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Ray v. Colvin

United States District Court, D. Idaho

March 30, 2018

TRACY M. RAY, Petitioner,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Respondent.

          MEMORANDUM DECISION AND ORDER

          Ronald E. Bush Chief U.S. Magistrate Judge

         Pending before the Court is Petitioner Tracy M. Ray's Petition for Review (Docket No. 1), seeking review of the Social Security Administration's decision denying her application for Social Security Disability Insurance benefits. See generally Pet. for Review (Docket No. 1). This action is brought pursuant to 42 U.S.C. § 405(g). Having carefully considered the record and being fully advised, the Court enters the following Memorandum Decision and Order:

         I. ADMINISTRATIVE PROCEEDINGS

         On March 8, 2013, Petitioner Tracy M. Ray filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning February 25, 2013. The application was denied on May 20, 2013 and, again, on reconsideration on September 26, 2013. On November 19, 2013, Petitioner timely filed a Request for Hearing. On February 5, 2015, Administrative Law Judge (“ALF”) Lloyd E. Hartford held a video hearing from Billings, Montana. Petitioner, represented by attorney Brad D. Parkinson, appeared and testified from Idaho Falls, Idaho. Impartial vocational expert, Richard G. Taylor, also appeared and testified.

         On April 1, 2015, the ALJ issued a Decision denying Petitioner's claim, finding that she was not disabled within the meaning of the Social Security Act. Petitioner timely requested review from the Appeals Council and, on August 5, 2016, the Appeals Council denied Petitioner's Request for Review, making final the ALJ's decision.

         Having exhausted her 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, p. 2 (Docket No. 1). In particular, Petitioner argues that the ALJ erred in (1) giving improper weight to the opinion of Dr. Kelly; (2) failing to give proper weight or consideration to the medical evidence and opinions of Dr. Mary Himmler, Dr. Jason Poston, and Dr. Stephen Cheyne; (3) improperly accepting only a part of the opinion of the physical therapist who conducted a functional capacity evaluation; (4) improperly determining there was insufficient evidence that Ms. Ray is unable to pass POST Certification; and (5) failing to identify and resolve conflicts between the vocational expert testimony and the DOT. See Pet.'s Brief, pp. 10-15 (Docket No. 15); see also Resp't Brief, p. 3 (Docket No. 16) (appropriately condensing Petitioner's arguments into three issues: “(1) Whether substantial evidence supports the ALJ's assessment of the opinions of Brandon Kelly, M.D., Mary Himmler, M.D., and one of Petitioner's physical therapists; (2) Whether the ALJ's failure to mention letters from two of Petitioner's doctors [(Drs. Poston and Cheyne)] was harmless error; and (3) Whether substantial evidence supports the ALJ's finding at step five that Petitioner could perform a significant number of jobs in the national economy.”). Petitioner therefore requests that the Court either reverse the ALJ's decision and find that she is entitled to disability benefits or, alternatively, remand the case for further proceedings and award attorneys' fees. See Pet. for Review, p. 2 (Docket No. 1).

         II. STANDARD OF REVIEW

         To be upheld, the Commissioner's decision must be supported by substantial evidence and based on proper legal standards. See 42 U.S.C. § 405(g); 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. See 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 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. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); 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 (see 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).

         As to questions of fact, the Court's role is to review the record as a whole to determine whether it contains evidence allowing a reasonable mind to accept the conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019. The ALJ is responsible for determining credibility and resolving conflicts within the medical testimony (see Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)), resolving any ambiguities (see Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)), and drawing inferences logically flowing from the evidence contained in the record (see Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). Where the evidence is susceptible to more than one rational interpretation, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. See Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).

         As to questions of law, the ALJ's decision must be based on proper legal standards and will be reversed for legal error. See Matney, 981 F.2d at 1019. At the same time, the ALJ's construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. See 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.” See Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).

         III. DISCUSSION

         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”). See 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. See 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. See 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 her physical/mental impairments are and regardless of her age, education, and work experience. See 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 February 25, 2013, the alleged onset date.” (AR 13).

         The second step requires a determination of whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the duration requirement. See 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” 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. See 20 C.F.R. §§ 404.1521, 416.921. If there is no severe medically determinable impairment or combination of impairments, benefits are denied. See 20 C.F.R. §§ 404.1520(c), 416.920(c). The ALJ found that Petitioner has severe impairments of degenerative disc disease, carpal tunnel syndrome (CTS), and obesity. See (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. See 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. See 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. See id. Here, the ALJ concluded that Petitioner's above-listed impairments, while severe, do not meet or medically equal, either singly or in combination, the criteria established for any of the qualifying impairments. See (AR 13-14).

         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. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual's RFC is her ability to do physical and mental work activities on a sustained basis despite limitations from her impairments. See 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. See 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, except “she is limited to frequent handling, fingering, and overhead reaching bilaterally, ” and “she should never climb ladders, ropes, or scaffolds, and should avoid concentrated exposure to hazards such as working at heights and all exposure to unprotected heights.” (AR 14-19).

         In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of her 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. See 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. Here, the ALJ found that Petitioner is unable to perform any past relevant work as a correctional officer/therapy tech, but found that there are jobs that exist in significant numbers in the national economy that Petitioner can nonetheless perform, including “[security] guard.” See (AR 19-20). Therefore, the ALJ concluded that Petitioner “has not been under a disability, as defined in the Social Security Act, from February 5, 2013, through the date of this decision.” (AR 20) (internal citation omitted).

         B. Analysis

         1. Substantial Evidence Supports the ALJ's Assessment of the Conflicting Medical Opinions[1]

         The ALJ is responsible for resolving ambiguities and conflicts in the medical testimony. See Magallanes, 881 F.2d at 750. While the medical opinion of a treating physician is entitled to special consideration and weight, it is not necessarily conclusive. See Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989). If the treating physician's opinions are not contradicted by another doctor, they may be rejected only for clear and convincing reasons. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Even if the treating physician's opinions are contradicted by another doctor, they can only be rejected if the ALJ provides specific and legitimate reasons for doing so, supported by substantial evidence in the record. See id. A lack of objective medical findings, treatment notes, and rationale to support a treating physician's opinions is a sufficient reason for rejecting that opinion. See Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Additionally, the ALJ may discount physicians' opinions based on internal inconsistencies, inconsistencies between their opinions and other evidence in the record, or other factors the ALJ deems material to resolving ambiguities. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999).

         Here, Petitioner takes issue with the ALJ's acceptance of Dr. Kelly's opinions over other treating physicians' opinions (namely, Drs. Himmler, Poston, and Cheyne), while failing to accept the entirety of Petitioner's physical therapist's opinions. See Pet.'s Brief, pp. 10-14 (Docket No. 15). The Court addresses each of these arguments below.

         a. Dr. Kelly

         In April 2013, Dr. Kelly explained to Petitioner that, “given she does not have severe structural spine disease and that she has neuropathies that are not advanced on EMG, [he is] unable to provide a good rationale for her to be considered medically ...


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