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Egan v. Berryhill

United States District Court, D. Idaho

March 20, 2017

ROBERT EGAN, Petitioner,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, [1]Respondent.

          MEMORANDUM DECISION AND ORDER

          Honorable Candy W. Dale United States Magistrate Judge

         INTRODUCTION

         Pending before the Court is the Petition for Review of Respondent's denial of Disability Insurance Benefits and Supplemental Security Income filed by Petitioner Robert Egan on November 12, 2015. (Dkt. 1.) Pursuant to 28 U.S.C. § 636(c), the parties consented to the exercise of jurisdiction over this matter by the undersigned United States Magistrate Judge. (Dkt. 10.) 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.

         PROCEDURAL AND FACTUAL HISTORY

         Petitioner Egan filed an application for Social Security Disability Insurance Benefits on July 6, 2012, claiming disability beginning January 17, 2012, due to back and neck pain, shoulder pain, memory loss, depression, and headaches. (AR 166, 212.) His application was denied initially and on reconsideration, and a video hearing was held on February 6, 2014, with Egan participating via video-conference in Boise, Idaho, before Administrative Law Judge (ALJ) Deborah J. Van Vleck in New Mexico. After considering testimony from Egan and a vocational expert, ALJ Van Vleck issued a decision finding Egan not disabled on March 28, 2014. (AR 17.) Egan requested review by the Appeals Council, which denied his request for review on September 18, 2015. Egan 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, Egan was 44 years of age. He has a high school education and no college. Egan's prior work includes scrap metal salvager, construction worker, and operating engineer.

         SEQUENTIAL PROCESS

         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 substantial gainful activity. The ALJ found Egan had not engaged in substantial gainful activity since his alleged onset date, January 17, 2012.

         At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Egan's degenerative disc disease of the cervical lumbar spine, and “mental impairment variously diagnosed to include depression and anxiety, and mild executive dysfunction” severe within the meaning of the regulations.

         Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found Egan's impairments did not meet or equal the criteria for listed impairments, specifically considering the criteria of Listings 1.04 (disorders of the spine), 12.02 (neurocognitive disorders), 12.04 (depressive, bipolar and related disorders), 12.06 (anxiety and obsessive-compulsive disorders), and 12.08 (personality and impulse-control disorders). If a claimant's impairments do not meet or equal a listing, the Commissioner must determine the claimant's residual functional capacity (RFC) and next determine, at step four, whether the claimant has demonstrated an inability to perform past relevant work.

         The ALJ found Egan had the RFC to perform light work, except that Egan should no more than occasionally climb ramps and stairs, should never climb ladders, ropes, and scaffolds; he should no more than occasionally balance, stoop, kneel, crouch, and crawl; he should no more than occasionally reach overhead bilaterally, should no more than frequently reach in other directions bilaterally, frequently handle bilaterally and not more than occasionally finger bilaterally, and there are no limitations on feelings in his fingers. He should never work in the presence of unprotected heights or hazardous machinery; he should not be required to operate a motor vehicle as part of his job; he should never work in the presence of concentrated exposure to vibration; he is limited to perform simple, routine and repetitive tasks; and he is limited to judgment decisions and work place changes that are consistent with simple, routine competitive work.

         The ALJ found that, with this RFC, Egan was not able to perform his past relevant work as a scrap metal salvager, construction worker, or operating engineer. If a claimant demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate, at step five, that the claimant retains the capacity to make an adjustment to other work that exists in significant levels in the national economy, after considering the claimant's RFC, age, education, and work experience. Here, the ALJ found Egan retained the ability to perform the requirements of representative occupations such as an usher, furniture rental consultant, and children's attendant. Therefore, the ALJ found Egan not disabled.

         STANDARD OF REVIEW

         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 he not only cannot do his previous work but is unable, considering his 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. Flaten, 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 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).

         DISCUSSION

         Egan contends the ALJ committed multiple errors at step four. Egan first argues the ALJ erred by failing to provide adequate reasons for assigning minimal weight to the opinions of his treating and examining physicians and his neuropsychologist. Second, he claims the ALJ erred by not properly determining his RFC because she failed to assess Egan's work-related abilities on a function-by-function basis. Finally, Egan argues the ALJ's credibility assessment regarding the alleged severity of his subjective pain complaints and limitations associated with his neck and back pain, and mental impairments is neither clear and convincing nor supported by substantial evidence in the record. Each of Egan's assignments of error will be discussed in turn.

         I. Physician/Psychologist Opinions

         Egan argues the ALJ erred by failing to provide specific and legitimate reasons[2]for rejecting, or providing only minimal weight to, the opinions of his treating and examining physician Dr. Verst, and two examining medical professionals, Drs. Blair and Eastvold. The Commissioner contends the ALJ reasonably weighed all medical opinion evidence; the Court agrees.

         A. Legal Standard

         The United States Court of Appeals for the Ninth Circuit distinguishes 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 (non-examining 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).

         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). Likewise, the ALJ must provide clear and convincing reasons for rejecting the un-contradicted opinions of an examining physician. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995), as amended (Apr. 9, 1996). And, “like the opinion of a treating ...


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