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Murray v. Berryhill

United States District Court, D. Idaho

March 30, 2018

KEVIN W. MURRAY, Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Respondent.



         Pending is Petitioner Kevin W. Murray's Petition for Review[1] (Dkt. 1), appealing the Social Security Administration's final decision finding him not disabled and denying his claim for disability insurance benefits.[2] See generally Pet. for Review (Dkt. 1). This action is brought pursuant to 42 U.S.C. §§ 405(g). Having carefully considered the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:


         On January 22, 2013, Kevin W. Murray (“Petitioner”) protectively applied for Title II disability and disability insurance benefits. (AR 8.) Petitioner alleged disability beginning May 17, 2010. (Id.) His claims were denied initially on April 30, 2013 and then again on reconsideration on May 31, 2013. (Id.) On June 12, 2013, Petitioner timely filed a Request for Hearing before an Administrative Law Judge (“ALJ”). (Id.) On December 5, 2014, ALJ Jesse K. Shumway held a hearing in Spokane, Washington where Petitioner appeared and testified by video. (Id.; AR 24.) Medical expert Dr. Malcolm Brahms, M.D., testified by telephone, and impartial vocational expert K. Diane Kramer also appeared and testified. (AR 24.)

         On February 11, 2015, the ALJ issued a Decision denying Petitioner's claim, finding that Petitioner was not disabled within the meaning of the Social Security Act. (AR 17.) Petitioner timely requested review from the Appeals Council on or about March 3, 2015. (AR 4.) On June 9, 2016, the Appeals Council denied Petitioner's Request for Review, making the ALJ's decision the final decision of the Commissioner of Social Security. (AR 1.)

         Having exhausted his administrative remedies, Petitioner timely filed the instant action, arguing that “[t]he conclusions and findings of fact of the [respondent] are not supported by substantial evidence and are contrary to law and regulation.” Pet. for Review 1 (Dkt. 1). Petitioner challenges the sufficiency of the evidence on which the ALJ relied as well as the legal correctness of the ALJ's treatment of a consulting psychologist's reports. See generally Pet'r's Br. (Dkt. 17). Petitioner asks for reversal or remand for a supplemental hearing. Id.


         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); Trevizo v. Berryhill, 871 F.3d 664 (9th Cir. 2017). 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. See Treichler v. Comm'r of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).

         “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); Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The standard requires more than a scintilla but less than a preponderance (Trevizo, 871 F.3d at 674), 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. Richardson, 402 U.S. at 401; see also Ludwig, 681 F.3d at 1051. The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Treichler, 775 F.3d at 1098. Where the evidence is susceptible to more than one rational interpretation, the reviewing court must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record. Ludwig, 681 F.3d at 1051. In such cases, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. Batson v. Comm'r of Social Sec., 359 F.3d 1190, 1196 (9th Cir. 2004).

         With respect to questions of law, the ALJ's decision must be based on proper legal standards and will be reversed for legal error. Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015); Treichler, 775 F.3d at 1098. Considerable weight must be given to the ALJ's construction of the Social Security Act. See Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 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 (20 C.F.R. §§ 404.1520, 416.920) - or continues to be disabled (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 work activity that is both substantial and gainful. 20 C.F.R. §§ 404.1572, 416.972. “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 is engaged in SGA, disability benefits are denied regardless of his medical condition, 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 Petitioner has not engaged in substantial gainful activity since May 17, 2010, the alleged onset date. (AR 10.)

         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 physical or mental 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 establishes only a slight abnormality or a combination of slight abnormalities that cause no more than minimal limitation on an individual's ability to work. SSR 96-3p, 1996 WL 374181 (July 2, 1996); see also 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 has the following severe impairments: “degenerative disc disease of the cervical and lumbar spine, osteoarthrosis of the right wrist and hand, and posttraumatic stress disorder (PTSD).” (AR 10.)

         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 a listed impairment, his claim 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 found that Petitioner does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (AR 10-12.)

         The fourth step of the evaluation process requires the ALJ to determine whether the claimant's residual functional capacity (“RFC”) 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 RFC is his ability to do physical and mental work activities on a sustained basis despite limitations from his impairments. 20 C.F.R. §§ 404.1545, 416.945. An individual's past relevant work is work he performed within the last 15 years or 15 years prior to the date that disability must be established, as long as the work was substantial gainful activity and lasted long enough for the claimant to learn to do the job. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner has the RFC:

to perform light work as defined in 20 CFR 404.1567(b) subject to the following. He is able to lift up to 20 lbs occasionally and 10 lbs frequently, but not above the shoulder or below the waist; he can stand up to 2 hours, and walk up to 2 hours in a normal workday; he can push and pull within the weight limits described for lifting and carrying; he can reach overhead occasionally with the left upper extremity, and frequently with the right upper extremity; he can occasionally finger with the bilateral upper extremities; he can frequently climb ramps or stairs, but should avoid climbing ladders, ropes, or scaffolds; he can occasionally stoop, kneel, crouch, and crawl; he can occasionally operate motor vehicles, but should not perform occupational driving requiring a commercial driver's license (CDL); and he is able to perform the mental requirements of semi-skilled work..

(AR 12-13.) The ALJ further found that Petitioner is able to perform his past relevant work as a “teacher's aide II.” (AR 16.)

         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 Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). If the claimant is able to do such other work, he is not disabled; if the claimant is not able to do other work and meets the duration requirement, he is disabled. Here, because the ALJ found that Petitioner is able to perform his past relevant work as a “teacher's aide II, ” the ALJ did not need to consider whether there are other jobs that exist in significant numbers in the national economy that Petitioner can perform.

         Based on the finding that Petitioner could engage in past relevant work, the ALJ ultimately concluded that Petitioner “has not been under a disability, as defined in the Social Security Act, from May 17, 2010, through the date of this decision.” (AR 17.)

         B. Analysis

         Petitioner argues the ALJ's decision denying benefits is not supported by substantial evidence and is contrary to law and regulation. Pet. for Review 1 (Dkt. 1). First, he argues that the ALJ erred by failing to obtain updated medical expert testimony regarding Petitioner's mental impairments. Pet'r's Br. 3-5 (Dkt. 17). Second, he argues the ALJ erred in misunderstanding and assigning little weight to the report of consulting psychologist Dr. Haugen. Id. at 5-11. Third, he argues the ALJ erred by failing to resolve the conflict between Dr. Haugen's MMPI-2 results and the ALJ's RFC mental limitations findings. Id. at 11-12. Fourth, he argues the ALJ's mental RFC is not supported by the record. Id. at 12-13. Fifth, he argues the ALJ erred in finding the Petitioner could perform “light work.” Id. at 13-14. Sixth, he argues the ALJ erred in making an RFC finding given the record's lack of RFC assessments from any physicians. Id. at 14-17. Seventh, he argues the ALJ erred in failing to consider all of Petitioner's severe conditions in combination. Id. at 17-18.

         Several of Petitioner's arguments relate to evidence regarding his mental impairments. As noted above, the ALJ found that Petitioner suffers from PTSD. The record indicates that his PTSD is a consequence of a 2008 head-on motor vehicle collision in which the drunk driver who caused the accident died and Petitioner was injured. (AR 13.) The collision and ...

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