Pearson v. Colvin
Court Docket Sheet

District of Alaska

3:2016-cv-00247 (akd)

ORDER: granting Defendant's Unopposed Motion to Amend the Scheduling Order [16]. Signed by Judge Sharon L. Gleason on 04/18/2017. (AEM, CHAMBERS STAFF)

1 2 3 UNITED STATES DISTRICT COURT FOR THE 4 DISTRICT OF ALASKA 5 BRANDY CHRISTINE PEARSON, Civil No. 3:16-CV-00247-SLG 6 Plaintiff, 7 vs. 8 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 9 Defendant. 10 11 ORDER RE UNOPPOSED MOTION 12 Upon consideration of Defendant’s Unopposed Motion to Amend the Scheduling Order 13 (Docket 16), the Court hereby GRANTS the motion. 14 15 IT IS ORDERED that the Scheduling Order shall be amended as follows: 16 • Defendant shall have up to and including May 19, 2017, to file Defendant’s brief; and 17 • Plaintiff shall have up to and including June 2, 2017, to file a Reply brief. 18 DATED this 18th day of April, 2017 at Anchorage, Alaska. 19/s/Sharon L. Gleason 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 Case 3:16-cv-00247-SLG Document 18 Filed 04/18/17 Page 1 of 1

MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2318852.) by Brandy Christine Pearson.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA BRANDY CHRISTINE PEARSON, Case No. 3:16-cv-00247-SLG Plaintiff(s), MOTION AND APPLICATION OF vs. NON-ELIGIBLE ATTORNEY FOR NANCY A. BERRYHILL, PERMISSION TO APPEAR AND Acting Commissioner of Social Security, PARTICIPATE IN THE UNITED STATES DISTRICT COURT Defendant(s). FOR THE DISTRICT OF ALASKA To the Honorable Judge of the above-entitled court: I, Howard D. Olinsky, hereby apply for permission to appear and (name) participate as counsel for Brandy Christine Pearson, plaintiff, (Name of party) (plaintiff/defendant) in the above-entitled cause pursuant to Rule 83.1 (d) of the Local Rules for the United States District Court, District of Alaska. I hereby apply for permission to appear and participate as counsel WITHOUT ASSOCIATION of local counsel because [check whichever of the following boxes apply, if any]: I am a registered participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. I have concurrently herewith submitted an application to the Clerk of the Court for registration as a participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. For the reasons set forth in the attached memorandum. Case 3:16-cv-00247-SLG Document 19 Filed 04/20/17 Page 1 of 4 OR I hereby designate, a member of the Bar of this court, (Name) who maintains an office at the place within the district, with whom the court and opposing counsel may readily communicate regarding conduct of this case. DATE: (Signature) Howard D. Olinsky (Printed Name) (Address) (City/State/Zip) (Telephone Number) (e-mail address) Consent of Local Counsel* I hereby consent to the granting of the foregoing application. DATE: (Signature) (Printed Name) (Address) (City, State, Zip) (Telephone) (*Member of the Bar of the United States District Court for the District of Alaska) Case 3:16-cv-00247-SLG Document 19 Filed 04/20/17 Page 2 of 4 DECLARATION OF NON-ELIGIBLE ATTORNEY Full Name: Howard D. Olinsky Business Address: 300 S. South Street, Ste. 420, Syracuse, NY 13202 (Mailing/Street) (City, State, ZIP) Residence: 4435 Swissvale Drive, Manlius, NY 13104 (Mailing/Street) (City, State, ZIP) Business Telephone: 315-701-5780 e-mail address: holinsky@windisability.com Other Names/Aliases: N/A Jurisdictions to Which Admitted and year of Admission: See attached sheet (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) Are you the subject of any pending disciplinary proceeding in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) Have you ever been suspended from practice or disbarred in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) In accordance with D.AK. LR 83.1(d)(4)[A](vi), I certify I have read the District of Alaska local rules by visiting the court's website at http://www.akd.uscourts.gov and understand that the practices and procedures of this court may differ from the practices and procedures in the courts to which I am regularly admitted. A Certificate of Good Standing from a jurisdiction to which I have been admitted is attached. Pursuant to 28 U.S.C. §1746, I hereby declare under penalty of perjury that the foregoing information is true, correct, and accurate. Dated: April 20, 2017 s/Howard D. Olinsky (Signature of Applicant) Case 3:16-cv-00247-SLG Document 19 Filed 04/20/17 Page 3 of 4 Attachment to Pro Hac Vice Application for Howard D. Olinsky: Court Date of Admission In Good Standing? New York State 02/07/1986 YES State of Georgia 01/23/2014 YES United States Supreme Court 04/01/1991 YES Court of Appeals for 2nd Circuit 11/01/2002 YES Court of Appeals for 6th Circuit 10/15/2013 YES Court of Appeals for Federal Circuit 06/12/2007 YES U.S. Court of Veteran’s Appeals, Washington D.C. 06/12/2007 YES U.S.D.C., NDNY 04/22/1986 YES U.S.D.C., WDNY 01/29/2001 YES U.S.D.C., EDNY 03/21/2003 YES U.S.D.C., SDNY 03/25/2003 YES U.S.D.C., DCT 12/10/2010 YES U.S.D.C., NDFL 10/31/2011 YES U.S.D.C., EDMI 02/25/2013 YES U.S.D.C., WDMI 12/26/2013 YES U.S.D.C., EDTX 12/20/2013 YES U.S.D.C., EDAR 01/03/2014 YES U.S.D.C., WDAR 01/03/2014 YES U.S.D.C., MDGA 01/28/2014 YES U.S.D.C., NDIL 01/30/2014 YES U.S.D.C., NDGA 02/10/2014 YES U.S.D.C., EDWI 04/14/2014 YES U.S.D.C., NDTX 05/15/2014 YES U.S.D.C., DCO 06/18/2014 YES U.S.D.C., SDGA 06/02/2014 YES U.S.D.C., WDWI 07/03/2014 YES U.S.D.C., WDTX 09/15/2014 YES U.S.D.C., NDIN 08/04/2015 YES U.S.D.C., CDIL 09/24/2015 YES U.S.D.C., SDIL 09/25/2015 YES U.S.D.C., EDMO 04/13/2017 YES Case 3:16-cv-00247-SLG Document 19 Filed 04/20/17 Page 4 of 4

Certificate of Good Standing

AO 136 (Rev. 10/13) Certificate of Good Standing UNITED STATES DISTRICT COURT for the Northern District of New York CERTIFICATE OF GOOD STANDING I, Lawrence K. Baerman, Clerk of this Court, certify that HOWARD D. OLINSKY, Bar # 102297, was duly admitted to practice in this Court on April 22, 1986, and is in good standing as a member of the Bar of this Court. Dated at Syracuse, New York on March 27, 2017 (Location) (Date) Lawrence K. Baerman CLERK DEPUTY CLERK Case 3:16-cv-00247-SLG Document 19-1 Filed 04/20/17 Page 1 of 1

RESPONSE in Opposition re [15] MOTION for Remand in a Social Security Appeal filed by Nancy A. Berryhill.

1 BRYAN SCHRODER 2 Acting United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 TERRYE E. SHEA Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone: (206) 615-2143 Fax: (206) 615-2531 11 terrye.shea@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 BRANDY CHRISTINE PEARSON, Case No. 3:16-CV-00247-SLG 16 Plaintiff, DEFENDANT'S RESPONSE IN 17 vs. OPPOSITION TO MOTION 18 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 19 Defendant. 20 STANDARD OF REVIEW 21 This Court’s review is limited to assessing whether the ultimate denial of benefits is free 22 of legal error and based on factual findings that are supported by substantial evidence. See 23 Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998); see also 42 U.S.C. § 405(g). Substantial 24 Page 1 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 1 of 21 1 evidence means "more than a mere scintilla, but less than a preponderance" of evidence; it is 2 "such relevant evidence as a reasonable person might accept as adequate to support a conclusion." 3 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). In determining whether the factual 4 findings are supported by substantial evidence, the Court must "review the administrative record 5 as a whole, weighing both the evidence that supports and the evidence that detracts from the 6 Commissioner’s conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Court 7 "may not affirm simply by isolating a specific quantum of supporting evidence." Jones v. 8 Heckler, 760 F.2d 993, 995 (9th Cir. 1985). If, however, the evidence reasonably supports both 9 affirming and reversing the denial of benefits, the Court may not substitute its judgment for that 10 of the ALJ. See Reddick, 157 F.3d at 720-21; see also Thomas v. Barnhart, 278 F.3d 947, 954 11 (9th Cir. 2002) (if "the evidence is susceptible to more than one rational interpretation, one of 12 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld"). 13 The Court may direct an award of benefits where "the record has been fully developed and 14 further administrative proceedings would serve no useful purpose." McCartey v. Massanari, 298 15 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). 16 The Court may find that this occurs when: (1) the ALJ has failed to provide legally sufficient 17 reasons for rejecting the claimant’s evidence; (2) there are no outstanding issues that must be 18 resolved before a determination of disability can be made; and (3) it is clear from the record that 19 the ALJ would be required to find the claimant disabled if he considered the claimant’s evidence. 20 Id. at 1076-77; see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (noting that 21 erroneously rejected evidence may be credited when all three elements are met). 22 The Commissioner asserts that the ALJ’s decision is supported by substantial evidence, 23 free of legal error, and should be affirmed. Accordingly, Plaintiff’s motion for remand should be 24 Page 2 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 2 of 21 1 dismissed with prejudice. Should the Court disagree and overturn the agency’s decision, the 2 proper remedy is a remand for further administrative proceedings. As a matter of record, the 3 Commissioner disagrees with the credit-as-true rule. See Vasquez v. Astrue, 572 F.3d 586, 601 4 (9th Cir. 2009) (amended opinion) (O’Scannlain, J., dissenting). But, regardless of its validity, the 5 Ninth Circuit has clarified that the credit-as-true rule only justifies an award of benefits in narrow 6 circumstances. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1102 (9th Cir. 7 2014). 8 Treichler holds that the "ordinary remand rule"––providing that remand for further 9 proceedings is "the proper course, except in rare circumstances," when the court does not affirm 10 the agency’s decision––applies to Social Security cases. Id. at 1099. Treichler further clarifies that 11 the credit-as-true rule does not permit courts to simply "credit" evidence the ALJ did not properly 12 address and award benefits without first assessing whether further administrative proceedings 13 would be useful and whether there are outstanding issues that must be resolved before a finding of 14 disability may ensue. Id. at 1105; see also id. at 1101 ("Administrative proceedings are generally 15 useful where the record has not been fully developed, there is a need to resolve conflicts and 16 ambiguities, or the presentation of further evidence may well prove enlightening in light of the 17 passage of time." (internal quotation marks, citations, brackets, and ellipsis omitted)). The Ninth 18 Circuit has further clarified that courts must "remand for further proceedings when, even though 19 all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates 20 serious doubt that a claimant is, in fact, disabled." Garrison v. Colvin, 759 F.3d 995, 1021 (9th 21 Cir. 2014); see also Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). Here, the claimant’s 22 undisputed lack of credibility and the evidence in the record as a whole present a conflict in the 23 evidence that would need to be resolved on remand, as well as create serious doubt that Plaintiff 24 Page 3 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 3 of 21 1 is in fact disabled. Thus, even if the ALJ erred, a remand for further proceedings would be the 2 appropriate remedy in this case. 3 BACKGROUND FACTS 4 Born in 1976, Plaintiff Brandy Christine Pearson ("Pearson" or "the claimant") was thirty-5 three years old at the alleged disability onset date and thirty-eight years old at the time of the 6 administrative hearing. (AR 63) 1. She lived in an apartment with her five minor children, ages 2, 7 4, 9, 10, and 17. (AR 40). She had graduated from high school with a high school diploma and 8 reported she was in special education classes from kindergarten through the 12th grade. (AR 40, 9 631). She told an examining psychologist that she was never held back a grade, never diagnosed 10 with attention problems, and never diagnosed with attention deficit hyperactivity disorder as a 11 child. (AR 631). Pearson said she had difficulty in both math and English classes throughout 12 school, although she typically enjoyed math. (AR 631). After completing high school, she 13 attended the Job Corps where she became a certified nursing assistant (CNA). (AR 631). She 14 worked as a CNA for a number of years and left to take a job with the City of Anchorage, where 15 she taught people with special needs how to use the bus. (AR 64, 201-05, 212, 631). Plaintiff 16 claimed that the $10,231.53 posted to her earnings record in 2013 were wages for volunteer work 17 that she had performed in order to qualify for welfare. (AR 41-42, 205). She asserted that she had 18 received $1,009.00 per month whether she or not she had worked. (AR 41). Defendant refers the 19 Court to the ALJ’s thorough discussion of the facts relevant to her findings and to the arguments 20 below. (AR 15-29). 21 22 1 23 "AR" followed by numbers, refers to pages in the certified copy of the administrative record, 24 filed at ECF No. 14. Page 4 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 4 of 21 1 EVALUATING DISABILITY 2 As the claimant, Pearson bears the burden of proving that she is disabled within the 3 meaning of the Social Security Act (the "Act"). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 4 1999) (internal citations omitted). The Act defines disability as the "inability to engage in any 5 substantial gainful activity" due to a physical or mental impairment which has lasted, or is 6 expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 7 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled under the Act only if her impairments are of 8 such severity that she is unable to do her previous work, and cannot, considering her age, 9 education, and work experience, engage in any other substantial gainful activity existing in the 10 national economy. 42 U.S.C. §§ 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 11 (9th Cir. 1999). 12 The Commissioner has established a five step sequential evaluation process for 13 determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ 14 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. At step 15 five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at any step in 16 the sequence, the inquiry ends without the need to consider subsequent steps. 17 Step one asks whether the claimant is presently engaged in "substantial gainful activity." 18 20 C.F.R. §§ 404.1520(b), 416.920(b). 2 If she is, disability benefits are denied. If she is not, the 19 Commissioner proceeds to step two. At step two, the claimant must establish that she has one or 20 more medically severe impairments, or combination of impairments, that limit her physical or 21 22 2 23 Substantial gainful activity is work activity that is both substantial, i.e., involves significant physical and/or mental activities, and gainful, i.e., performed for profit. 20 C.F.R. § 404.1572. 24 Page 5 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 5 of 21 1 mental ability to do basic work activities. If the claimant does not have such impairments, she is 2 not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does have a severe 3 impairment, the Commissioner moves to step three to determine whether the impairment meets or 4 equals any of the listed impairments described in the regulations. 20 C.F.R. §§ 404.1520(d), 5 416.920(d). A claimant whose impairment meets or equals one of the listings for the required 6 twelve-month duration requirement is disabled. Id. 7 When the claimant’s impairment neither meets nor equals one of the impairments listed in 8 the regulations, the Commissioner must proceed to step four and evaluate the claimant’s residual 9 functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the Commissioner 10 evaluates the physical and mental demands of the claimant’s past relevant work to determine 11 whether she can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is 12 able to perform her past relevant work, she is not disabled; if the opposite is true, then the burden 13 shifts to the Commissioner at step five to show that the claimant can perform other work that 14 exists in significant numbers in the national economy, taking into consideration the claimant’s 15 RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 16 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable to perform other work, then 17 the claimant is found disabled and benefits may be awarded. 18 THE ALJ’S FINDINGS 19 On April 16, 2015, the ALJ issued a decision finding the following: 20 1. The claimant met the insured status requirements of the Social Security Act through December 21 31, 2015. (AR 17). 22 2. The claimant had not engaged in substantial gainful activity since March 30, 2010, the alleged 23 onset date. (AR 17). 24 Page 6 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 6 of 21 1 3. The claimant had the following severe impairments: spine disorder, obesity, depression, and 2 anxiety. (AR 17). 3 4. The claimant did not have an impairment or combination of impairments that met or medically 4 equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 5 1. (AR 18-19). 6 5. The claimant was not entirely credible. (AR 21-24, citing numerous exhibits). The ALJ 7 explained that the objective medical records did not support a more restrictive physical RFC; 8 treating records indicated that her back and neck pain had been stable on medications and she had 9 consistently reported substantial improvement of fifty to sixty percent with steroid injections; she 10 also reported that analgesic medications relieved eighty percent of her pain; and she was noted by 11 an evaluator to be "presently able to care for five children and volunteer". (AR 21). The ALJ 12 further found as to alleged mental symptoms that the treatment records and mental status 13 examinations did not support the degree of severity alleged; treatment records documented that 14 she had been assessed with "situational" depression and anxiety primarily related to 15 "psychosocial stressors" and had been treated conservatively with medication and some 16 counseling; mental status and/or psychological screenings examinations did not reflect 17 debilitating mental symptoms or limitations (e.g., she was alert and oriented, with normal mood, 18 affect and speech, and demonstrated short-term and long-term memory). (AR 23). A treating 19 provider noted that the claimant’s depression was well-controlled and that she demonstrated good 20 insight and judgment. (AR 23). The claimant’s performance and conduct on a consultative 21 psychological exam raised credibility concerns, symptom validity measures indicated she did not 22 put forth adequate effort, and that much of her cognitive test data was not valid for interpretation. 23 (AR 24). 24 Page 7 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 7 of 21 1 Despite her impairments, the claimant had retained the RFC to perform sedentary work as 2 defined in 20 C.F.R. § 404.1567(a) except for the following limitations: she was capable of 3 frequent of climbing of ramps and stairs, frequent kneeling, crouching and crawling, but only 4 occasional climbing of ladders/ropes/scaffolds, and occasional stooping. (AR 19). She must avoid 5 concentrated exposure to extreme cold, operational control of moving machinery, unprotected 6 heights and hazardous machinery. (AR 19). She must avoid even moderate exposure to excessive 7 vibration. (AR 19). As to her mental residual functional capacity, the claimant was capable of 8 simple, routine and repetitive tasks with no production rate or pace work, and frequent 9 (approximately two-thirds of the workday) but only superficial interaction with the public and 10 coworkers. (AR 19). 11 6. The claimant was unable to perform any past relevant work. (AR 27). 12 7. The claimant was born on XXXXX, 1976 3 and was 33 years old, which was defined as a 13 younger individual age 18-44, on the alleged disability onset date. (AR 28). 14 8. The claimant has at least a high school education and was able to communicate in English. (AR 15 28). 16 9. Transferability of job skills was not material to the determination of disability because using 17 the Medical-Vocational Rules as a framework supported a finding that the claimant was "not 18 disabled," whether or not the claimant had transferable job skills. (AR 28). 19 10. Considering the claimant’s age, education, work experience, and RFC, there were jobs that 20 existed in significant numbers in the national economy that she could perform. (AR 28). 21 22 23 3 24 The date is redacted in compliance with Fed. R. Civ. P. 5.2 or Fed. R. Crim. P. 49.1. Page 8 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 8 of 21 1 11. The claimant had not been under a disability, as defined in the Social Security Act, from 2 March 30, 2010, through the date of the ALJ’s decision. (AR 29). 3 ISSUE ON APPEAL 4 5 The sole issue on appeal is whether the ALJ’s residual functional capacity determination 6 supported is by substantial evidence given her assessment of the opinions of treating physician, 7 Michael Gevaert, M.D. (ECF No. (Dkt.) 15 at 1). 8 ARGUMENT 9 I. The ALJ did not err in evaluating the medical opinion evidence or in assessing the claimant’s residual functional capacity (RFC) because she incorporated all credible 10 limitations therein. 11 As a matter of law, more weight is given to a treating physician’s opinion than to that of a 12 non-treating physician because a treating physician "is employed to cure and has a greater 13 opportunity to know and observe the patient as an individual." Magallanes v. Bowen, 881 F.2d 14 747, 751 (9th Cir. 1989); see also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). A treating 15 physician’s opinion, however, is not necessarily conclusive as to either a physical condition or the 16 ultimate issue of disability, and can be rejected, whether or not that opinion is contradicted. 17 Magallanes, 881 F.2d at 751. If an ALJ rejects the opinion of a treating or examining physician, 18 the ALJ must give clear and convincing reasons for doing so if the opinion is not contradicted by 19 other evidence, and specific and legitimate reasons if it is. Reddick v. Chater, 157 F.3d 715, 725 20 (9th Cir. 1988). "This can be done by setting out a detailed and thorough summary of the facts 21 and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id. 22 (citing Magallanes, 881 F.2d at 751). The ALJ must do more than merely state his/her 23 conclusions. "He must set forth his own interpretations and explain why they, rather than the 24 Page 9 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 9 of 21 1 doctors’, are correct." Id. (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). Such 2 conclusions must at all times be supported by substantial evidence. Reddick, 157 F.3d at 725. 3 "Credibility determinations do bear on evaluations of medical evidence when an ALJ is 4 presented with conflicting medical opinions or inconsistency between a claimant’s subjective 5 complaints and his diagnosed conditions." Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005). 6 Pearson does not dispute the ALJ’s negative credibility assessment (Dkt. 15), thus she has waived 7 the issue. Paladin Associates., Inc. v. Montana Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003) 8 (by failing to make argument in opening brief, objection to court’s grant of summary judgment 9 was waived); Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (matters that are not specifically 10 and distinctly argued in opening brief ordinarily will not be considered)). 11 Plaintiff asserts that the ALJ did not provide good reasons for the weight accorded Dr. 12 Gevaert’s opinions and did not rely on any other contrary medical opinion, and that, therefore, her 13 decision was not supported by substantial evidence. (Dkt. 15 at 13-19). Plaintiff cites no authority 14 in support of the proposition that the ALJ had to rely on a contrary medical opinion in order to 15 discount Dr. Gevaert’s opinion. Id. In fact, to the contrary, a treating physician’s opinion is not 16 necessarily conclusive as to either a physical condition or the ultimate issue of disability, and can 17 be rejected, whether or not that opinion is contradicted. Magallanes, 881 F.2d at 751; see also 18 Orn, 495 F.3d at 631. Furthermore, here, the ALJ properly considered and addressed the medical 19 opinion evidence by setting out a detailed and thorough summary of the facts and conflicting 20 clinical evidence, stating his interpretation thereof, and making findings. (AR 20-27). See Young 21 v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986) (finding that an ALJ may reject a physician’s 22 opinion, which is "brief and conclusory in form with little in the way of clinical findings to 23 support [its] conclusion"). 24 Page 10 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 10 of 21 1 Relevant Evidence 2 As the ALJ noted, there was no objective medical evidence that the claimant had motor 3 loss with sensory or reflex loss, and back symptoms did not result in an inability to ambulate 4 effectively. (AR 18). The claimant's neuromuscular examinations consistently indicated no 5 significant motor strength or sensory deficits, normal reflexes and normal gait/station. (AR 18, 6 citing AR 266, 294, 304, 410, 498, 576, 580, 588, 600, 603, 622-23, 666, 678). The ALJ also 7 noted that although there was no specific medical listing for obesity, she had considered its effects 8 on each body system included in the listings, and found that the claimant's condition had not been 9 of a severity to meet or medically equal the criteria of any listed impairment. (AR 18). 10 At the hearing, the claimant asserted that she was unable to work due to low back and 11 neck pain with a history of degenerative disc disease, scoliosis and related spine surgery. (AR 20, 12 citing AR 40-60). The claimant indicated that her surgery (for scoliosis and lumbar fusion) did 13 not fully alleviate her symptoms. (AR 20, citing AR 40-60). She described her current low back 14 pain as "dull, constant ache with occasional sharp pain," and noted that prior to her surgery, she 15 would have pain radiating down into her legs. (AR 20, citing AR 40-60). She rated her typical 16 back pain level at about eight out of ten. (AR 20, citing AR 40-60). She asserted that her 17 condition and pain limited her ability to stand/walk and sit for prolonged periods, and also limited 18 her ability to lift and carry. (AR 20, citing AR 40-60). The claimant indicated that activity 19 aggravated her pain and that she was able to walk only about a block or two, stand for only ten 20 minutes at a time, and lift/carry no more than ten pounds (including inability to lift her two-year 21 old child). (AR 20, citing AR 40-60). She further alleged that she did not drive much anymore 22 due to neck pain and difficulty turning or rotating her head/neck. (AR 20, citing AR 40-60). She 23 also testified that she must lie down several times throughout the day to rest her back. (AR 20, 24 Page 11 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 11 of 21 1 citing AR 40-60). In addition, the claimant noted that when she was performing volunteer work in 2 late 2014, she would miss work at least three times a week due to pain. (AR 20, citing AR 40-60). 3 As to treatment, the claimant testified that in addition to back surgery, she had been obese 4 and underwent gastric bypass surgery in 2001, resulting in weight loss and alleviating some 5 pressure on her back/spine. (AR 20, citing AR 40-60). She indicated, however, that her weight 6 had been stable for the past two years. (AR 20, citing AR 40-60). The claimant further testified 7 that she had tried steroid injections but claimed that these did not relieve her pain ("not even 50 8 percent"). (AR 20, citing AR 40-60). She noted that she also used heating pads on her neck. (AR 9 20, citing AR 40-60). She indicated that her doctors had recommended that she consider having 10 surgery for her neck/cervical spine. (AR 20, citing AR 40-60). The claimant noted that she spent 11 her day "trying not to be in pain," and tried to relax, do some cleaning and "go to a lot of doctor 12 appointments" (approximately "three times a month or more"). (AR 20, citing AR 40-60). She 13 stated that she received rides to her appointments and needed to have someone accompany her 14 when she went grocery shopping because of her inability to "pick up large items," and because 15 she could not "get [her] 2-year old child into [the] cart." (AR 20, citing AR 40-60). In summary, 16 the claimant stated that her condition was "just very difficult stressful," and she was "in a lot of 17 pain" and "miserable." (AR 20, citing AR 40-60). 18 As to claimant's back impairment, the record establishes a history of lumbar and cervical 19 spine degenerative disc disease, including surgery for idiopathic thoracolumhar scoliosis (with 20 rod placement) in 1987, and subsequent lumbar L4-5 nerve root decompression surgery in 21 October 2010 to address right side radiculopathy (radiating pain into right lower extremity, 22 confirmed by EMG nerve conduction study). (AR 21, citing AR 292, 294, 526-28, 534, 579, 695-23 96, 698). Prior to her lumbar spine surgery, an August 2010 MRI showed disc degeneration at L2 24 Page 12 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 12 of 21 1 through L5, but "no significant stenosis of the canal at any level," and while there was "some disc 2 protrusion" at L4-5, it did "not compromise the nerve root." (AR 520). Additionally, a "small 3 [disc] herniation" at L5-S1 contacted but did not appear to compress the S1 root. (AR 520). A 4 January 2013 post-operative lumbar MRI showed "post-operative" changes, including fusion in 5 the upper lumbar area and disc herniation at L4-5 and L5-S1 with effacement and displacement of 6 the S1 root. (AR 323). A January 2013 CT scan of claimant's thoracic spine showed a 7 thoracolumbar scoliotic curve with surgical rods "intact and in good position," evidence of prior 8 fusion surgery which appeared "solid," and "no central or foraminal stenosis from osteophyte 9 formation." (AR 321). A May 2014 MRI of the claimant's cervical spine revealed multi­ level 10 degenerative change, "most severe at C3 and C5,"including "mild central stenosis" at those levels 11 with "slight effacement of the cord" but "no neural foraminal encroachment at any level." (AR 12 573-74, 587, 627). Subsequent cervical spine x-rays in October 2014 did not indicate any 13 instability on flexion and extension views, and there were "no acute osseus abnormalities." (AR 14 623). 15 Despite the claimant's back and neck degenerative conditions, neuromuscular physical 16 examinations had consistently indicated she had no focal neurologicimotor or sensory deficits. 17 (AR 21). While she had had some reduced range of motion with pain, active trigger points, and 18 positive straight leg raise, she had demonstrated full motor/muscle strength, intact sensation, as 19 well as normal reflexes and normal gait. (AR 21, citing AR 266, 294, 304, 410, 498, 576, 580, 20 600, 603, 622-23, 666, 678). For instance, in April 2011, during an orthopedic evaluation for back 21 and leg symptoms, the claimant was "intact" neurologically, and although she reportedly took 22 pain medication occasionally, she had been "getting more and more active and actually [felt] a lot 23 better now that she had been active." (AR 498). Physician James Eule, M.D., assessed the 24 Page 13 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 13 of 21 1 claimant as "status post microdiscectomy with some intermittent back and leg symptoms," but 2 "improved now that she is more active." (AR 498). In addition, Dr. Eule noted that while he had 3 offered the claimant a referral for physical therapy she declined ("she is not interested"). (AR 4 498). In January 2012, a physical therapy evaluation for low hack radicular pain, indicated that 5 the claimant had "decreased abdominal and hip strength" with "radicular pain and general 6 weakness," but she did "not have any specific weakness... that would [be] indicative of nerve 7 damage." (AR 543). In February 2013, Dr. Gevaert noted that claimant was going to school and 8 appeared "too busy to proceed with physical therapy at least at this juncture." (AR 296). Instead 9 she would "continue a selfdirected exercise program which includes swimming." (AR 296). 10 During a September 2014 exam with a spinal specialist, the claimant had some restricted range of 11 motion of her cervical spine, but her upper extremity strength and reflexes were normal, sensation 12 was intact except for some "hypesthesia [reduced sensitivity] in the left arm in a non-dermatomal 13 pattern," and she had negative Hoffman's sign (nerve regeneration). (AR 576). During an October 14 2014 orthopedic examination, the claimant was able to "walk around the examination room 15 without significant difficulty or need for assistance"; she could "get up on her toes and rock back 16 on her heels," "heel to toe-walk-without difficulty," and her Romberg sign (balance) was 17 negative. (AR 622). In addition, her sensation in the upper and lower extremities was intact, range 18 of motion of her cervical spine was full (though with pain with forward flexion), and her manual 19 muscle strength testing in the upper extremities was 5/5 "without focalized weakness." (AR 622-20 23). 21 Moreover, the ALJ noted that treating records indicated that the claimant's back and neck 22 pain had been stable on medications and she had consistent, substantial improvement with steroid 23 injections. (AR 22). In August 2013, Dr. Gevaert noted that the claimant had "over 60 percent 24 Page 14 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 14 of 21 1 improvement" in her neck pain following epidural steroid injection. (AR 293). Although he 2 indicated that the claimant had "active trigger points" in the right shoulder area on exam, she had 3 full range of motion in cervical spine and shoulder, no weakness or numbness in her upper 4 extremities, and her exam was "negative for impingement or instability." (AR 293). In June 2014, 5 Dr. Gevaert indicated that the claimant had "50 percent improvement of her symptoms" after 6 administering an epidural steroid injection on her at C7-Tl, noting that the claimant had 7 experienced some post-operative pain but felt "a lot better" and appeared "ready to go back to 8 work" at her semi-volunteer job. (AR 580). The doctor indicated that the claimant's cervical range 9 of motion was "somewhat diminished" but her "gross neuromuscular examination [was] normal" 10 (AR 580). During an August 2014 follow-up, Dr. Gevaert noted that the claimant had continuing 11 significant back and neck pain but was "doing well with her present regimen" of pain 12 management, and "remains functional and is volunteering 20 hours per week." (AR 580). Dr. 13 Gevaert assessed the claimant as having chronic neck pain due to degenerative disc disease but 14 "doing well" since 1987 as to her scoliosis status post fusion, and lumbar decompression in 2010 15 (AR 580). 16 Similarly, during September and October 2014 pain evaluations, the claimant reported that 17 analgesic medications relieved eighty percent of her pain, rating her pain at five out of ten. (AR 18 642,645). As to functionality, an evaluator indicated that claimant was "presently able to care for 19 five children and volunteer," as well as noting claimant's report that she was "hoping to secure a 20 full time job." (AR 642, 645). Further, in October 2014, an orthopedic evaluator noted that the 21 claimant had had fifty percent pain relief for about six to eight weeks following an epidural 22 steroid injection for her neck/cervical spine, which the evaluator remarked was "actually pretty 23 24 Page 15 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 15 of 21 1 good." (AR 623). The ALJ concluded that such evidence did not support finding a more 2 restrictive residual functional capacity than for limited sedentary work. (AR 22). 3 As to obesity, the record indicated that the claimant had a history of obesity, with a Body 4 Mass Index (BMI) exceeding thirty based on weight of approximately 188 to 200 pounds and 5 height of 5 feet, 6 inches) (BMI of 30 to 32 between March 2011 and December 2012). (AR 22, 6 referring to AR 334, 442, 456, 671, 678, 680). The ALJ concluded that the claimant's obesity had 7 undoubtedly exacerbated her spine impairment and symptoms, as well as affected her overall 8 functioning; however, the claimant underwent gastric bypass surgery in 2001 allowing her to lose 9 significant weight (over 160 pounds). (AR 589, 643), and while she continued on diets with 10 borderline obesity, she testified that her weight had been stable since the gastric bypass surgery. 11 (AR 22). More recent treating exams indicated that the claimant's weight was approximately 170 12 pounds, with her BMI down in the range of 27, below obesity classification levels. (AR 22, 603, 13 642, 645, 660, 663). Although she had had multiple plastic surgeries to address excess skin issues 14 following her bypass and pregnancies/cesarean sections (including "tummy tuck" in 2014) (AR 15 643), the ALJ noted there was no indication that the claimant's history of obesity and related 16 surgeries had precluded her from performing work, and she has recently worked (late 2014) as a 17 volunteer performing light office work. (AR 23). The ALJ accounted for the claimant's history of 18 obesity in finding her limited to the sedentary exertion level with postural and workplace 19 environmental restrictions. (AR 19, 23). 20 Moreover, the ALJ found that the claimant's daily functioning and other reported activities 21 were inconsistent with allegations of more limiting symptoms. (AR 24). The claimant attended to 22 self-care/hygiene, cared for her five children (ranging in age from 2 to 16), maintained her 23 household as a single parent, prepared family meals daily and performed various household 24 Page 16 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 16 of 21 1 chores (e.g., laundry, dishes) (though with some reported pain and receiving help from her older 2 children and family). (AR 24, citing AR 40-60, 225-42). The claimant went out of the house at 3 least once a day, regularly drove, took her children to and from school (or to her sister's house 4 before school on her work days), and shopped in stores for two hours at a time. (AR 24, citing AR 5 40-60, 225-42). In addition, the claimant regularly socialized with family (parents and sister), 6 watched her children's sporting events, attended medical appointments and had recently 7 performed (late 2014) volunteer office work for America Corp. (AR 642). Further, the claimant 8 was able to manage her money/public assistance benefits, use computers/go online or telephone to 9 pay bills and spend time reading and watching television/movies. (AR 642). The ALJ found that 10 the claimant's range of activities strongly suggested that she was able to perform a limited range 11 of sedentary, unskilled work with some degree of social interaction. (AR 19, 24). 12 Assessment of the Opinion Evidence Regarding Physical Impairments 13 The ALJ first noted that although a State agency single decision maker (SDM), Jason 14 West, had completed a physical residual functional capacity assessment of the claimant on 15 January 24, 2014 (AR 76-77, 87-89), under agency policy, the SDM’s RFC assessment was an 16 adjudicatory document only, and as such she did not accord it any evidentiary weight. (AR 25). 17 Next, the ALJ noted that Dr. Gevaert completed an October 6, 2014 physical capacity 18 assessment, in which he opined that the claimant was not physically capable of sustaining, regular 19 full-time employment. (AR 25, citing AR 594). Dr. Gevaert indicated that the claimant was 20 limited to less than sedentary capacity including standing/walking for a total of only one hour in 21 an eight-hour day, sitting for a total of four hours in an eight-hour day, and lifting/carrying no 22 more than ten pounds occasionally. (AR 592-95). Dr. Gevaert further opined that the claimant 23 would need to take unscheduled rest breaks two to three times per day for twenty to thirty minutes 24 Page 17 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 17 of 21 1 each, and would miss work an average of three or four times per month due to 2 impairments/treatment. (AR 593-94). However, the ALJ observed that other than listing 3 claimant's diagnoses and symptoms, Dr. Gevaert did not identify any clinical findings or objective 4 signs to support his opinion. (AR 25). The ALJ found that Dr. Gevaert’s opinion was not 5 consistent with claimant's treating records and exam notes, discussed [at AR 17-18, 21-24] above. 6 (AR 25, e.g., some active trigger points but normal full motor strength in extremities, no problems 7 with gait or range of motion, no signs of nerve impingement or joint instability). The ALJ also 8 found the opinion was further inconsistent with the claimant's range of activities, discussed above 9 in the opinion (e.g., no problem with basic activities of daily living; able to maintain household 10 and care for six children as single parent). (AR 25). While the ALJ reasonably concluded that the 11 record as a whole supported that the was limited to sedentary work, the ALJ found that Dr. 12 Gevaert’s opinion that claimant is totally disabled was unsupported, and therefore gave it little 13 weight. (AR 25). 14 The ALJ noted a form submitted by Orthopedic Physicians, Anchorage, was illegibly 15 signed on January 21, 2014 and indicated that the claimant was "totally disabled." (AR 25, citing 16 AR 654). 4 The ALJ and gave this opinion little weight because it lacked sufficient corroborating 17 medical evidence to support the assessment of total disability. (AR 25). The ALJ noted that the 18 medical source did not identify any clinical findings or objective signs to support the opinion, and 19 did not list any reported subjective symptoms or limitations. (AR 25). Additionally, the ALJ 20 found that the opinion of total disability did not correlate with the claimant's treating records and 21 22 23 4 24 Plaintiff now states that Dr. Eule signed the form. (Dkt. 15 at 10). Page 18 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 18 of 21 1 exam notes indicating she had no significant neuromuscular deficits, as well as the claimant's 2 range of activities, discussed [at AR 17, 21-24] above. (AR 25) 3 Plaintiff objects, asserting that the ALJ substituted his own lay opinion for the doctor’s. 4 (Dkt. 15 at 13). However, 5 Plaintiff’s in disability cases periodically accuse the ALJs of "playing doctor" and, the 6 Seventh Circuit has long cautioned ALJs against succumbing to the temptation to play doctor and render their own medical opinions. Schmidt v. Sullivan, 914 F.2d 117, 118 (7th 7 Cir.1990). But the accusation may be tossed about a bit too casually. Indeed, the Seventh Circuit has noted that "cases in which [they] have reversed because an ALJ impermissibly 8'played doctor’ are ones in which the ALJ failed to address relevant evidence." Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir.2001). Here, the plaintiff cannot make such an 9 argument, as the ALJ addressed all the evidence available, including not only the x-rays, but medical opinion and objective clinical findings as well. Certainly, plaintiff does not 10 mean to suggest that an ALJ must always take his or her residual functional capacity assessment directly from the mouth of a physician; under the regulations, it is the ALJ’s 11 responsibility to determine a residual functional capacity and resort to a medical expert is not always necessary. 20 C.F.R. § 404.1527(f)(2). 12 Armstrong v. Barnhart, 287 F. Supp. 2d 881, 885-86 (N.D. Ill. 2003). Plaintiff further asserts 13 error, claiming that the ALJ did not specifically examine Dr. Gevaert’s treatment notes in 14 assessing his opinion. (Dkt. 15 at 16). To the contrary, However, the ALJ did include set out 15 treatment note evidence from Dr. Gevaert and other treating medical sources throughout her 16 decision. (AR 18-27). Plaintiff urges the court to find that various other evidence, other than Dr. 17 Gevaert’s opinion, provides clinical correlation supporting the opinion. (Dkt. 15 at 13-16). 18 Plaintiff’s asserts that the ALJ cites to evidence only selectively to less severe findings, but that 19 other findings support Dr, Gevaert’s opinion. (Dkt. 15 at 16). 20 21 Plaintiff’s alternative view of the record is not sufficient to establish ALJ error. Plaintiff 22 has not demonstrated that the ALJ ignored, misconstrued, or mischaracterized the evidence and 23 does not explain why each piece of evidence he identifies is significant or probative. Vincent ex 24 rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir.1984) (ALJ is required to address Page 19 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 19 of 21 1 probative evidence, not every piece of evidence in the record.). The key question is not whether 2 there is substantial evidence that could support a finding of disability, but whether there is 3 substantial evidence to support the Commissioner’s actual finding that Plaintiff is not disabled. 4 Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). This Court must uphold the 5 Commissioner’s denial of benefits if the evidence is susceptible to more than one rational 6 interpretation, one of which supports ALJ’s decision. Tommasetti v. Astrue, 533 F.3d 1035, 7 1038 (9th Cir. 2008). Harmless errors do not change the outcome of a case and do not warrant 8 reversal of the ALJ’s decision. Carmickle v. Commissioner, 533 F.3d 1155, 1162-1163 (9th 9 Cir. 2008). Accordingly, the ALJ did not err. 10 CONCLUSION 11 The Commissioner’s final decision is supported by substantial evidence and free of 12 harmful legal error. Therefore, Plaintiff’s motion should be dismissed. 13 DATED this 19th day of May 2017. 14 Respectfully submitted, 15 Bryan Schroder 16 Acting United States Attorney 17 RICHARD L. POMEROY Assistant United States Attorney 18 MATHEW W. PILE 19 Acting Regional Chief Counsel, Seattle, Region X 20 s/Terrye E. Shea TERRYE E. SHEA 21 Special Assistant United States Attorney Office of the General Counsel 22 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 23 Seattle, WA 98104-7075 Telephone: (206) 615-2143 24 Fax: (206) 615-2531 Page 20 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 20 of 21 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing DEFENDANT'S BRIEF was filed with the Clerk of the 3 Court on May 19, 2017, using the CM/ECF system, which will send notification of such filing to 4 the following: PAUL B. EAGLIN. 5 6 s/Terrye E. Shea TERRYE E. SHEA 7 Special Assistant U.S. Attorney Office of the General Counsel 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 21 DEFENDANT'S RESPONSE IN OPPOSITION TO MOTION-[3:16-CV-00247-SLG] Case 3:16-cv-00247-SLG Document 21 Filed 05/19/17 Page 21 of 21

DECISION AND ORDER: IT IS ORDERED that Ms. Pearsons Motion for Remand at Docket [15] is GRANTED IN PART as set forth herein, the Commissioners final decision is VACATED, and the case is REMANDED to the SSA for further proceedings consistent with this decision. On remand, the Commissioner is directed to apply the 20 C.F.R. § 416.927(c) factors to determine the weight, if any, to accord to Dr. Gevaerts opinions, and then take such further steps, if any, as may then be warranted. (See Order for details). Signed by Judge Sharon L. Gleason on 12/26/2017.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA BRANDY CHRISTINE PEARSON, Plaintiff, vs. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. Case No. 3:16-cv-00247-SLG DECISION AND ORDER On November 21, 2013, Brandy Christine Pearson protectively filed applications for Disability Insurance Benefits ("disability insurance") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("the Act") respectively, 1 alleging disability beginning March 30, 2010. 2 Ms. Pearson has exhausted her administrative remedies and filed a Complaint seeking relief from this Court. 3 The Commissioner filed an Answer and a brief in opposition to Ms. Pearson's opening brief. 4 No reply was filed. Oral argument was not requested and not necessary to the Court's decision. This Court has jurisdiction to hear an appeal from a final decision 1 The Court uses the term "disability benefits" to include both disability insurance and SSI. 2 Administrative Record ("A.R.") 71, 82. 3 Docket 1 (Pearson's Compl.) at 3. 4 Docket 13 (Answer); Docket 21 (Defendant's Br.). 0 of the Commissioner of Social Security. 5 For the reasons set forth below, Ms. Pearson's request for relief at Docket 1 will be granted in part. I. STANDARD OF REVIEW A decision by the Commissioner to deny disability benefits will not be overturned unless it is either not supported by substantial evidence or is based upon legal error. 6 "Substantial evidence" has been defined by the United States Supreme Court as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 7 Such evidence must be "more than a mere scintilla," but may be "less than a preponderance."8 In reviewing the agency's determination, the Court considers the evidence in its entirety, weighing both the evidence that supports and that which detracts from the administrative law judge ("ALJ")'s conclusion. 9 If the evidence is susceptible to more than one rational interpretation, the ALJ's conclusion must be upheld. 10 A reviewing court may only consider the reasons provided by the ALJ in the disability determination and "may not affirm the ALJ on a ground upon which she did not rely." 11 5 42 U.S.C. § 405(g). 6 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)). 7 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 8 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975) (per curiam). 9 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 10 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)). 11 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 2 of 40 0 II. DETERMINING DISABILITY The Act provides for the payment of disability insurance to individuals who have contributed to the Social Security program and who suffer from a physical or mental disability. 12 In addition, SSI may be available to individuals who are age 65 or older, blind, or disabled, but who do not have insured status under the Act. 13 Disability is defined in the Act as follows: [I]nability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 14 The Act further provides: An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. 15 The Commissioner has established a five-step process for determining disability within the meaning of the Act. 16 A claimant bears the burden of proof at steps one through four in order to make a prima facie showing of disability. 17 If a claimant establishes a 12 42 U.S.C. § 423(a). 13 42 U.S.C. § 1381a. 14 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 15 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 16 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 17 Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d 1094, 1098 Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 3 of 40 0 prima facie case, the burden of proof then shifts to the agency at step five. 18 The Commissioner can meet this burden in two ways: "(a) by the testimony of a vocational expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2." 19 The steps, and the ALJ's findings in this case, are as follows: Step 1. Determine whether the claimant is involved in "substantial gainful activity." The ALJ concluded that Ms. Pearson has not engaged in substantial gainful activity since March 30, 2010, the alleged onset date. 20 Step 2. Determine whether the claimant has a medically severe impairment or combination of impairments. A severe impairment significantly limits a claimant's physical or mental ability to do basic work activities and does not consider age, education, or work experience. The severe impairment or combination of impairments must satisfy the twelve-month duration requirement. The ALJ determined that Ms. Pearson has the following severe impairments: spine disorder, obesity, depression, and anxiety. 21 Step 3. Determine whether the impairment is the equivalent of any of the listed impairments found in 20 C.F.R. pt. 404, subpt. P, app.1 that are so severe as to preclude substantial gainful activity. If the impairment is the equivalent of any of the listed impairments and meets the duration requirement, the claimant is conclusively presumed to be disabled. If not, the evaluation goes on to the fourth step. The ALJ determined that (9th Cir. 1999). 18 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098. 19 Tackett, 180 F.3d at 1101 (emphasis in original). 20 A.R. 17. 21 A.R. 17. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 4 of 40 0 Ms. Pearson does not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. 22 Before proceeding to step four, a claimant's residual functional capacity ("RFC") is assessed. Once determined, the RFC is used at both step four and step five. An RFC assessment is a determination of what a claimant is able to do on a sustained basis despite the limitations from her impairments, including impairments that are not severe. 23 The ALJ concluded that Ms. Pearson has the RFC to perform sedentary work with certain limitations. She "is capable of frequent climbing of ramps and stairs, frequent kneeling, crouching and crawling, but only occasional climbing of ladders/ropes/scaffolds, and occasional stooping. She must avoid concentrated exposure to extreme cold, operational control of moving machinery, unprotected heights and hazardous machinery. She must avoid even moderate exposure to excessive vibration." As to her mental RFC, "[she] is capable of simple, routine and repetitive tasks with no production-rate or pace work, and frequent (approximately two-thirds of the workday) but only superficial interaction with the public and co-workers." 24 Step 4. Determine whether the claimant is capable of performing past relevant work. At this step, the analysis considers whether past relevant work requires the performance of work-related activities that are precluded by the claimant's RFC. If the claimant can still do her past relevant work, the claimant is deemed not to be 22 A.R. 18. 23 20 C.F.R. § 404.1520(a)(4). 24 A.R. 19. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 5 of 40 0 disabled. Otherwise, the evaluation process moves to the fifth and final step. The ALJ found that Ms. Pearson is not able to perform any past relevant work. 25 Step 5. Determine whether the claimant is able to perform other work in the national economy in view of her age, education, and work experience, and in light of the RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled. Based on the testimony of the vocational expert ("VE"), the ALJ concluded that there are jobs that exist in significant numbers in the national economy that Ms. Pearson can perform, such as Cashier II (DOT 211.462-010, sedentary and unskilled, SVP 2). 26 Based on the foregoing, the ALJ concluded that Ms. Pearson was not disabled within the meaning of the Act. III. PROCEDURAL AND FACTUAL BACKGROUND Ms. Pearson was 33 years old on March 30, 2010. 27 At the November 2014 ALJ hearing, she testified that she most recently had worked for Nine Star Enterprises, helping ex-felons find employment. 28 However, the ALJ found that Ms. Pearson's earnings from Nine Star Enterprises were insufficient to constitute substantial gainful activity. 29 Ms. Pearson testified that she had discontinued working at Nine Star because her employer "could tell that I was in a lot of pain and asked me to speak with my doctor" and she "was 25 A.R. 27. 26 A.R. 28. 27 A.R. 71, 82. March 30, 2010 is the date of Ms. Pearson's alleged onset of disability. 28 A.R. 42. 29 A.R. 17. On a monthly basis, Ms. Pearson's earnings from Nine Star were less than the amount needed to constitute substantial gainful activity. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 6 of 40 0 missing a lot of time." 30 She had previously worked from 2003 to 2009 for the Municipality of Anchorage as a "travel trainer" helping people with disabilities use the bus system and at Providence Mary Conrad Center Nursing Home as a Certified Nurse's Assistant from 2000 to 2003. 31 Ms. Pearson initiated the current applications for disability benefits on November 21, 2013. 32 Ms. Pearson's disability applications alleged disability due to scoliosis, degenerative disc disease, high blood pressure, depression and anxiety. 33 After an initial denial, an administrative hearing was held in Anchorage, Alaska on November 5, 2014. 34 Ms. Pearson appeared at the hearing with her attorney. 35 The ALJ's decision was issued on April 16, 2015, and, as detailed above, held that Ms. Pearson was not disabled from the alleged onset date of March 30, 2010 through the date of the decision. 36 On August 23, 2016, the Appeals Council denied review of the ALJ's disability determination. 37 As such, the ALJ's decision is the final decision of the Social Security Administration ("SSA"). 38 Ms. Pearson filed her opening brief with this Court on March 15, 2017; she is represented by counsel. The sole issue on appeal is whether the ALJ's 30 A.R. 42-43. 31 A.R. 44–45, 252. 32 A.R. 71, 82. 33 A.R. 71, 217. 34 A.R. 15. 35 A.R. 36. 36 A.R. 29. 37 A.R. 1–3. 38 Brewes v. Comm'r Soc. Sec. Admin., 682 F.3d 1157, 1161-62 (9th Cir. 2012). Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 7 of 40 0 physical RFC determination for Ms. Pearson is based on substantial evidence when the ALJ rejected the opinion of Ms. Pearson's treating physician. 39 Summary of Medical Records of Back and Neck Pain As set forth above, Ms. Pearson maintains that the ALJ's physical RFC determination was based on the improper rejection of her treating physician, Michel Gevaert, M.D. The medical records in the record demonstrate that Ms. Pearson has scoliosis of the spine. In approximately 1988, when Ms. Pearson was a teenager, she had Harrington metal rods implanted onto her thoracic spine in an effort to correct the scoliosis. In October 2010, James Eule, M.D., performed nerve root decompression surgery on Ms. Pearson's right lumbar spine. 40 She has also had multiple epidural steroid injections to relieve back and neck pain. 41 Ms. Pearson has been prescribed oral pain medications, including hydrocodone-based pain medications, muscle relaxants and arthritis medications. 42 In early 2012, Ms. Pearson attended multiple physical therapy sessions to address her pain. 43 She has also had MRIs, x-rays, and a CT scan of her spine. 44 The record also contains mental health treatment records which the Court has considered insofar as they reference Ms. Pearson's physical pain reports. 45 On October 39 Docket 15 at 13. Ms. Pearson 40 A.R. 526.7. 41 A.R. 277, 307, 310, 444, 582. 42 A.R. 260, 264–65, 292, 298, 498, 501, 589, 642–48. 43 A.R. 285, 544, 547–49, 551–56, 560–61, 563. 44 A.R. 321, 323, 574, 622–23. 45 For example, A.R. 291, 402–03, 411, 413–16, 419, 424, 454, 462–64. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 8 of 40 0 6, 2014, Dr. Gevaert completed a Residual Functional Capacity Questionnaire in which he opined that Ms. Pearson was not physically capable of working on a full time basis.46 On October 21, 2014, a provider from Orthopedic Physicians Anchorage {"OPA") opined, without explanation, that Ms. Pearson was "Totally Disabled." 47 The administrative record includes the following records addressing Ms. Pearson's physical condition: On May 12, 2010, Ms. Pearson saw Sharon Sturley, PA-C, at OPA for low back pain. Upon examination, Ms. Sturley noted, "There is no tenderness to palpation midline. She is tender along the paraspinous muscles on the right lower back and into the right buttock. Straight leg raises are negative. Strength is 5/5. EHL [Extensor Hallucis Longus] is 5/5. Sensation is intact to light touch. I was unable to elicit reflexes in the patellar and ankle bilaterally. She is able to get up on her toes and heels without difficulty". Ms. Sturley prescribed physical therapy as well as Flexeril and Vicodin. 48 On May 26, 2010, Ms. Sturley again saw Ms. Pearson, who returned reporting severe right buttock pain. Ms. Sturley noted that Ms. Pearson "has decreased leg extension strength on the right as compared to the left," her "EHL [Extensor Hallucis 46 A.R. 593–95. 47 A.R. 654. Ms. Pearson asserts that James Eule, M.D., completed the form. Docket 15 at 14– 15. The completer of the form indicated "Eval[uation] with Dr. Eule soon." A.R. 654. 48 A.R. 509–10. Flexeril is used to treat muscle spasms. https://www.webmd.com/drugs/2/drug- 11372/flexeril-oral/details (last visited December 1, 2017). Vicodin is used to relieve moderate to severe pain. https://www.webmd.com/drugs/2/drug-251/hydrocodone-acetaminophen-oral/ (last visited December 1, 2017). Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 9 of 40 0 Longus] is minimally decreased on the right as compared to the left," and "sensation is intact to light touch."49 On June 24, 2010, Ms. Pearson again visited Ms. Sturley and reported right buttock and hip pain. The record notes that Ms. Pearson "underwent an L5-S1 epidural steroid injection on the right on May 27, 2010" and that Ms. Pearson reported that "this provided her with significant relief; however, she continues to have severe right buttock pain, particularly after physical therapy or a full day of work." 50 On August 8, 2010, Ms. Pearson received an MRI of the lumbar spine. The MRI showed "[d]isc degeneration L2 through L5. No significant stenosis of the canal at any level. There is some disc protrusion of the right neural foramen at L4-5 but it does not compromise the nerve root. The canal is not stenosed at that level. There is a small herniation into the right lateral recess L5-S1 and it does contact and slightly displace the SI root on the right posteriorly but it does not appear to compress it." 51 Ms. Pearson saw James Eule, M.D., at OPA to discuss the MRI on August 13, 2010. He ordered a lumbar epidural steroid injection for Ms. Pearson's right side. 52 On August 24, 2010, Ms. Pearson received the steroid injection. 53 Dr. Eule also referred Ms. Pearson to Michael Gevaert, M.D., of Alaska Spine Institute, for a nerve conduction study, which Dr. Gevaert performed on September 14, 49 A.R. 508. 50 A.R. 507. 51 A.R. 520. 52 A.R. 504. 53 A.R. 537. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 10 of 40 0 2010. From that study, Dr. Gevaert concluded that Ms. Pearson had "[s]ubacute and chronic L5 radiculopathy." 54 On September 21, 2010, Ms. Pearson returned to Dr. Eule, reporting continuing right hip pain. Dr. Eule concluded that "[Ms. Pearson] has failed conservative treatment and this has been going on for a long time. I think it warrants doing a right L5 nerve root decompression and she is in agreement."55 On October 27, 2010, Dr. Eule performed the "right L5 nerve root decompression through L4-5 laminatomy on the right." 56 Dr. Eule's discharge summary noted that "[a]t the time of her discharge, she had complete resolution of her leg pain. Her back pain was well controlled on oral pain medication."57 On November 9, 2010, Edward Voke, M.D., another physician at OPA, saw Ms. Pearson. She reported "no leg pain and some low back pain." The doctor noted that she "can sit, stand, and walk without too much difficulty," but that she "does have some discomfort at night." He prescribed Percocet for pain. 58 On December 7, 2010, Ms. Pearson saw Dr. Eule. Ms. Pearson reported her leg pain "is completely gone," but her back pain "is still sore at this point." The doctor 54 A.R. 267. 55 A.R. 503. 56 A.R. 517. 57 A.R. 526. 58 A.R. 501. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 11 of 40 0 concluded, "we need to get her into some physical therapy and get her moving" in order to help the back pain. 59 On February 18, 2011, Ms. Pearson saw Sarah Dewane, a psychologist at Providence Family Medicine Center, for depression and PTSD. Ms. Dewane noted that Ms. Pearson experienced many stressors, including chronic pain from multiple surgeries. At that visit, Ms. Pearson reported a higher level of pain in the last week. She stated she "only experiences pain when standing or walking" but she "feels guilty over her leg hurting and does not want to face [her doctor] to tell him that the surgery was only partially successful."60 On March 8, 2011, Dr. Eule again saw Ms. Pearson, who complained of pain in her buttocks and pain in her back that "has gotten a little bit worse." On examination, the doctor noted that "she is completely neurologically intact in bilateral lower extremities. I cannot palpate any significant tenderness or abnormalities." Dr. Eule reviewed Ms. Pearson's x-rays and MRI, "which show she has a previous scoliosis above. She has some mild degenerative changes throughout. No other obvious disc herniations or gross abnormalities." Dr. Eule concluded, "We are going to try to do selective nerve root blocks because it seems like she has some residual of that nerve root. With her degenerative scoliosis it really makes it very complicated."61 59 A.R. 500. 60 A.R. 462–64. 61 A.R. 499. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 12 of 40 0 On March 17, 2011, the surgical staff at the Alaska Spine Institute Surgery Center, including Dr. Gevaert, performed a lumbar selective nerve root block on Ms. Pearson for "Lumbago, Status Post Nerve Root Decompression." 62 At a counselling visit with Ms. Dewane on March 31, 2011, Ms. Pearson reported "improvements in physical pain due to better sleep and effective pain medication" and that she was "able to exercise and do activities with her children due to better self- management of her pain." 63 On April 21, 2011, Dr. Eule again saw Ms. Pearson. Ms. Pearson reported that her recent nerve root block "really did not do anything, but she has been getting more and more active and actually feels a lot better now that she has been active." On examination, she was neurologically intact. Ms. Pearson reported she had not gone to physical therapy. Dr. Eule again recommended physical therapy, but Ms. Pearson stated she was "not interested" in it. Dr. Eule refilled her Norco prescription. 64 In early 2012, Ms. Pearson attended physical therapy. On January 11, 2012, Ms. Pearson had an initial evaluation with Tarah Sweeney, a physical therapist at Rebound Sports and Orthopedic Physical Therapy. Ms. Pearson reported chronic lower back pain "that has gotten significantly worse in the last 5 mo(nths), since the birth of her child." She also reported "difficulty ambulating, standing, and sitting" for more than one hour. On assessment, Ms. Pearson "present[ed] with a hypermobile low back with decreased 62 A.R. 277. 63 A.R. 454. 64 A.R. 498. Norco is a pain medication containing hydrocodone and acetaminophen. See https://www.webmd.com/drugs/2/drug-63/norco-oral/details (last visited December 1, 2017). Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 13 of 40 0 abdominal and hip strength. She does present with radicular pain and general weakness, however, she does not have any specific weakness at this time that would [be] indicative of nerve damage. She would benefit from physical therapy consisting of therapeutic exercise, manual therapy, aquatic therapy and modalities as needed for pain. Her prognosis is good for significant improvement, however, she does have predisposing factors that may affect her long term outcome, such as scoliosis."65 On January 16, January 18 and January 20, Ms. Pearson attended physical therapy sessions with Ms. Sweeney. Ms. Pearson reported that she was "mildly sore" and had "some pain" in her hip area after therapy, but also that she was "feeling much better." 66 On January 24, 2012, Ms. Pearson went to Providence Family Medicine Center, her primary care provider, reporting right sacroiliac ("SI") pain. She received an SI joint injection. 67 On January 27, 2012, Ms. Pearson went to physical therapy and reported that the "shot was not effective" and that she was "fatigued, still sore, but in no increased pain." 68 On January 30, 2012, Ms. Pearson again attended physical therapy and reported no increase in pain as a result of the physical therapy. 69 65 A.R. 285. 66 A.R. 547–49. 67 A.R. 444. 68 A.R. 550. 69 A.R. 551. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 14 of 40 0 On February 1, 2012, Ms. Pearson went to Dr. Gevaert at Alaska Spine Institute. 70 She reported "multiple pain complaints." She indicated she wanted Dr. Gevaert to "take over her pain medication management once again as it is difficult to get in with Dr. Eule." She also reported "right-sided intermittent neck pain," "pain in the midthoracic spine, more on the right than the left," as well as pain "in her lower back." She reported no "radiating symptoms into her lowers." On examination, the doctor noted that "[m]anual motor strength testing of the lowers reveals slightly decreased strength with right knee flexion and right foot plantarflexion;" "[r]ange of motion about the cervical and lumbar spine was intact;" and "[m]ild pain to palpation over the right greater trochanteric bursa and right SI joint." Her "gait and station" were reported as "functional." Dr. Gevaert concluded, "As her pain seemed to be truly chronic in nature due to her scoliosis, we may consider in the future starting her on morphine." At that visit, in addition to hydrocodone, Dr. Gevaert prescribed a trial of meloxicam, a pain relief medicine that is used to relieve common arthritis symptoms. He also prescribed Zanaflex, a muscle relaxant, for neck spasms. 71 On February 8, February 10, February 15, February 22, and February 24, 2012, Ms. Pearson attended physical therapy. She reported "baseline pain" but also reported she was "doing well" with no increased pain. 72 70 The Administrative Record reflects that Ms. Pearson had been previously seen on several occasions beginning in March 2009 by Dr. Gevaert as a referral from PFMC for chronic pain management. A.R. 270-76. 71 A.R. 264–65. See also https://www.webmd.com/drugs/2/drug-911/meloxicam-oral/details and https://www.webmd.com/drugs/2/drug-14706/zanaflex-oral/details (last visited December 1, 2017). 72 A.R. 551–56. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 15 of 40 0 On March 2, 2012, Ms. Pearson saw Dr. Gevaert again. She reported that she was doing somewhat better than the prior month's visit. She indicated she had "attended physical therapy and believes that this is helping somewhat with her pain and is increasing her energy." She added she was "very happy with the medications she is on and expresses that she is able to be more active than before." Ms. Pearson reported "some muscle weakness in the right leg after she walks for approximately one hour or more." On examination, Dr. Gevaert did not "appreciate any muscle weakness in her right leg" and "suspect[ed] the patient has some muscle weakness due to altered body mechanics." He recorded her past medical history as "[s]coliosis with Harrington rods placed in approximately 1988, nerve decompression surgery in 2010, bariatric surgery in 2001, cholecystectomy in 1997, hiatal hernia removed in 2007, two C-sections in 2010 and 2011 and tubal ligation in 2011." 73 Ms. Pearson attended two physical therapy sessions in March 2012 and reported pain between 3/10 and 5/10 at that time. 74 On April 6, 2012, Ms. Pearson again saw Dr. Gevaert. He noted that '[d]uring her pregnancy [in 2011] she was taken off all opiods and was experiencing severe low back pain. She became very debilitated." 75 He added, "[s]he is now going through a course of physical therapy which she likes a lot." Also on April 6, 2012, physical therapy records 73 A.R. 262–63. 74 A.R. 560–61. 75 A.R. 261. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 16 of 40 0 show that Ms. Pearson was able to perform the therapeutic exercises with less breaks and less fatigue. 76 On April 10, 2012, Ms. Pearson was discharged from physical therapy. "[Ms. Pearson] has had a significant increase in her ability to perform activity and pain-free ROM [range of motion]." The report stated that Ms. Pearson "has met her goals of taking care of her children and is now performing all preferred and non-preferred activities without difficulty. She reports pain of 3/10 that is not affected by activity but is constant in her [lower back]." 77 On July 24, 2012, Ms. Pearson saw Dr. Gevaert for reevaluation. Ms. Pearson reported that she had run out of hydrocodone early and "has been experiencing a lot more pain." She added that she was working full time and caring for five children. She presented with "[n]ormal gait and station."78 On September 12, 2012, Dr. Gevaert again evaluated Ms. Pearson. He observed "[a]ctive flexion is somewhat diminished" and "no thoracic rotation." He also noted "[l]eft lateral bending causes right sacroiliac pain" and "left lateral bending is slightly limited." Ms. Pearson was observed to rise "from a standard chair without significant effort." On that date, Dr. Gevaert completed an "Attending Doctor's Return to Work Recommendations" form that indicated Ms. Pearson could return to "sedentary work" without limitations and would be reevaluated on November 12, 2012. 79 76 A.R. 563. 77 A.R. 544. 78 A.R. 260. 79 A.R. 258-59. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 17 of 40 0 From November 7, 2012 through December 12, 2012, Ms. Pearson saw Kelley Tompkins of Providence Family Medicine Center for counseling. Ms. Tomkins's assessment noted "that Ms. Pearson acknowledged that pain will always be a part of her life," and that Ms. Pearson "appears motivated to practice pain management techniques." Ms. Tomkins also noted that Ms. Pearson's "pain appears to impact her stress level, which results in her feeling more depressed." 80 On November 12, 2012, Ms. Pearson again saw Dr. Gevaert. The doctor noted that Ms. Pearson was "not doing well and had been "experiencing severe neck pain and back pain," which Ms. Pearson related to a fall on November 3, 2012, in which she slipped on the ice and landed on her head. An "[e]xamination of the lumbar spine reveals markedly reduced range of motion without overt radicular symptoms." Ms. Pearson rated her neck and back pain at this visit at 8 out of 10. However, the doctor also noted "[n]ormal gait and station" and a "[n]egative Spurling's response." The doctor prescribed a one- time increase in Ms. Pearson's hydrocodone, up to 90 pills instead of 60 for the next two months. 81 On December 20, 2012, Susan Hayner, M.D., at Providence Family Medicine Center ("PFMC") saw Ms. Pearson who reported concerns regarding recent weight gain. Ms. Pearson reported that she was exercising on the treadmill, working with yoga balls, 80 A.R. 415-416, 419, 424. 81 A.R. 298. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 18 of 40 0 shoveling, doing household chores, school work, and job searching. On examination, Ms. Pearson exhibited normal range of motion with no edema and no tenderness. 82 On January 13, 2013, Ms. Pearson saw Ms. Dewane for counseling. Ms. Dewane assessed Ms. Pearson with depression disorder and PTSD (per history). She assessed Ms. Pearson as "unable to work due to pain; moderate depressive symptoms." 83 On January 16, 2013, Ms. Pearson returned to Dr. Gevaert. She reported "increasing intrascapular pain as well as increasing pain in the lumbosacral junction. The symptoms are worse with bending, lifting and twisting." However, she "denie[d] radicular symptoms in either upper or lower extremities" and "report[ed] normal balance." Dr. Gevaert ordered imaging studies of Ms. Pearson's spine. 84 On January 25, 2013, an MRI of the lumbar spine showed "some degree of scoliosis." In addition, "[p]osterior protrusion of disc L2, L3, and moderately at L4 and L5" was noted, as well as "[h]erniation into the lateral recess L5-S1 with effacement and displacement of right S1 root."85 On January 30, 2013, a CT scan of the thoracic spine showed: "1. There is an extensive biconvex thoracolumbar scoliotic curve with right thoracic and left lumbar curvature. 2. Harrington rods are in place and extend from T3-L1 on the right and T4-L2 on the left. Hardware is intact and in good position. 3. There is an extensive posterior fusion which appears to be solid. 4. There is no central or foraminal stenosis from 82 A.R. 411, 413. 83 A.R. 414. 84 A.R. 297. 85 A.R. 323. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 19 of 40 0 osteophyte formation. Note that protrusions cannot be excluded. This assessment is difficult because of metal artifact from surgical hardware. 5. No fractures are defined. There are no infectious abnormalities." 86 On February 13, 2013, Ms. Pearson again saw Dr. Gevaert. She reported continuing "baseline mid thoracic pain and episodic exacerbation of her low back pain." Dr. Gevaert's record also noted that the "CT shows stable Harrington rods confirmed with the scoliosis. MRI of the lumbar spine shows disc herniation at L4-5 and L5-S1." Dr. Gevaert discussed therapeutic options with Ms. Pearson but noted that she was "going to school and appears to be too busy to proceed with physical therapy at least at this juncture. She will continue a self-directed exercise program which includes swimming."87 At a visit on April 18, 2013, Dr. Gevaert noted that in the past 6 months Ms. Pearson "has been experiencing increasing pain in the low back and lumbosacral junction." He referenced the "MRI of the lumbar spine [that] was carried out on January 25, 2013 which shows L4-5 laminotomy and evidence of herniation in the right L4-5 adjacent to the L4 nerve root and herniation to the lateral recess at L5-S1 with displacement of the right S1 nerve root." On examination, Ms. Pearson demonstrated "nearly full flexion" with 5/5 strength of all major muscle groups. Dr. Gevaert ordered an epidural steroid injection. 88 86 A.R. 321. 87 A.R. 296. 88 A.R. 294. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 20 of 40 0 Also on April 18, 2013, Dr. Gevaert completed an "Attending Doctor's Return to Work Recommendations" form. On that date, he indicated that "[p]atient is totally incapacitated at this time," and would be reevaluated on April 22-23, 2013. 89 On April 22, 2013 and again on August 9, 2013, Ms. Pearson received steroid injections to her lumbar spine. 90 The next record of a visit by Ms. Pearson to Dr. Gevaert is on August 28, 2013. Ms. Pearson reported "over 60% improvement following her last epidural steroid injection." Ms. Pearson also indicated that she had had recent, severe neck pain, but it had improved. On examination, "[r]ange of motion of both shoulders is full" with no impingement or instability. Ms. Pearson reported some continuing pain in her neck, which she attributed to "sitting at a computer all day." 91 At an October 23, 2013 visit, Ms. Pearson reported to Dr. Gevaert that she "has a clerical job but has incurred a lot of time loss due to persistent symptoms" and that she "would like to apply for social security disability." On examination, Dr. Gevaert noted that Ms. Pearson "looks exhausted," "exhibits poor eye contact," and "presents with normal short and long term memory but has a flat affect." He added that she "rises from a standard chair with significant effort." He concluded, "I believe it is reasonable for her to apply for social security disability." Her prescribed medications at this visit were Norco 89 A.R. 295. 90 A.R. 307, 310. 91 A.R. 293. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 21 of 40 0 (acetaminophen/hydrocodone), Ultram (tramadol), Wellbutrin (antidepressant), trazodone (antidepressant), and hydrochlorothiazide (diuretic and antihypertensive). 92 On December 17, 2013, Ms. Pearson saw Dr. Hayner of PFMC for "follow up of her mood." Dr. Hayner noted that Ms. Pearson "has recently had a difficult time with her anxiety due to personal circumstances surrounding her job, finances and increased back pain with the need for more surgery early in 2014."93 The intended surgery was for abdominal skin removal related to Ms. Pearson's 2001 gastric bypass surgery, pregnancies, and subsequent weight loss. At a visit on December 19, 2013 with Dr. Gevaert, Ms. Pearson reported "low back pain and pain referral in the right lower extremity." Ms. Pearson reported that "[s]he also experiences numbness in the right leg when she is lying supine on her back." She also complained of new onset left knee pain. The doctor noted that Ms. Pearson's affect "remains altered" and she "remains depressed despite antidepressant medication."94 On February 26, 2014, Ms. Pearson again saw Dr. Gevaert. Ms. Pearson reported "experiencing a lot of abdominal wall pain" following the abdominoplasty surgery. Dr. Gevaert prescribed Percocet for "postoperative pain." 95 At her April 29, 2014 visit to Dr. Gevaert, Ms. Pearson reported "increasing neck pain," but "back pain remains unchanged." She rated her pain between 6 and 8 out of 92 A.R. 292, See https://www.drugs.com/Norco/Ultram/Wellbutrin/trazodone/hydrochlorothiazide (last visited December 1, 2017). 93 A.R. 402-03. 94 A.R. 291. 95 A.R. 589. See also https://www.webmd.com/drugs/2/drug-7277/percocet-oral/details (last visited December 1, 2017). Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 22 of 40 0 10. She added that her "symptoms are worse when at work." She "denies pain referral in the upper extremities" and "denies weakness or numbness in the upper extremities." She reported her "[n]eck pain is worse at nighttime and with prolonged sitting" and "[i]t is alleviated with pain medications." On examination, Ms. Pearson demonstrated nearly full range of motion on all planes of the cervical spine, but "[n]eck extension causes pain in the mid cervical region radiating into the right intrascapular area." The strength of major muscle groups was 5/5 throughout. 96 An MRI on May 2, 2014 showed "[d]egenerative changes at multiple levels, most severe at C3 and C5." The radiologist also indicated that "[t]here is mild central stenosis at each of those levels with slight effacement of the cord. No neural foraminal encroachment at any level." 97 On May 16, 2014, Dr. Gevaert administered a steroid injection to Ms. Pearson's cervical spine. 98 On May 23, 2014, Dr. Gevaert completed a "Work Status Report" form and marked that Ms. Pearson was "[t]otally disabled for work" from May 16 to May 25, 2014. 99 On June 6, 2014, Ms. Pearson again saw Dr. Gevaert. At that visit, she reported "over 50% improvement of her symptoms" as a result of the recent steroid injection. But she also reported "increasing back pain" due to recently falling off a chair at work; she indicated her employer had referred her to Dr. Gevaert for an additional visit for that 96 A.R. 588. 97 A.R. 574. 98 A.R. 582. 99 A.R. 581. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 23 of 40 0 reason. However, Ms. Pearson reported that she "feels a lot better" and "is ready to go back to work." The doctor noted that Ms. Pearson "appears ready to go back to work," but he advised Ms. Pearson "to take it easy" and "not to sit more than 30 minutes uninterrupted." He noted that her "[r]ange of motion of the cervical spine is somewhat diminished in all planes with negative Spurling's response. 100 Ms. Pearson returned to Dr. Gevaert on August 13, 2014. Ms. Pearson reported that she "remains with significant back pain and neck pain," but that "[s]he is doing well with her present regimen. She remains functional and is volunteering 20 hours per week." The doctor noted that she had "[c]hronic neck pain with degenerative disc disease C3- C5" as well as "[s]coliosis status post T3-L2 fusion, doing well since 1987." 101 On September 1, September 15, and October 8, 2014, Ms. Pearson was evaluated for chronic pain by Jessica Spayd, MSN, ANP, at Eagle River Pain and Wellness. The record at each visit indicated that Ms. Pearson reported "constant aching back pain that is sharp in nature," that she "is unable to manage her pain on hydrocodone" and her "pain is elevated and she is taking some additional medications." She reported her pain to range from 5 to 8 out of 10. On functionality, the records also note that Ms. Pearson was "presently able to care for five children and volunteer. Hoping to secure a full time job." On physical examination, a "mildly painful demeanor" was noted. The pain clinic prescribed additional hydrocodone to Ms. Pearson. 102 100 A.R. 580. 101 A.R. 579. 102 A.R. 642–648. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 24 of 40 0 On September 16, 2014, Ms. Pearson returned to Alaska Spine Institute, where she was seen by Shawna Wilson, ANP-C, FNP. Ms. Pearson reported that "she has continued to have neck pain with headache and referral into the base of her shoulder, which at this point she reports is intolerable." On examination, Ms. Wilson found that "[Ms. Pearson] has restricted range of motion of the cervical spine markedly with forward flexion and left rotations. She has a negative classic Spurling's bilaterally. Upper extremity strength is normal to manual testing". The clinician noted that Ms. Pearson was then "obtaining her pain medication through Jessica Spayd." She referred Ms. Pearson to Dr. Eule for "consideration of hopeful surgical intervention," and noted she could return to the Alaska Spine Institute on an "as-needed basis."103 On October 2, 2014, James Glenn, PA-C, at Dr. Eule's office, OPA, evaluated further treatment options for Ms. Pearson's cervical spine for Medicaid purposes. On physical examination, Mr. Glenn observed that "she can walk around the examination room without significant difficulty or need for assistance. She can get up on her toes and rock back on her heels. Romberg sign is negative. She can heel to toe walk without difficulty." He also noted that "[r]ange of motion of the cervical spine is full, however with pain and some referral symptoms into the right trapezius with right rotation and left rotation as well as some centralized cervical spine pain with forward flexion." PA Glenn observed "[m]anual muscle strength testing in the upper extremities is 5/5 without focalized weakness." X-rays of Ms. Pearson's cervical spine taken on the day of the evaluation showed "seven well formed cervical vertebrae," with an "almost domed 103 A.R. 576–77. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 25 of 40 0 appearance of C2 endplate with a little bit of protuberance over the superior endplate of C3." PA Glenn also reviewed the May 2, 2014 MRI of the cervical spine; he observed that "the worst area seems to be at the C3-4 and C4-5 levels where there is neuroforaminal narrowing and central canal spinal stenosis." PA Glenn also noted that the epidural steroid injection provided by Dr. Gevaert gave Ms. Pearson "50% relief for about 6-8 weeks, which is actually pretty good and she does not particularly want to go forth with another of this type due to a short duration." He proposed a selective nerve root block at the right C4 and right C5. He added, "if she does not get significant relief with the second injection then we will most likely have her see Dr. Eule for surgical options." A copy of PA Glenn's evaluation was provided to Dr. Gevaert. 104 On October 6, 2014, Dr. Gevaert completed a Residual Functional Capacity Questionnaire at the request of Ms. Pearson's disability attorney. Dr. Gevaert stated he had been treating Ms. Pearson since 2008. 105 He diagnosed Ms. Pearson with scoliosis, fusion of T3-L2, and chronic neck and lower back pain. He reported her symptoms as chronic neck to thoracic back and nerve pain. Dr. Gevaert identified drowsiness as a side effect of her medications "which may impact [Ms. Pearson's] capacity for work." He indicated that Ms. Pearson's impairments were severe enough to "frequently" interfere "with the attention and concentration necessary to perform simple tasks at work" and she would need to take two to three unscheduled breaks of 20 to 30 minutes each during an 8-hour workday. He also opined that during an 8-hour workday, Ms. Pearson would be 104 A.R. 622–23. 105 Ms. Pearson's earliest visit to Dr. Gevaert in the record is March 9, 2009. A.R. 274. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 26 of 40 0 able to sit for a total of 4 hours and stand or walk for a total of 1 hour. He opined she could lift less than 10 pounds frequently, and 10 pounds occasionally. Dr. Gevaert also opined that Ms. Pearson would likely be absent from work three or four times a month due to her impairments or treatments. He concluded that Ms. Pearson was not physically capable of working an 8 hour day, 5 days a week on a sustained basis. Dr. Gevaert also opined that Ms. Pearson has had "the limitations and restrictions outlined in the Residual Functional Capacity Questionnaire since 2008." 106 On October 21, 2014, a provider from Orthopedic Physicians Anchorage completed a "Disability Status" form that indicated without comment or explanation that Ms. Pearson was "Totally Disabled" and that she would have an evaluation with Dr. Eule soon. 107 Other Relevant Medical Records On November 16, 2010, Ms. Pearson went to the emergency room at Alaska Regional Hospital with vomiting, abdominal pain, and diarrhea. She also reported she had recently had back surgery and that she had "moderate" back pain at that time. She was given fluids, Zofran, and morphine. She was discharged approximately three hours later, indicating she felt "much better." 108 At a postpartum emergency room visit on December 13, 2011, Ms. Pearson was admitted for observation following "[p]ersistent severe hypertension postpartum, probable 106 A.R. 593–95. 107 A.R. 654. Ms. Pearson asserts that Dr. Eule completed the form. Docket 15 at 14–15. 108 A.R. 689–694. Zofran is a medication used to prevent nausea and vomiting. See https://www.webmd.com/drugs/2/drug-30/zofran-oral/details (last visited December 1, 2017). Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 27 of 40 0 persistent preeclampsia." She also reported back pain and indicated she had run out of Percocet. Chung Mea Ha, M.D., noted that her "blood pressures are severe even on blood pressure medication" and "may be related to lack of adequate pain control, but this is best assessed in the hospital under supervision." 109 On December 17, 2011, Ms. Pearson went to the emergency room at Alaska Regional Hospital for vomiting, diarrhea, and abdominal cramps. She reported no back pain; her neck was reported as "normal" and "supple." 110 Ms. Pearson saw Juliana Shields, M.D., at PFMC for right hip pain on January 3, 2012. Dr. Shields observed that Ms. Pearson had an antalgic gait and "pain with compression of the SI joint both laterally and anteriorly." Ms. Pearson reported that she attributed the hip pain to sleeping on a mattress on the floor and that the "[p]ain is not radiating. Hurts most in the morning, feels better after moving around. Has been taking ibuprofen for it and taking hot baths[,] using heating pads." 111 At a follow up visit on January 10, 2012, Ms. Pearson reported she was "feeling better." 112 Third Party Reports On January 9, 2014, Ms. Pearson's sister completed a third party function report regarding Ms. Pearson. The sister stated that Ms. Pearson "can barely walk and is always in pain." The sister described Ms. Pearson's days as follows: "She brings her children to my house so they can go to school. She goes to work and picks them up when she gets 109 A.R. 676. 110 A.R. 665–666. 111 A.R. 449-51. 112 A.R. 447. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 28 of 40 0 off work and goes home." Her sister noted that "[i]t seems like any movement causes her pain and can never get comfortable even when sitting." The sister reported Ms. Pearson does her own housework, but that sometimes the sister and their mother help "when she is in extreme pain." She indicated Ms. Pearson prepares her children's snacks and full meals on a daily basis and goes grocery shopping. She wrote that "[Ms. Pearson] can't sleep usually due to her pain." 113 On September 29, 2014, Susan Hayner, M.D., of PFMC signed an Alaska Housing Finance Corporation Disability Certification form that stated Ms. Pearson qualified as a person with disabilities under that program. 114 IV. DISCUSSION Ms. Pearson asserts that the "physical RFC determination is not supported by substantial evidence because the ALJ failed to provide good reasons supported by substantial evidence for rejecting the opinion from her treating physician Dr. Gevaert and failed to rely on any other contrary medical opinion."115 She requests that "this matter be remanded for the purposes of calculating benefits pursuant to the credit-as-true rule" or alternatively, requests a remand to the agency for further proceedings. 116 The Commissioner argues that "[t]he ALJ did not err in evaluating the medical opinion evidence or in assessing the claimant's residual functional capacity (RFC) because she 113 A.R. 225–230. 114 A.R. 657. 115 Docket 15 at 13. 116 Docket 15 at 21. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 29 of 40 0 incorporated all credible limitations therein" 117 and "even if the ALJ erred, a remand for further proceedings would be the appropriate remedy in this case." 118 A. Dr. Gevaert's Opinion "Regardless of its source, [the SSA] will evaluate every medical opinion [it] receive[s]." 119 Medical opinions come from three types of sources: those who treat the claimant; those who examine but do not treat the claimant; and those who neither examine nor treat the claimant. "As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant." 120 Indeed, if the treating source's opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence" in the record, that opinion will be given controlling weight. 121 However, the ALJ is responsible for determining credibility and resolving conflicts and ambiguities in medical testimony. 122 Therefore, in some cases, a treating source's opinion may not be entitled to the greatest weight. But in the Ninth Circuit, "an ALJ may reject a treating doctor's medical opinion," if no other doctor has contradicted it, "only for 117 Docket 21 at 9. 118 Docket 21 at 4. 119 20 C.F.R. § 416.927(c). Section 416.927 applies to SSI claims filed before March 27, 2017. Ms. Pearson initially filed her application for disability on November 21, 2013; accordingly, the Court applies § 416.927 to her claim. 120 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). 121 20 C.F.R. § 416.927(c)(2). 122 Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 30 of 40 0 'clear and convincing' reasons supported by substantial evidence." 123 "If a treating physician's opinion is not given 'controlling weight' because it is not 'well-supported' or because it is inconsistent with other substantial evidence in the record, the [SSA] considers specified factors in determining the weight it will be given." 124 The factors the ALJ should consider include: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including whether the opinion is within the source's area of specialization; (3) the supportability of the opinion through relevant evidence, such as medical signs and laboratory results; and (4) other relevant factors, such as the medical source's degree of familiarity with the SSA's disability process and with other information in the claimant's record. 125 Applying these factors means that "[i]n many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight." 126 123 Id. at 517 (citing Reddick, 157 F.3d at 725). 124 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); see also Garrison v. Colvin, 759 F.3d 995, 1012 n.11, 1013 (9th Cir. 2014) (finding the ALJ by erred because "she failed to afford the deference to which [Dr.] Wang was presumptively entitled under both Social Security regulations and [Ninth Circuit] precedent"); 125 20 C.F.R. §§404.1527(c)(2), 416.927(c)(2). These sections apply to claims filed before March 27, 2017 (See §§ 404.614, 416.325). 126 Orn, 495 F.3d at 631 (citing SSR 96-2p, 1996 WL 374188 (July 2, 1996)); see also Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017) (ALJ's outright rejection of treating physician's opinion legally erroneous where ALJ failed to apply the appropriate factors in determining extent to which opinion should be credited). SSR 96-2p was rescinded by Federal Register Notice Vol. 82, No. 57, Page 15263, effective March 27, 2017. But because Ms. Pearson submitted her applications for disability prior to the ruling being rescinded, the Court will apply the ruling to Ms. Pearson's claim. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 31 of 40 0 Here, the ALJ found that Dr. Gevaert was a treating physician. The ALJ noted Dr. Gevaert's October 6, 2014 physical capacity assessment, but found that "the doctor's opinion that claimant is totally disabled [to be] unsupported, and therefore give it little weight." 127 The ALJ gave the following reasons for according Dr. Gevaert's opinion little weight: (1) "the doctor's assessment did not identify any clinical findings or objective signs to support the opinion of inability to work'; (2) the "opinion is not consistent with claimant's treating records and exam notes, discussed above (e.g. some active trigger points but normal full motor strength in extremities, no problems with gait or range of motion, no signs of nerve impingement or joint instability)"; and (3) the opinion "is further inconsistent with the claimant's range of activities, discussed above (e.g., no problem with basic activities of daily living; able to maintain household and care for six [sic] children as single parent." 128 Here, the opinions of Dr. Gevaert were uncontradicted by other health care providers. 129 Although an ALJ may reject the uncontradicted opinion of a treating physician, the ALJ may do so "only for 'clear and convincing' reasons supported of substantial evidence." 130 In particular, an ALJ may discredit a treating source's opinions that are "conclusory, brief, and unsupported by the record as a whole or by objective 127 A.R. 25. 128 A.R. 25. 129 The record does contain a State agency physical residual functional capacity assessment by a single decisionmaker, under agency policy, a single decision maker assessment is an adjudicatory document only, and is not accorded any evidentiary weight. See A.R. 25. 130 Lewis, 236 F.3d at 517 (citing Reddick, 157 F.3d at 725). Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 32 of 40 0 medical findings." 131 But an ALJ must do more than just offer her own conclusions; instead, "[s]he must set forth h[er] own interpretations and explain why they, rather than the doctors', are correct." 132 Moreover, although the ALJ is not required to accept a treating physician's opinions, physicians may render opinions on the ultimate issue of disability. 133 Dr. Gevaert saw Ms. Pearson almost 20 times for pain management and lumbar injections between 2010 and 2014. He was therefore one of her treating physicians. 134 His opinion regarding Ms. Pearson's functional capabilities was not directly contradicted by any other treating or examining physician. 135 Dr. Gevaert specializes in the diagnosis and non-surgical treatment of neck and back pain. 136 However, the ALJ gave "little weight" to Dr. Gevaert's physical capacity assessment. The ALJ's rejection of Dr. Gevaert's disability opinion was legally erroneous. First, the ALJ failed to address the appropriate factors in determining the extent to which the opinion should be credited. The ALJ did address the supportability in the record for the doctor's opinion. But the ALJ did not address the other pertinent factors: the length of the 131 Burrell, 775 F.3d at 1140 (emphasis omitted) (quoting Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)). 132 Reddick, 157 F.3d at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988)). 133 See 20 C.F.R. §§ 404.1527(a), 416.927(a). See also Montijo v. Sec. of Health and Human Serv., 729 F.2d 599, 601 (9th Cir. 1984); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). 134 See 20 C.F.R. §§ 404.1527(a), 416.927(a). The rules in these sections apply to this claim because it was filed before March 27, 2017. 135 A.R. 25. The ALJ noted that state agency physical RFC assessment was an adjudicatory document; therefore, pursuant to agency policy the ALJ accorded it no weight. 136 See http://www.alaskaspineinstitute.com/physicians/michel-l-gevaert-md. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 33 of 40 0 treatment relationship, the frequency of examination, the nature and extent of the treatment relationship, or the doctor's area of specialization. This failure alone constitutes reversible legal error. 137 Moreover, the ALJ did not provide the requisite "clear and convincing" reasons for rejecting Dr. Gevaert's opinion. The ALJ found that Dr. Gevaert did not "identify any clinical findings or objective signs" to support his opinion. 138 But while in the opinion questionnaire, the doctor did not cite the MRIs, x-rays, examination records or CT scans that supported his disability opinion, Dr. Gevaert had ordered of performed many of those tests and his records demonstrate he had reviewed such objective medical evidence in forming his opinions. And the record demonstrates that after each of Ms. Pearson's appointments, Dr. Gevaert made detailed notes of the visit, including Ms. Pearson's complaints of pain, the effectiveness of the prescribed medication or injections, and his findings on the current state of her symptoms. Dr. Gevaert had rendered similar disability opinions regarding Ms. Pearson's condition in the past: 139 In April of 2013, in conjunction with an office visit, he indicated on a work form that Ms. Pearson was "totally incapacitated at this time."140 On May 23, 2014, he filled out a work status report that opined that Ms. 137 Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017) (failure to consider factors set out in § 404.1527(c)(2)-(6) "alone constitutes reversible legal error"). 138 A.R. 25. 139Dr. Gevaert provided one conflicting work report during his four years of treating Ms. Pearson. In September 2012 he completed a form recommending that Ms. Pearson return to sedentary work. A.R. 258–59. However, when he reevaluated her in November of 2012, he noted that she was "not doing well" and had been "experiencing severe neck and back pain." A.R. 298. 140 A.R. 295. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 34 of 40 0 Pearson was "[t]otally disabled for work from May 16 to May 25, 2014."141 And in October, 2014, a second health care provider also opined that Ms. Pearson was totally disabled.142 In short, the record does not support the ALJ's conclusion that Dr. Gevaert's opinion was not adequately supported in the record. Similarly, the ALJ found that Dr. Gevaert's opinion was not consistent with Ms. Pearson's treatment records and exam notes. The ALJ provided parenthetical examples: "some active trigger points but normal full motor strength in extremities, no problems with gait or range of motion, no signs of nerve impingement or joint instability". 143 However, at the vast majority of her visits, Ms. Pearson complained of pain, primarily back and neck pain, and Dr. Gevaert did not find her to be malingering. Ms. Pearson had a Harrington metal rod implanted in her back as a teenager. In 2010, she underwent a lumbar radiculopathy. 144 She also had repeated epidural injections to relieve her back pain. And she was prescribed two or more oral pain medications, including hydrocodone and tramadol, at her office visits. Ms. Pearson had had multiple MRIs and a CT scan done that evidence that the Harrington rods, as well as disc degeneration, some herniation, and nerve root displacement. 145 Dr. Gevaert's treatment notes were consistent with other treating doctors and the records of Ms. Pearson's other health care providers. 141 A.R. 581. 142A.R. 622–23. A provider from OPA indicated in October of 2014 that Ms. Pearson was "Totally Disabled" after a recent physical exam and x-ray and MRI review by James Glenn, PA-C, of the same office. 143 A.R. 25. 144 A.R. 526. 145 A.R. 294, 296, 323, 499, 520, 574. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 35 of 40 0 The ALJ's third reason for according Dr. Gevaert's opinion was that the ALJ found it "inconsistent with the claimant's range of activities." Parenthetically, the ALJ noted that Ms. Pearson had "no problem with basic activities of daily living" and "able to maintain household and care for six [sic] children as single parent."146 However, at the administrative hearing, Ms. Pearson testified that she was quite limited in her daily activities, testimony that the ALJ found to be not "entirely credible." 147 But "[t]he ALJ did not develop a record regarding the extent to which and the frequency with which [Ms. Pearson] picked up the children, played with them, bathed them, ran after then, or did any other tasks that might undermine her claimed limitations." 148 There was insufficient evidence in the record regarding the scope of Ms. Pearson's childcare responsibilities to constitute substantial evidence inconsistent with Dr. Gevaert's opinion as to Ms. Pearson's need to recline or lie down during a hypothetical 8-hour workday in excess of typical work breaks, his opinion as to her lifting limitations, and his opinion as to her ability to sit for 4 hours and stand or walk for 1 hour in an 8-hour workday. The ALJ did not follow the appropriate methodology for weighing Dr. Gevaert's opinion and did not provide sufficiently clear and convincing reasons for rejecting the opinion. Therefore, the Court finds that the ALJ erred by giving the opinion "little weight." 146 A.R. 25. 147 A.R. 21. 148 Trevizo v. Berryhill, 871 F.3d at 876 (lack of evidence as to childcare responsibilities "cannot constitute 'substantial evidence' inconsistent"" with treating physician's opinion). Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 36 of 40 0 B. Scope of Remand The "ordinary remand rule" applies to disability cases. Under this rule, if "the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation."149 A district court follows a three-step analysis to determine whether a case raises the "rare circumstances" that warrant a remand for an award of benefits. "First, [the court] must conclude that 'the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.'"150 "Second, [the court] must conclude that 'the record has been fully developed and further administrative proceedings would serve no useful purpose.'" 151 "Where there is conflicting evidence, and not all essential factual issues have been resolved, a remand for an award of benefits is inappropriate."152 "Third, [the court] must conclude that 'if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.'" 153 But, "even if all three requirements are met, [the court] retain[s] 'flexibility' in determining the appropriate remedy" and "may remand on an open record for further proceedings when the record as 149 Treichler, 775 F.3d at 1099 (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). 150 Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting Garrison, 759 F.3d at 1020). 151 Brown-Hunter v. Colvin, 806 F.3d at 495 (quoting Garrison, 759 F.3d at 1020). 152 Treichler, 775 F.3d at 1101. 153 Brown-Hunter, 806 F.3d at 495 (quoting Garrison, 759 F.3d at 1021). Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 37 of 40 0 a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.'" 154 Ms. Pearson argues that all three conditions are met in this case. The Commissioner responds that even if this Court were to "overturn the agency's decision, the proper remedy is a remand for further proceedings" because "the claimant's undisputed lack of credibility and the evidence in the record as a whole present a conflict in the evidence that would need to be resolved on remand, as well as create serious doubt that Plaintiff is in fact disabled." 155 Here, the Court has found that the ALJ did not provide legally sufficient reasons for rejecting Dr. Gevaert's disability opinion. Second, the record has been extensviely developed. It contains treatment notes from over 40 medical and physical therapy visits for neck and back problems from 2010 to 2014, as well as additional records prior to Ms. Pearson's alleged onset date. It contains a physical capacity report from Dr. Gevaert and other work reports from Dr. Gevaert and other medical professionals. It includes Ms. Pearson's testimony about her symptoms and a third-party function report completed by her sister. Third, if Dr. Gevaert's October 2014 disability opinion is credited as true, the ALJ would have been required to find Ms. Pearson to be disabled. Thus, all three condition to credit-as-true have been satisfied. But the Court agrees with the Commissioner that a remand for further proceedings is nonetheless warranted. In Dr. Gevaert's earlier disability determinations, the time 154 Brown-Hunter, 806 F.3d at 495 (quoting Garrison, 759 F.3d at 1021). 155 Docket 21 at 3-4. Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 38 of 40 0 periods of disability were short in duration. Also shown by the record, Ms. Pearson's pain levels were quite variable over the period from 2010 to 2014. And she was able to work at least part time as a volunteer during those years. But in his October 2014 functional capacity opinion, Dr. Gevaert opined that Ms. Pearson had been fully disabled "since 2008". 156 Moreover, the Ninth Circuit has "previously awarded benefits without further administrative proceedings only when the record clearly contradicted an ALJ's conclusory findings and no substantial evidence within the record supported the reasons provided by the ALJ for denial of benefits." 157 Based on this Court's review of the record as a whole, that is not the case here. Thus, even if the three conditions to credit-as-true have been met here, the "rare circumstances" that warrant a remand for the direct award of benefits are not present. To the contrary, the Court's evaluation of the record as a whole creates serious doubt as to whether Ms. Pearson is in fact totally disabled or if she can in fact perform sedentary full time work. 158 Therefore, the case will be remanded for additional proceedings. // // // 156 A.R. 595. 157 Leon v. Berryhill, 874 F.3d 1130, 1135 (9th Cir. 2017). 158 See Trevizo v. Berryhill, 862 F.3d 987, 999 n.4 (9th Cir. 2017) ("[W]e rely only on the ALJ's stated bases for rejecting Trevizo's disability claims. Because the ALJ did not provide these explanations herself as a reason to reject Dr. Galhotra's opinion, the district court erred in looking to the remainder of the record to support the ALJ's decision, and we cannot affirm on those grounds.") (internal citations omitted). Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 39 of 40 0 V. ORDER The Court, having carefully reviewed the administrative record, finds that the ALJ's consideration of Dr. Gevaert's disability opinion is not free from legal error. Accordingly, IT IS ORDERED that Ms. Pearson's Motion for Remand at Docket 15 is GRANTED IN PART as set forth herein, the Commissioner's final decision is VACATED, and the case is REMANDED to the SSA for further proceedings consistent with this decision. On remand, the Commissioner is directed to apply the 20 C.F.R. § 416.927(c) factors to determine the weight, if any, to accord to Dr. Gevaert's opinions, and then take such further steps, if any, as may then be warranted. The Clerk of Court is directed to enter a final judgment accordingly. DATED this 26th day of December, 2017 at Anchorage, Alaska. /s/ Sharon L. Gleason UNITED STATES DISTRICT JUDGE Case No. 3:16-cv-00247-SLG, Pearson v. Berryhill Decision and Order Page 40 of 40 0

JUDGMENT: THAT The Commissioners final decision is VACATED, and the case is REMANDED to the SSA for further proceedings consistent with this decision. Signed by Judge Sharon L. Gleason on 12/26/2017. (Additional attachment(s) added on 4/6/2018: # (1) Judgment redistributed with attorney fees added. NEF regenerated.)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA BRANDY CHRISTINE PEARSON, Plaintiff, Case Number 3:16-cv-00247-SLG v. Nancy A. Berryhill, Acting Commissioner of Social Security Defendant. JUDGMENT IN A CIVIL CASE JURY VERDICT. This action came before the court for a trial by jury. The issues have been tried and the jury has rendered its verdict. xx DECISION BY COURT. This action came to trial or decision before the Court. The issues have been tried or determined and a decision has been rendered. IT IS ORDERED AND ADJUDGED: THAT The Commissioner's final decision is VACATED, and the case is REMANDED to the SSA for further proceedings consistent with this decision. On remand, the Commissioner is directed to apply the 20 C.F.R. § 416.927(c) factors to determine the weight, if any, to accord to Dr. Gevaert's opinions, and then take such further steps, if any, as may then be warranted. APPROVED: s/Sharon L. Gleason SHARON L. GLEASON United States District Judge Date: December 26, 2017 NOTE: Award of prejudgment interest, Lesley K. Allen costs and attorney's fees are governed Lesley K. Allen, by D.Ak. LR 54.1, 54.3, and 58.1. Clerk of Court [Jmt2 - Basic - rev. 1-13-16}

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Description
1
10/20/2016
COMPLAINT against Carolyn W. Colvin, filed by Brandy Christine Pearson.
1
Exhibit A
1 Attachment
2
10/20/2016
Civil Cover Sheet.
3
10/20/2016
MOTION for Leave to Proceed in forma pauperis by Brandy Christine Pearson.
4
10/20/2016
Unissued summons re Defendant SSA
1
Unissued Summons re Defendant USAG
2
Unissued Summons re Defendant USAO
2 Attachments
5
10/27/2016
ORDER granting 3 Mot for Leave to Proceed IFP; svc to be completed w/i 90 days from filing of cmplt, def has 60 days after receipt of sums & cmplt to respond. Signed by Judge Sharon L. Gleason on 10/27/16. cc: Finance
10/27/2016
Summons Issued as to Carolyn W. Colvin, U.S. Attorney and U.S. Attorney General. (Text entry; no document attached.)
6
11/16/2016
NOTICE of Appearance by Richard L. Pomeroy on behalf of Carolyn W. Colvin
7
11/18/2016
SOCIAL SECURITY SCHEDULING ORDER. Signed by Judge Sharon L. Gleason on 11/17/16.
11/18/2016
Docket Annotation: For the purpose of tracking the briefing as ordered at docket 7, when filing the Opening Brief the attorney shall file the document using the event Motion Miscellaneous Relief and text in the relief being sought. Responsive filings should be filed using the event Response in Opposition to Motion or Response to Motion (Non-Opposition). The reply, if any, shall be filed using the event Reply to Response to Motion. (Text entry; no document attached.)
8
11/21/2016
SUMMONS Returned Executed by Brandy Christine Pearson. Carolyn W. Colvin served on 11/14/2016, answer due 1/13/2017.
9
12/30/2016
NOTICE of Appearance by Terrye Erin Shea on behalf of Carolyn W. Colvin
10
01/13/2017
MOTION for Extension of Time to File Answer re 1 Complaint Unopposed by Carolyn W. Colvin.
1
Proposed Order
1 Attachment
11
01/13/2017
DECLARATION of Terrye E. Shea re 10 MOTION for Extension of Time to File Answer re 1 Complaint Unopposed by Carolyn W. Colvin.
12
01/23/2017
ORDER: granting Defendant's Motion for Extension of Time to File Response 10. Carolyn W. Colvin answer due February 13, 2017. Signed by Judge Sharon L. Gleason on 01/13/2017. (AEM, CHAMBERS STAFF) Modified on 1/23/2017 (AEM, CHAMBERS STAFF).
13
02/13/2017
ANSWER to 1 Complaint by Carolyn W. Colvin.
14
02/13/2017
Notice of Lodging Administrative Record
1
001 Certification Page
2
002 Court Transcript Index
3
003 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
004 Payment Documents and Decisions
5
005 Jurisdictional Documents and Notices
6
006 Non Disability Related Development
7
007 Disability Related Development
8
008 Medical Records Part 1
9
009 Medical Records Part 2
10
010 Medical Records Part 3
10 Attachments
02/14/2017
Docket Annotation: Acting Commissioner of Social Security Nancy A. Berryhill, represented by Richard Pomeroy & Terrye Erin Shea substituted for Carolyn W. Colvin (acting Commissioner of Social Security) pursuant to FRCvP 25(d)(1) (Text entry; no document attached.)
15
03/15/2017
MOTION for Remand in a Social Security Appeal by Brandy Christine Pearson.
16
04/14/2017
MOTION for Extension of Time to File Response/Reply as to 15 MOTION for Remand in a Social Security Appeal UNOPPOSED by Nancy A. Berryhill.
1
Proposed Order
1 Attachment
17
04/14/2017
DECLARATION of Terrye E. Shea re 16 MOTION for Extension of Time to File Response/Reply as to 15 MOTION for Remand in a Social Security Appeal UNOPPOSED by Nancy A. Berryhill.
18
04/18/2017
ORDER: granting Defendant's Unopposed Motion to Amend the Scheduling Order [16]. Signed by Judge Sharon L. Gleason on 04/18/2017. (AEM, CHAMBERS STAFF)
19
04/20/2017
MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2318852.) by Brandy Christine Pearson.
1
Certificate of Good Standing
1 Attachment
20
04/21/2017
CLERK'S NOTICE re 19 Application to Appear Pro Hac Vice. The Application to Appear Pro Hac Vice by Howard D. Olinsky, at docket 19, is authorized under D.Ak. LR 83.1(d).
21
05/19/2017
RESPONSE in Opposition re [15] MOTION for Remand in a Social Security Appeal filed by Nancy A. Berryhill.
22
12/26/2017
DECISION AND ORDER: IT IS ORDERED that Ms. Pearsons Motion for Remand at Docket [15] is GRANTED IN PART as set forth herein, the Commissioners final decision is VACATED, and the case is REMANDED to the SSA for further proceedings consistent with this decision. On remand, the Commissioner is directed to apply the 20 C.F.R. § 416.927(c) factors to determine the weight, if any, to accord to Dr. Gevaerts opinions, and then take such further steps, if any, as may then be warranted. (See Order for details). Signed by Judge Sharon L. Gleason on 12/26/2017.
23
12/26/2017
JUDGMENT: THAT The Commissioners final decision is VACATED, and the case is REMANDED to the SSA for further proceedings consistent with this decision. Signed by Judge Sharon L. Gleason on 12/26/2017. (Additional attachment(s) added on 4/6/2018: # (1) Judgment redistributed with attorney fees added. NEF regenerated.)
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