United States District Court, D. Idaho
EMILIA B. HAMMOND,  Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Respondent.
MEMORANDUM DECISION AND ORDER
W. Dale U.S. Magistrate Judge
pending before the Court is Darin L. Hammond's Petition
for Review of the Respondent's denial of social security
benefits, filed December 1, 2016. (Dkt. 1.) 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 remand to the
Commissioner with an order to award benefits.
AND FACTUAL HISTORY
filed an application for Disability Insurance Benefits and
Supplemental Security Income on April 22, 2013, alleging
disability beginning on March 4, 2013. The application was
denied initially and on reconsideration, and a hearing was
conducted on April 9, 2015 before Administrative Law Judge
(ALJ) Michele M. Kelley. During the hearing, testimony was
provided by Petitioner and vocational expert Kent Granat. The
ALJ issued a decision on June 4, 2015, finding Petitioner not
disabled. Petitioner timely requested review by the Appeals
Council, which denied his request for review on September 29,
2016. 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).
time of the hearing, Petitioner was 41 years of age.
Petitioner's prior work experience included working as an
English professor at BYU Idaho, and later, at Idaho State
University. He also worked as a residential builder for a
period of time.
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 Petitioner had not engaged in
substantial gainful activity since his alleged onset date of
March 4, 2013. At step two, it must be determined whether the
claimant suffers from a severe impairment. The ALJ found
Petitioner's depression, anxiety, and attention deficit
disorder severe within the meaning of the Regulations.
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, specifically considering Petitioner's mental
impairments under Listings 12.02 (neurocognitive disorders),
12.04 (affective disorder), and 12.06 (anxiety-related
disorders). If a claimant's impairments do not meet or
equal a listing, the Commissioner must assess the
claimant's residual functional capacity (RFC) and
determine, at step four, whether the claimant has
demonstrated an inability to perform past relevant work. In
assessing Petitioner's RFC, the ALJ determines whether
Petitioner's complaints about the intensity, persistence,
and limiting effects of his symptoms are credible.
the ALJ determined Petitioner's complaints were not
entirely credible- finding the record contained very minimal
objective evidence of a disabling mental impairment. As such,
the ALJ concluded that the objective evidence failed to show
Petitioner's symptoms prevented him from working.
Additionally, upon considering the medical opinion evidence,
the ALJ gave no significant weight to the opinions of
Petitioner's treating psychiatrist, Dr. Kayne Kishiyama;
gave partial weight to consultive psychological examiner,
J.W. Casper, Ed.D.; gave some weight to the opinions of the
non-treating, non-examining medical sources, Michael Dennis,
Ph.D., and Barney Greenspan, Ph.D.; and gave significant
weight to the conclusions of the non-treating, non-examining
sources, Leslie E. Arnold, M.D. and Ward Dickey, M.D. The ALJ
found the medical record did not demonstrate any physical
found Petitioner was not able to perform his past relevant
work as a college professor or as a residential builder due
to non-exertional limitations. 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 residual
functional capacity, age, education and work experience.
Here, the ALJ found Petitioner retained the ability to
perform the requirements of representative occupations such
as hand launderer, garment folder, and touch up inspector.
bears the burden of showing that disability benefits are
proper because of 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 his 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.
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).
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).
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).
contends the ALJ erred at step four for two reasons: First,
Petitioner argues the ALJ erred in making an adverse
credibility finding. Second, Petitioner claims the ALJ should
have assigned the opinion of Dr. Kishiyama, treating
psychiatrist, controlling weight, and should have assigned
the opinion of Dr. Casper, consultive psychological examiner,
additional weight. Because of these alleged errors,
Petitioner argues the ALJ erred in determining his RFC and
finding him able to perform other available work at step
five. The merits of each argument are discussed in turn
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. at 722. If a claimant produces
objective medical evidence of an underlying impairment, an
ALJ may not reject a claimant's subjective complaints
based solely on lack of medical evidence. Burch v.
Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). See
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). “The claimant is not required to show
‘that [the] impairment could reasonably be expected to
cause the severity of the symptom […] alleged; [he]
need only show that it could reasonably have caused some
degree of the symptom.'” Garrison v.
Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (citing
Smolen v. Chater, 80 F.3d 1273, 1282 (9th
there is affirmative evidence the claimant is malingering,
the ALJ cannot reject the claimant's testimony about the
severity of the symptoms without providing clear and
convincing reasons supported by substantial evidence.
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.
when the symptom testimony is in regard to psychological
impairments, “it is error to reject a claimant's
testimony merely because symptoms wax and wane in the course
of treatment.” Garrison, 759 F.3d 995 at 1017.
Psychological impairments regularly include cycles of
improvement countered by periods with debilitating symptoms.
Id. In these circumstances, an ALJ commits error by
picking out isolated instances of improvement and treating
such instances as a basis to conclude a claimant is able to
work. Id. “While ALJs obviously must rely on
examples to show why they do not believe that a claimant is
credible, the data points ...