Brown v. Kijakazi

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

PHILIP BROWN, CV 22–140–M–DLC

Plaintiff,

vs. ORDER

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,

Defendant.

Plaintiff Philip Brown brings this action under 42 U.S.C. § 405(g) seeking

judicial review of a decision by the Commissioner of Social Security (the

“Commissioner”) denying his application for disability insurance benefits under

Title II of the Social Security Act (“SSA”). The Court will reverse and remand the

Commissioner’s decision because the Court finds that the Administrative Law

Judge (“ALJ”) erred in determining that Plaintiff was not disabled within the

meaning of the SSA.

BACKGROUND

Plaintiff filed an application for disability benefits under Title II on or about

October 17, 2016. (Doc. 8 at 149, 299.) Plaintiff initially alleged a disability onset

date of July 1, 2015, but later amended the onset date to September 15, 2016. (Id.

at 55–57, 149, 320.) Plaintiff’s date of last insured for Title II benefits is June 30,

2019; thus, Plaintiff is required to establish disability on or before that date in order

to be entitled to a period of disability and disability insurance benefits. (Id. at

149); see also 42 U.S.C. §§ 416(i), 423(d).

Plaintiff’s disability claim is based on impairments related to staphlococcus,

septic arthritis in his left shoulder, osteomyelitis in his thoracic spine, abscess

epidural space in his cervical spine and resulting acute incomplete quadriplegia,

empyema in his pleural space, hard palate abscess in his mouth, and bilateral

shoulder and lumbar spine pain. (Doc. 8 at 338, 367–74.) Plaintiff’s claims were

denied initially on October 9, 2019, and upon reconsideration on May 29, 2018.

(Id. at 146, 149, 176.) Following a hearing, an ALJ denied Plaintiff’s claims on

May 6, 2021. (Id. at 13–33.) On April 11, 2022, the Appeals Council denied

Plaintiff’s request for review, thereby rendering the ALJ’s decision the final

decision of the Commissioner. (Id. at 7–12.)

LEGAL STANDARDS

I. Standard of Review

42 U.S.C. § 405(g) allows limited judicial review of Social Security benefit

determinations after the Commissioner, following a hearing, has entered a final

decision. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.

2014). The Court may set aside the Commissioner’s decision “only if it is not

supported by substantial evidence or is based on legal error.” Id. (quoting Andrews

v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). Substantial evidence means “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol.

Edison Co. v. NLRB, 305 U. S. 197, 229 (1938)). If the ALJ’s decision is

supported by such evidence and the ALJ applied the correct legal standards, the

Court must affirm the Commissioner’s adoption of that decision. Batson v.

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “The ALJ is

responsible for determining credibility, resolving conflicts in medical testimony,

and for resolving ambiguities.” Andrews, 53 F.3d at 1039. Thus, “[w]here

evidence is susceptible to more than one rational interpretation,” the Court must

uphold the ALJ’s decision. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

The Court will not reverse an ALJ’s decision for errors that are harmless. Id.

II. Disability Determination

To qualify for disability benefits under the Social Security Act, a claimant

bears the burden of proving that (1) they suffer from a medically determinable

physical or mental impairment that has lasted or can be expected to last for a

continuous period of twelve months or more; and (2) the impairment renders the

claimant incapable of performing past relevant work or any other substantial

gainful employment that exists in the national economy. 42 U.S.C.

§§ 423(d)(1)(A), 423(d)(2)(A).

In determining whether a claimant qualifies as disabled under the Social

Security Act, the ALJ follows a five-step sequential evaluation process. 20 C.F.R.

§§ 404.1520, 416.920. In steps one through four, the claimant bears the burden of

establishing disability. Burch, 400 F.3d at 679. If they meet this burden, the

burden of proof shifts to the Commissioner in step five. Id.

In step one of the evaluation, the ALJ determines whether the claimant is

engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i),

416.920(a)(4)(i). If the claimant is, then they are not disabled under the meaning

of the Social Security Act. Id. If they are not, the ALJ proceeds to the second step

in the evaluation.

In step two, the ALJ determines whether the claimant has any

impairments—singly or in combination—that qualify as severe under the

applicable regulations and have lasted or are expected to last at least twelve (12)

months. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or

combination of impairments qualifies as severe if it “significantly limits your

physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c),

416.920(c). If the ALJ finds that the claimant does not have a severe impairment,

the claimant is not disabled within the meaning of the Social Security Act. Id. If

the claimant has a severe impairment, the ALJ proceeds to the third step.

In step three, the ALJ compares the claimant’s impairments to the listings

found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R.

§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s impairments meet or

equal the criteria of a listed impairment, then the claimant is disabled. Id. If the

claimant’s impairments do not, the ALJ proceeds to step four. If the evaluation

continues beyond step three, the ALJ must assess the claimant’s residual functional

capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). A claimant’s residual

functional capacity is the most that the claimant can still do in a work setting

despite the physical and mental limitations caused by their impairments and any

related symptoms. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).

In step four, the ALJ determines whether the claimant retains the RFC to

perform their past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). If they do, the claimant is not disabled. Id. If their RFC does

not permit them to engage in past relevant work, the ALJ proceeds to step five.

In step five, the ALJ determines whether, considering the claimant’s RFC,

age, education, and work experience, the claimant can perform other work that

exists in significant numbers in the national economy. 20 C.F.R.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner bears the burden to

prove this and can do so through the testimony of a vocational expert or by

referring to the Medical-Vocational Guidelines set forth in the regulations at 20

C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner meets this burden,

the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

DISCUSSION

The ALJ followed the five-step sequential process in evaluating Plaintiff’s

claim. At step one, the ALJ found that Plaintiff had not engaged in substantial

gainful activity during the period from his alleged onset date of September 15,

2016, through his date last insured of June 30, 2019. (Doc. 8 at 18.)

At step two, the ALJ determined that, through the date last insured, Plaintiff

had the following severe impairments: degenerative disc disease; cervical

ankylosis and kyphosis, with post-surgical infection; and obesity. (Id.) The ALJ

determined these impairments significantly limit Plaintiff’s ability to perform basic

work functions. (Id. at 19.)

At step three, the ALJ determined that Plaintiff did not have an impairment

or combination of impairments that met or medically equaled the criteria of one of

the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) The

ALJ found that, through the date last insured, Plaintiff had the residual functional

capacity to perform sedentary work as defined in 20 CFR 404.1567(a), with the

following exceptions:

[t]he claimant can sit or stand one hour at a time and needs to change

positions for a 1-2 minute period before returning to the original

position. The claimant can only occasionally climb ramps or stairs.

The claimant can never climb ladders, ropes, and scaffolds. The

claimant can frequently balance, stoop, kneel, and crouch. The

claimant can only occasionally crawl. The claimant can frequently

handle and finger. The claimant can only occasionally reach overhead.

The claimant must avoid uneven surfaces, unprotected heights, and

dangerous machinery. Finally, the claimant needs to avoid

concentrated exposure to extreme cold and to vibrations.

(Id. at 19–20.)

At step four, the ALJ found that, through the date last insured, Plaintiff was

unable to perform past relevant work as a roughneck, miner, sawmill worker,

logger, landscape laborer, or ranch hand. (Id. at 24–25.) Proceeding to step five,

the ALJ found, “considering the claimant’s age, education, work experience, and

residual functional capacity, there were jobs that existed in significant numbers in

the national economy that the claimant could have performed.” (Id. at 25.) These

jobs are charge account clerk (20,500 jobs), final assembler (16,000 jobs), and

callout operator (14,000 jobs). (Id. at 26.) Accordingly, the ALJ found Plaintiff

“was not under a disability . . . at any time from September 15, 2016, the amended

alleged onset date, through June 30, 2019, the date last insured.” (Id.)

Plaintiff asserts that the ALJ erred in three respects: (1) by improperly

assessing and rejecting Plaintiff’s hearing testimony and the third-party written

testimony; (2) by improperly assessing and rejecting the opinions of Plaintiff’s

examining and treating medical sources; and (3) by issuing an incomplete finding

regarding Plaintiff’s residual functional capacity. (Doc. 10 at 6–7.)

I. The ALJ properly assessed and rejected Plaintiff’s hearing testimony

and the third-party written testimony.

Plaintiff argues that the ALJ erred in discounting his testimony as to the

existence and severity of his symptoms without providing specific, clear, and

convincing reasons for doing so. (Id. at 7–20.) Plaintiff also argues that, “contrary

to the ALJ’s characterization . . . , [his] medical treatment records consistently

document the myriad of symptoms from his initial hospitalization and surgeries in

2016 through the date of his second hearing.” (Id. at 12.) In particular, Plaintiff

takes issue with the ALJ’s failure to address several records from February to

December 2017 from various treatment providers. (Id. at 13–18.)

Where, as here, an ALJ finds that a Plaintiff has provided objective medical

evidence of an impairment which might reasonable produce pain or other alleged

symptoms, “the ALJ may ‘reject the claimant’s testimony about the severity of

[his] symptoms only by offering specific, clear and convincing reasons for doing

so.’” Brown-Hunter v. Colvin, 806 F.3d 487, 492–93 (9th Cir. 2015) (quoting

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). An ALJ “must

identify what testimony is not credible and what evidence undermines the

claimant’s complaints.” Id. at 493 (quoting Reddick v. Chater, 157 F.3d 715, 722

(9th Cir. 1998)). The ALJ must not mischaracterize, misattribute, or selectively

review statements or opinions made in the evidence. See Holohan v. Massanari,

246 F.3d 1195, 1205 (9th Cir. 2001); Regennitter v. Commr. Soc. Sec. Admin., 166

F.3d 1294, 1297 (9th Cir. 1999).

The ALJ met this standard. The ALJ found that Plaintiff’s statements

“concerning the intensity, persistence and limiting effects of [his] symptoms are

not entirely consistent with evidence in the record.” (Doc. 8 at 20.) To support

this finding, the ALJ provided a detailed explanation with numerous citations to

objective medical findings and Plaintiff’s own testimony concerning his treatment,

rehabilitation, physical condition, and activities following the alleged onset date.

(Id. at 20–22.) The ALJ’s decision also demonstrates that the ALJ properly

considered the entire record before reaching a conclusion.

“[E]vidence of medical treatment successfully relieving symptoms can

undermine a claim of disability.” Wellington v. Berryhill, 878 F.3d 867, 876 (9th

Cir. 2017). The ALJ discussed how Plaintiff’s demonstrated improvement in the

first few months after his initial injury undermined his allegations that he suffered

greater limitations for more than twelve months. (Doc. 8 at 21.) The ALJ noted

that Plaintiff regained the ability to walk without an assistive device after only a

few months of rehabilitation. (Id.) Less than twelve months from the date of the

injury, Plaintiff’s “consultative examination showed he had good range of motion

in all joints, his strength was 4/5, he had good reflexes, and he demonstrated

normal motor function in the lower extremities.” (Id.) The ALJ noted that “the

remaining record shows, or fails to support, further limitations, which lasted for 12

months or more.” (Id.)

The ALJ also discussed how Plaintiff’s own testimony contradicted his

claims, pointing out that Plaintiff “testified that he lives independently, although

his mother helps with grocery shopping and cleaning.” (Id.) Finally, the ALJ

noted that Plaintiff had “provided no additional evidence showing limitations from

2017 through claimant’s date last insured in 2019.” (Id.) The ALJ also considered

Plaintiff’s obesity and its impact on his ability to function. (Id. at 21–22.)

Ultimately, the ALJ concluded that Plaintiff’s symptoms were less serious than

alleged, but “serious enough that [he] can perform a range of only sedentary

work.” (Id. at 21.)

Next, Plaintiff argues that the ALJ erred by improperly discounting lay-

witness testimony, specifically the written testimony of Plaintiff’s mother, Penny

McDonald. (Doc. 10 at 19.) A failure to address lay testimony may be deemed

harmless where, as here, it is “inconsequential to the ultimate non[-]disability

determination.” Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th

Cir. 2008) (quoting Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th

Cir. 2006)); see also Molina v. Astrue, 674 F.3d 1104, 1119 (9th Cir. 2012)

superseded on other grounds by regulation as stated in Bowen v. Kijakazi, No. 21-

35600, 2022 U.S. App. LEXIS 18907, 2022 WL 2610242, at *2 (9th Cir. July 8,

2022). Because the lay testimony was duplicative of Plaintiff’s own testimony,

and the ALJ properly discounted Plaintiff’s testimony, any failure to address the

lay testimony was harmless. See Molina, 674 F. 3d at 1117–22 (noting that the

failure to address the lay witness testimony may be deemed harmless “[w]here lay

witness testimony does not describe any limitations not already described by the

claimant, and the ALJ’s well-supported reasons for rejecting the claimant’s

testimony apply equally well to the lay witness testimony”).

Accordingly, the Court holds that the ALJ properly assessed and rejected

Plaintiff’s hearing testimony and the third-party written testimony.

II. The ALJ partially erred in assessing and rejecting the opinions of

Plaintiff’s examining and treating medical sources.

Plaintiff argues that the ALJ erred in discounting the opinions of his

consultative examiner, Dr. Jenko, and physical therapist, Kimberly Grover, and by

failing to address statements made by treating physician, Dr. Krass. (Doc. 10 at

21.)

“The ALJ is responsible for resolving conflicts in the medical record,”

including contradictory opinions of treating or examining sources. Carmickle, 533

F.3d at 1164. The ALJ may only reject the opinion of a treating or examining

source by providing “specific and legitimate reasons that are supported by

substantial evidence in the record.”1 Lester v. Chater, 81 F.3d 821, 830–31 (9th

Cir. 1996). “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.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir.

2017).

Plaintiff contends that the ALJ improperly dismissed the entirety of Dr.

Jenko’s opinion on the basis that it addressed an issue reserved to the

Commissioner. (Doc. 10 at 22.) Plaintiff also contends that it was improper for

the ALJ to dismiss Dr. Jenko’s opinion based on its recency to the onset date of

Plaintiff’s disability. (Id. at 23.)

Whether a claimant is “disabled”—within the context of social security

benefits—is an ultimate issue that is reserved to the determination of the

Commissioner. 20 C.F.R. § 404.1527(d)(1). Thus, an ALJ is not bound by a

medical source’s opinion as to whether a claimant is “disabled.” McLeod v.

Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (“Although a treating physician’s

opinion is generally afforded the greatest weight in disability cases, it is not

binding on an ALJ with respect to the existence of an impairment or the ultimate

determination of disability.”). Nonetheless, an ALJ must provide specific and

1 Because Plaintiff filed his claim before March 27, 2017, the ALJ’s analysis of medical opinions is governed by 20

C.F.R. § 404.1527 and the Ninth Circuit’s “specific and legitimate” standard.

legitimate reasons, supported by substantial evidence, for discounting a medical

source’s opinion on disability. Reddick, 157 F.3d at 725 (“In disability benefits

cases such as this, physicians may render medical, clinical opinions, or they may

render opinions on the ultimate issue of disability - the claimant’s ability to

perform work. . . . A treating physician’s opinion on disability, even if

controverted, can be rejected only with specific and legitimate reasons supported

by substantial evidence in the record.”)

The ALJ also noted that whether Plaintiff was “disabled” is a question

reserved to the Social Security Commissioner. (Doc. 8 at 22.) However, the ALJ

also discussed how Dr. Jenko made contradictory findings that Plaintiff was

“disabled for the foreseeable future” but also that it was “not clear what his long-

term disability status will be,” other than that “it appeared he would never be able

to do the physical work for which he had been reasonably trained.” (Id. at 22

(citing id. at 650.) The ALJ went on to concluded that Dr. Jenko’s opinion was

more “consistent with a sedentary exertional capacity, including limited range of

motion in the spine and 4/5 strength combined with normal motor function and

reflexes.” (Id.) The ALJ did not dismiss the entirety of Dr. Jenko’s opinion but

found that Dr. Jenko’s findings “support[ed] the claimant’s sedentary residual

functional capacity,” rather than a finding of total disability. (Id.) Thus, the ALJ

properly considered Dr. Jenko’s opinion and provided specific and legitimate

reasons, supported by substantial evidence, for rejecting Dr. Jenko’s opinion that

Plaintiff was disabled.

Next, Plaintiff argues that the ALJ erred by failing to “address Dr.

Krass’s statements that [P]laintiff had a ‘chronic neurological disability’ and

that Plaintiff’s “symptoms will significantly affect his quality of life.” (Doc.

10 at 21 (quoting id. at 1150).) The ALJ’s failure to discuss Dr. Krass’s

opinion is harmless. As discussed above, the ALJ is not bound by any

statement on an issue reserved to the Commissioner, such as whether the

claimant is “disabled.” See Mcleod, 640 F.3d at 885. Although it does not

follow that an entire opinion may be discounted on the basis that it contains a

statement on an issue ultimately reserved to the Commissioner; here, Dr.

Krass’s opinion does not address issues germane to a determination of

Plaintiff’s disability status outside of this conclusory statement. See Marsh,

792 F.3d 1170, 1172 (9th Cir. 2015) (rejecting “the idea that not mentioning

a treating source’s medical opinion precludes use of harmless error doctrine,”

although ultimately holding that the error was not harmless in that instance);

see also McLeod, 640 F.3d at 888 (9th Cir. 2011) (explaining that “where

harmlessness is clear and not a borderline question, remand for

reconsideration is not appropriate”).

Finally, Plaintiff argues that the ALJ improperly discounted Ms.

Grover’s opinion as a non-acceptable medical source and did not offer a

sufficient evidentiary basis for “questioning the credibility of [his] reported

symptoms where [Kimberly Grover] did not discredit those symptoms and the

assessment is support with [Ms. Grover’s] own observations.” (Doc. 10 at

24–25 (citing Ryan v. Commissioner Soc. Sec. Admin., 528 F.3d 1194, 1198

(9th Cir. 2008); Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014)).)

A physical therapist is not an acceptable medical source. 20 C.F.R. §§

404.1502(a), 416.902(a). An ALJ may discount testimony from non-acceptable

medical sources so long as the ALJ gives “germane reasons . . . for doing so.”

Molina, 674 F.3d at 1111 (citation omitted). Ms. Grover opined that:

claimant had decreased activity tolerance on the lower extremity

functional scale; the claimant had lumbago on the Oswestry low back

pain assessment; the claimant showed decreased cervical range of

motion; the claimant had decreased lumbar, hip, knee, and ankle active

range of motion; the claimant had decreased shoulder strength; the

claimant had decreased lower extremity strength; . . . the

claimant had difficulty walking . . . ; [and] the claimant has a significant

disability affecting his ability to obtain a full-time job.

(Doc. 8 at 22 (citing id. at 1126).) The ALJ ultimately gave Ms. Grover’s opinion

“little weight because this opinion was not drafted by an acceptable medical

source, it purported to make a determination regarding the claimant’s disability,

and it was based on the subjective reports of the claimant instead of objective

observations.” (Id.)

The ALJ failed to provide germane reasons for discounting Ms. Grover’s

opinion. First, the ALJ dismissed Ms. Grover’s conclusion that Plaintiff was

disabled because this issue is reserved to the Commissioner, but this does not

provide a sufficient basis for excluding the entirety of Ms. Grover’s opinion. See

Neves v. Comm’r Soc. Sec. Admin., No. 1:15-cv-01194-EPG, 2017 WL 1079754,

at *6 (E.D. Cal. Mar. 21, 2017) (explaining that “rejecting the ultimate conclusion

concerning disability and rejecting findings concerning work-related limitations

are two vastly different propositions that should not be conflated”).

Second, the ALJ provided no justification for the determination that Ms.

Grover relied on Plaintiff’s subjective reports rather than objective observations.

See Ghanim, 763 F.3d at 1162 (finding reversible error where an ALJ “offered no

basis for his conclusion that [medical] opinions were based more heavily on [a

claimant’s] self-reports, and substantial evidence [did] not support such a

conclusion.”). Here, the letter from Ms. Grover discusses Plaintiff’s self-reports,

medical history, diagnoses, and her own personal observations. (Doc. 8 at 1126.)

Thus, the Court finds that the ALJ failed to provide germane reasons, supported by

substantial evidence, for discounting Ms. Grover’s opinion and this error was not

harmless.

Accordingly, the Court finds that the ALJ properly assessed and

discounted the opinion of Plaintiff’s medical source Dr. Jenko and the ALJ’s

failure to address the opinion of Dr. Krass was harmless. However, the ALJ

improperly discounted the opinion of Plaintiff’s physical therapist Kimberly

Grover.

III. The ALJ failed to issue a sufficient finding regarding Plaintiff’s RFC.

Plaintiff argues that the ALJ issued an insufficient finding regarding

Plaintiff’s RFC because the ALJ “fail[ed] to include all physical and mental

limitations supported by the record into the RFC finding.” (Doc. 10 at 25–26.)

Specifically, Plaintiff contends that the ALJ “erred in finding that the medical

record does not establish that plaintiff had disability impairments for the minimum

12-month durational threshold and improperly relied on the opinions of the state-

agency non-examining doctor’s opinions as a basis for this finding.” (Id. at 26.)

Plaintiff further argues that the ALJ “fail[ed] to accurately encompass limitations

supported by the medical and testimonial evidence addressed in [the above

arguments],” including Plaintiff’s “fatigue, weakness, pain, likely absenteeism

from work, and restrictions with neck positioning and motion.” (Id.)

In formulating an RFC, the ALJ “must consider limitations and restrictions

imposed by all of an individual’s impairments, even those that are not severe.”

Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (internal quotation marks

and citation omitted). “[T]he possibility drawing two inconsistent conclusions

form the evidence does not prevent an administrative agency’s finding from being

supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S.

607, 620 (1996).

Here, the ALJ did formulate an RFC after “consider[ing] all symptoms and

the extent to which these symptoms [could] reasonably be accepted as consistent

with the objective medical evidence and other evidence.” (Doc. 8 at 20.) The ALJ

ultimately concluded that “degenerative disc disease, cervical ankylosis and

kyphosis, and obesity support limitations in [Plaintiff’s RFC],” but “found his

other alleged limitations were unsupported by the available evidence.” (Id. at 24.)

Furthermore, in reaching an RFC determination, an ALJ may also rely on

the opinion of a non-examining physician, so long as that opinion is supported by

evidence in the record. See Lester, 81 F.3d at 831; see also Magallanes v. Bowen,

881 F.2d 747, 752 (9th Cir. 1989) (explaining that the ALJ may rely on a non-

examining physician’s testimony to reject the opinions of a claimant’s treating

physicians if supported by evidence in the record).

Here, the ALJ considered the opinions of non-examining physicians Arvind

Chopra, M.D., and William Fernadez, M.D. (Doc. 8 at 23.) In July 2017, Dr.

Chopra opined:

the claimant could lift, carry, push, or pull 10 pounds occasionally and

less than 10 pounds frequently. The claimant could stand or walk for

hours in an 8-hour workday and sit about 6 hours. The claimant could

occasionally climb ramps and stairs, but never climb ladders, ropes, or

scaffolds. The [claimant] could frequent[ly] balance, stoop, kneel, and

crouch, but the claimant could only occasionally crawl. The claimant

could frequently reach overhead with the bilateral upper extremities.

(Id. (citing id. at 121–30).) Later, in May 2018, Dr. Fernandez opined:

the claimant could lift, carry, push, or pull 10 pounds occasionally and

less than 10 pounds frequently. The claimant could stand or walk 3

hours in an 8-hour workday and sit about 6 hours. The claimant could

frequently push and pull with the bilateral upper extremities. The

claimant needed to alternate sitting and standing/walking as needed for

back pain and allowed by normal breaks. The claimant could

occasionally climb ramps and stairs, but never climb ladders, ropes, or

scaffolds. The claimant could frequently kneel and crouch, but only

occasionally balance, stoop, and crawl. The claimant could reach rarely

reach overhead with the bilateral upper extremities. The claimant could

frequently handle and finger with the bilateral upper extremities. The

claimant could frequently feel with the right upper extremity. . . . and

the claimant needed to avoid concentrated exposure to extreme cold and

vibration, as well as even moderate exposure to hazards, including wet

or slippery surfaces, uneven ground, unprotected heights, and

dangerous machinery.

(Id. (citing id. at 132–44).)

The ALJ determined that these opinions were “supported by the medical

record and consistent with [Plaintiff’s] recovery,” although the ALJ determined

that Dr. Chopra’s opinion should be given greater weight because his “opinion is

supported by the claimant’s consultative examination, in which Dr. Jenko found

the claimant had limited and painful range of motion in the spine, with

hypoesthesia in the feet, and 4/5 strength in the upper extremities, but no motor

deficits in the lower extremities and full range of motion in all the extremities.”

(Id.) The ALJ also noted that Dr. Chopra specializes in neurology, “suggesting he

has a greater insight with regard to the neurological effect of the claimant’s

impairments.” (/d.) Thus, the ALJ’s reliance on the opinions of these non-

examining physicians was proper.

However, as discussed above, the Court finds that the ALJ improperly

discounted the opinion of Plaintiff's physical therapist Kimberly Grover.

Accordingly, the Court finds that the ALJ’s determination of the RFC is flawed

insofar as it is based on an erroneous determination of Plaintiff's limitations.

Accordingly, the Court finds that the ALJ failed to issue a sufficient finding on

Plaintiff's RFC.

CONCLUSION

IT IS ORDERED that the Commissioner’s decision is REVERSED, and this

case is REMANDED for further proceedings consistent with this opinion.

DATED this 11th day of April, 2023.

bh fs “usta

Dana L. Christensen, District Judge

United States District Court

20