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Duron v. Berryhill

United States District Court, D. Alaska

February 14, 2018

NANCY A. BERRYHILL, acting Commissioner of Social Security, Defendant.


          H. Russel Holland United States District Judge.

         This is an action for judicial review of the denial of disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff Deidre Leanora Duron has timely filed her opening brief, [1] to which defendant, Nancy A. Berryhill, the acting Commissioner of the Social Security Administration, has responded.[2] Oral argument was not requested and is not deemed necessary.

         Procedural Background

         On December 1, 2011, plaintiff filed an application for disability benefits under Title II of the Social Security Act. Plaintiff alleges that she became disabled on April 1, 2010. Plaintiff alleges that she is disabled due to thoracic spine issues, autonomic dysreflexia, and depression. Plaintiff's application was denied initially on August 7, 2012. Plaintiff requested an administrative hearing, which was held on February 11, 2013. On June 4, 2013, an administrative law judge (ALJ) denied plaintiff's claim. On December 2, 2014, the Appeals Council denied plaintiff's request for review of the ALJ's June 4, 2013 decision. Plaintiff sought judicial review. On January 4, 2016, the court reversed the decision of the Commissioner and remanded the matter for further hearings. On remand, an administrative hearing was held on December 6, 2016. A supplemental hearing was held on March 31, 2017. On May 3, 2017, the ALJ again denied plaintiff's claim. The Appeals Council did not assume jurisdiction within thirty days of the ALJ's May 3, 2017 decision, thereby making this the final decision of defendant.

         On July 5, 2017, plaintiff commenced this action for judicial review of defendant's final decision.

         General Background

         Plaintiff was born on January 30, 1978. She was 35 years old at the time of the February 11, 2013 hearing. Plaintiff is married and has two teen-age boys. Plaintiff has a GED and a paralegal certificate. Plaintiff's past relevant work includes work as an administrative assistant at a law firm.

         The ALJ's Decision

         The ALJ first determined that plaintiff “last met the insured status requirements of the Social Security Act on December 31, 2015.”[3]

         The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.[4]

         At step one, the ALJ found that plaintiff “did not engage in substantial gainful activity during the period from her alleged onset date of April 1, 2010 through her date last insured of December 31, 2015....”[5]

         At step two, the ALJ found that “[t]hrough the date last insured, the claimant had the following severe impairments: chronic pain syndrome with degenerative disc disease and mild autonomic dysfunction; obesity; depressive disorder secondary to chronic pain issues; and somatoform disorder.”[6]

         At step three, the ALJ found “[t]hrough the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1....”[7]

         “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's RFC.” Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009). The ALJ found

that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). In addition, the claimant was able to frequently push/pull and she was able to frequently reach and frequently overhead reach with the bilateral upper extremities. The claimant could have frequent foot control operation with the bilateral lower extremities. She could do no climbing of ladders, ropes, or scaffolds and she had to avoid exposure to unprotected heights. She could have frequent contact with moving machinery. She was limited to work which would not require expectations of performance regarding filling quotas. Finally, the claimant needed a sit/stand option that allowed her to alternate between a sitting or standing position throughout the day.[8]

         The ALJ considered plaintiff's pain and symptom statements and found that her statements were “not entirely consistent with the medical evidence and other evidence in the record....”[9]

         The ALJ gave significant weight to Dr. Lace's opinion.[10] The ALJ gave partial weight to Dr. Lebeau's opinion.[11] The ALJ gave some weight to Dr. Harder's opinion.[12] The ALJ gave ANP Thompson's opinions little weight.[13] The ALJ gave little weight to Dr. Kropp's opinion.[14] The ALJ gave little weight to Dr. Vestal's opinion.[15] The ALJ gave little weight to the opinion of Dr. Sanford.[16]

         At step four, the ALJ found that “[t]hrough the date last insured, the claimant was capable of performing past relevant work as a general clerk.”[17]

         Thus, the ALJ concluded that plaintiff “was not under a disability, as defined in the Social Security Act, at any time from April 1, 2010, the alleged onset date, through December 31, 2015, the date last insured....”[18]

         Standard of Review

         Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner....” The court “properly affirms the Commissioner's decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence supports the ALJ's decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the Commissioner's decision. Id. But, the Commissioner's decision cannot be affirmed “‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).


         Plaintiff first argues that the ALJ erred in giving little weight to ANP Thompson's opinion as to plaintiff's mental capacity.[19] Plaintiff saw Catherine Thompson, ANP, for management of her chronic pain. Thompson began treating plaintiff in 2008.[20]

         On December 1, 2016, Thompson opined that plaintiff would have moderate limitations in her ability to carry out short instructions, marked limitations in her ability to remember and carry out work-like procedures, and extreme limitations in her ability to understand/remember short instructions, understand/remember/carry out detailed instructions, maintain concentration for extended periods, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, work in coordination with or in proximity to others without being distracted by them, make simple work-related decisions, complete a normal workweek without interruptions from psychologically based symptoms, and perform at a consistent pace with a standard number and lengths of rest periods.[21]

         Thompson was a treating source. “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.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “At least where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for ‘clear and convincing' reasons.” Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). “[I]f the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing ‘specific and legitimate reasons' supported by substantial evidence in the record for so doing.” Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Thompson's opinion was contradicted by the opinions of Dr. Lace and Dr. Sanford. Thus, the ALJ was required to give specific and legitimate reasons for rejecting Thompson's opinion.

         The only reason the ALJ gave for rejecting Thompson's opinion was that it was not support by the medical evidence. The ALJ explained that there is no evidence in the record to support such extreme limitations and pointed out that plaintiff denied any difficulties with her memory, her ability to concentrate, and her ability to complete tasks.[22]

         Plaintiff argues that this was not a legitimate reason because the record shows that she reported symptoms of depression on many occasions[23] and even Dr. Lace testified that she had depressive disorder secondary to chronic pain.[24] But the fact that plaintiff had depression does not in and of itself mean that Thompson's opinion was supported by the medical evidence of record. Thompson's opinion was not that plaintiff had depression but that she was extremely limited in her mental capacity as a result of that depression.

         The evidence of record does not support Thompson's opinion. In particular, as the ALJ noted, plaintiff's own function report contradicts Thompson's opinion. On May 2, 2012, plaintiff reported that she can finish what she starts, can follow written and oral instructions “just fine” and handles stress and changes in her routine “just fine.”[25] In addition, plaintiff often showed “good cognition” upon exam.[26] The ALJ did not err in rejecting Thompson's opinion as to plaintiff's mental capacity.

         Plaintiff next argues that the ALJ erred as to Dr. Kropp's opinion. Dr. Kropp, an interventional anesthesiologist, who treated plaintiff's spinal pain.[27] On January 30, 2012, Dr. Kropp opined that plaintiff could walk 1 block, sit for 5 minutes at a time, stand for 5 minutes at a time, sit for 1 hour total in an 8-hour day, stand/walk for 1 hour total in an 8hour day, and occasionally lift/carry less than 10 pounds.[28] Dr. Kropp opined that plaintiff had limitations as to doing repetitive reaching, handling, or fingering but did not indicate specifically what these limitations were.[29] Dr. Kropp opined that plaintiff would need to recline or lay down in excess of regularly scheduled breaks in an 8-hour day, but also wrote “N//A” in response to the question “[w]ill your patient need to take unscheduled breaks during an 8-hour workday?”[30] Dr. Kropp also opined that plaintiff's symptoms would be severe enough to constantly interfere with the “attention & concentration required to perform simple work-related tasks[.]”[31] Dr. Kropp opined that plaintiff was not physically capable of working an 8 hour day, 5 days week on a sustained basis.[32]

         Plaintiff first argues that the ALJ erred as to Dr. Kropp's opinion because the ALJ failed to evaluate the factors set out in 20 C.F.R. § 404.1527(c), as the ALJ is required to do. These factors are 1) examining relationship, 2) treatment relationship, 3) supportability, 4) consistency, 5) specialization, and 6) any other relevant factors. Plaintiff argues that the ALJ failed to consider that Dr. Kropp had an extensive treatment relationship with plaintiff, spanning at least eight years, that he treated her regularly, that he referred her to specialists, and that he had consulted with those specialists on the proper course of care. Plaintiff also points out that Dr. Kropp was the only physician who had actually examined her who offered an opinion as to her physical limitations.

         The ALJ did not fail to evaluate the factors set out in 20 C.F.R. § 404.1527(c). The ALJ expressly stated that he “considered opinion evidence in accordance with the requirements of 20 CFR 404.1527....”[33] More specifically, as to Dr. Kropp's opinion, the ALJ noted that Dr. Kropp was plaintiff's “long-time treating provider” and the ALJ stated that he had considered Dr. Kropp's opinion “in light of the fact that he has been treating claimant since 2004[.]”[34] The ALJ also considered the ...

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