Garrett v. Colvin
Court Docket Sheet
District of Arizona4:2015-cv-00221 (azd)
STATUS REPORT regarding Plaintiff's Response to Motion to Alter or Amend the Court's Order by Katherine Carlene Garrett.
Case 4:15-cv-00221-DTF Document 25 Filed 08/28/17 Page 1 of 2 1 Edward A. Wicklund, Esq. 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 300 South State Street, Suite 420 4 Syracuse, NY 13202 Telephone: (315) 701-5780 5 Facsimile: (315) 701-5781 6 firstname.lastname@example.org 7 Attorney for Plaintiff Katherine Charlene Garrett 8 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 9 10 Katherine Charlene Garrett, 11 Plaintiff, Civil No. 4:15-cv-00221-TUC-DTF 12 vs. 13 STATUS REPORT REGARDING Commissioner of Social Security, PLAINTIFFâS RESPONSE TO 14 MOTION TO ALTER OR AMEND Defendant THE COURTâS ORDER 15 16 17 Before the Court is the Plaintiffâs Response in Opposition to Defendantâs Motion 18 to Amend/Correct Order that the decision of the ALJ is reversed and remanded for further 19 consideration consistent with SSR 16-3P. Through Counsel, Edward A. Wicklund, 20 Plaintiff Katherine Charlene Garrett gives notice that this Motion to Amend/Correct 21 Order has been fully submitted and is awaiting decision since the November 2, 2016 22 23 Your attention in this matter is appreciated. 24 August 28, 2017 25/s/Edward A. Wicklund Edward A. Wicklund, Esq. 26 27 1 28 Case 4:15-cv-00221-DTF Document 25 Filed 08/28/17 Page 2 of 2 Olinsky Law Group 1 Admitted Pro Hac Vice 2 Attorneys for Plaintiff One Park Place 3 300 South State Street, Suite 420 Syracuse, New York 13202 4 Phone: (315) 701-5780 Facsimile: (315) 701-5781 5 Email: email@example.com 6 7 8 CERTIFICATE OF SERVICE 9 10 I hereby certify that the foregoing Status Report regarding Plaintiffâs Response to Defendantâs Motion to Alter or Amend the Courtâs Order was filed with the Clerk of the 11 Court on August 28, 2017, using the CM/ECF system, which will send notification of such filing to the following: Sarah Moum. 12/s/Edward A. Wicklund 13 Edward A. Wicklund 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 28
ORDER granting  Motion to Amend the Court's Order. It is further ordered that this Court's Order  is vacated in part and to the extent that the prior Order determined the ALJ erred in considering Petitioner's past work in her credibility determination. It is further ordered that the decision of the ALJ is affirmed. The Clerk of Court is directed to reopen the case, enter judgment in favor of the Commissioner, and then close the case. Signed by Magistrate Judge D Thomas Ferraro on 10/23/2017.
Case 4:15-cv-00221-DTF Document 26 Filed 10/24/17 Page 1 of 8 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Katherine Carlene Garrett, No. CV-15-00221-TUC-DTF 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Before the Court is the Commissionerâs motion seeking to alter or amend the 16 Courtâs Order remanding the matter to the Commissioner. (Doc. 23.) The motion is fully 17 briefed. (Doc. 24.) For the reasons set forth herein, the motion will be granted and the 18 decision of the Commissioner will be affirmed. 19 The Commissionerâs Motion to Amend 20 Alteration or amendment of a judgment under Rule 59(e) of the Federal Rules of 21 Civil Procedure is appropriate where the court committed clear error or made an initial 22 decision that was manifestly unjust. Rule 59(e), FED.R.CIV.P. Here, the Commissioner 23 argues that the Courtâs prior Order was clearly erroneous because the Administrative Law 24 Judgeâs (ALJ) credibility determination was consistent with newly enacted SSR 16-3p 25 and, even if it were not, any error by the ALJ in rendering her credibility determination 26 was harmless. Doc. 23 at pp. 2-3. The Commissioner argues that the ALJ properly 27 considered the reason that Petitioner left her prior employment (she was laid off) because 28 the reason that Petitioner left her prior employment is relevant to symptom evaluation. Id. Case 4:15-cv-00221-DTF Document 26 Filed 10/24/17 Page 2 of 8 1 at p. 3. Petitioner argues that since her prior employment was performed before her 2 amended on-set date this prior employment "say[s] little about [her] work-related 3 functioning during the period at issue" and the Court was correct in determining the ALJ 4 erred in considering Petitionerâs prior work in her credibility assessment. Doc. 24 at p. 2. 5 As pointed out by the Commissioner, in evaluating symptom complaints the 6 regulations direct the agency to consider information about a claimantâs prior work. 20 7 C.F.R. Â§ 404.1529(c)(3) ("We will consider all of the evidence presented, including 8 information about your prior work recordâ¦"). Here, the evidence establishes that 9 Petitioner ceased working for reasons unrelated to her impairments and that she ceased 10 working because she was laid off. See e.g., AR 295, 298. The Court agrees with the 11 Commissioner that the reason Petitioner ceased her past employment is relevant to 12 symptom evaluation because it is relevant to whether Petitionerâs symptoms kept her 13 from working â which they did not. It follows that the ALJâs consideration of such in her 14 decision was not error. Indeed, Petitioner testified at the June 2013 hearing that she 15 continues to search on line for work and that she believes that she could perform a data 16 entry position. AR 46. 17 In light of the foregoing, the Court determines that it committed clear error in its 18 prior decision and that the ALJâs credibility determination did not run afoul of SSR 16-19 3p. The Court affirms its statement in its Order that "[b]ut for the foregoing error the 20 ALJâs credibility determination would have been affirmed." Doc. 22 at p. 6. The 21 Commissionerâs motion (Doc. 24) will be granted and the ALJâs adverse credibility 22 determination will be affirmed. 23 Because the Commissioner asks the Court to affirm the ALJâs decision and the 24 Courtâs prior Order did not address the two other grounds raised by Petitioner, the Court 25 now addresses the other two claims of error that were raised by Petitioner in her opening 26 brief. 27 The ALJâs Decision 28 The Commissionerâs final decision must be affirmed if it is supported by-2-Case 4:15-cv-00221-DTF Document 26 Filed 10/24/17 Page 3 of 8 1 substantial evidence and is free of legal error. 42 U.S.C. Â§ 405(g); Meanel v. Apfel, 172 2 F.3d 1111, 1113 (9th Cir. 1999). "Substantial evidence means more than a mere scintilla 3 but less than a preponderance; it is such relevant evidence as a reasonable mind might 4 accept as adequate to support a conclusion." Meanel, 172 F.3d at 1113 (quoting Andrews 5 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). "[T]he key question is not whether there 6 is substantial evidence that could support a finding of disability, but whether there is 7 substantial evidence to support the Commissionerâs actual finding that claimant is not 8 disabled." Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). 9 Weight Assigned to the Opinion of the Treating Physician 10 Petitioner claims the ALJ erred in assigning little weight to the opinion of treating 11 physician Dr. Gramstad. Doc. 19 at p. 1. Petitioner argues the ALJ erred in rejecting Dr. 12 Gramstadâs opinion on the grounds that his opinion was inconsistent with her testimony 13 that she would still be able to perform work as a data entry person. Id. at pp. 8-9. 14 Petitioner also argues that the ALJâs reliance on Dr. Malakâs opinion to reject Dr. 15 Gramstadâs opinion was error. Id. at p. 11. The Commissioner argues against Petitionerâs 16 claims of error. Doc. 20 at pp. 9-14. 17 "Generally, the opinion of a treating physician must be given more weight than the 18 opinion of an examining physician, and the opinion of an examining physician must be 19 afforded more weight than the opinion of a reviewing physician." Ghanim v. Colvin, 763 20 F.3d 1154, 1160 (9th Cir. 2014) (citing Holohan v. Massanari, 246 F.3d 1195, 1202 (9th 21 Cir. 2001); 20 C.F.R. Â§ 404.1527(c)). "If a treating physicianâs opinion is well-supported 22 by medically acceptable clinical and laboratory diagnostics and is not inconsistent with 23 the other substantial evidence in [the] case record, [it will be given] controlling weight." 24 Id. (quoting Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007)). "To reject an 25 uncontradicted opinion of a treating physician, the ALJ must provide'clear and 26 convincing reasons that are supported by substantial evidence.â" Id. at 1160-61 (quoting 27 Bayless v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). 28 "Even if a treating physicianâs opinion is contradicted, the ALJ may not simply-3-Case 4:15-cv-00221-DTF Document 26 Filed 10/24/17 Page 4 of 8 1 disregard it." Id. at 1161. An ALJ is required to consider the factors set forth in 20 C.F.R. 2 Â§ 404.1527(c)(2)-(6) in determining how much weight to afford the treating physicianâs 3 medical opinion. Id. (citing Orn, 495 F.3d at 631; 20 C.F.R. Â§ 404.1527(c)(2)). "In many 4 cases a treating sourceâs medical opinion will be entitled to the greatest weight and 5 should be adopted, even if it does not meet the test for controlling weight." Ghanim, 763 6 F.3d at 1161 (quoting Orn, 495 F.3d at 631). "An ALJ may only reject a treating 7 physicianâs contradicted opinions by providing'specific and legitimate reasons that are 8 supported by substantial evidence.â" Id. (quoting Ryan v. Commâr of Soc. Sec., 528 F.3d 9 1194, 1198 (9th Cir. 2008)). (Additional citations omitted.) 10 Here, the Court determines that the ALJ provided specific and legitimate reasons 11 supported by substantial evidence to reject Dr. Gramstadâs opinion. To start, the 12 inconsistency of an opinion with the claimantâs activities is a valid reason to discount the 13 opinion. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Dr. Gramstad opined 14 that Petitioner could sit for only four hours in an eight hour workday. AR 400. As pointed 15 out by the Commissioner however, Petitioner testified to sitting for up to eight (8) hours 16 in her recliner. AR 26, 54. Also, as mentioned above, Petitioner testified at the June 2013 17 hearing that she still conducts on line job searches and believes that she could work in 18 jobs that require mostly sitting. AR 46-47. 19 Additionally, inconsistency with a claimantâs own allegations is also a valid 20 reason to discount a physicianâs opinion. Rollins, 261 F.3d at 856 ("Rollins herself has 21 never claimed to have any problems with many of the conditions and activities that Dr. 22 Young instructed her to avoid.") Here, Dr. Gramstad opined that Petitionerâs 23 concentration would be constantly interfered with. AR 400. However, there is no 24 indication that Petitioner has alleged difficulties with concentration. See, e.g., AR 227 25 (On her adult function report Petitioner reported being able to concentrate "for a long 26 time.") At bottom, Dr. Gramstadâs opinion that Petitioner is unable to work is 27 contradicted by Petitionerâs testimony and belief that she can perform sedentary work. 28 The ALJ also rejected Dr. Gramstadâs opinion because his assessed limitations-4-Case 4:15-cv-00221-DTF Document 26 Filed 10/24/17 Page 5 of 8 1 were put forth on a check-the-box form. AR 26. An ALJ may permissibly reject check-2 the-box reports that do not contain any explanation of the bases of their conclusions. 3 Molina v. Astrue, 246 F.3d 1195, 1202 (9th Cir. 2001) ("[T]he regulations give more 4 weight to opinions that are explained than to those that are notâ¦"). "The ALJ need not 5 accept the opinion of any physician, including a treating physician, if that opinion is 6 brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 7 278 F.3d 947, 957 (9th Cir. 2002) (citing Matney v. Sullivan, 981 F.2d 1019 (9th Cir. 8 1992)). Dr. Gramstandâs opinion was put forth on a primarily check-the-box form with 9 no supporting reasoning, clinical findings, or explanation for his ultimate assessment that 10 petitioner was physically incapable for working an 8 hour day, 5 days a week on a 11 sustained basis. AR 401. The ALJâs reliance on this reason for assigning little weight to 12 Dr. Gramstadâs opinion was proper. 13 The ALJ gave the greatest weight to the opinion of state agency medical 14 consultant, Dr. Malak, who opined that Petitioner had the RFC to perform sedentary 15 work. AR 26. The opinion of a non-treating or non-examining physician may serve as 16 substantial evidence when the opinion is consistent with independent clinical findings or 17 other evidence in the record. Thomas, 278 F.3d at 957. The ALJ does not err in granting 18 the greatest weight to non-examining physician opinions when valid reasons are given to 19 reject other medical opinions in the record. See, e.g., Morgan v. Commâr of Soc. Sec. 20 Admin., 169 F.3d 595, 600 (9th Cir. 1999) (Rejecting the petitionerâs argument that the 21 ALJ erred in rejecting the opinions of treating physicians in favor of a non-examining 22 medical advisor "because the ALJ gave specific reasons, supported by the record, for 23 rejecting the opinions of the treating psychiatrist and examining psychologist.") Here, Dr. 24 Malak opined that Petitioner had the residual functional capacity to perform sedentary 25 work. AR 386. Petitioner argues that Dr. Malakâs opinion, rendered on April 10, 2012 26 (prior to the January 30, 2013 amended onset date), cannot serve as substantial evidence 27 because Dr. Malak did not have an opportunity to review an August 2012 MRI that was 28 performed after her April 2012 RFC assessment. However, consultative examiner Dr.-5-Case 4:15-cv-00221-DTF Document 26 Filed 10/24/17 Page 6 of 8 1 Knievel did review Petitionerâs August 2012 MRI and assessed no functional limitations. 2 AR 405. Therefore, even though Dr. Malak did not review post-opinion medical evidence 3 this does not render her opinion contrary to the record. Additionally, Dr. Gramstadâs 4 opinion, like Dr. Malakâs opinion, was rendered prior to Petitionerâs amended onset date 5 and there is no indication that Dr. Gramstad reviewed Petitionerâs August 2012 MRI 6 prior to rendering his September 14, 2012 opinion. AR 400-401. Finally, as noted by the 7 ALJ in her decision, records of three visits to the emergency room by Petitioner in April 8 and May 2013 because of reports of back pain show Petitioner has normal range of 9 motion and strength, an x-ray of the lumbar spine showed only mild findings and 10 Petitioner was reported as being in no acute distress. AR 24-25. 11 On balance, the ALJâs decision to assign little weight to Dr. Gramstadâs opinion is 12 supported by substantial evidence. 13 Step Four Determination 14 The ALJ determined that Petitioner could perform her past work as a 15 receptionist/data entry person, DOT 237.367-010, as generally performed and as actually 16 performed by Petitioner. AR 27. Petitioner argues the ALJ erred in determining that she 17 could perform the job of "data entry" and in formulating an incomplete hypothetical to 18 the vocational expert (VE) because the hypothetical failed to include a limitation for 19 reclining during the workday. Doc. 19 at p. 17. The Commissioner argues reclining is an 20 unsupported limitation and the ALJ need only include credible limitations in the RFC and 21 hypotheticals posed to a VE. Doc. 20 at p. 17. Petitioner did not discuss this claim of 22 error in her reply brief. Doc. 21. 23 At step four the claimant has the burden to prove that she cannot perform her prior 24 relevant work either as actually performed or as generally performed in the national 25 economy. Carmickle v. Commâr, 533 F.3d 1155, 1166 (9th Cir. 2008). "An ALJ must 26 propound a hypothetical to a VE that is based on medical assumptions supported by 27 substantial evidence in the record that reflects all the claimantâs limitations." Osenbrock 28 v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). "The hypothetical should be'accurate,-6-Case 4:15-cv-00221-DTF Document 26 Filed 10/24/17 Page 7 of 8 1 detailed, and supported by the medical record.â" Id. (quoting Tackett v. Apfel, 180 F.3d 2 1097, 1101 (9th Cir. 1999)). An ALJ need only include credible limitations in the RFC 3 and hypothetical question to a vocational expert. Batson v. Commâr of the Soc. Sec. 4 Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). 5 First, the DOT code referenced by the ALJ in her decision is for a receptionist 6 occupation and not a data entry occupation. AR 27. Accordingly, the Court rejects 7 Petitionerâs claim that the ALJ erred in determining that she could perform the past 8 occupation of "data entry." Again, as set forth above, Petitioner testified that she believed 9 she could perform a data entry job. AR 52. Additionally, the Court determines the ALJ 10 did not err in failing to include a reclining limitation in her hypothetical to the VE. An 11 ALJ need only include credible limitations in the RFC and hypothetical questions to a VE 12 and a claimant does not establish that an ALJâs RFC determination is incorrect by simply 13 restating his arguments that the ALJ improperly discounted certain evidence when the 14 record demonstrates that the ALJ properly rejected that evidence. Batson, 359 F.3d at 15 1197. See also, Osenbrock, 240 F.3d at 1165 ("It is, however, proper for an ALJ to limit a 16 hypothetical to those impairments that are supported by substantial evidence in the 17 record.") Here, Petitioner is asserting error based upon a claimed limitation (reclining) 18 that the Court determines the ALJ properly determined was not supported. The ALJ did 19 not err in failing to pose a hypothetical question that contained a limitation for reclining. 20 The ALJ did not err in her step four determination. 21 Conclusion 22 For the foregoing reasons the Commissionerâs motion (Doc. 23) will be granted 23 and the decision of the ALJ affirmed. 24 IT IS HEREBY ORDERED that the Commissionerâs motion (Doc. 23) is 25 granted. 26 IT IS FURTHER ORDERED that this Courtâs Order (Doc. 22) is vacated in part 27 and to the extent that the prior Order determined the ALJ erred in considering Petitionerâs 28 past work in her credibility determination.-7-Case 4:15-cv-00221-DTF Document 26 Filed 10/24/17 Page 8 of 8 1 IT IS FURTHER ORDERED that the decision of the ALJ is affirmed. The 2 Clerk of the Court is directed to reopen the case, enter judgment in favor of the 3 Commissioner, and then close the case. 4 Dated this 23rd day of October, 2017. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-8-
CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Courts Order filed October 24, 2017, the Decision of the Commissioner of Social Security is AFFIRMED. Judgment is entered in favor of the Commissioner and this action is hereby terminated.
Case 4:15-cv-00221-DTF Document 27 Filed 10/24/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Katherine Carlene Garrett, NO. CV-15-00221-TUC-DTF 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Courtâs Order filed 18 October 24, 2017, the Decision of the Commissioner of Social Security is AFFIRMED. 19 Judgment is entered in favor of the Commissioner and this action is hereby terminated. 20 Brian D. Karth District Court Executive/Clerk of Court 21 22 October 24, 2017 s/Becky Ruiz 23 By Deputy Clerk 24 25 26 27 28
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