United States District Court, D. Idaho
TRACY M. RAY, Petitioner,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Respondent.
MEMORANDUM DECISION AND ORDER
E. Bush Chief U.S. Magistrate Judge
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:
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.
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.
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).
STANDARD OF REVIEW
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).
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,
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).
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).
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
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).
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).
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).
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).
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).
Substantial Evidence Supports the ALJ's Assessment of
the Conflicting Medical Opinions
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).
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
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 ...