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Douglas R. Bennion v. Michael J. Astrue

September 28, 2011


The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge


Currently pending before this Court is Douglas R. Bennion's Complaint and Petition for Review (Docket No. 2), seeking review of the Social Security Administration's final decision to deny his claim for disability insurance benefits and Supplemental Security Income. This action is brought pursuant to 42 U.S.C. §§ 205(g), 405(g). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:


Douglas R. Bennion ("Petitioner") applied for disability insurance benefits and Supplemental Security Income on March 27, 2007. He alleged disability, in both applications, beginning January 4, 2004. Petitioner's claims were initially denied on June 18, 2007 and, again, on reconsideration on August 8, 2007. On August 28, 2007, Petitioner timely filed a Request for Hearing before an Administrative Law Judge ("ALJ"). On February 4, 2009, ALJ Donald R. Jensen held a hearing in Idaho Falls, Idaho, at which time, Petitioner, represented by attorney Robert K. Beck, appeared and testified. A vocational expert, Connie Hill, also appeared and testified during the same February 4, 2009 hearing.

On March 25, 2009, the ALJ issued a decision denying Petitioner's claims, finding that Petitioner was not disabled within the meaning of the Social Security Act. Petitioner timely requested review from the Appeals Council on May 22, 2009. On February 17, 2010, the Appeals Council denied petitioner's Request for Review, making the ALJ's decision the final decision of the Commissioner of Social Security.

Having exhausted his administrative remedies, Petitioner timely files the instant action, arguing that "[t]he decision denying the Petitioner's claim is not in accordance with the law and is not supported by substantial evidence." See Compl. and Pet. for Review, p. 2 (Docket No. 1). Specifically, Petitioner questions whether (1) he is able to engage in any substantial gainful activity as a result of his impairments; (2) the ALJ reviewed all relevant medical records as to Petitioner's headaches/neck pain, low back pain, and knee pain; and (3) the Appeals Council actually reviewed the post-hearing/decision records from Stewart Curtis, D.O., M.P.H., and Jay Ellis, P.T. See Pet.'s Mem., p. 9 (Docket No. 12). Petitioner requests that the Court reverse the ALJ's decision and order payment of benefits or, alternatively, remand the case for proper consideration of the evidence. See Compl. and Pet. for Review, pp. 2-3 (Docket No. 1).


To be upheld, the Commissioner's decision must be supported by substantial evidence and based on proper legal standards. 42 U.S.C. § 405(g); Matney ex. rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ's factual decisions, they must be upheld, even when there is conflicting evidence. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).

"Substantial evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flatten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less than a preponderance (see Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988).

With respect to questions of fact, the role of the Court is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019. The ALJ is responsible for determining credibility and resolving conflicts in medical testimony, Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984), resolving ambiguities, see Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984), and drawing inferences logically flowing from the evidence, Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Where the evidence is susceptible to more than one rational interpretation in a disability proceeding, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. Flatten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).

With respect to questions of law, the ALJ's decision must be based on proper legal standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ's construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. See id. However, reviewing federal courts "will not rubber-stamp an administrative decision that is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying the statute." Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).


A. Sequential Processes

In evaluating the evidence presented at an administrative hearing, the ALJ must follow a sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§ 404.1520, 416.920) - or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) - within the meaning of the Social Security Act.

The first step requires the ALJ to determine whether the claimant is engaged in substantial gainful activity ("SGA"). 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). SGA is defined as work activity that is both substantial and gainful. "Substantial work activity" is work activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a), 416.972(a). "Gainful work activity" is work that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA, disability benefits are denied, regardless of how severe his physical/mental impairments are and regardless of his age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that Petitioner "engaged in SGA in the form of a short summer job that did not end secondary to his opinions." (AR 102). However, given the short duration of the work, the ALJ elected to give Petitioner "the benefit of the doubt" and continued to the next step of the sequential process -- effectively determining that Petitioner did not engage in SGA since January 4, 2004, the alleged onset date.

The second step requires the ALJ to determine whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is "severe" within the meaning of the Social Security Act if it significantly limits an individual's ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of impairments is "not severe" when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work. 20 C.F.R. §§ 404.1521, 416.921. If the claimant does not have a severe medically determinable impairment or combination of impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner had the following severe impairments: (1) right shoulder impairment, status post-surgical repair, and (2) status post-remote left thumb injury. (AR 102-103).

The third step requires the ALJ to determine the medical severity of any impairments; that is, whether the claimant's impairments meet or equal a listed impairment under 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 answer is yes, the claimant is considered disabled under the Social Security Act and benefits are awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant's impairments neither meet nor equal one of the listed impairments, the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner's above-listed impairments, while severe, do not meet or medically equal, either singly or in combination, the criteria established for any of the qualifying impairments. (AR 103).

The fourth step of the evaluation process requires the ALJ to determine whether the claimant's residual functional capacity is sufficient for the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual's residual functional capacity is his ability to do physical and mental work activities on a sustained basis despite limitations from his impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual's past relevant work is work performed within the last 15 years or 15 years prior to the date that disability must be established; also, the work must have lasted long enough for the claimant to learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner has the residual functional capacity to perform light work with the following limitations: (1) he can sit for 30 minutes at a time for a total of six hours in an eight-hour workday; (2) he can stand for 20 minutes at a time for a total of six hours in an eight-hour workday; (3) he must be permitted to sit or stand at will; (4) he can only occasionally reach overhead with his right (dominant) arm; and (5) he is unable to close his thumb to make a fist with his left (non-dominant) hand but can close his fingers. (AR 103-106). As a consequence, the ALJ determined that Petitioner's past relevant work exceeds his residual functional capacity. (AR 106).

In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of his impairments, the burden shifts to the Commissioner to show that the claimant retains the ability to do alternate work and to demonstrate that such alternate work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do other work, he is not disabled; if the claimant is unable to do other work and meets the duration requirement, he is disabled. Here, the ALJ found that, through the date last insured, Petitioner was unable to perform any past relevant work. (AR 106). However, considering Petitioner's age, education, work experience, and residual functional capacity, the ALJ concluded that "there are jobs that exist in significant numbers in the national economy that he can perform" -- for example, office helper, mail clerk, and production assembler. (AR 106-107).

B. Analysis

As respondent points out, Petitioner's briefing takes the form of a recitation of the facts in the record, followed by arguments that are largely unaccompanied by any legal authority. See Resp.'s Brief, pp. 6-7 (Docket No. 22). Regardless, Petitioner makes three distinct arguments to this Court -- first, the ALJ's disability determination failed to accurately incorporate Petitioner's alleged headaches/neck pain,*fn1 knee disorder, and back disorder; second, the ALJ did not provide clear and convincing evidence for rejecting his testimony; and third, the Appeals Council did not properly consider Petitioner's post hearing/decision submission of new evidence speaking to his alleged disabilities. See Pet.'s Mem., pp. 9-10 (Docket No. 12).

1. Petitioner's Alleged Headaches/Neck Pain, Knee Disorder, and Back Disorder In finding only that Petitioner's right shoulder and left thumb-related injuries constitute severe impairments under the Act, the ALJ necessarily determined that Petitioner's other alleged conditions -- headaches/neck pain, knee pain, and back pain -- did not rise to the level of severe, medically determinable impairments. Indeed, the ALJ specifically found Petitioner's chronic headaches/neck pain to be "non-medically determinable"; and Petitioner's knee and back disorders to be "non-severe" in nature. (AR 103). Petitioner appears to take issue with these determinations.

1. Headaches and Neck Pain

In Social Security Ruling 96-4p ("SSR 99-4p"), the Social Security Administration explained what is needed to show a medically determinable impairment:

An "impairment" must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. Although the regulations provide that the existence of a medically determinable physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, the regulations further provide that under no circumstances may the existence of an impairment be established on the basis of symptoms alone. Thus, regardless of how many symptoms an individual alleges, or how genuine the individual's complaints may appear to be, the existence of a medically determinable physical or mental impairment cannot be established in the absence of objective medical abnormalities; i.e., medical signs and laboratory findings.

No symptom or combination of symptoms by itself can constitute a medically determinable impairment. In claims in which there are no medical signs or laboratory findings to substantiate the existence of a medically determinable physical or mental impairment, the individual must be found not disabled at step 2 of the sequential evaluation process . . . .

SSR 99-4p, pp. 1-2 (footnote omitted).*fn2 Therefore, Petitioner can only establish an impairment if the record includes signs -- the results of "medically acceptable clinical diagnostic techniques"

(see supra at p. 8 n.2) -- as well as symptoms. See Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). With these standards in mind, Petitioner cannot establish that his headaches and neck pain amount to a medically determinable impairment (severe or otherwise).

Simply put, of the medical records available to the ALJ from the time of the February 4, 2009 hearing to his March 25, 2009 decision, none of them definitively speaks to Petitioner's condition since January 4, 2004 -- the alleged onset date. On this point, the ALJ stated:

Mr. Bennion testified that his worst impairment is that of suffering chronic headaches. However, none of the medical evidence of record from within that period of alleged disability contains documentation of any complaints of headaches, disabling or otherwise. Therefore, the ALJ finds Mr. Bennion's headaches to be non-medically determinable. (AR 103). Petitioner confirmed as much during the hearing when, in response to the ALJ's questioning, he testified:

ALJ: I want to hear what symptoms you're having. Tell me about the headaches. Whether it's caused by something happening in your neck or not is something that a doctor could tell me.

PET: Okay.

ALJ: But not you. What I want to know is about the headaches. You're having headaches 24/7.

PET: Right.

ALJ: You have them all the time.

PET: Yes.

ALJ: That never ...

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