United States District Court, D. Alaska
Russel Holland United States District Judge.
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,  to which defendant, Nancy A.
Berryhill, the acting Commissioner of the Social Security
Administration, has responded. Oral argument was not requested
and is not deemed necessary.
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.
5, 2017, plaintiff commenced this action for judicial review
of defendant's final decision.
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.
first determined that plaintiff “last met the insured
status requirements of the Social Security Act on December
then applied the five-step sequential analysis used to
determine whether an individual is disabled.
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....”
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
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,
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
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
gave significant weight to Dr. Lace's
opinion. The ALJ gave partial weight to Dr.
Lebeau's opinion. The ALJ gave some weight to Dr.
Harder's opinion. The ALJ gave ANP Thompson's
opinions little weight. The ALJ gave little weight to Dr.
Kropp's opinion. The ALJ gave little weight to Dr.
Vestal's opinion. The ALJ gave little weight to the
opinion of Dr. Sanford.
four, the ALJ found that “[t]hrough the date last
insured, the claimant was capable of performing past relevant
work as a general clerk.”
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
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.
first argues that the ALJ erred in giving little weight to
ANP Thompson's opinion as to plaintiff's mental
capacity. Plaintiff saw Catherine Thompson, ANP,
for management of her chronic pain. Thompson began treating
plaintiff in 2008.
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.
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.
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.
argues that this was not a legitimate reason because the
record shows that she reported symptoms of depression on many
occasions and even Dr. Lace testified that she had
depressive disorder secondary to chronic pain. 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.
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.” In addition, plaintiff often showed
“good cognition” upon exam. The ALJ did
not err in rejecting Thompson's opinion as to
plaintiff's mental capacity.
next argues that the ALJ erred as to Dr. Kropp's opinion.
Dr. Kropp, an interventional anesthesiologist, who treated
plaintiff's spinal pain. 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. Dr. Kropp opined that plaintiff had
limitations as to doing repetitive reaching, handling, or
fingering but did not indicate specifically what these
limitations were. 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?” 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[.]” Dr. Kropp opined that plaintiff was not
physically capable of working an 8 hour day, 5 days week on a
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
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....” 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[.]” The ALJ also
considered the ...