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Umbarger v. Colvin

United States District Court, D. Idaho

March 16, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Respondent.


CANDY W. DALE, Magistrate Judge.

Before the Court is Melissa Umbarger's Petition for Review of the Respondent's denial of social security benefits, filed January 6, 2014. (Dkt. 2.) 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 affirm the decision of the Commissioner.


Petitioner filed an application for a period of disability and disability insurance benefits on June 8, 2011. Petitioner also filed an application for supplemental security income on June 27, 2011. The applications allege disability beginning September 20, 2010, due to cognitive, neurological, mental health, and physical impairments. Both applications were denied initially and on reconsideration, and a hearing was held on October 3, 2012, before Administrative Law Judge (ALJ) John T. Molleur. After hearing testimony from Petitioner and vocational expert, Beth Cunningham, ALJ Molleur issued a decision finding Petitioner not disabled on October 26, 2012. Petitioner timely requested review by the Appeals Council, which denied her request for review on December 12, 2013. 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 32 years of age. Petitioner's education is disputed. According to a report from psychologist Glena D. Andrews, Petitioner finished high school and received her diploma. But, according to Petitioner's testimony at the hearing before the ALJ, she has completed only through the ninth grade and did not obtain a GED. Petitioner's prior work experience includes convenience store clerk, motel housekeeper, and fruit packer.


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, September 20, 2010. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner had the following severe limitations: sacroiliac dysfunction, headaches, history of a seizure disorder, learning disorder, bipolar disorder, depression, and substance abuse in remission. However, the ALJ found Petitioner's cognitive disorder not otherwise specified, history of anorexia and bulimia, anxiety, post-traumatic stress disorder, borderline personality disorder, vision issues, and insomnia not 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. The ALJ found Petitioner's: (1) sacroiliac dysfunction does not meet the requirements of Listing 1.04; (2) headaches are not specifically included in the Regulations and therefore neither meet nor equal a listing; (3) seizures do not meet a listing because there is no medical evidence to document Petitioner's history of seizures after the alleged onset date; (4) bipolar disorder and depression do not meet the requirements of Listing 12.04; (5) learning disorder does not meet the requirements of Listing 12.05; (6) substance abuse in remission does not meet the requirements of Listing 12.09; and (7) mental impairments, considered singly and in combination, do not meet or equal the criteria of Listings 12.04, 12.05, and 12.09. If a claimant's impairments do not meet or equal a listing, the Commissioner must assess the claimant's residual functional capacity and determine, at step four, whether the claimant has demonstrated an inability to perform past relevant work.

At step four, the ALJ found Petitioner able to perform light work as defined in 20 C.F.R. 404.156(b) and 416.967(b), "except she is unable to climb ropes, ladders, and scaffolds; she must avoid work at unprotected heights; she is limited to work involving simple, routine, repetitive tasks; she cannot have production quotas such as with piecework; and she is limited to brief and incidental contact with members of the general public." (AR 25.) Considering these limitations, the ALJ found Petitioner capable of performing past relevant work as a motel housekeeper. Accordingly, the ALJ did not proceed to step five, [1] because Petitioner did not demonstrate an inability to perform past relevant work.


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. Finch, 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); Flaten v. Sec'y of Health & 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. Id. 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 a claimant's 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 takes issue with two aspects of the ALJ's decision. First, Petitioner contends the ALJ's lacked clear and convincing evidence to find that Petitioner's allegations of impairment were not fully credible. Second, Petitioner argues the ALJ failed to fully develop the record because he did not order a consultative examination or fully address Petitioner's physical impairments. The Court addresses each of these issues, in turn, below.

1. Credibility Assessment

The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). The ALJ's findings must be supported by specific, cogent reasons. Id. If a claimant produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant's subjective complaints of pain based solely on lack of medical evidence. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); s ee also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (holding that an ALJ may not discredit a claimant's subjective testimony on the basis that there is no objective medical evidence that supports the testimony). Unless there is affirmative evidence showing that the claimant is malingering, the ALJ must provide clear and convincing reasons for rejecting pain testimony. Burch, 400 F.3d at 680. General findings are insufficient; the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints. Reddick, 157 F.3d at 722.

The reasons an ALJ gives for rejecting a claimant's testimony must be supported by substantial evidence in the record. Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1296 (9th Cir. 1999). If there is substantial evidence in the record to support the ALJ's credibility finding, the Court will not engage in second-guessing. Thomas v. Barnhart, 278 F.3d 957, 959 (9th Cir. 2002). When the evidence can support either outcome, the Court may not substitute its judgment for that of the ALJ. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

The ALJ may engage in ordinary techniques of credibility evaluation, including considering claimant's reputation for truthfulness and inconsistencies in claimant's testimony, or between claimant's testimony and conduct, claimant's daily activities, claimant's work record, and testimony from physicians and third parties concerning the nature, severity and effect of the symptoms of which claimant complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Also, the ALJ may consider the location, duration and frequency of symptoms; factors that precipitate and aggravate those symptoms; the amount and side effects of medications; and treatment measures taken by the claimant to alleviate those symptoms. See SSR 96-7p.

Here, Petitioner argues that ALJ Molleur did not provide a clear and convincing reason for finding her testimony regarding the intensity, persistence, and limiting effects of her symptoms not fully credible. Petitioner contends that, because ALJ Molleur did not indicate evidence of malingering and because ALJ Molleur made only ...

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