United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER ON PETITION FOR
Honorable Ronald E. Bush Chief U.S. Magistrate Judge.
pending before the Court is Petitioner Christopher
Winebarger's Petition for Review (Dkt. 1), filed July 21,
2015, seeking review of the Social Security
Administration's final decision to deny him disability
benefits. This action is brought pursuant to 42
U.S.C. § 405(g). Having carefully reviewed the record
and otherwise being fully advised, the Court enters the
following Memorandum Decision and Order.
BACKGROUND AND ADMINISTRATIVE PROCEEDINGS
applied for social security disability benefits on April 6,
2010, alleging a disability onset date of July 1, 2007. (AR
278-279). The claim was initially denied on October 7, 2010
and also denied upon reconsideration on February 10, 2011.
The Petitioner thereafter requested a hearing before an
Administrative Law Judge (“ALJ”), which was held
on February 10, 2012. ALJ John Molleur presided over the
hearing, and issued a denial of Petitioner's claim on
March 12, 2012. (AR 162-178). Petitioner appealed that
decision to the Appeals Council, which remanded the case to
the ALJ for consideration of new evidence. (Ar 179-82).
Petitioner appeared at a second hearing before ALJ Molleur on
October 11, 2013. Petitioner was represented at this hearing
by his attorney, Taylor Mossman. A vocational expert, Beth
Cunningham, also testified at the second hearing. (AR 66). At
the time of the second hearing, Petitioner was thirty-one
November 19, 2013 the ALJ issued a second decision, again
denying Petitioner's claims. (AR 12-22). Petitioner
timely requested review from the Appeals Council, which
denied review on May 27, 2015, rendering the ALJ's
decision the Commissioner's final decision. (AR 1-5).
Petitioner now seeks judicial review of the
Commissioner's decision to deny him benefits. He contends
the ALJ erred by: 1) failing to give proper weight to the
opinions of several treating providers, and relatedly, in
finding that Petitioner did not meet or equal the relevant
listings; 2) by failing to provide clear and convincing
reasons for discounting his credibility; 3) by failing to
consider the cumulative effects of the Petitioner's
mental and physical limitations; and 4) by failing to fully
develop the record with respect to Petitioner's
cardiomyopathy in accordance with the remand order from the
Appeals Council's remand order.
STANDARD OF REVIEW
upheld, the Commissioner's decision must be supported by
substantial evidence and based on proper legal standards. 42
U.S.C. § 405(g); Smolen v. Chater, 80 F.3d
1273, 1279 (9th Cir. 1996); 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).
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); Webb v. Barnhart, 433 F.3d 683, 686
(9th Cir. 2005); Flaten 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 of evidence, 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,
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; Matney, 981 F.2d at 1019. The ALJ is
responsible for determining credibility and resolving
conflicts in medical testimony, and for resolving
ambiguities. Andrews v. Shalala, 53 F.3d 12035, 1039
(9th Cir. 1995); Allen v. Heckler, 749
F.2d 577, 579 (9th Cir. 1989). The ALJ is also responsible
for 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.
Flaten, 44 F.3d at 1457; Key v. Heckler,
754 F.2d 1545, 1549 (9th Cir. 1985).
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. 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.
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
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 the claimant had not engaged in SGA
since July 1, 2007, the alleged onset date of the disability.
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: bipolar
disorder, personality disorder, post-traumatic stress
disorder, ulcerative colitis, status post closed head injury,
and idiopathic cardiomyopathy. (AR 13.)
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. 20 C.F.R. §§
404.1520(e), 416.920(e). Here, the ALJ concluded that
Petitioner did not have an impairment or combination of
impairments that met or medically equalled the severity of
one of the listed impairments. (AR 14.)
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 her ability to do physical and mental work
activities on a sustained basis despite limitations from her
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 the Petitioner had the residual
functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) and 416.967(a), subject to the limitation
that work must be uninvolved, with up to only three or four
steps per task. The ALJ also found that such work must be
performed in a low stress environment, meaning that it could
require only occasional decision making, occasional changes
to the work setting, and only occasional contact with the
public. (AR 15). The ALJ also found that Claimant had no past
relevant work history. (AR 20).
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, she is not disabled; if
the claimant is not able to do other work and meets the
duration requirement, she is disabled. The ALJ found, at step
five, that Petitioner is capable of performing the following
jobs in the sedentary work category that were consistent with
the additional limitations identified in the residual
functional capacity: 1) surveillance systems monitor, 2)
document preparer and 3) final assembler. (AR 20-21.).
Consideration of Treating Provider Opinions
Court first addresses the argument that the ALJ failed to
give proper weight to the opinions of Petitioner's
treating doctors and other medical sources. This argument is
closely linked to Petitioner's claim that the ALJ failed
to properly apply the listing criteria for mental impairments
found in 20 CFR pt. 404, Subpart P, Appendix 1, §
12.04(B), which the Court addresses in the context of its
discussion of the appropriate remedy, found at Section C,
below. The Court agrees that the ALJ failed to identify clear
and convincing reasons for discounting the opinions of two of
Petitioner's treating doctors, namely, Dr. Si Steinberg,
a psychiatrist, and Dr. Alex Johnson, a cardiologist.
Social Security cases, both ALJs and reviewing courts
“employ a hierarchy of deference to medical opinions
depending on the nature of the services provided.”
Ryan v. Comm'r. of Soc. Sec. Admin, 528 F.3d
1194, 1198 (9th Cir. 2008) (citing standard in
dissent); See also, Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995). This hierarchy distinguishes
among three categories: those who treat the claimant, those
who examine the claimant but do not treat him, and those who
neither examine nor treat but simply review the medical
evidence prepared by others and provide opinions as to the
presence or absence of functional limitations.
speaking, a treating physician's opinion is entitled to
more weight than an examining physician's opinion, and an
examining physician's opinion is entitled to more weight
than a non-examining physician's opinion. Ryan,
528 F.3d at 1204. If a treating doctor's opinion is not
contradicted in the record by the opinion of another doctor,
an ALJ may reject it only for clear and convincing reasons
that are supported by substantial evidence in the record.
Id. at 1198; Lester, 81 F.3d at 830. The
ALJ must accord “controlling weight” to a
treating doctor's opinion if medically approved,
diagnostic techniques support the opinion and the opinion is
not inconsistent with other substantial evidence in the
record. Ligenfelter v. Astrue,504 F.3d 1028, 1038
n.10 (9thCir. 2007). This deference to the
opinions of treating doctors does not, however, require an
ALJ to accept the opinion of any doctor, including a treating
doctor, that is “brief, conclusory, and inadequately
supported by clinical findings.” Chaudry v.
Astrue, 688 F.3d 661 (9th Cir. 2012). An ALJ
may also properly reject opinions of treating physicians
where they are wholly based on the claimant's
self-reporting and not backed up by any objective medical