Sesco v. Commissioner of Social Security Administration
Court Docket Sheet
District of Arizona2:2016-cv-03391 (azd)
OPENING BRIEF by Rhonda Sesco.
Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 1 of 15 Howard D. Olinsky, Esq. 1 Admitted Pro Hac Vice 2 Olinsky Law Group One Park Place 3 300 South State Street, Suite 420 Syracuse, NY 13202 4 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 5 firstname.lastname@example.org 6 Attorney for Plaintiff Rhonda Sesco 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 DISTRICT OF ARIZONA 11 Rhonda Sesco, 12 Plaintiff, Civil No. 2:16-cv-03391-PHX-MHB 13 vs. 14 PLAINTIFFâS BRIEF Nancy A. Berryhill, 15 Acting Commissioner of Social Security, 16 17 Defendant 18 PLAINTIFFâS OPENING BRIEF IN SUPPORT OF A SOCIAL SECURITY APPEAL 19 STATEMENT OF THE ISSUES 20 1. The ALJ committed harmful legal error in failing to provide adequate and 21 supported reasons for rejecting the opinions of consultative examiner Dr. Valeros 22 and Physicianâs Assistant Bates. 23 STATEMENT OF THE CASE 24 Plaintiff Rhonda Sesco ("Sesco") filed an application for Disability Insurance 25 Benefits on December 12, 2012, alleging disability beginning May 1, 2004 due to back, 26 27 1 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 2 of 15 neck, and knee problems, arthritis, and rotator cuff surgery. Administrative Transcript 1 2 ("T") 22, 134. This application was denied initially on June 26, 2013 and on 3 reconsideration on November 19, 2013. T 22. After the hearing â at which Sesco 4 amended her alleged onset date to March 18, 2011 â ALJ Kathleen Mucerino issued an 5 unfavorable decision. T 30. The ALJ found that Sesco suffered from severe impairments 6 of status-post right shoulder surgery, inflammatory arthritis, degenerative disc disease, 7 status post right knee surgery, and obesity, none of which met or equaled the severity of a 8 listed impairment. T 24-26. The ALJ found Sesco retained the residual functional 9 10 capacity to perform medium work with the abilities to lift and carry 50 pounds 11 occasionally and 25 pounds frequently from her chest to the floor; lift and carry 15 12 pounds overhead; stand, walk, and sit 6 hours each; occasionally climb, kneel, and crawl; 13 frequently stoop and crouch; and occasionally reach overhead. T 26. Based on this RFC 14 and the testimony of the vocational expert ("VE"), the ALJ found that Sesco remained 15 able to perform her past work as a home attendant and therefore was not disabled. T 29. 16 17 The Appeals Council denied review on August 2, 2016, making the ALJâs decision the 18 final Agency decision. T 1-3. This Court has jurisdiction. 42 U.S.C. Â§ 405(g). 19 STATEMENT OF THE FACTS 20 Sesco was born in 1953, making her 57 years old at the amended alleged onset 21 date and 61 years old at the date of the ALJâs decision. T 22, 30, 131. Sesco was insured 22 for benefits under Title II until December 31, 2015. T 24. She reported completing a 23 12th grade education in 1972. T 135. The ALJ found she had past relevant work as a 24 home attendant, which was classified as medium with a specific vocational preparation 25 26 ("SVP") of 3. T 29. 27 2 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 3 of 15 Hearing Testimony 1 At the hearing on March 26, 2015, Sesco reported that she had only been able to 2 3 work as a home care attendant for her mother for about a year because it was too much 4 for her in terms of the physical demands. T 44. She testified that she experiences pain in 5 her back, leg, and hands. T 44-45. Her hands cramp after 5 minutes of use and her knee 6 pain makes it difficult for her to stand more than 10 or 15 minutes at a time. T 45. She 7 receives injections for her knee pain. Id. She also has arthritis in her shoulders. Id. 8 The VE testified that Sesco had past work as a home attendant and that there were 9 no skills transferrable from this position. T 47-48. The VE testified that she would be 10 11 able to perform this job with the limitations included in the RFC. T 48-49. However, she 12 would not be able to perform her past work if limited to the restrictions found in the 13 opinions from either consultative examiner Dr. Valeros or Physicianâs Assistant Bates. T 14 49-51. 15 Medical Evidence 16 Imaging of Sescoâs knee from August 21, 2008 showed a large lobular and 17 septated Bakerâs cyst, a tear in the medial meniscus, osteoarthritis in the medial and 18 19 patellofemoral compartments, and mild superficial infrapatellar bursitis. T 182-83. She 20 underwent a chondroplasty, arthroplasty, and synovectomy in her right knee on 21 September 30, 2008. T 180. 22 On March 18, 2011, she presented with complaints of pain, reporting a previous 23 injury to her lower back and left shoulder. T 193. Mark Greenfield, D.O., observed mild 24 tenderness over the left sacroiliac joint, some tenderness over the left sciatic notch, and 25 reported tenderness and pain in the left buttock that radiated to the proximal thigh with 26 27 3 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 4 of 15 testing. T 194-95. An x-ray of the shoulder revealed a full thickness tear of the 1 2 supraspinatus tendon. T 195. On July 8, 2011, Dr. Greenfield noted that an independent 3 medical examination with a Dr. Irwin Shapiro on May 25, 2011 had shown diminished 4 range of motion and strength in the left shoulder; Dr. Greenfield himself observed that 5 Sesco lacked end-range active range of motion in the shoulder. T 191. Dr. Greenfield 6 noted that Sesco wanted to follow through with surgery on her shoulder. Id. She 7 underwent an arthroscopy and rotator cuff repair of the shoulder on August 24, 2011. T 8 197. Follow up notes indicate she did well after the surgery with a home exercise 9 10 program and strengthening therapy. T 185-90. On August 17, 2012, Sesco reported 11 repeat pain in her left shoulder when reaching for something; Dr. Greenfield noted she 12 had full active forward elevation and abduction as well as good rotation and strength in 13 the shoulder. T 184. 14 On June 12, 2013, consultative examiner Quirino Valeros, M.D., observed that 15 Sesco was slightly obese, had limited dorsolumbar flexion, slight tenderness in her left 16 17 knee, and limited rotation in her right shoulder. T 203. Dr. Valeros indicated that she 18 should not perform work involving excessive walking or heavy lifting, opining more 19 specifically that she could lift and carry 10 pounds occasionally and frequently; stand or 20 walk 5 hours; sit 6 to 8 hours; frequently climb ramps and stairs, stoop, kneel, handle, 21 finger, and feel; occasionally crouch, crawl, and reach; and never climb ladders, ropes, 22 and scaffolds. T 204-06. 23 An x-ray of the right knee from August 26, 2014 showed degeneration of the 24 25 patellofemoral compartment, minimal degeneration in the medial compartment, 26 chondrocalcinosis, and calcification at the quadriceps tendon insertion. T 229. On this 27 4 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 5 of 15 same date, Physicianâs Assistant Alaina Vates, P.A., started Sesco on Tramadol for 1 2 osteoarthritis and referred her for a consultation with orthopedic surgery. T 232. On 3 September 3, 2014, Sesco reported knee pain with symptoms of give-away and popping. 4 T 209. Michael Weng, M.D., observed that Sesco could bear weight as tolerate d, had 5 tenderness to palpation along the medial and lateral joint lines, a fair amount of 6 patellofemoral crepitus, and 0 to 125 degree range of knee motion, though her knee was 7 noted to be stable. T 210. Dr. Weng also noted that an x-ray of the knee had shown mild-8 to-moderate degenerative changes. Id. On September 15, 2014, Physicianâs Assistant 9 10 Bates prescribed cyclobenzaprine and continued Tramadol. T 225-26. 11 On November 5, 2014, Sesco reported decreased pain in her knee with cortisone 12 shots, though there were ongoing symptoms. T 207. Dr. Weng observed she could bear 13 weight and had tenderness along the medial joint line with 0 to 125 degrees of motion in 14 the knee. T 208. On November 13, 2014, Physicianâs Assistant Bates observed lower 15 lumbar region tenderness to palpation with positive straight leg raise testing bilaterally; 16 17 she continued cyclobenzaprine and Tramadol. T 221-22. An x-ray of Sescoâs hip from 18 November 14, 2014 showed a mild loss of left hip joint space with mild left 19 osteoarthritis. T 218. An x-ray of her lumbar spine from the same date showed multilevel 20 moderate-to-severe spondylosis. Id. 21 On January 20, 2015, Physicianâs Assistant Bates opined that Sesco would 22 frequently experience symptoms severe enough to interfere with performance of simple, 23 work-related tasks, would need to recline or lie down in excess of breaks, would need to 24 25 shift positions at will, and would need hourly unscheduled breaks. T 237. Physicianâs 26 Assistant Bates also opined that Sesco could sit 15 minutes at once and 2 hours total; 27 5 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 6 of 15 stand or walk 15 minutes at once and 3 hours total; lift and carry 10 pounds or less 1 2 occasionally; use her hands and fingers 25 percent of the workday; use her arms 75 3 percent of the workday; and that she would likely be absent from work more than 4 times 4 per month due to her impairments and treatment. T 237-38. 5 An MRI of the lumbar spine from March 20, 2015 revealed moderate-to-severe 6 disc space narrowing with mild to moderate bulge, mild facet hypertrophy, mild left 7 lateral recess narrowing, and mild/moderate bilateral foraminal stenosis at L3-L4; and 8 severe disc space narrowing, moderate disc bulge, mild-to-moderate facet hypertrophy 9 10 and ligamentum flavum thickening, mild left lateral recess narrowing, and mild/moderate 11 bilateral foraminal stenosis at L4-L5. T 240. 12 ARGUMENT 13 Judicial review of the Commissionerâs final decision of not disabled is limited to 14 two inquiries: (1) whether substantial evidence of record supports the final agency 15 decision, and (2) whether any errors of law were made. 42 U.S.C. Â§ 405(g). Substantial 16 evidence is such evidence that a reasonable mind might accept as adequate to support a 17 18 decision. Richardson v. Perales, 402 U.S. 389, 401 (1971). The Social Security 19 Administration ("SSA") has promulgated a five-step sequential evaluation process for use 20 in making disability determinations. See 20 C.F.R. Â§ Â§ 404.1520, 416.920. The ALJ 21 adequately described the five steps in his decision. T 25-26. 22 23//24//25 26 27 6 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 7 of 15 1. The ALJ committed harmful legal error in failing to provide adequate and 1 supported reasons for rejecting the opinions of consultative examiner Dr. 2 Valeros and Physicianâs Assistant Bates. 3 The ALJ afforded little weight to the opinions from consultative examiner Dr. 4 Valeros and from treating Physicianâs Assistant Bates, relying instead on the opinion of 5 reconsideration non-examining State Agency medical consultant J. Wright, M.D. T 28-6 29. However, the ALJâs rejection of the opinion from Dr. Valeros and Physicianâs 7 Assistant Bates was not predicated on appropriate reasons supported by substantial 8 evidence or applicable legal precedent. The ALJâs errors in weighing the opinion 9 10 evidence are harmful, as the limitations these opinions contain would merit a finding of 11 disability under the Medical-Vocational Rules. 12 "[A]n ALJ may not substitute his own opinion for the findings and opinion of a 13 physician," though "he may'choose between properly submitted medical opinions.â" 14 Clark v. Astrue, 2013 WL 254065, at *7 (D. Ariz., Jan. 23, 2013) (citing Gonzalez Perez 15 v. Secây of HHS, 812 F.2d 747, 749 (1st Cir. 1987); McBrayer v. Secây of HHS, 712 F.2d 16 17 795, 799 (2d Cir. 1983); quoting Gober v. Matthews, 574 F.2d 772, 777 (3rd Cir. 1978)). 18 "When judging the ALJâs decision, the Court must weigh'both the evidence that 19 supports and the evidence that detracts from his conclusion.â" Maydanis v. Colvin, 119 20 F.Supp.3d 969, 976 (D.Ariz. 2015) (quoting Reddick v. Chater, 157 F.3d 715, 720 (9th 21 Cir. 1998)). "âIf a treating or examining doctorâs opinion is contradicted by another 22 doctorâs opinion, an ALJ may only reject it by providing specific and legitimate reasons 23 that are supported by substantial evidence.â" Ryan v. Commâr of Soc. Sec., 528 F.3d 24 25 1194, 1198 (9th Cir. 2008) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 26 2005)). In terms of weighing opinions from sources who are not considered "medically 27 7 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 8 of 15 acceptable" under the regulations, the ALJ is required to consider many of the same 1 2 factors applicable to medically acceptable sources, including the relationship between the 3 source and the claimant; the consistency of the opinion with the other evidence, the 4 degree to which the source presents relevant evidence to support her opinion; the quality 5 of explanation for the opinion; and whether the source is a specialist in the area of 6 treatment. See SSR 06-3p. 7 The ALJ afforded little weight to the opinion from consultative examiner Dr. 8 Valeros, noting that Dr. Valeros did not have a treating relationship with Sesco and his 9 10 observations on the exam were "largely normal," something which the ALJ found to be 11 inconsistent with the limitations Dr. Valeros opined. T 29. However, the ALJâs reasons 12 are insufficient to merit rejecting his opinion. Firstly, the fact that Dr. Valeros only had 13 an examining relationship with Sesco as opposed to a treating relationship, while one of 14 the factors the ALJ is required to assess, is not determinative. 20 C.F.R. Â§ 404.1527(c). 15 While the regulations indicate that a treating source is generally entitled to more weight 16 17 than an examining source, they do not support that an examining sourceâs opinion is 18 automatically entitled to only little weight. See 20 C.F.R. Â§ 404.1527(c)(1). This is 19 merely one factor the ALJ was supposed to balance when weighing the opinion evidence. 20 Also, the ALJâs rejection of Dr. Valerosâ opinion because he was only an examining 21 physician is inconsistent with his decision to afford great weight to the opinion of Dr. 22 Wright, who had never treated or examined Sesco. T 28-29. Under the ALJâs logic as 23 applied to Dr. Valerosâ opinion, Dr. Wrightâs relationship with Sesco (or lack thereof) 24 25 should have resulted in rejection of that opinion. These internal logical inconsistencies 26 undermine the validity of the ALJâs conclusion. Additionally, Ninth Circuit law indicates 27 8 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 9 of 15 that examining physicians are typically entitled to greater weight than non-examining 1 2 physicians, something which further exacerbates the impact of the ALJâs internal 3 inconsistency. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (noting 4 differences in treatment of opinions from different sources and indicating that "the 5 opinion of an examining physician is entitled to greater weight than that of a non-6 examining physician"). 7 Secondly, the ALJ asserted that Dr. Valerosâ opined limitations were inconsistent 8 with his "largely normal" examination findings. T 29. As noted above in the Statement 9 10 of the Facts, Dr. Valeros observed that Sesco was slightly obese, had limited dorsolumbar 11 flexion, slight tenderness in her left knee, and limited rotation in her right shoulder. T 12 203. However, the ALJ did not explain how these findings were inconsistent with the 13 specific limitations Dr. Valeros opined. For instance, Dr. Valeros indicated that Sesco 14 remained able to stand or walk for 5 hours, which is not much more limited than the 15 ALJâs RFC for standing or walking 6 hours. T 26, 205. This finding is arguably 16 17 consistent with Dr. Valerosâ observations of obesity, left knee tenderness, and limited 18 lumbar range of motion. T 203. Additionally, in opining a limitation to frequently and 19 occasionally lifting and carrying 10 pounds, Dr. Valeros observed limited lumbar range 20 of motion, left knee tenderness, and limited right shoulder rotation, all of which could 21 reasonably impact Sescoâs ability to lift and carry weight. T 205. Yet the ALJ does not 22 provide any explanation other than his conclusory assertion that these findings are 23 inconsistent with Dr. Valerosâ opinion. The ALJ simply has not provided adequate 24 25 explanation to show that the conclusions he drew from the evidence were reasonable. See 26 Lara v. Colvin, No. CV-13-01643-PHX-JZB, 2015 WL 1505817, at *10 (D. Ariz., Mar. 27 9 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 10 of 15 31, 2015) (finding error in the ALJâs failure to explain his finding that a restriction to 1 2 simple, unskilled, repetitive work accounted for the limitation in concentration, 3 persistence, and pace supported by the evidence on which the ALJ relied) (citing Craft v. 4 Astrue, 549 F.3d 668, 678 (7th Cir. 2008)). 5 Additionally, in rejecting Dr. Valerosâ opinion, the ALJ makes no statement or 6 clear analysis as to whether Dr. Valerosâ opinion was or was not consistent with the 7 totality of the evidence in the record. T 29. This is a notable omission in the ALJâs 8 analysis, as the regulations explicitly require the ALJ to consider the consistency of an 9 10 opinion with the evidence in the record as a whole when weighing opinion evidence. See 11 20 C.F.R. Â§ 404.1527(c)(4). This omission is problematic given the evidence of 12 observations of ongoing knee tenderness and decreased range of motion, observations of 13 lumbar tenderness with positive straight leg raising, and the objective imaging related to 14 Sescoâs lumbar spine, hip, and knee from 2014 and 2015. T 194-95, 208-10, 218, 221-22, 15 229-32, 240. Neither the ALJâs provided rationale nor his discussion of the evidence 16 17 bridges this logical gap in a meaningful way that would allow this Court to determine the 18 path of the ALJâs reasoning on this issue. The ALJ has not provided reasons supported 19 by substantial evidence for rejecting Dr. Valerosâ opinion. 20 The ALJ also afforded little weight to the opinion from treating Physicianâs 21 Assistant Bates, noting that Physicianâs Assistant Bates was not a medically acceptable 22 source and that it was "unclear what observations and objective findings Ms. Bates based 23 her opinion on." T 29. Firstly, the fact that Physicianâs Assistant Bates was not a 24 25 medically acceptable source did not entitle the ALJ to summarily reject her opinion. See 26 SSR 06-03p. The ALJ was still required to assess Physicianâs Assistants Batesâ opinion 27 10 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 11 of 15 according to the applicable factors. See SSR 06-3p. Consequently, this does not provide 1 2 a legally sufficient reason for rejecting her opinion. 3 Secondly, the ALJâs indication that it was not clear what the basis was for the 4 limitations Physicianâs Assistant Bates opined is also not a sufficient reason to merit 5 rejecting her opinion. As with the ALJâs rejection of Dr. Valerosâ opinion, the ALJ here 6 relied on a single factor to reject Physicianâs Assistant Batesâ opinion rather than 7 analyzing and balancing all of the enumerated factors as required by the regulations. See 8 20 C.F.R. Â§ 404.1527(c); SSR 06-03p. Although the extent to which a source explains 9 10 the basis for their opinion is one of the factors to consider, it is not the end of the 11 analysis. There is no indication in the ALJâs discussion of either this opinion or the rest 12 of the medical and other evidence that the ALJ properly considered whether or the extent 13 to which Physicianâs Assistant Batesâ opinion was consistent with the observations and 14 notations contained in her own treatment of Sesco, in the notes of her supervising 15 physician Dr. Weng, or in the examination notes from any of the other sources in the 16 17 record. T 27-29. Rather than explaining the actual basis for his conclusions, the ALJ 18 instead merely asserts that the various signs and findings support a finding of medium 19 work. However, the ALJ is not a physician and did not have the proper training or clear 20 evidentiary support to make such a determination. The ALJ failed to provide a 21 meaningful explanation as to how Physicianâs Assistant Batesâ opinion was inconsistent 22 with the evidence in the record as a whole or why her own treatment notes did not 23 provide a sufficient indication of the basis for her opinion. Consequently, the ALJâs 24 25 rejection of Physicianâs Assistant Batesâ opinion was not consistent with applicable legal 26 standards or supported by substantial evidence. 27 11 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 12 of 15 The ALJ instead afforded great weight to the November 15, 2013 opinion from 1 2 non-examining Dr. Wright, whose opinion the ALJ adopted almost verbatim in terms of 3 exertional and postural restrictions. T 28-29, 69-71. The only reasons the ALJ provided 4 for adopting this opinion over those from the examining and treating sources was that "it 5 is much more consistent with the medical evidence of record... [y]et the record does not 6 reflect that the claimant should be restricted to more than outlined by Dr. Wright." T 28-7 29. However, in reviewing the evidence to render this opinion, Dr. Wright did not have 8 the ability to assess important evidence from 2014 and 2015, which included treatment 9 10 notes with Dr. Weng and Physicianâs Assistant Baker showing tenderness, crepitus, and 11 decreased range of motion in the knee even after cortisone shots, as well as lumbar 12 tenderness and positive straight leg raising tests. T 207-10, 221-22, 229-32. 13 Additionally, and perhaps more importantly, Dr. Wright did not have the 14 opportunity to examine any objective imaging related to Sescoâs lumbar spine. Imaging 15 in November 2014 and March 2015 showed objective degeneration at multiple lumbar 16 17 disc levels along with disc bulging, disc space narrowing, and foraminal stenosis of 18 varying degree of severity particularly at the L3-L4 and L4-L5. T 218, 240. The ALJ 19 does not explain how Dr. Wrightâs opinion for a range of medium work was still 20 supported in light of these objective findings. See Lara, No. CV-13-01643-PHX-JZB, 21 2015 WL 1505817, at *10 (citing Craft, 549 F.3d at 678). 22 There was simply no guidance from a medical source that supports the ALJâs 23 implicit assertions that this more recent evidence would have had no impact on the 24 25 validity of Dr. Wrightâs opinion and the ALJ himself does not have the medical expertise 26 to assessed this type of raw medical data and translate it into functional limitations. See 27 12 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 13 of 15 Soto-Hopkins v. Colvin, No. CV-15-541-TUC-LAB, 2016 WL 4771377, at *8 (D. Ariz., 1 2 Sept. 14, 2016) ("The ALJ is not a medical expert and may not offer his own expert 3 evaluation of the raw medical data") (collecting cases); Miranda v. Colvin, No. CV-14-4 2327-TUC-LAB, 2015 WL 477212, at *6 (D. Ariz., Feb. 5, 2015) ("The ALJ is not 5 qualified as a medical expert and may not substitute his own lay judgment in place of 6 informed medical opinion"). Consequently, despite the ALJâs vague assertions that the 7 record did not support greater restrictions than those opined by Dr. Wright, it is not clear 8 that the ALJâs conclusion is supported by substantial evidence given his lack of 9 10 elucidating explanation as to the basis of those conclusions. The ALJâs reliance on Dr. 11 Wrightâs non-examining opinion therefore does not constitute substantial evidence to 12 merit upholding the ALJâs conclusions. 13 The ALJâs errors in weighing the above opinion evidence are harmful, as they 14 directly prevented a finding that Sesco was disabled. See Treichler v. Commâr of SSA, 15 775 F.3d 1090, 1099 (9th Cir. 2014) (noting that "[a]n error is harmless if it is 16 17'inconsequential to the ultimate non-disability determinationâ  or'if the Agencyâs path 18 may be reasonably discerned,â even if the agency'explains its decision with less than 19 ideal clarityâ") (quoting Alaska Dept. of Envtl. Conserv. V. EPA, 540 U.S. 461, 497 20 (2004)). As noted above in the factual portion of this brief, Sesco was 57 years old at the 21 amended alleged onset date and 61 years old at the date of the ALJâs decision. T 22, 30, 22 131. She reported completing a 12th grade education in 1972. T 135. She had semi-23 skilled past relevant work as a home attendant, but the VE specifically testified at the 24 25 hearing that there were no transferrable skills from this job. T 47-48. Given these facts, 26 Medical Vocational Rules 202.06 and 201.06 indicate that a finding of disability would 27 13 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 14 of 15 be directed if Sesco had been limited to either the light or sedentary exertional level. See 1 2 20 C.F.R. Part 404, Subpart P, Appendix II, Table Nos. 1 and 2. As the opinions of Dr. 3 Valeros and Physicianâs Assistant Bates support at least a restriction to light work, the 4 ALJâs errors in rejecting these opinions without sufficient reasons supported by 5 substantial evidence were directly harmful. 6 For all of the above reasons, the ALJâs determination is not supported by 7 substantial evidence and is the product of harmful legal error. The Ninth Circuit has long 8 recognized that "[i]t is within the discretion of [reviewing courts] whether to remand the 9 10 case for additional evidence or simply to award benefits," particularly where "[t]here are 11 no outstanding issues to be resolved" that preclude the court from making a disability 12 determination on the merits. See Distasio v. Shalala, 47 F.3d 348, 350 (9th Cir. 1995) 13 (citing Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989)); see also Holohan v. 14 Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001) ("a remand for further proceedings is 15 unnecessary if the record is fully developed and it is clear from the record that the ALJ 16 17 would be required to award benefits"). In this case, it is clear that had the ALJ properly 18 accounted for even a portion of the limitations supported by the rejected opinion evidence 19 and found Sesco limited to light work, a finding of disabled would be directed. Sesco 20 therefore respectfully requests that this matter be remanded for the purposes of the 21 calculation of benefits consistent with Ninth Circuit precedent such as Distasio and 22 Holohan. In the event that this Court determines that there is an issue left to be resolve, it 23 is respectfully requested that this matter be remanded for further administrative 24 25 proceedings. 26 27 14 28 Case 2:16-cv-03391-MHB Document 15 Filed 03/06/17 Page 15 of 15 CONCLUSION 1 For the foregoing reasons, it is respectfully requested that this matter be remanded 2 for further administrative proceedings, including de novo hearing and new decision. 3 4 March 6, 2017/s/Howard D. Olinsky 5 Howard D. Olinsky, Esq. Admitted Pro Hac Vice 6 Olinsky Law Group One Park Place 7 300 South State Street, Suite 420 Syracuse, NY 13202 8 Telephone: (315) 701-5780 9 Facsimile: (315) 701-5781 email@example.com 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 15 28
Certificate of Service
Case 2:16-cv-03391-MHB Document 15-1 Filed 03/06/17 Page 1 of 1 Howard D. Olinsky, Esq. Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, NY 13202 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 firstname.lastname@example.org Attorney for Plaintiff Rhonda Sesco IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Rhonda Sesco, Plaintiff, Civil No. 2:16-cv-03391-PHX-MHB vs. CERTIFICATE OF SERVICE Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant This is to certify that I have this day served counsel for the Defendant with Plaintiffâs Opening Brief by electronically filing the foregoing with the Clerk of the Court by using the CM/ECF system which will send electronic notification of such filing to: Jeffrey Staples Special Assistant United States Attorney This 6th day of March, 2017/s/Howard D. Olinsky Howard D. Olinsky, Esq.
RESPONSE BRIEF by Commissioner of Social Security Administration.
Case 2:16-cv-03391-MHB Document 16 Filed 03/30/17 Page 1 of 7 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Jeffrey E. Staples 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA45035 8 Fax: (206) 615-2531 email@example.com 9 Telephone: (206) 615-3706 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Rhonda Sesco, 14 No. CV-2:16-cv-03391-MHB 15 Plaintiff, 16 DEFENDANT'S ANSWERING vs. BRIEF 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 DISPUTED ISSUE 22 1. Whether the Administrative Law Judge (ALJ) reasonably weighed the medical 23 opinions. 24 ARGUMENT 25 Plaintiff seeks judicial review of the Commissionerâs final administrative decision 26 denying his applications for Disability Insurance Benefits under Title II of the Social 27 28 Security Act. The Court should affirm the Commissionerâs final decision as supported by Case 2:16-cv-03391-MHB Document 16 Filed 03/30/17 Page 2 of 7 1 substantial evidence. 42 U.S.C. Â§ 405(g). 2 1. The ALJ reasonably weighed the medical opinions. 3 a. Quirino Valeros, M.D. 4 The ALJ rejected Dr. Valerosâs opinion that Plaintiffâs mental impairments caused 5 6 marked work-related limitations. Tr. 29, 202-06. "If a treating or examining doctorâs 7 opinion is contradicted by another doctorâs opinion, an ALJ may only reject it by 8 providing specific and legitimate reasons that are supported by substantial evidence." 9 10 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). The ALJ provided such 11 reasons. 12 The ALJ found Dr. Valerosâs opinion was inconsistent with his own examination 13 14 findings. Tr. 29. Contradictions between a doctorâs opinion and that doctorâs own 15 clinical notes and observations is a legally sufficient reason for not relying on that 16 doctorâs opinion. Bayliss, 427 F.3d at 1216. For instance, Dr. Valeros believed Plaintiff 17 could lift no more than 10 pounds occasionally or frequently, but his examination showed 18 19 that she had full strength in her upper and lower extremities. Tr. 203-05. Dr. Valeros 20 also found that Plaintiff had a normal gait and no neurological deficits, which 21 contradicted his assessment that Plaintiff could walk for no more than five hours per day. 22 23 Tr. 203-05. On this record, the ALJ reasonably discounted Dr. Valerosâs opinion as 24 inconsistent with his own examination findings. Even if the ALJ provided additional 25 erroneous analysis of Dr. Valerosâs opinion, the error was harmless because this reason 26 27 was supported by substantial evidence. 28 Plaintiff complains that the ALJ failed to consider the consistency of Dr. Valerosâs 2 Case 2:16-cv-03391-MHB Document 16 Filed 03/30/17 Page 3 of 7 1 opinion with the record as a whole. ECF No. 15 at 10. However, although the 2 regulations direct ALJs to consider that factor in weighing a doctorâs opinion, there is no 3 requirement that ALJs include a discussion of each factor in the written decision. 20 4 5 C.F.R. Â§ 404.1527. Here, the ALJ expressly "considered opinion evidence in accordance 6 with the requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p." 7 Tr. 26. Moreover, absent evidence to the contrary, courts presume that ALJs "know the 8 law and apply it in making their decisions." Lockwood v. Commâr Soc. Sec. Admin., 616 9 10 F.3d 1068, 1072 n.3 (9th Cir. 2010) (citation omitted). Here, there is no evidence that the 11 ALJ failed to consider any of the required factors in deciding what weight to assign Dr. 12 Valerosâs opinion. Plaintiff cannot demonstrate any error on this basis. 13 14 b. Alaina Bates, PA-C 15 The ALJ rejected Ms. Batesâs opinion that Plaintiff had numerous physical 16 restrictions and would miss more than four days of work per month because of her 17 impairments. Tr. 29, 237-38. An ALJ must provide only germane reasons to disregard 18 19 opinions from "other sources," such as physicianâs assistants. Turner v. Commâr of Soc. 20 Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010). The ALJ did so. 21 First, the ALJ found that Ms. Bates "is not a medically accepted source." Tr. 29. 22 23 "The fact that a medical opinion is from an'acceptable medical sourceâ is a factor that 24 may justify giving that opinion greater weight than an opinion from a medical source who 25 is not an'acceptable medical source.â" Social Security Ruling (SSR) 06-03p, available 26 27 28 3 Case 2:16-cv-03391-MHB Document 16 Filed 03/30/17 Page 4 of 7 1 at 2006 WL 2329939, at *5. 1 Accordingly, the ALJ was justified in giving more weight 2 to an opinion from J. Wright, M.D., than to the opinion from Ms. Bates. Tr. 28-29. 3 The ALJ found it was "unclear what observations and objective findings Ms. 4 5 Bates based her opinion on." Tr. 29. An ALJ may reject opinions that are "brief, 6 conclusory, and inadequately supported by clinical findings." Bayliss, 427 F.3d at 1216. 7 Consistent with the ALJâs analysis, Ms. Bates identified no objective findings in support 8 of her opinion. Tr. 237-38. The ALJ reasonably weighed this evidence against Ms. 9 10 Batesâs opinion. 11 Plaintiff argues that, like Dr. Valerosâs opinion, the ALJ was required to consider 12 Ms. Batesâs opinion in accordance with the factors identified in 20 C.F.R. 404.1527. 13 14 ECF No. 15 at 11. Plaintiff is mistaken. 20 C.F.R. Â§ 404.1527 directs an ALJâs 15 consideration of medical opinions. Medical opinions, however, are "statements from 16 physicians and psychologists or other acceptable medical sources." 20 C.F.R. Â§ 17 18 404.1527(a)(2); see also SSR 06-03p, available at 2006 WL 2329939 at *2 ("[O]nly 19'acceptable medical sourcesâ can give us medical opinions."). Because the opinion from 20 Ms. Bates was not a medical opinion, the ALJ was not required to consider it under the 21 same framework as the one she applied to the opinions from Dr. Valeros or Dr. Wright. 2 22 23 As for Dr. Wright, Plaintiff contends that the ALJ provided inadequate reasons for 24 25 1 26 Although Plaintiff maintains that the ALJ was "required to assess Physicianâs Assistants Batesâ opinion according to the applicable factors," ECF No. 15 at 11, she 27 does not admit that this is one of those factors. 2 28 This framework "can be applied to opinion evidence from'other sources,â" but such application is not mandatory. SSR 06-03p, available at 2006 WL 2329939 at *4. 4 Case 2:16-cv-03391-MHB Document 16 Filed 03/30/17 Page 5 of 7 1 giving his opinion great weight. ECF No. 15 at 12. But an ALJ need not provide reasons 2 for interpreting an adopting a medical opinion. Orteza v. Shalala, 50 F.3d 748, 750 (9th 3 Cir. 1995) (explaining that the "distinction" between rejecting a physicianâs testimony 4 5 and "merely interpreting it" is "procedurally significant" because ALJs need to provide 6 reasons for rejecting evidence, not for interpreting it). Plaintiff provides her own 7 explanation of the weight she would have given to Dr. Wrightâs opinion, had she been the 8 trier of fact, and asks this Court to assume that very role. ECF No. 15 at 11-12. The 9 10 Court should decline the invitation because, under substantial evidence review, "the 11 Court may not reweigh the evidence, substitute its judgment for [that of the 12 Commissioner], or give vent to feelings of compassion." Winans v. Bowen, 853 F.2d 13 14 643, 644-45 (9th Cir. 1987) (internal quotation and citation omitted). Moreover, where 15 the "evidence is susceptible to more than one rational interpretation, it is the 16 [Commissionerâs final decision] that must be upheld." Burch v. Barnhart, 400 F.3d 676, 17 18 679 (9th Cir. 2005) (internal citations omitted). The Court should affirm. 19 Plaintiff encourages this Court to remand for a finding of disability. ECF No. 12 20 at 14. 3 Because there were no errors meriting a reversal of the ALJâs decision, this Court 21 should affirm. Even if there were any merit to any of Plaintiffâs arguments, courts should 22 23 remand for a finding of disability only when "a careful review of the record discloses no 24 reason to seriously doubt that [the claimant] is, in fact, disabled." Garrison v. Colvin, 25 759 F.3d 995, 1023 (9th Cir. 2014). Given these stringent demands, the "ordinary 26 27 3 28 The Commissioner disagrees with the credit-as-true rule. See Vasquez v. Astrue, 572 F.3d 586, 601 (9th Cir. 2009) (OâScannlain, J., dissenting). 5 Case 2:16-cv-03391-MHB Document 16 Filed 03/30/17 Page 6 of 7 1 remand rule" requires that, where an ALJâs error prejudices a claimant, the proper course 2 is remand for further administrative proceedings "except in rare circumstances." 3 Treichler v. Commâr of Social Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). 4 5 Plaintiff cannot establish the rare circumstances necessary for a deviation from the 6 ordinary remand rule. In particular, the ALJâs adverse credibility finding is 7 unchallenged, which raises serious doubt that Plaintiff is disabled. Accordingly, should 8 this Court determine that the ALJ erred and that the error prejudiced Plaintiff, the only 9 10 appropriate remedy would be to remand for further proceedings. 11 CONCLUSION 12 The Commissioner reasonably concluded that Plaintiff was not disabled within the 13 14 meaning of Title II of the Social Security Act. Because this conclusion is supported by 15 substantial evidence and free of legal error, the Court should affirm the Commissionerâs 16 decision. 17 18 DATED this 30th day of March 2017. 19 Respectfully submitted, 20 ELIZABETH A. STRANGE 21 Acting United States Attorney District of Arizona 22 23 s/Jeffrey E. Staples JEFFREY E. STAPLES 24 Special Assistant United States Attorney 25 26 27 28 6 Case 2:16-cv-03391-MHB Document 16 Filed 03/30/17 Page 7 of 7 1 Of Counsel for the Defendant: 2 MATHEW W. PILE 3 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 4 701 Fifth Avenue, Suite 2900 M/S 221A 5 Seattle, WA 98104-7075 6 7 8 9 10 CERTIFICATE OF SERVICE 11 12 I hereby certify that the foregoing Defendant's Answering Brief was filed 13 with the Clerk of the Court on March 30, 2017, using the CM/ECF system, which 14 will send notification of such filing to the following: Howard D. Olinsky. 15 16 17 s/Jeffrey E. Staples JEFFREY E. STAPLES 18 Special Assistant U.S. Attorney Office of the General Counsel 19 20 21 22 23 24 25 26 27 28 7
ORDER that the decision of the ALJ and the Commissioner of Social Security be affirmed; the Clerk of the Court shall enter judgment accordingly. The judgment will serve as the mandate of this Court. Signed by Magistrate Judge Michelle H Burns on 03/14/2018.
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rhonda Sesco,) CIV-16-03391-PHX-MHB) 10 Plaintiff,) ORDER) 11 vs.)) 12 Commissioner of Social Security) Administration,) 13) Defendant.) 14) 15 Plaintiff Rhonda Sesco seeks review under 42 U.S.C. Â§ 405(g) of the final decision 16 of the Commissioner of Social Security ("the Commissioner"), which denied her application 17 for period of disability and disability insurance benefits under sections 216(i) and 223(d) of 18 the Social Security Act. Because the decision of the Administrative Law Judge ("ALJ") is 19 supported by substantial evidence, the Commissioner's decision will be affirmed. 20 I. BACKGROUND 21 On December 12, 2012, Plaintiff applied for a period of disability and disability 22 insurance benefits, alleging disability beginning May 1, 2004. (Transcript of Administrative 23 Record ("Tr.") at 22.) Plaintiff's application was denied initially on June 26, 2013, and upon 24 reconsideration it was denied again on November 19, 2013. (Tr. at 22.) Thereafter, Plaintiff 25 filed a written request for a hearing. (Tr. at 22, 85.) On March 26, 2015, Plaintiff appeared 26 with her attorney and testified at a hearing before the ALJ. (Tr. at 37.) An impartial 27 vocational expert also testified. (Tr. at 46.) At the hearing, Plaintiff amended the alleged 28 disability onset date to March 18, 2011. (Tr. at 40.) On May 13, 2015, the ALJ issued a 1 decision finding that Plaintiff was not disabled within the meaning of the Social Security Act 2 from March 18, 2011, through the date of the ALJ's decision. (Tr. at 30.) On August 2, 2016, 3 the Appeals Council denied Plaintiff's request for review of the hearing decision, making the 4 ALJ's decision the final decision of the Commissioner. (Tr. at 1-6.) 5 II. LEGAL STANDARD 6 The district court reviews only those issues raised by the party challenging the ALJ's 7 decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside 8 the Commissioner's disability determination only if the determination is not supported by 9 substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 10 2007). Substantial evidence means more than a scintilla, less than a preponderance, and 11 relevant evidence that a reasonable person might accept as adequate to support a conclusion. 12 Id. In determining whether substantial evidence supports a decision, the court must consider 13 the record as a whole and may not affirm simply by isolating a "specific quantum of 14 supporting evidence." Id. As a general rule, "[w]here the evidence is susceptible to more than 15 one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion 16 must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 17 The ALJ is responsible for resolving conflicts in medical testimony, determining 18 credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 19 1995). In reviewing the ALJ's reasoning, the court is "not deprived of [its] faculties for 20 drawing specific and legitimate inferences from the ALJ's opinion." Magallanes v. Bowen, 21 881 F.2d 747, 755 (9th Cir. 1989). If the "evidence can reasonably support either affirming 22 or reversing the [Commissioner's] conclusion, the court may not substitute its judgment for 23 that of the [Commissioner]." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). 24 III. THE ALJ'S FIVE-STEP EVALUATION PROCESS 25 The Social Security Administration has a five-step sequential evaluation process for 26 determining whether a claimant is disabled. 20 C.F.R. Â§ 404.1520(a). The steps are 27 sequentially followed by the ALJ. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If it 28 -2- 1 cannot be determined that the claimant is or is not disabled at a step in evaluation process, 2 then the evaluation will go on to the next step. 20 C.F.R. Â§ 404.1520(a)(4). The ALJ 3 considers whether a claimant is disabled by determining: (1) whether the claimant is "doing 4 substantial gainful activity"; (2) whether the claimant has a "severe medically determinable 5 physical or mental impairment" or combination of impairments that has lasted for more than 6 12 months; (3) whether the impairment "meets or equals" one of the listings in the 7 regulations; (4) whether, given the claimant's "residual functional capacity" ("RFC"), the 8 claimant can still do his or her "past relevant work"; and (5) whether the claimant can 9 perform any other work based on the claimant's RFC, age, education, and work experience. 10 20 C.F.R. Â§ 404.1520(a). The claimant bears the burden of proof on the first four steps, but 11 at step five, the burden shifts to the Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 12 (9th Cir. 1999). 13 At step one, the ALJ found that the Plaintiff meets the insured status requirements of 14 the Social Security Act through December 31, 2015, and that she has not engaged in 15 substantial gainful activity since March 18, 2011, which is the amended alleged disability 16 onset date. (Tr. at 24.) At step two, the ALJ found that Plaintiff has the following severe 17 impairments: status post right shoulder surgery, inflammatory arthritis, degenerative disc 18 disease, status post right knee surgery, and obesity. (Tr. at 24.) At step three, the ALJ 19 determined that Plaintiff does not have an impairment or combination of impairments that 20 meets or medically equals the severity of one of the listed impairments in Appendix 1 to 21 Subpart P of 20 C.F.R. Pt. 404. (Tr. at 25.) At step four, the ALJ found that Plaintiff has the 22 RFC to perform: 23 medium work as defined in 20 CFR 404.1567(c) except that she while she can lift or carry fifty pounds occasionally and twenty-five pounds frequently from 24 floor to chest, she can only occasionally lift or carry fifteen pounds overhead. The claimant can stand, walk, or sit for six hours each, with regular breaks, in 25 an eight-hour workday. The claimant can only occasionally kneel or crawl, but can frequently stoop or crouch. Lastly, the claimant can only occasionally 26 reach overhead with her bilateral upper extremities. 27 28 -3- 1 (Tr. at 26.) At step five, the ALJ found that the Plaintiff is capable of performing her past 2 relevant work as a home attendant. (Tr. at 29.) Therefore, the ALJ concluded that Plaintiff 3 has not been under a disability from March 19, 2011, through the date of her decision. (Tr. 4 at 30.) 5 IV. DISCUSSION 6 Plaintiff argues that the ALJ improperly weighed the medical opinions of Plaintiff's 7 consultative examiner Quirino Valeros, M.D. ("Dr. Valeros") and treating Physician's 8 Assistant Alaina Bates, P.A. ("P.A. Bates"). The Court will address the ALJ's treatment of 9 the objective medical evidence below. 10 The Ninth Circuit distinguishes between opinions of treating physicians, examining 11 physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 12 1995). Generally, an ALJ should give the greatest weight to a treating physician's opinion 13 and more weight to the opinion of an examining physician than to one of a non-examining 14 physician. See Andrews, 53 F.3d at 1040-41. Only "licensed physicians and certain other 15 qualified specialists are considered acceptable medical sources." Molina v. Astrue, 674 F.3d 16 1104, 1111 (9th Cir. 2012) (citing 20 C.F.R. Â§ 404.1513(a)) (quotations omitted). For claims 17 filed before March 27, 2017, physician assistants are defined as "other sources." 20 C.F.R. 18 Â§ 404.1513(d)(1) (amended 2017). For claims filed before March 27, 2017, physician 19 assistants are not entitled to the same deference as acceptable medical sources. See 20 C.F.R. 20 Â§ 404.1527(f). The ALJ may discount testimony from these other sources if the ALJ gives 21 germane reasons as to each source. Molina, 674 F.3d at 1111 (citations omitted). Under this 22 standard, the ALJ may discount a physician assistant's opinion if it is conclusory, such as 23 when the opinion is expressed in a standardized check-the-box form that fails to provide 24 supporting reasons or clinical findings, or when the opinion is inconsistent with other 25 objective medical evidence in the record. Kline v. Colvin, 140 F.Supp.3d 912, 919 (D. Ariz. 26 2015). 27 28 -4- 1 If it is not contradicted by another doctor's opinion, the opinion of a treating or 2 examining physician can be rejected only for "clear and convincing" reasons. Lester, 81 F.3d 3 at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A contradicted opinion 4 of a treating or examining physician "can only be rejected for specific and legitimate reasons 5 that are supported by substantial evidence in the record." Lester, 81 F.3d at 830-31 (citing 6 Andrews, 53 F.3d at 1043). 7 An ALJ can meet the "specific and legitimate reasons" standard by "setting out a 8 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 9 interpretation thereof, and making findings." Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 10 1986). But the ALJ "must do more than offer [her] conclusions. [She] must set forth [her] 11 own interpretations and explain why they, rather than the doctors', are correct." Embrey, 849 12 F.2d at 421-22. 13 Historically, the courts have recognized the following as specific, legitimate reasons 14 for disregarding a treating or examining physician's opinion: conflicting medical evidence; 15 the absence of regular medical treatment during the alleged period of disability; the lack of 16 medical support for doctors' reports based substantially on a claimant's subjective complaint 17 of pain; and medical opinions that are brief, conclusory, and inadequately supported by 18 medical evidence. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Flaten 19 v. Sec'y of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995); Fair v. Bowen, 20 885 F.2d 597, 604 (9th Cir. 1989). 21 The ALJ did not err in assigning little weight to the opinions of Dr. Valeros and P.A. 22 Bates, and assigning great weight to State agency medical consultant J. Wright, M.D.'s 23 opinion. The ALJ provided specific and legitimate reasons for assigning little weight to Dr. 24 Valeros' opinion and a germane reason for discounting P.A. Bates' opinion. 25 Examining physician Dr. Valeros performed a medical evaluation in June 2013. (Tr. 26 at 202.) Dr. Valeros opined that Plaintiff "could lift or carry only ten pounds; could stand or 27 walk fire hours in an eight-hour workday; could sit six to eight hours; could frequently climb 28 -5- 1 ramps or stairs, stoop, kneel, handle, finger, or feel; could occasionally reach, crawl, or 2 crouch; and could never climb ladders, ropes, or scaffolds." (Tr. at 29, 202-06.) The ALJ 3 afforded little weight to this opinion finding that although Dr. Valeros had the opportunity 4 to examine Plaintiff, it was not a "treating relationship." Significantly, the ALJ determined 5 that Dr. Valeros' conclusions were not supported by his own treatment notes as demonstrated 6 by his finding that Plaintiff had only "mild pain in the right shoulder and left knee," she 7 drives, goes to the store and doctor appointments, and can walk a block and do housework. 8 Dr. Valeros' notes additionally indicate that Plaintiff is alert, oriented, and not in acute stress. 9 She is ambulatory with a normal gait; normal flexion and extension of her cervical spine; 10 normal rotation in abduction and adduction of her hip joints; normal flexion and extension 11 of her knee; and normal function of her ankle, shoulder, elbow, wrist, and finger joints. She 12 measured "good strength of the upper and lower extremities, 5 out of 5," and her sensory 13 exam was "unremarkable." Under the "recommendations" section of his report, Dr. Valeros 14 opined that "I find the claimant with functional limitations ... she may be able to do work that 15 does not require excessive walking or heavy lifting." All of these findings set forth in Dr. 16 Valeros' treatment notes conflicted with his check-the-box form appearing after his 17 examination. And thus, the ALJ properly found that Dr. Valeros' conclusion was not 18 supported by his own treatment notes. 19 A discrepancy between a physician's notes and his opinions is a clear and convincing 20 reason (a more demanding standard than specific and legitimate) for not relying on that 21 physician's opinion. Bayliss, 427 F.3d at 1216. Thus, the ALJ did not err in affording Dr. 22 Valeros' opinion little weight because of the discrepancy between his notes and conclusion. 23 As to P.A. Bates, the record contains a fill-in questionnaire completed by P.A. Bates 24 indicating that Plaintiff would "need to recline throughout the workday; could sit for only 25 two hours in an eight-hour workday; could stand or walk only three hours; would need to 26 shift positions; could only occasionally lift or carry ten pounds or less; had manipulative 27 restrictions; and would be absent for more than four days a month." (Tr. at 29, 237-38.) 28 -6- 1 In rejecting this assessment, the ALJ noted that although P.A. Bates was a treating 2 provider, physician assistants are not medically accepted sources. (Tr. at 29.) Further, the 3 ALJ emphasized the fact that it was unclear what observations and objective findings P.A. 4 Bates based her check-the-box opinion on, and, as such, the ALJ afforded her opinion little 5 weight. 6 At the time this claim was filed, P.A. Bates did not qualify as a medically acceptable 7 treating source because she was a physician assistant. The ALJ, thus, gave a germane reason 8 for discounting P.A. Bates' opinion in finding that her check-the-box questionnaire did not 9 appear to be based on sufficient objective medical findings and observation. Accordingly, 10 the ALJ did not err in discounting P.A. Bates' opinion. 11 The ALJ gave great weight to Dr. Wright who opined that Plaintiff was limited to 12 medium exertion, except that she could only occasionally lift fifteen pounds overhead, and 13 that Plaintiff had postural and manipulative limitations. (Tr. at 28.) The ALJ noted that 14 although Dr. Wright was a non-examining opinion, his opinion was much more consistent 15 with the medical evidence of record. The ALJ noted that the record demonstrated that 16 Plaintiff had more than minimal functional limitations, but failed to reflect that Plaintiff 17 should be restricted more than outlined by Dr. Wright. (Tr. at 29.) The Court's review of the 18 record supports this conclusion. 19 As of August 2012, in terms of shoulder pain, the Plaintiff had been doing well, 20 according to her surgeon Mark Greenfield, D.O., and was considered to be on full work 21 status one year after her left shoulder surgery. (Tr. at 184.) The objective evidence 22 demonstrated that Plaintiff's shoulder impairments were largely resolved following her 23 surgery. 24 As to Plaintiff's arthritis and degenerative disc disease, although imaging performed 25 before the amended onset date revealed mild disc bulging and scoliosis, there was no 26 spondylolisthesis, and records from 2011 demonstrated that Plaintiff was not experiencing 27 swelling in her lumbar spine and had normal range of motion. The ALJ recognized that 28 -7- 1 imaging in 2014 and 2015 revealed mild osteoarthritis, lower lumbar spine degenerative facet 2 changes, degenerative disc disease, and spondylosis. Yet, she also found that the objective 3 medical evidence demonstrated that these issues were described as mild to moderate with 4 mostly normal objective findings. The ALJ noted that recent imaging showed that Plaintiff's 5 condition had deteriorated to a small extent, but that this deterioration was not indicated over 6 the entirety of the relevant period. 7 As to Claimant's asserted knee limitations, the record reflected that on September 30, 8 2008, the claimant underwent surgery to repair a tear, and alleviate a diagnosis of 9 chondromalacia and a chondral defect of the medial femoral condyle. The ALJ noted that the 10 medical evidence is largely silent regarding the results of this surgery until Dr. Valeros' 2013 11 consultative examination, during which he noted that Plaintiff had only mild pain in her 12 knees. Although X-rays did show mild to moderate degenerative changes, by November 13 2014, her pain was better and cortisone shots appeared to help. The ALJ noted that Plaintiff 14 was compliant with behavior modification and exercise requests concerning her obesity, and 15 was able to perform a level of exertional activities consistent with efforts to reduce weight. 16 The ALJ found these efforts along with a positive response to treatment demonstrated that 17 Plaintiff's knee does not restrict her beyond medium work with the postural limitations. 18 Lastly, regarding Claimant's obesity, the ALJ considered any functional limitations 19 arising therefrom, and found that "[b]ased on the claimant's height and weight measurements 20 and taking into account her complaints and limitations, the undersigned finds that the 21 claimant's weight exacerbates her physical impairments to the extent that she is limited to 22 medium work." 23 Considering all of the above, the ALJ's assignment of greater weight to the opinion 24 of Dr. Wright, who opined that Claimant was limited to medium exertion and had postural 25 and manipulative limitations, as his assessment was reasonable given that Dr. Wright had 26 reviewed the medical records and his opinion was consistent with the greater objective 27 medical evidence of record. The Court finds no error. 28 -8- 1 CONCLUSION 2 Substantial evidence supports the ALJ's decision to deny Plaintiff's claim for 3 disability insurance benefits in this case. Consequently, the ALJ's decision will be affirmed. 4 Based upon the foregoing discussion, 5 IT IS ORDERED that the decision of the ALJ and the Commissioner of Social 6 Security be affirmed; 7 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 8 accordingly. The judgment will serve as the mandate of this Court. 9 DATED this 14th day of March, 2018. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-
CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed March 15, 2018, the Decision of the Commissioner of Social Security is AFFIRMED and this action is hereby terminated.
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rhonda Sesco, NO. CV-16-03391-PHX-MHB 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed 18 March 15, 2018, the Decision of the Commissioner of Social Security is AFFIRMED and 19 this action is hereby terminated. 20 Brian D. Karth District Court Executive/Clerk of Court 21 22 March 15, 2018 s/ Katrina Smith 23 By Deputy Clerk 24 25 26 27 28
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