Leusch v. Berryhill, No. CV18-1042-PHX-DGC

• Court: U.S. District Court — District of Arizona
• Writing for the Court: David G. Campbell, Senior United States District Judge
• Citation: 358 F.Supp.3d 896
• Parties: G.A. LEUSCH, Plaintiff, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
• Docket Number: No. CV18-1042-PHX-DGC
• Decision Date: 11 January 2019

358 F.Supp.3d 896

G.A. LEUSCH, Plaintiff,
v.
Nancy A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

No. CV18-1042-PHX-DGC

United States District Court, D. Arizona.

Signed January 11, 2019

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Mark Ross Caldwell, Mark Caldwell PC, Phoenix, AZ, for Plaintiff.

Franco Becia, Social Security Administration, Seattle, WA, for Defendant.

ORDER

David G. Campbell, Senior United States District Judge

Plaintiff G.A. Leusch seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security ("the Commissioner"), which denied his disability insurance benefits and supplemental security income under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. For the following reasons, the Court

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will vacate the Commissioner's decision and remand for an award of benefits.

I. Background.

Plaintiff is a 55-year-old man with a ninth-grade education. A.R. 48. He previously worked as a cabinet maker. A.R. 60. Plaintiff applied for disability benefits on September 24, 2013, alleging disability beginning June 20, 2012. A.R. 21. On October 7, 2015, Plaintiff and a vocational expert ("VE") appeared and testified at a hearing before the ALJ. A.R. 42-69. On June 1, 2016, Plaintiff, a VE, and a medical expert ("ME") appeared before the ALJ at a supplemental hearing. A.R. 99-127. On September 28, 2016, the ALJ issued an unfavorable decision, finding Plaintiff was not disabled within the meaning of the Social Security Act. A.R. 21-34. The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on February 13, 2018. A.R. 1-7.

II. Legal Standard.

The Court reviews only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel , 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue , 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance, and relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the whole record. Id. In determining whether substantial evidence supports a decision, the Court must consider the whole record and may not affirm simply by isolating a "specific quantum of supporting evidence." Id. (internal citations and quotation marks omitted). As a general rule, "[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart , 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). The ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala , 53 F.3d 1035, 1039 (9th Cir. 1995). In reviewing the ALJ's reasoning, the Court is "not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion." Magallanes v. Bowen , 881 F.2d 747, 755 (9th Cir. 1989).

III. The ALJ's Sequential Evaluation Process.

To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, and the burden shifts to the Commissioner at step five. Tackett v. Apfel , 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a "severe" medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity ("RFC") and determines whether the claimant is capable of performing past relevant work.

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§ 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the claimant can perform any other work based on the claimant's RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled.

At step one, the ALJ found that Plaintiff met the insured status requirements of the Social Security Act through June 30, 2014, and that he had not engaged in substantial gainful activity since June 20, 2012. A.R. 24. At step two, the ALJ found that Plaintiff had the following severe impairments: bilateral carpal tunnel syndrome status post left release; history of left cubital tunnel syndrome status post decompression; lumbar spine spondylosis ; and cervical spine spondylosis, status post fusion. Id. At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or medically equals a listed impairment. Id. At step four, the ALJ determined that Plaintiff had the RFC to perform medium work and that:

the claimant can lift and/or carry fifty pounds occasionally, twenty-five pounds frequently; ... has no limitation with regard to sitting with normal breaks; ... can stand or walk for six hours with normal breaks; [and] can frequently finger with the dominant left upper extremity.

A.R. 24. The ALJ concluded that Plaintiff could perform his past relevant work as a cabinet maker, and that he was not disabled within the meaning of the Social Security Act from June 20, 2012 through September 28, 2016.¹ Id. at 34.

IV. Discussion.

Plaintiff argues that the ALJ's decision is defective for two reasons: (1) the ALJ erred in rejecting assessments by Plaintiff's two treating physicians, Dr. Kearney and Dr. Amrani, and giving great weight to the non-examining ME, Dr. Schmitter; and (2) the ALJ rejected Plaintiff's symptom testimony without specific, clear, and convincing reasons supported by substantial evidence. Doc. 14 at 18, 25.

A. Medical Opinion Evidence.

1. Legal Standard.

A physician's opinion may be a treating source, examining source, or non-examining source. See 20 C.F.R. § 404.1527 (evaluating opinion evidence for claims filed before March 2017); Lester v. Chater , 81 F.3d 821, 830 (9th Cir. 1995). A treating physician is one who provides or has provided the claimant with medical treatment or evaluation, or who has an ongoing treatment relationship with the claimant. 20 C.F.R. § 404.1527(a)(2). Generally, an ALJ should give greatest weight to a treating physician's opinion and more weight to the opinion of an examining physician than a non-examining physician. See Andrews , 53 F.3d at 1040-41 ; see also 20 C.F.R. § 404.1527(c)(2)-(6). If it is not contradicted by another doctor's opinion, the opinion of a treating or examining physician can be rejected only for "clear and convincing" reasons. Lester , 81 F.3d at 830 (citing Embrey v. Bowen , 849 F.2d 418, 422 (9th Cir. 1988) ). "Even if the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject

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this opinion without providing ‘specific and legitimate reasons’ supported by substantial evidence in the record for so doing." Id. "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Magallanes , 881 F.2d at 751.

"The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Embrey , 849 F.2d at 421-22. The Commissioner is responsible for determining whether a claimant meets the statutory definition of disability and does not give significance to a statement by a medical source that the claimant is "disabled" or "unable to work." 20 C.F.R. § 416.927(d).

2. Dr. John Kearney.

The ALJ gave Dr. Kearny's opinion little weight. A.R. 32. Because Dr. Kearney is a treating physician whose opinion is contradicted by another doctor, the ALJ could discount his opinion by giving specific and legitimate reasons that are supported by substantial evidence. Lester , 81 F.3d at 830.

a. Opinion.

On May 29, 2015, Dr. Kearney completed a check-box form indicating that Plaintiff had moderately severe pain which seriously affected his ability to function and prohibited him from...