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Winebarger v. Berryhill

United States District Court, D. Idaho

March 15, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security Respondent.


          Honorable Ronald E. Bush Chief U.S. Magistrate Judge.

         Now 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.[1] 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.


         Petitioner 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 years old.

         On 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.


         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); 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).

         “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); 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, 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; 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).

         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. 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 Process

         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 the claimant had not engaged in SGA since July 1, 2007, the alleged onset date of the disability. (AR 13).

         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: bipolar disorder, personality disorder, post-traumatic stress disorder, ulcerative colitis, status post closed head injury, and idiopathic cardiomyopathy. (AR 13.)

         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. 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.)

         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 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).

         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, 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.).

         B. Consideration of Treating Provider Opinions

         The 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.

         In 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.

         Generally 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 ...

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