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Newland v. Saul

United States District Court, D. Alaska

September 5, 2019

RANDY D. NEWLAND, Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.



         This is 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 Randy Dell Newland has timely filed his opening brief, [1] to which defendant, Andrew M. Saul, has timely responded.[2] Oral argument was not requested and is not deemed necessary.

         Procedural Background

         On March 7, 2013, plaintiff filed applications for disability benefits under Title II and Title XVI of the Social Security Act, alleging that he became disabled on February 20, 2013. Plaintiff alleged that he was disabled due to back injury, torn rotator cuffs, learning disability, his elbow, and depression. Plaintiff's applications were denied initially, and plaintiff requested a hearing. After an administrative hearing on September 3, 2014, an administrative law judge (ALJ) denied plaintiff's application. Plaintiff sought review of the ALJ's January 5, 2015 unfavorable decision. On June 20, 2016, the Appeals Council granted plaintiff's request for review and remanded the matter to the ALJ.[3] Upon remand, the ALJ held administrative hearings on August 18, 2017 and January 9, 2018, after which she again denied plaintiff's applications. Plaintiff again sought review of the ALJ's unfavorable decision. On February 27, 2019, the Appeals Council denied plaintiff's request for review, thereby making the ALJ's April 11, 2018 decision the final decision of the Commissioner. On March 25, 2019, plaintiff commenced this action in which he asks the court to review the Commissioner's final decision.

         General Background

         Plaintiff was born on July 15, 1964. Plaintiff was 48 years old on his alleged onset date. Plaintiff has an 11th grade education. Plaintiff's past relevant work includes work as a production line welder, a production line assembler, a material handler, a production line maintenance mechanic, and a cook.

         The ALJ's Decision

         The ALJ first determined that plaintiff met “the insured status requirements of the Social Security Act through June 30, 2017.”[4]

         The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.[5]

         At step one, the ALJ found that plaintiff had “not engaged in substantial gainful activity since February 20, 2013, the alleged onset date. . . .”[6]

         At step two, the ALJ found that plaintiff had “the following severe impairments: right rotator cuff repair, status post bilateral carpal tunnel releases, status post cervical fusion, and lumbar degenerative disc disease. . . .”[7] The ALJ found plaintiff's “obesity, chronic bronchitis, alcohol and substance abuse, and depression” to be nonsevere impairments.[8] The ALJ considered the “paragraph B” criteria and found that plaintiff had mild limitations as to understanding, remembering, or applying information; mild limitations as to interacting with others; mild limitations as to concentrating, persisting, or maintaining pace; and mild limitations as to adapting or managing oneself.[9]

         At step 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. . . .”[10] The ALJ considered Listings 1.02 (major dysfunction of a joint due to any cause), 1.04 (disorders of the spine) and 11.14 (peripheral neuropathy).[11]

         “Between 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(d) and 416.967(c) except as limited by the following. The claimant can never climb ladders, ropes, or scaffolds. He must avoid all non-weather related extreme cold and extreme heat as well as all dust, unprotected heights, and hazardous machinery.”[12]

         The ALJ found plaintiff's pain and symptom statements less than credible because they were inconsistent with the objective medical evidence and his daily activities.[13]

         The ALJ gave Dr. Sklaroff's January 2018 opinion great weight.[14] The ALJ gave Dr. Moore's opinion great weight.[15] The ALJ gave Dr. Christensen's opinion great weight.[16]The ALJ gave some weight to Dr. Granholm's opinion.[17] The ALJ gave great weight to PA-C Crowley's opinion.[18] The ALJ gave little weight to Dr. Martinez's opinions.[19] The ALJ gave partial weight to the lay testimony of Jackie Lohrey, plaintiff's friend.[20]

         At step four, the ALJ found that plaintiff “is unable to perform any past relevant work. . . .”[21]

         At step five, the ALJ found that “there are jobs that exist in significant numbers in the national economy that the claimant can perform” including working as a kitchen helper, an airport maintenance laborer, or a store laborer.[22]

         Thus, the ALJ concluded that plaintiff had “not been under a disability, as defined in the Social Security Act, from February 20, 2013, through the date of this decision. . . .”[23]

         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)).


         As an initial matter, defendant complains that plaintiff did not raise some of his arguments in the “argument” section of his opening brief, instead raising them in the “summary of pertinent evidence” section. While it would have been preferable had plaintiff raised his arguments in the actual argument section of his opening brief, that he did not does not mean that the court cannot consider these arguments. Defendant was able to discern what arguments plaintiff was making and respond to those arguments in his opposing brief.

         Turning then to plaintiff's arguments, plaintiff first argues that the ALJ erred in giving Dr. Christensen's opinion great weight. Dr. Christensen examined plaintiff on August 15, 2013. Dr. Christensen's discussion was as follows:

[T]he patient appeared to be generally functional in his activities of daily living, insomuch as he could dress and undress himself and get on and off the exam table without difficulty. He does not require a cane or crutch to ambulate. The patient's main complaint is pain in his shoulder. He states he has chronic pain. He is unable to do activities that require overhead work or range of motion in his shoulder. Further evaluation is warranted. The patient appears to have at least an impingement syndrome. However, the examination is somewhat limited today due to patient guarding and complaints of pain. An orthopedic evaluation and MRI scan would be helpful. The patient complains of chronic low back pain. He states he has five herniated discs. However, there is an MRI available that indicates no disc herniation and no nerve root impingement as of 2010. The patient complains of pain in his neck. On x-ray today there appears to be some degenerative disc and joint disease. The patient has had a prior fracture to his right elbow. He states he has had surgery several times for repair. He does have some limited range of motion. The patient retains good range of motion in his wrists and hands. He has good dexterity. The patient states that he had ear problems as a child. He had an infantile surgery on both ears. He currently does have some evidence of hearing loss. He does not use a hearing aid and there was no difficulty communicating today. The patient currently denies depression. He states that he has chronic pain and he does admit to being an alcoholic, although he states he is sober at this time. Today the patient appears to be generally functional and capable of at least light activity within the parameters mentioned above. It is difficult to get a complete picture of the patient's true capabilities based on today's examination. It would seem that there is perhaps quite a bit of magnification of symptoms.[24]

         The ALJ gave great weight to Dr. Christensen's opinion that plaintiff was “capable of at least light activity” and in her discussion mentioned that Dr. Christensen believed that perhaps there was “‘quite a bit of magnification of symptoms.'”[25] Plaintiff argues that the ALJ improperly focused on this negative remark made by Dr. Christensen and failed to take into account his opinion that “[f]urther evaluation is warranted” and that plaintiff “appears to have at least an impingement syndrome.”[26] Plaintiff seems to be arguing that the ALJ ignored Dr. Christensen's opinion that further evaluation of plaintiff's symptoms was necessary.

         To the extent this is what plaintiff is arguing, this argument fails, in large part because the majority of the medical records in this case came in after Dr. Christensen examined plaintiff in 2013. There was “further evaluation” of plaintiff's impairments.

         To the extent that plaintiff is arguing that the ALJ focused too heavily on Dr. Christensen's comment about symptom magnification, it should be noted that Dr. Christensen was not the only medical provider who believed that there might be some magnification of symptoms here. In September 2016, Dr. Eule noted some concerns about “secondary gain issues.”[27]

         All that said, there is still a problem with the ALJ's treatment of Dr. Christensen's opinion, although this is not an issue that plaintiff raised. The ALJ gave great weight to Dr. Christensen's opinion that plaintiff could perform “light activity” but Dr. Christensen put some limitations on this “light activity.” Specifically, Dr. Christensen opined that plaintiff was “generally functional and capable of at least light activity within the parameters mentioned above.”[28] One of the parameters mentioned by Dr. Christensen was no “activities that require overhead work or range of motion in his shoulder.”[29] This parameter was placed on plaintiff's functional capacity despite Dr. Christensen's concern about symptom magnification. The ALJ did not expressly explain why she rejected this portion of Dr. Christensen's opinion, although it may be possible to infer from other portions of her decision that she did so because plaintiff had shoulder surgery in 2016 and because plaintiff was once observed pulling his hoodie over his head.[30] To the extent these were the reasons the ALJ rejected Dr. Christensen's opinion about plaintiff's ability to reach overhead, they are not legitimate. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (“[i]f a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence”).

         As for the fact that plaintiff had shoulder surgery in 2016, defendant has argued that there was no reason for the ALJ to bifurcate the assessment of plaintiff's residual functional capacity pre- and post-surgery because plaintiff testified that his limitations were the same both before and after surgery. More specifically, plaintiff testified that he could still not lift his arms after surgery.[31] In other words, defendant is contending that plaintiff had the same limitations pre- and post-surgery. If that is true, plaintiff's 2016 shoulder surgery would not have been a legitimate reason for the ALJ to reject Dr. Christensen's opinion about overhead reaching. As for the one time plaintiff was observed pulling his hoodie over his head, it is difficult to perceive how plaintiff's ability to dress himself would translate into an ability to overhead reach continually throughout an 8-hour work day.

         The ALJ erred as to Dr. Christensen's opinion. Although the ALJ gave this opinion great weight, she did not include some of the limitations assessed by Dr. Christensen and she failed to give legitimate reasons for not including the assessed limitations.

         Plaintiff next argues that the ALJ erred as to Dr. Granholm's opinion. Dr. Granholm was plaintiff's PCP from April 5, 2013 through December 18, 2014. On March 20, 2014, Dr. Granholm opined that plaintiff could not work because he needed surgery and had inadequate pain management, primarily because he could not afford treatment.[32]

         Dr. Granholm was a treating physician. Because Dr. Granholm's opinion was contradicted by Dr. Christensen's and Dr. Sklaroff's opinions, the ALJ was required to give specific and legitimate ...

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