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Thomassen v. Berryhill

United States District Court, D. Idaho

September 10, 2018

DIKE D. THOMASSEN, Petitioner,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Respondent.

          MEMORANDUM DECISION AND ORDER

          Ronald E. Bush, Chief U.S. Magistrate Judge.

         Before 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 and Order:

         I. ADMINISTRATIVE PROCEEDINGS

         On 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.

         On 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 Security.

         Having 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).

         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 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).

         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. 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).

         With 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).

         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. ...


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