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Vaughna D. Nay v. Michael J. Astrue

September 26, 2011


The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge



Currently pending before the Court for its consideration is Petitioner Vaughna D. Nay's Petition for Review (Dkt. 1) of the Respondent's denial of social security benefits filed on February 21, 2010. The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record ("AR"), and for the reasons that follow, will remand to the Commissioner with instructions.


Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on August 12, 2004, alleging disability due to knee pain, gastrointestinal pain, heart problems, and bipolar or schizoaffective disorder. This application was denied initially and on reconsideration, and a hearing was held on August 6, 2007, before Administrative Law Judge ("ALJ") Michael Kennett. After hearing testimony from Petitioner and vocational expert Kenneth Lister, ALJ Kennett issued a decision finding Petitioner not disabled on November 1, 2007. Petitioner timely requested review by the Appeals Council, which denied her request for review on January 25, 2010.

Petitioner appealed this final decision to the Court. The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

At the time of the hearing, Petitioner was forty-four years of age. Petitioner completed high school, and her prior work experience includes work as a cashier, bartender, and lab technician.


The Commissioner follows a five-step sequential evaluation for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must be determined whether the claimant is engaged in substantially gainful activity. The ALJ found Petitioner had not engaged in substantial gainful activity since her alleged onset date of May 27, 2004. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's schizoaffective disorder severe within the meaning of the Regulations.

Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Petitioner's impairments did not meet or equal the criteria for the listed impairments, specifically Listing 12.04 regarding affective disorders. If a claimant's impairments do not meet or equal a listing, the Commissioner must assess the claimant's residual functional capacity ("RFC") and determine at step four whether the claimant has demonstrated an inability to perform past relevant work.

The ALJ found Petitioner retained the RFC to perform her past relevant work as a cashier. Therefore, the ALJ did not proceed to step five.


Petitioner bears the burden of showing that disability benefits are proper because of the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Fitch, 438 F.2d 920, 921 (9th Cir. 1971). An individual will be determined to be disabled only if her physical or mental impairments are of such severity that she not only cannot do her previous work but is unable, considering her age, education, and work experience, to engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

On review, the Court is instructed to uphold the decision of the Commissioner if the decision is supported by substantial evidence and is not the product of legal error. 42 U.S.C. § 405(g); Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474 (1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than a preponderance, Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988).

The Court cannot disturb the Commissioner's findings if they are supported by substantial evidence, even though other evidence may exist that supports the petitioner's claims. 42 U.S.C. § 405(g); Flatten v. Sec'y of Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by substantial evidence, will be conclusive. Flatten, 44 F.3d at 1457. It is well-settled that, if there is substantial evidence to support the decision of the Commissioner, the decision must be upheld even when the evidence can reasonably support either affirming or reversing the Commissioner's decision, because the Court "may not substitute [its] judgment for that of the Commissioner." Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).

When reviewing a case under the substantial evidence standard, the Court may question an ALJ's credibility assessment of a witness's testimony; however, an ALJ's credibility assessment is entitled to great weight, and the ALJ may disregard self-serving statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ makes a careful consideration of subjective complaints but provides adequate reasons for rejecting them, the ALJ's well-settled role as the judge of credibility will be upheld as based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993).


Petitioner believes the ALJ erred at steps three and four. Specifically, Petitioner contends that the ALJ did not properly evaluate all of the relevant criteria of Listing 12.04. Second, Petitioner argues that the ALJ did not provide specific and legitimate reasons for rejecting the opinions of Petitioner's treating physicians and therapists, and that there was not substantial evidence in the record to support the ALJ's decision to rely upon the opinion of the state agency examining physician. Finally, Petitioner argues that the ALJ's RFC analysis did not include all of Petitioner's limitations, specifically her physical limitations caused by her knee and foot pain.

Respondent argues that the ALJ did not err, because the ALJ properly determined the evidence did not support a finding that Petitioner's impairments met the requirements for Listing 12.04, because she did not have episodes of decompensation as defined by the rule. Second, Petitioner contends that the ALJ properly gave more weight to the medical opinions of the state agency examining physician than to Petitioner's treating physician. And finally, Respondent contends that the ALJ properly considered all of Petitioner's limitations that were supported by substantial evidence in the record when making his RFC determination and finding that Petitioner could perform her past work as a cashier.

In this case, the Court will first consider the physician testimony before it examines the allegation of error at step three, because the physician testimony directly bears upon factors inherent in determining whether Petitioner's mental health condition meets Listing 12.04.

1. Physician Testimony

Ninth Circuit cases distinguish among the opinions of three types of physicians:

(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians). Lester v. Chatter, 81 F.3d 821, 830 (9th Cir. 1995). Generally, more weight is accorded to the opinion of a treating source than to nontreating physicians. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987). In turn, an examining physician's opinion is entitled to greater weight than the opinion of a nonexamining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.1990); Gallant v. Heckler, 753 F.2d 1450 (9th Cir.1984).

If the treating physician's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.1991). If the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject the treating physician's opinion without providing "specific and legitimate reasons" supported by substantial evidence in the record for so doing. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983).

An ALJ is not required to accept an opinion of a treating physician if it is conclusory and not supported by clinical findings. Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). Additionally, an ALJ is not bound to a physician's opinion of a petitioner's physical condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). If the record as a whole does not support the physician's opinion, the ALJ may reject that opinion. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Items in the record that may not support the physician's opinion include clinical findings from examinations, conflicting medical opinions, conflicting physician's treatment notes, and the claimant's daily activities. Id.; Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005); Connett v. Barnhart, 340 F.3d 871 (9th Cir. 2003); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595 (9th Cir. 1999).

Reports of treating physicians submitted relative to Petitioner's work-related ability are persuasive evidence of a claimant's disability due to pain and her inability to engage in any form of gainful activity. Gallant v. Heckler, 753 F.3d 1450, 1454 (9th Cir. 1984). Although the ALJ is not bound by expert medical opinion on the issue of disability, he must give clear and convincing reasons supported by substantial evidence for rejecting such an opinion where it is uncontradicted. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Gallant, 753 F.2d at 1454 (citing Montijo v. Secretary of Health & Human Services, 729 F.2d 599, 601 (9th Cir.1984); Rhodes v. Schweiker, 660 F.2d 722, 723 (9th Cir.1981)). Clear and convincing reasons must also be given to reject a treating doctor's ultimate conclusions concerning disability, especially when they are not contradicted by another doctor. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).

Petitioner alleges disability beginning on May 27, 2004. (AR 61.) She had undergone a Nissen Fundoplication surgery on December 10, 2002, (AR 186), and had complications after the surgery consisting of pain, vomiting, and diarrhea. (AR 181 -- 184.) An esophageal motility study performed on March 12, 2004, indicated abnormal motility, and incomplete relaxation. (AR 181.) Numerous emergency room visits appear in Petitioner's medical records as well, wherein she complained of chest pain, but in general all tests showed no abnormalities. On June 9, 2004, Petitioner's cardiologist referred her for a heart study because of her continuing complaints of chest pain absent physical evidence of any disease process. The EKG performed was remarkable for the presence of severe sinus bradycardia at 44 BPM, but was basically normal with an abnormal intravenous adenosine/technetium. (AR 214.) An emergency room note on June 11, 2004, indicated Petitioner had been to the emergency room three times in the past eight days complaining of chest pain, which pain was thought to be atypical. (AR 217, 223.) Health practitioners noted that Petitioner's complaints of chest pain were likely somatic in nature, as a result of her mental health condition. (AR 70F -- 70J.)

Petitioner's first hospitalization for mental health issues occurred on June 30, 2004. She presented to the emergency room earlier that day complaining of chest pain. However, at 2:00 a.m. she was brought into the emergency room by police after she had begun acting unusually. (AR 327). Petitioner became delusional, she was talking to herself, and talking to people not present in the room. (AR 328.) The emergency room physician diagnosed her status as acute psychosis, likely from bipolar disorder, considering she was paranoid and delusional. (AR 328 -- 329.) After six hours in the emergency room, physicians transferred Petitioner to the University of Utah neuropsychiatric institute, and she was committed against her will. (AR 329.) Upon admission to the psychiatric hospital, Petitioner was noted to be paranoid and she refused to answer questions, she had no awareness of her surroundings, and she demonstrated paranoid and secretive behavior. (AR 332.) Petitioner was started on a ...

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