United States District Court, D. Alaska
DUSTIN W. CLARK, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
Russel Holland, United States District Judge.
an action for judicial review of the denial of disability
benefits under Title II and Title XVI of the Social Security
Act, 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff
Dustin Clark has timely filed his opening brief,
which defendant, the Commissioner of Social Security, has
timely responded. Oral argument was not requested and is not
March 23, 2015, plaintiff filed applications for disability
benefits under Title II and Title XVI of the Social Security
Act, alleging that he became disabled on November 1, 2011.
Plaintiff alleged that he is disabled due to
seizures/epilepsy, cervical spine impairment, and severe back
pain. Plaintiff's applications were denied initially, and
plaintiff requested a hearing. Administrative hearings were
held on November 21, 2016 and October 13, 2017. An
administrative law judge (ALJ) then denied plaintiff's
applications. Plaintiff sought review of the ALJ's
unfavorable decision. On September 6, 2018, the Appeals
Council denied plaintiff's request for review, thereby
making the ALJ's November 16, 2017 decision the final
decision of the Commissioner. On October 1, 2018, plaintiff
commenced this action in which he asks the court to review
the Commissioner's final decision.
was born on December 19, 1968. He was 47 years old at the
time of the first administrative hearing and 48 years old at
the time of the second administrative hearing. Plaintiff has
a high school education and one year of trade school.
Plaintiff's past relevant work includes work as a
mortgage loan officer, a branch manager, and a charter boat
first determined that plaintiff met “the insured status
requirements of the Social Security Act through December 31,
then applied the five-step sequential analysis used to
determine whether an individual is disabled.
one, the ALJ found that plaintiff had “not engaged in
substantial gainful activity since November 1, 2011, the
alleged onset date. . . .”
two, the ALJ found that plaintiff had “the following
severe impairments: degenerative disc disease of the cervical
and lumbar spine, episodic seizures, alcohol abuse,
status-post carpal tunnel syndrome and cubital tunnel
syndrome surgery on the left. . . .”The ALJ found
plaintiff's hand tremor and thoracic kyphosis
non-severe. The ALJ found that plaintiff's
“medically determinable mental impairment of alcohol
abuse does not cause more than minimal limitation in the
claimant's ability to perform basic mental work
activities and is therefore nonsevere.” However, the ALJ
found that plaintiff's “alcohol abuse has been
found to be a severe impairment based on physical
ramifications of [his] drinking, including
seizures[.]” The ALJ considered the “paragraph
B” criteria and found that plaintiff had no limitation
as to understanding, remembering, or applying information; no
limitations as to interacting with others; no limitations as
to concentrating, persisting, or maintaining pace; and no
limitations as to adapting or managing oneself.
three, the ALJ found that plaintiff did not “have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. . .
.” The ALJ considered Listings 1.04
(disorders of the spine), 11.02 (epilepsy), 1.02 (major
dysfunction of a joint), and 11.14 (peripheral neuropathy).
steps three and four, the ALJ must, as an intermediate step,
assess the claimant's RFC.” Bray v. Comm'r
of Social Security Admin., 554 F.3d 1219, 1222-23 (9th
Cir. 2009). The ALJ found that plaintiff had
the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) with the
following exceptions. The claimant requires a sit/stand
option allowing the claimant to alternate sitting or standing
positions at one-hour intervals throughout the day. The
claimant can frequently balance, and occasionally climb ramps
or stairs, stoop, kneel, crouch, and crawl. The claimant can
never climb ladders, ropes, or scaffolds. The claimant can
have frequent exposure to moving machinery and no exposure to
found plaintiff's pain and symptom statements to be less
than credible because they were inconsistent with the medical
evidence, because his testimony about when he stopped
drinking was inconsistent, and based on his daily
gave great weight to Dr. Jessen's
opinions. The ALJ gave great weight to Dr.
Lebeau's opinion. ALJ gave little weight to Dr.
Rullman's opinion. The ALJ also gave little weight to
Dr. Humphreys' opinions. And, the ALJ gave little
weight to Dr. Caldwell's
four, the ALJ found that plaintiff was “capable of
performing past relevant work as a mortgage loan officer and
the ALJ concluded that plaintiff had “not been under a
disability, as defined in the Social Security Act, from
November 1, 2011, through the date of this decision. . .
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 as to Dr. Humphreys'
opinions. Dr. Humphreys was a treating physician and provided
three opinions that the ALJ considered. “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)). Dr.
Humphreys' opinions were contradicted by Dr. Lebeau's
opinion and Dr. Caldwell's opinion; and so, the ALJ was
required to give specific and legitimate reasons for
rejecting Dr. Humphreys' opinions.
13, 2014, Dr. Humphreys wrote that plaintiff
initially presented to our office on 3/27/14. He was
diagnosed with neck pain and C7 radiculopathy with
questionable ulnar neuropathy. Per his symtomology [sic] and
imaging studies, surgical intervention was medically
necessary. [H]e underwent an Anterior Cervical Discectomy and
Fusion C6-7. Post operatively he has been having steady
improvement in muscular strength on the left. Unfortunately,
he has continued to have a seizure disorder that is being
followed by Dr. Kristen Jessen. In regards to his disability,
he is still recovering post operatively for his cervical
spine. He is unable to work currently and will be
re-evaluated at his next appointment on 7/8/14. We cannot
predict at this time that he will be disabled for the next 12
months for his cervical spine or left hand.
rejected Dr. Humphreys' opinion that plaintiff could not
work because “it [was] not consistent with the overall
objective medical evidence.” The ALJ explained that
“[t]he treatment records do support [that] the claimant
was improving” and cited Dr. Humphreys' May 19,
2015 treatment note. On that day, Dr. Humphreys noted that
plaintiff came in
with increased pain since October. He has pain to his arm and
does appear to have more atrophy in his arm, first web space,
and thenar musculature. He began to have pain with motion of
his neck that goes into this left arm. He had plain films,
which show good alignment. He has more difficulty walking
with a bit of a tremor.
then somewhat confusingly stated that “[i]n addition,
when the claimant saw Dr. Humphreys on May 19, 2015, he
reported increased pain since October . . ., which supports
he did have improvement in his symptoms following
the ALJ's explanation of why he was rejecting Dr.
Humphreys' 2014 opinion was confusing and may have been
error, any error as to Dr. Humphreys' 2014 opinion was
harmless. “[H]armless error . . . exists when it is
clear from the record that the ALJ's error was
inconsequential to the ultimate nondisability
determination.” Garcia v. Comm'r of
Social Sec., 768 F.3d 925, 932 (9th Cir. 2014)
(citation omitted). In his 2014 note, Dr. Humphreys expressly
stated that he did not know if plaintiff's left upper
extremity impairment would continue for more than 12 months.
An impairment must have lasted or be expected to last for 12
continuous months in order to be considered disabling.
Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012). Because Dr. Humphreys was not sure if plaintiff's
left upper extremity would last for longer than 12 months,
even if the ALJ had given more weight to his 2014 opinion, it
would not have changed the ALJ's ultimate nondisability
next considered Dr. Humphreys' May 2015 opinion. On May
21, 2015, Dr. Humphreys opined that plaintiff could sit for
less than one hour; stand/walk for less than one hour; could
occasionally lift/carry 10 pounds; could occasionally lift up
to 20 pounds; could not walk one block at a reasonable pace
on rough or uneven surfaces; could not climb a few stairs;
must use a cane while standing or walking; could rarely
grasp, finger, or overhead reach with his left hand; could
frequently grasp, finger, and overhead reach on the right;
would frequently experience fatigue or pain that would be
severe enough to interfere with attention and concentration;
and would need unscheduled breaks.
rejected Dr. Humphreys' 2015 opinion because “it
[was] not consistent with the overall objective medical
evidence” and because plaintiff “was found to
have improvement of his symptoms following” his June
2015 surgery on his ulnar nerve. The ALJ again relied on
Dr. Humphreys' May 19, 2015 treatment note, but this
treatment note does not show that plaintiff's condition
was improving. Rather, it indicates that plaintiff had
increased pain and atrophy. The ALJ also cited to Dr.
Bote's July 30, 2015, treatment note, in which Dr. Bote
indicated that plaintiff reported that he “continues to
have eccymosis along the arm” and “some slight
numbness to the digits, but [i]t is not
severe.” Dr. Bote also noted that plaintiff
“explain[ed] that he has good and bad days. Patient
complains . . . that he is in pain [but is] starting to have
some movement in fingers.”
reasons the ALJ gave for rejecting Dr. Humphreys' 2015
opinions were not legitimate. The medical evidence of record
does not show that plaintiff's left upper extremity
impairment was improving, but rather that plaintiff was
continuing to have pain and numbness and other problems
associated with his left upper extremity.
also considered Dr. Humphrey's February 2017 opinion. On
February 21, 2017, Dr. Humphreys opined that plaintiff could
sit less than one hour; could stand/walk less than one hour;
could occasionally lift up to 20 pounds; could occasionally
carry up to 10 pounds; could not walk one block at a
reasonable pace on rough or uneven surfaces; could not climb
a few stairs; must use a cane when standing or walking; could
never grasp, finger, or reach overhead with his left
arm/hand; could frequently grasp, finger, and reach overhead
with his right arm/hand; would frequently experience pain or
fatigue severe enough to interfere with concentration and
attention; would need to take unscheduled breaks; and would
miss more than 3 days of work per month.
rejected Dr. Humphreys' February 2017 opinion because
“it [was] not consistent with the overall objective
evidence.” In support of this finding, the ALJ
cited to Dr. Humphreys' April 13, 2017 treatment note
that plaintiff “had 5/5 strength in the muscles tested
in the upper extremities and lower extremities. He also had
normal sensation.” But, at the April 13, 2017
appointment, Dr. Humphreys noted that plaintiff
“continues to have weakness and pain, patient also has
left hand atrophy. Patient is ambulating with a cane
today.” And, at plaintiff's August 2017
appointment with Dr. Humphreys, the doctor noted that
plaintiff “continue[s] to have ulnar radiculopathy in
his left hand which [has] now left him with clawing
deformity.” The ALJ also cited to Dr. Hansen's
October 9, 2015 finding that plaintiff “had normal
bilateral grip strength of both hands.” But, Dr.
Hansen also found that “[t]he extension of
[plaintiff's] left fingers 2, 3, 4, & 5 is weaker
than the right” and that “[t]here is atrophy of
the left hand thenar muscles.”There is not substantial
evidence supporting the ALJ's finding that Dr.
Humphreys' February 2017 opinion was inconsistent with
the medical evidence of record. Rather, the medical evidence
of record supports Dr. Humphreys' opinion that plaintiff
had significant limitations as a result of his left upper
ALJ erred as to Dr. Humphrey's 2015 and 2017 opinions,
which he did, plaintiff argues that this error was not
harmless. Plaintiff argues that if the ALJ had given Dr.
Humphreys' opinions greater weight, the ALJ would have
included in plaintiff's RFC the limitation that plaintiff
could rarely or never grasp, finger, or reach overhead with
his left arm/hand. If such a limitation would have been
included in his RFC, plaintiff argues that it is possible
that the ALJ would have reached a different conclusion as to
however, argues that any error as to Dr. Humphreys' 2015
and 2017 opinions was harmless because the vocational expert
testified that plaintiff could still perform his past
relevant work as a mortgage loan officer or branch manager
even if he could not use his left upper extremity. Weiss was
given a hypothetical person who could use his “left
upper extremity, regarding overhead reaching, handling, and
fingering, ” as “more of an assist in his
non-dominant upper extremity than full
usage.” Weiss testified that such a person could
perform plaintiff's past relevant work as a branch
manager or mortgage loan officer.Plaintiff's lawyer
then asked about the “need for keyboarding, any use of
both hands” for the mortgage loan officer
job. Weiss testified that “[t]he
handbook for analyzing jobs doesn't address bilateral