United States District Court, D. Nevada
PATRICIA A. FRIEND, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.
REPORT AND RECOMMENDATION
FERENBACH, UNITED STATES MAGISTRATE JUDGE
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.
STANDARD OF REVIEW
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).
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
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).
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).
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 ALJ Did Not Err By Rejecting Dr. Andracki's
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
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).
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
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