress notes from the doctor that would support his opinion continuing to remain

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valid.” Id.

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The ALJ did not explicitly identify contradictory evidence, nor was the Court able

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to locate a discussion of contradictory evidence at any other point in the opinion.

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Accordingly, the ALJ was required to provide clear and convincing reasons for rejecting

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Dr. Heiner’s opinion. The Court concludes that the ALJ has met this burden.

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As already noted, the ALJ need not accept the opinion of a treating physician if it

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is brief, conclusory, or inadequately supported by clinical findings. See Thomas, 278

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F.3d at 957. The ALJ concluded that Dr. Heiner’s opinion was not supported by any

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diagnostic or clinical findings. Plaintiff does not identify clinical evidence or treatment

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notes from Dr. Heiner in the record, but the Court was able to locate some treatment

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notes completed by Dr. Heiner. Some of these records deal with the surgery following

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Plaintiff’s first motorcycle accident in January 2012 and his apparent readmission to the

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hospital due to an infection. See A.R. 279-81, 288-304. These notes appear to describe

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surgical procedures conducted by Dr. Heiner and follow-up examinations conducted

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while Plaintiff was hospitalized, and do not appear to contain any information about

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Plaintiff’s long-term restrictions. Another set of notes from Dr. Heiner (A.R. 305-13) are

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from office follow-up visits that occurred between March and June of 2012. These notes

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reveal improvement in Plaintiff’s range of motion and ability to walk at each

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appointment.

These treatment notes support the ALJ’s conclusion that limitations

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assessed by Dr. Heiner would not be expected to last for more than 12 months.

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The ALJ also noted that Plaintiff was “riding his motorcycle” not long after Dr.

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Heiner’s assessment form was completed and found this to be additional evidence that

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Dr. Heiner’s opinion would not meet the duration requirement.

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supported by treatment records from Havasu Regional Medical Center. These records

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show that Plaintiff was seen on August 13, 2012, less than one month after Dr. Heiner’s

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opinion, because Plaintiff had again fallen off his motorcycle. See A.R. 317-21. The fact

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that Plaintiff was again operating a motorcycle suggests that his limitations were not as

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severe as those assessed by Dr. Heiner, that Plaintiff continued to improve from his

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January 2012 motorcycle accident, and that the limitations assessed by Dr. Heiner likely

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would not be expected to last more than 12 months. The fact that no further treatment

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records were submitted also supports these conclusions. The ALJ therefore identified

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clear and convincing reasons for rejecting Dr. Heiner’s opinion.

This assertion is

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IT IS ORDERED:

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The Commissioner’s decision is affirmed.

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2.

The Clerk is directed to enter judgment and terminate this action.

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Dated this 29th day of August, 2014.

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