Swahn v. Commissioner of Social Security

          ORDER ON PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 9, 10)

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security denying his application for Title II disability insurance benefits.^[1] In his summary judgment motion, Plaintiff primarily contends the Administrative Law Judge (“ALJ”) erred in weighing medical evidence and testimony regarding Plaintiff's physical and mental impairments, erred in formulating Plaintiff's residual functional capacity, and erred in finding Plaintiff could perform past work. The Commissioner opposed and filed a cross-motion for summary judgment.

         After considering the parties' written briefing, the record, and the applicable law, the Court GRANTS the Commissioner's motion for summary judgment, DENIES Plaintiff's motion, and AFFIRMS the decision.

         I. BACKGROUND AND ALJ'S FIVE-STEP ANALYSIS^[2]

         Plaintiff applied for supplemental security income on March 4, 2015, alleging an onset date of January 1, 2012. (Administrative Transcript (“AT”) 197.) Plaintiff claimed the following medical conditions: “Neuropathy in legs (severe pain). Diabetes. Hepatitis C, Back Pain, Sleeping problems. Hearing loss. Chronic pain. Panic attacks. Anxiety.” (AT 121, 133.) Plaintiff's application was denied initially and again upon reconsideration. (Id.) Plaintiff, aided by an attorney, sought review of these denials with an ALJ. (AT 140-41.) At an April 12, 2017 hearing, Plaintiff testified about his conditions, and the ALJ heard testimony from a vocational expert regarding Plaintiff's ability to work. (AT 37-92.)

         On September 6, 2017, the ALJ issued a decision determining that Plaintiff was not disabled for the relevant period. (AT 21-30.) At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity since January 1, 2012. (AT 23.) At step two, the ALJ found Plaintiff to have had the following severe impairments: “lumbar degenerative disk disease with radiculopathy, peripheral neuropathy, diabetes mellitus, bilateral hearing loss, right shoulder impingement, and obesity.” (Id.) However, the ALJ determined at step three that these impairments did not meet or medically equal the severity of a listed impairment. (AT 25).

         Based on this information, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform “a reduced range of light work, with the following exceptions:

[H]e can lift carry push or pull 20 pounds occasionally and 10 pounds frequently; he can sit for eight hours of an eight-hour workday with normal breaks, but he requires a sit/stand option at the workstation and can sit for 30 to 40 minutes before he has to change positions by standing up; he can stand and walk for six hours of an eight-hour workday with normal breaks, but he cannot engage in prolonged standing or walking-specifically he can stand or walk for 20 to 30 minutes at a time and then needs a change in position; he can occasionally stoop, crouch, crawl, or kneel; he c an never climb ladders, ropes, or scaffolds; he can frequently work above the right shoulder, and he has no limitations on the left shoulder; he can occasionally operate foot pedals; he cannot work in an area with loud noise-that is noisier than the standard office-without ear protection; he cannot work at unprotected heights or around unprotected hazardous machinery; he can receive, remember, understand, and carry out both simple and detailed job instructions; he can frequently follow complex instructions; he can interact with the public coworkers and supervisors; he can adjust to changes in the workplace, and he can make workplace judgments.

(AT 25, cleaned up.) In reaching this conclusion, the ALJ stated that this included considering Plaintiff's expressed symptoms, the objective medical evidence in the record, and the opinion evidence given by the examining and consulting physicians. (AT 23-29.) Relevant here, the ALJ found that the moderate-to-severe limitations occasionally opined upon by an examining physician, a physician's assistant, and others were unsupported by the medical evidence and otherwise inconsistent with the remaining medical record. Further, the ALJ discounted Plaintiff's claims of severity of his impairments, and similarly discounted Plaintiff's wife's statements. (AT 27, 29.) Based on Plaintiff's background, testimony, earnings record, and the testimony of the Vocational Expert, the ALJ concluded at step four that Plaintiff was capable of performing past work as a manager of land development. (AT 29-30.)

         On October 17, 2018, the Appeals Council denied Plaintiff's appeal. (AT 1-7.) Plaintiff then timely filed this action requesting judicial review of the Commissioner's final decision, and the parties filed cross-motions for summary judgment. (ECF Nos. 1, 9, 10, 11.)

         II. STANDARD OF REVIEW

         The Court reviews the Commissioner's decision de novo, and should reverse “only if the ALJ's decision was not supported by substantial evidence in the record as a whole or if the ALJ applied the wrong legal standard.” Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). Substantial evidence is more than a mere scintilla, but less than a preponderance; i.e. “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Id. The court will uphold the ALJ's conclusion where “the evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Further, the court may not reverse the ALJ's decision on account of harmless error. Buck, 869 F.3d at 1048.

         III. ISSUES PRESENTED

         Plaintiff alleges multiple errors on the ALJ's part, including assigning error:

A. at step 2 by failing to include Plaintiff's anxiety, hearing loss, obesity, or diabetes as severe conditions;

B. in discounting the more-moderate mental and physical limitations opined upon by various medical professionals;

C. in discounting the statements made by Plaintiff and his wife concerning the severity of Plaintiff's symptoms;

D. in forming the RFC without; and

E. at step 4 by improperly finding that Plaintiff could return to his prior work.

         In his brief, Plaintiff asserts additional errors, which the Court discusses at various points below. Plaintiff requests either a remand for benefits or further proceedings. (ECF No. 9.)

         The Commissioner counters each of Plaintiff's arguments, contending that substantial evidence supported the ALJ's assessment of Plaintiff's mental functions. Thus, the Commissioner maintains the ALJ's opinion should be affirmed. (ECF No. 24.)

         IV. LEGAL STANDARDS

         A. Evaluation of Medical Source Opinions

         The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking, a treating physician's opinion carries more weight than an examining physician's opinion, and an examining physician's opinion carries more weight than a non-examining physician's opinion. Holohan, 246 F.3d at 1202. The medical opinion of a claimant's treating doctor is given “controlling weight” so long as it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record.” 20 C.F.R. § 404.1527(c)(2). When a treating doctor's opinion is not controlling, it is weighted ...