Brown v. Colvin

Filing 19

ORDER that the decision of the ALJ and the Commissioner of Social Security is affirmed; the Clerk shall enter judgment. The judgment will serve as the mandate of this Court. Signed by Magistrate Judge Michelle H Burns on 3/18/15. (LSP)

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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 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) Carolyn W. Colvin, Commissioner of the) ) Social Security Administration, ) ) Defendant. ) Guy Brown, CIV 14-8038-PCT-MHB ORDER 15 Pending before the Court is Plaintiff Guy Brown’s appeal from the Social Security 16 Administration’s final decision to deny his claim for disability insurance benefits and 17 supplemental security income. After reviewing the administrative record and the arguments 18 of the parties, the Court now issues the following ruling. 19 I. PROCEDURAL HISTORY 20 Plaintiff filed applications for disability insurance benefits and supplemental security 21 income in August 2007. (Transcript of Administrative Record (“Tr.”) at 12, 223-32.) His 22 claim proceeded through the administrative process and was denied in an ALJ decision dated 23 January 26, 2010, following a hearing. (Tr. at 64-93, 98-117.) The Appeals Council granted 24 Plaintiff’s request for review on November 15, 2010, and remanded the case to an ALJ for 25 further proceedings. (Tr. at 118-21.) 26 On remand, the ALJ heard testimony on May 15, 2012, from Plaintiff and from an 27 impartial vocational expert. (Tr. at 12, 42-63.) Plaintiff alleged he was disabled for a closed 28 1 period from August 1, 2007, to February 24, 2010, and requested a closed period of 2 disability. (Tr. at 12, 45-46.) 3 The ALJ issued an unfavorable decision on June 26, 2012, finding Plaintiff was not 4 under a disability within the meaning of the Act. (Tr. at 9-30.) Plaintiff timely requested 5 review, which the Appeals Council denied on January 7, 2014, making the ALJ decision the 6 Commissioner’s final decision. (Tr. at 1-6.) Plaintiff then sought judicial review of the 7 ALJ’s decision pursuant to 42 U.S.C. § 405(g). 8 II. STANDARD OF REVIEW 9 The Court must affirm the ALJ’s findings if the findings are supported by substantial 10 evidence and are free from reversible legal error. See Reddick v. Chater, 157 F.3d 715, 720 11 (9th Cir. 1998); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Substantial evidence 12 means “more than a mere scintilla” and “such relevant evidence as a reasonable mind might 13 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 14 (1971); see Reddick, 157 F.3d at 720. 15 In determining whether substantial evidence supports a decision, the Court considers 16 the administrative record as a whole, weighing both the evidence that supports and the 17 evidence that detracts from the ALJ’s conclusion. See Reddick, 157 F.3d at 720. “The ALJ 18 is responsible for determining credibility, resolving conflicts in medical testimony, and for 19 resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see 20 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). “If the evidence can reasonably 21 support either affirming or reversing the [Commissioner’s] conclusion, the court may not 22 substitute its judgment for that of the [Commissioner].” Reddick, 157 F.3d at 720-21. 23 III. THE ALJ’S FINDINGS 24 In order to be eligible for disability or social security benefits, a claimant must 25 demonstrate an “inability to engage in any substantial gainful activity by reason of any 26 medically determinable physical or mental impairment which can be expected to result in 27 death or which has lasted or can be expected to last for a continuous period of not less than 28 -2- 1 12 months.” 42 U.S.C. § 423(d)(1)(A). An ALJ determines a claimant’s eligibility for 2 benefits by following a five-step sequential evaluation: 3 (1) determine whether the applicant is engaged in “substantial gainful activity”; 4 (2) determine whether the applicant has a medically severe impairment or combination of impairments; 5 6 (3) determine whether the applicant’s impairment equals one of a number of listed impairments that the Commissioner acknowledges as so severe as to preclude the applicant from engaging in substantial gainful activity; 7 8 (4) if the applicant’s impairment does not equal one of the listed impairments, determine whether the applicant is capable of performing his or her past relevant work; 9 10 (5) if the applicant is not capable of performing his or her past relevant work, determine whether the applicant is able to perform other work in the national economy in view of his age, education, and work experience. 11 See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (citing 20 C.F.R. §§ 404.1520, 12 416.920). At the fifth stage, the burden of proof shifts to the Commissioner to show that the 13 claimant can perform other substantial gainful work. See Penny v. Sullivan, 2 F.3d 953, 956 14 (9th Cir. 1993). 15 At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful 16 activity since August 1, 2007 through February 24, 2010. (Tr. at 15.) At step two, he found 17 that Plaintiff had the following severe impairments: sleep apnea, obesity, a psychotic 18 disorder, a personality disorder, depression, impulse control problems, a personality disorder 19 not otherwise specified, with narcissistic borderline and antisocial features, polysubstance 20 abuse in remission, alcohol abuse and tobacco dependence. (Tr. at 15.) At step three, the 21 ALJ stated that Plaintiff did not have an impairment or combination of impairments that met 22 or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of 23 the Commissioner’s regulations. (Tr. at 15-19.) After consideration of the entire record, the 24 ALJ found that Plaintiff retained the residual functional capacity “to perform light unskilled 25 work with restrictions as light work is defined in 20 CFR 404.1567(b) and 416.967(b) with 26 environmental restrictions such as no exposure to extremes of temperatures or humidity, 27 28 -3- 1 unusual dusts, gases or perfumes, and no requirement with working with the public, working 2 with things and not people.”1 (Tr. at 19-24.) 3 The ALJ found that Plaintiff could not perform any of his past relevant work, but, 4 considering his age, education, work experience, and residual functional capacity, there are 5 jobs that exist in significant numbers in the national economy that Plaintiff could perform. 6 (Tr. at 24-25.) Thus, the ALJ concluded that Plaintiff “has not been under a disability ... 7 from August 1, 2007, through February 24, 2010.” (Tr. at 25.) IV. DISCUSSION 8 9 In his brief, Plaintiff contends that the ALJ erred by failing to properly weigh medical 10 source opinion evidence. Specifically, Plaintiff argues that the ALJ improperly rejected the 11 opinion of treating physician, Brian Sabowitz, M.D., and generally “misinterpreted” the 12 objective medical evidence “to the detriment of the claimant.” 13 “The ALJ is responsible for resolving conflicts in the medical record.” Carmickle v. 14 Comm’r, Soc. Sec. Admin., 533 F.3d at 1164. Such conflicts may arise between a treating 15 physician’s medical opinion and other evidence in the claimant’s record. In weighing 16 medical source opinions in Social Security cases, the Ninth Circuit distinguishes among three 17 types of physicians: (1) treating physicians, who actually treat the claimant; (2) examining 18 physicians, who examine but do not treat the claimant; and (3) non-examining physicians, 19 who neither treat nor examine the claimant. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 20 1995). The Ninth Circuit has held that a treating physician’s opinion is entitled to 21 “substantial weight.” Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 22 2009) (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A treating physician’s 23 opinion is given controlling weight when it is “well-supported by medically accepted clinical 24 and laboratory diagnostic techniques and is not inconsistent with the other substantial 25 evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(d)(2). On the other hand, 26 1 27 28 “Residual functional capacity” is defined as the most a claimant can do after considering the effects of physical and/or mental limitations that affect the ability to perform work-related tasks. -4- 1 if a treating physician’s opinion “is not well-supported” or “is inconsistent with other 2 substantial evidence in the record,” then it should not be given controlling weight. Orn v. 3 Astrue, 495 F.3d 624, 631 (9th Cir. 2007). 4 If a treating physician’s opinion is not contradicted by the opinion of another 5 physician, then the ALJ may discount the treating physician’s opinion only for “clear and 6 convincing” reasons. See Carmickle, 533 F.3d at 1164 (quoting Lester, 81 F.3d at 830). If 7 a treating physician’s opinion is contradicted by another physician’s opinion, then the ALJ 8 may reject the treating physician’s opinion if there are “specific and legitimate reasons that 9 are supported by substantial evidence in the record.” Id. (quoting Lester, 81 F.3d at 830). 10 Since the opinion of Dr. Sabowitz was contradicted by consultative examining 11 physicians Rodney Rodrigo, M.D., and David Buckwalter, D.O.; state agency reviewing 12 physicians Thomas Glodek, M.D., and Erika Wavak, M.D.; as well as other medical evidence 13 of record, the specific and legitimate standard applies. 14 Historically, the courts have recognized the following as specific, legitimate reasons 15 for disregarding a treating or examining physician’s opinion: conflicting medical evidence; 16 the absence of regular medical treatment during the alleged period of disability; the lack of 17 medical support for doctors’ reports based substantially on a claimant’s subjective complaints 18 of pain; and medical opinions that are brief, conclusory, and inadequately supported by 19 medical evidence. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Flaten 20 v. Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995); Fair v. 21 Bowen, 885 F.2d 597, 604 (9th Cir. 1989). 22 Here, the ALJ analyzed the medical evidence in exhaustive detail. (Tr. at 19-24.) The 23 ALJ gave significant weight to the opinions of examining physicians Drs. Rodrigo and 24 Buckwalter as well as state agency medical consultants Drs. Glodek and Wavak. The ALJ 25 also provided legally sufficient reasons for discounting Dr. Sabowitz’s opinion, namely that 26 it was not consistent with his clinical signs and his own treatment records. See Connett v. 27 Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (“We hold that the ALJ properly found that [the 28 physician’s] extensive conclusions regarding [the claimant’s] limitations are not supported -5- 1 by his own treatment notes. Nowhere do his notes indicate reasons why [the physician would 2 limit the claimant to a particular level of exertion].”); Tonapetyan v. Halter, 242 F.3d 1144, 3 1149 (9th Cir. 2001) (holding that the ALJ properly rejected a physician’s testimony because 4 “it was unsupported by rationale or treatment notes, and offered no objective medical 5 findings to support the existence of [the claimant’s] alleged conditions”); Batson v. Comm’r 6 of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may discredit treating physicians’ 7 opinions that are conclusory, brief, and unsupported by the record as a whole, or by objective 8 medical findings). 9 10 The Court finds that the ALJ properly considered Dr. Sabowitz’s opinion and gave specific and legitimate reasons, based on substantial evidence in the record to discount it. 11 Plaintiff’s remaining argument regarding the ALJ’s assessment of the objective 12 medical evidence is unclear. Plaintiff makes a conclusory, non-specific claim stating, 13 generally, that the ALJ “misinterpreted evidence to the detriment of the claimant.” Plaintiff 14 alludes to the opinions of Lawrence Allen, Ph.D., Doris Javine, Ph.D., and Brady Dalton, 15 Psy.D. Despite the deficiencies of the argument, the Court, having reviewed the ALJ’s 16 consideration of the objective medical evidence as to Plaintiff’s alleged mental impairments 17 and his conclusions regarding Drs. Allen, Javine, and Dalton’s opinions, determines that the 18 ALJ’s findings are supported by substantial evidence. 19 Accordingly, in sum, the Court finds that the ALJ properly weighed the medical 20 source opinion evidence related to Plaintiff’s alleged physical and mental impairments, and 21 gave specific and legitimate reasons, based on substantial evidence in the record to support 22 his findings. Therefore, the Court finds no error.2 23 24 25 26 27 28 2 In his reply, Plaintiff attempts to clarify his argument that the ALJ “misinterpreted evidence to the detriment of the claimant.” Plaintiff appears to argue that the ALJ erred at step five and states, in pertinent part: Because the ALJ finds that psychological problems are severe impairments, assessing the limitations imposed by those impairments is crucial to determining the residual functional capacity of the claimant. The ALJ did not properly define those limitations in posing his hypotheticals to the VE. When done, the VE’s testimony was favorable to the claimant. The claimant -6- 1 V. CONCLUSION 2 Substantial evidence supports the ALJ’s decision to deny Plaintiff’s claim for 3 disability insurance benefits and supplemental security income. Consequently, the ALJ’s 4 decision is affirmed. 5 Based upon the foregoing discussion, 6 IT IS ORDERED that the decision of the ALJ and the Commissioner of Social 7 8 9 10 Security be affirmed; IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. The judgment will serve as the mandate of this Court. DATED this 18th day of March, 2015. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 continues to seek a vacation of the ALJ’s decision as well as a grant of disability based upon VE testimony. The Court finds that Plaintiff’s attempt to articulate his argument fails as it remains conclusory, undefined, and difficult to follow. Furthermore, the Court declines to consider any argument raised for the first time in his reply brief. See Martin v. Astrue, 2012 WL 527483, at * n.1 (D. Ariz. Feb. 17, 2012) (declining to consider the plaintiff’s challenge to the RFC assessment that was raised for the first time in the reply brief). In any event, the Court’s review of the ALJ’s step five analysis reveals that the ALJ’s decision at step five is supported by substantial evidence. The Court finds no error. -7-

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