United States District Court, D. Alaska
RANDY D. NEWLAND, Plaintiff,
ANDREW M. SAUL, 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
Randy Dell Newland has timely filed his opening brief,
which defendant, Andrew M. Saul, has timely
responded. Oral argument was not requested and is not
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. 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.
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
first determined that plaintiff met “the insured status
requirements of the Social Security Act through June 30,
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 February 20, 2013, the
alleged onset date. . . .”
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. . .
.” The ALJ found plaintiff's
“obesity, chronic bronchitis, alcohol and substance
abuse, and depression” to be nonsevere
impairments. 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
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 1.02 (major
dysfunction of a joint due to any cause), 1.04 (disorders of
the spine) 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(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
found plaintiff's pain and symptom statements less than
credible because they were inconsistent with the objective
medical evidence and his daily activities.
gave Dr. Sklaroff's January 2018 opinion great
weight. The ALJ gave Dr. Moore's opinion
great weight. The ALJ gave Dr. Christensen's
opinion great weight.The ALJ gave some weight to Dr.
Granholm's opinion. The ALJ gave great weight to PA-C
Crowley's opinion. The ALJ gave little weight to Dr.
Martinez's opinions. The ALJ gave partial weight to the
lay testimony of Jackie Lohrey, plaintiff's
four, the ALJ found that plaintiff “is unable to
perform any past relevant work. . . .”
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
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. . .
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.
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
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.
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.'” 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.” Plaintiff seems to be arguing that the
ALJ ignored Dr. Christensen's opinion that further
evaluation of plaintiff's symptoms was necessary.
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.
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
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.” One of the parameters mentioned by Dr.
Christensen was no “activities that require overhead
work or range of motion in his shoulder.” 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. 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
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. 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.
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
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.
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 ...