United States District Court, D. Idaho
DIKE D. THOMASSEN, Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Respondent.
MEMORANDUM DECISION AND ORDER
E. Bush, Chief U.S. Magistrate Judge.
the Court is Petitioner Dike D. Thomassen's Petition for
Review (Docket No. 1), seeking review of the Social Security
Administration's denial of his application for Social
Security Disability Insurance benefits and Supplemental
Security Income benefits for lack of disability. 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
September 22, 2013, Dike D. Thomassen
(“Petitioner”) protectively filed (1) a Title II
application for a period of disability and Disability
Insurance benefits, and (2) a Title XVI application for
Supplemental Security Income benefits - in both applications,
alleging disability beginning February 23, 2013. These claims
were initially denied on December 4, 2013 and, again, on
reconsideration on April 24, 2014. On May 14, 2014,
Petitioner timely filed a Request for Hearing before an
Administrative Law Judge (“ALJ”). On October 27,
2015, ALJ B. Hobbs held a hearing in Salt Lake City, Utah, at
which time Petitioner, represented by attorney Merrick
Jackson, appeared and testified. Victoria Eskinazi, an
impartial medical expert, and Terri L. Marshall, an impartial
vocational expert, also appeared and testified at the same
October 27, 2015 hearing.
December 10, 2015, the ALJ issued a Decision denying
Petitioner's claim, finding that he was not disabled
within the meaning of the Social Security Act. Petitioner
timely requested review from the Appeals Council on December
31, 2015 and, on January 9, 2017, the Appeals Council denied
Petitioner's Request for Review, making the ALJ's
decision the final decision of the Commissioner of Social
exhausted his administrative remedies, Petitioner timely
filed the instant action (through his current attorneys
Howard D. Olinsky and Bradley D. Parkinson) on March 7, 2017,
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
identifies the “issues presented for review” as:
(1) “The [residual functional capacity assessment] is
unsupported by substantial evidence because the ALJ failed to
follow the treating physician rule and gave great weight to
the different opinions of three non-examining sources”;
and (2) “The credibility determination is not supported
by substantial evidence.” Pet.'s Brief, p. 1, 9-16
(Docket No. 15). Petitioner therefore requests that the Court
either reverse the ALJ's decision and find that he is
entitled to disability benefits or, alternatively, remand the
case for further proceedings and award attorneys' fees.
See id. at p. 16; see also 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 is fluid and nuanced, requiring 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).
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. 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 in medical testimony (see Allen v.
Heckler, 749 F.2d 577, 579 (9th Cir. 1984)), resolving
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
(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).
respect 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. 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. ...