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Vardaman v. Berryhill

United States District Court, D. Idaho

July 23, 2018

NANCY BERRYHILL, Acting Commissioner of Social Security, Respondent.


          Honorable Candy W. Dale United States Magistrate Judge.


         Pending before the Court is Bethany Vardaman's Petition for Review of the Respondent's denial of social security benefits, filed on July 17, 2017. (Dkt. 1.) The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, [1]and the administrative record (AR), and for the reasons that follow, will affirm the decision of the Commissioner.


         Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on May 27, 2016, alleging disability beginning January 19, 2007. This application was denied initially and on reconsideration, and a hearing was held on March 1, 2017, before Administrative Law Judge (ALJ) Jesse Shumway. After hearing testimony from Petitioner, medical expert Marian Martin, Ph.D,, and vocational expert Daniel McKinney, ALJ Shumway issued a decision finding Petitioner not disabled on March 8, 2017. Petitioner timely requested review by the Appeals Council, which denied her request for review on May 16, 2017.

         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).

         Petitioner completed high school, and thereafter served in the Navy from May 21, 2003, through January 19, 2007, where she worked as an electrical technician repairing aircraft. She was honorably discharged from the Navy on January 19, 2007. At the time of Petitioner's date last insured of September 30, 2011, she was twenty-six years of age. By the March 1, 2017 hearing, Petitioner was thirty-one years of age.


         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 her alleged onset date of January 19, 2007. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's major depressive disorder, anxiety disorder, post-traumatic stress disorder, borderline personality disorder, and traumatic brain injury 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 any listed impairments, specifically considering Listings 12.04, 12.06, 12.08, and 12.15 pertaining to mental 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.

         The ALJ determined that, up through her date last insured of September 30, 2011, Petitioner retained the RFC to perform a full range of work at all exertional levels, with non-exertional limitations of unskilled and semi-skilled work in a routine, predictable work environment with no more than occasional changes; she could have only occasional, superficial contact with the public, supervisors, and coworkers; and, she could not work at an assembly-line pace. (AR 24.)

         Based upon his RFC finding, the ALJ found Petitioner was not able to perform her past relevant work as an electrical technician. 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. Upon receiving testimony from the vocational expert, the ALJ determined Petitioner retained the RFC to perform the requirements of representative occupations such as garment sorter, industrial cleaner, and laborer, stores. (AR 30.) Accordingly, the ALJ concluded Petitioner was not under a disability at any time from January 19, 2007, the alleged onset date, through September 30, 2011, the date last insured, and issued a finding of not disabled.


         Petitioner bears the burden of showing that disability benefits are proper because of the 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 her physical or mental impairments are of such severity that she not only cannot do her previous work but is unable, considering her 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 argues the ALJ erred at step four, raising the following issues in her opening brief: (1) whether the ALJ properly evaluated the medical evidence; (2) whether the ALJ properly considered Petitioner's mental impairments; (3) whether the ALJ properly evaluated Petitioner's symptom testimony and, hence, her credibility; and (4) whether the ALJ properly evaluated the Veteran's Administration disability determination. Each issue will be discussed in turn.

         1. Medical Evidence

         Petitioner raises two arguments with regard to the medical evidence. First, she contends the ALJ failed to review the entire record, including recent medical evaluations that diagnose her with traumatic brain injury stemming from an accident in 2006. Second, she asserts the ALJ did not adequately evaluate the opinions of Petitioner's treating physician, Dr. Hampton, and the medical expert, Dr. Martin, who testified at the hearing. Petitioner argues the ALJ failed to discuss Dr. Hampton's opinion at all, and improperly assigned Dr. Martin's opinion “great weight, ” even though Dr. Martin is not a neurologist qualified to assess the symptoms caused by Petitioner's brain injury.

         A. Development of the Record

         Petitioner argues the ALJ failed to review the entire record because he did not discuss over 233 pages of recent medical records, thereby failing to develop the record. (Dkt. 18 at 17-20.) Respondent points out that the records Petitioner claims were ignored do not relate to the relevant period between Petitioner's disability onset date of January 19, 2007, through her date last insured, of September 30, 2011. Consequently, Respondent argues the ALJ did not need to expressly discuss the records given his conclusion ...

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