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Hammond v. Berryhill

United States District Court, D. Idaho

March 26, 2018

EMILIA B. HAMMOND, [1] Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Respondent.


          Candy W. Dale U.S. Magistrate Judge


         Currently 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.


         Petitioner 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).

         At the 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.


         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 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.

         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, 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.

         Here, 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 impairments.

         The ALJ 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.


         Petitioner 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. § 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).


         Petitioner 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 below.

         1. Petitioner's Credibility

         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. 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 Cir. 1996)).

         Unless 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.

         Notably, 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 ...

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