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Friend v. Berryhill

United States District Court, D. Nevada

June 5, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.



         Before the court are Patricia Friend's Motion for Reversal and/or Remand (ECF No. 12) and the Commissioner's Cross Motion to Affirm and Opposition to Plaintiff's Motion for Reversal (ECF No. 13). For the reasons stated below, the Court recommends that the Commissioner's Cross Motion to Affirm be granted.


         Social security claimants have a constitutionally protected property interest in social security benefits. Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990); Mathews v. Eldridge, 424 U.S. 319 (1976). The Social Security Act authorizes the District Court to review the Commissioner's final decision denying benefits. See 42 U.S.C. § 405(g); see also 28 U.S.C. § 636(b) (permitting the District Court to refer matters to a U.S. Magistrate Judge).

         The District Court's review is limited. The court examines the Commissioner's decision to determine whether (1) the Commissioner applied the correct legal standards and (2) the decision is supported by “substantial evidence.” Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is defined as “more than a mere scintilla” of evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971).

         Under the “substantial evidence” standard, the Commissioner's decision must be upheld if it is supported by enough “evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 217 (1938) (defining “a mere scintilla” of evidence). If the evidence supports more than one interpretation, the court must uphold the Commissioner's interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). This means that the Commissioner's decision will be upheld if it has any support in the record. See, e.g., Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (stating that the court may not reweigh evidence, try the case de novo, or overturn the Commissioner's decision if the evidence preponderates against it).


         The ALJ found that Friend suffers from two severe impairments-malignant hypertension and insulin-dependent diabetes mellitus-under 20 CFR 404.1520(c). (AR 20). Considering her impairments, the ALJ found that Friend can perform a limited range of light work. (AR 21). She can lift twenty pounds occasionally and ten pounds frequently, stand and/or walk for four hours in an eight-hour workday, and sit for six hours in an eight-hour workday with normal breaks. (Id.). When the vocational expert considered a hypothetical person with these limitations, the vocational expert stated that the person could perform light work, including Friend's past job as a hospital admitting clerk. (AR 27, 58-59). The ALJ gave minimal weight to the opinion of treating physician Dr. Andracki, outlined in Exhibits 9F and 10F. (AR 25). Dr. Andracki stated that Friend can lift ten pounds occasionally and five pounds frequently, sit for fifteen minutes at a time, stand for thirty minutes at a time, needs to elevate her legs for most of an eight-hour work day, and cannot walk a block at a reasonable pace. (AR 511-12). The vocational expert stated that a hypothetical person with these limitations would not be able to perform any jobs in the national economy. (AR 59).

         Friend argues that the ALJ erred by giving minimal weight to the opinion of Dr. Andracki and Friend's own pain and symptoms testimony. (ECF No. 12 at 10-24). However, the Court defers to the ALJ when the ALJ's decision has support in the record or the evidence is open to multiple interpretations. Given this deferential standard, the Court cannot say that the ALJ's decision lacks the support of the record.

         A. The ALJ Did Not Err By Rejecting Dr. Andracki's Opinion

         “A treating physician's opinion is entitled to ‘substantial weight.'” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). “The rationale for giving the treating physician's opinion special weight is that he is employed to cure and has a greater opportunity to know and observe the patient as an individual.” McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). Additionally, treatment notes are a “medical opinion” when they contain statements describing a physician's judgement about the nature and severity of the claimant's impairments, including symptoms, diagnosis, and prognosis. See Marsh v. Colvin, 792 F.3d 1170, 1172 n. 1 (9th Cir. 2015) (stating that a treating physician's clinical progress notes are “medical opinion”).

         However, the ALJ need not automatically accept a treating physician's opinion. To reject the controverted opinion of a treating physician, the ALJ must provide “‘specific and legitimate reasons' supported by substantial evidence in the record for doing so.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). Opinions of non-treating or non-examining physicians constitute substantial evidence “when the opinions are consistent with independent clinical findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); see also Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). The ALJ can also point to inconsistencies between the claimant's limitations as described by a physician and the claimant's daily activities to satisfy the substantial evidence standard. See, e.g., Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (upholding a denial of benefits because the doctor's described limitations were inconsistent with the plaintiff's daily activities running a household and raising two young children).

         In this case, the ALJ's decision that Friend had the residual functional capacity (RFC) necessary to perform light work is supported by the record. The ALJ gave the most weight to the opinion of non-examining physician, Dr. Arnow, (AR 25), outlined in Exhibit 7A and the residual function capacity he described. (AR 98-100). Dr. Arnow's opinion constitutes substantial evidence because it is consistent with the opinion of examining physician Dr. Mumford, (Exhibit 8F), although Dr. Arnow found that Friend had additional environmental restrictions. (AR 25). The ALJ gave “no weight” to treating physician Dr. Andracki's opinion “because it is conclusory and not supported by his clinical findings.” (AR 26). Friend argues that the ALJ, as a lay person, could not interpret Dr. Andracki's treatment notes for himself. (ECF No. 12 at 12). However, when presented with contradicting medical evidence, as here, the ALJ is “responsible for determining credibility and resolving conflicts in medical testimony, ” which involves considering and according weight to the medical evidence. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Evidence in the record supports the ALJ's analysis of the conflicting opinions of the physician.

         Further, Friend's treatment history, presented in Dr. Andracki's treatment notes (Exhibit 11F), supports the ALJ's RFC. Dr. Andracki's treatment notes indicated that Friend's headaches are controlled by her medication regime. (AR 507; see, e.g., AR 564 (“Amitriptyline is helping with her headaches”); AR 604 (Friend denied headaches); AR 615 (Friend denied headaches); and AR 651 (Friend denied headaches)). Dr. Andracki's treatment notes do not indicate that Friend has uncoordinated gait or ulcers. (AR 26). Further, Dr. Andracki's treatment notes do not show persistent edema and, on several dates, the medical examiner did not note the presence of edema. (See, e.g., AR 650 (February 14, 2014: Certifited Advance Practice Nurse (APN-C) Ida Plaza noted that Friend had no edema, normal range of motion, intact gait, normal station, normal stability, normal muscle strength and tone, normal curvature in the spine, intact sensation, intact cranial nerves, 5/5 strength in her extremities); AR 431 (February 25, 2014: Dr. Arik reported that Friend had a normal gait and spine); AR 427 (March 17, 2014: Dr. Arik noted that Friend had a normal spine and gait); AR 422 (April 14, 2014: Dr. Tali Arik reported that Friend had a normal spine and gait);) AR 595 (December 30, 2014: Dr. Barnett noted that Friend had no edema and intact gait); AR 589 (February 10, 2015: Dr. Barnett noted that Friend had no edema, normal range of motion in her lower extremities, intact gait, and normal station); AR 552 (April 13, 2016: Certified Nurse Practitioner (NP-C) Katherine Tonnies reported that Friend had pitting edema in her right leg, mild tenderness behind her right knee, minimal edema in ...

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