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Bryson v. Berryhill

United States District Court, D. Idaho

September 28, 2018

ANITA J. BRYSON, Petitioner,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Respondent.

          MEMORANDUM DECISION AND ORDER

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

         Pending is Petitioner Anita J. Bryson's Petition for Review[1] (Dkt. 1), appealing the Social Security Administration's final decision finding her not disabled and denying her claim for disability insurance benefits. See Pet. for Review (Dkt. 1). 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 August 3, 2013, Petitioner Anita J. Bryson (“Petitioner”) protectively applied for Title II disability and disability insurance benefits. (AR 22.) Petitioner alleged disability beginning October 1, 2012. (Id.) Her claim was denied initially on January 9, 2014 and then again on reconsideration on March 4, 2014. (Id.) On March 19, 2014, Petitioner timely filed a Request for Hearing before an Administrative Law Judge (“ALJ”). (Id.) Petitioner appeared and testified at a hearing held on January 13, 2016 in Pocatello, Idaho. (Id.) Impartial vocational expert Kent Granat also appeared and testified at the hearing. (Id.)

         On January 28, 2016, ALJ Lloyd E. Hartford issued a Decision denying Petitioner's claim, finding that Petitioner was not disabled within the meaning of the Social Security Act during the period from her alleged onset date through the date of the decision. (AR 28.) Petitioner timely requested review from the Appeals Council on or about February 10, 2016. (AR 14, 18.) On January 31, 2017, the Appeals Council denied Petitioner's Request for Review, making the ALJ decision the final decision of the Commissioner of Social Security. (AR 1.)

         Having exhausted her administrative remedies, Petitioner filed this case. She contends 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 2 (Dkt. 1). Petitioner argues that the ALJ's residual functional capacity assessment is unsupported by substantial evidence and that the ALJ's reasons for discounting Petitioner's credibility were inadequate. See generally Pet'r's Mem. ISO Pet. for Review (Dkt. 16). Petitioner asks for reversal and a holding that she is disabled, or, in the alternative, that the case be remanded for a further hearing. Pet. for Review 2 (Dkt. 1).

         II. STANDARD OF REVIEW

         To be upheld, the Commissioner's decision must be supported by substantial evidence and based on proper legal standards. 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664 (9th Cir. 2017). Findings as to any question of fact, if supported by substantial evidence, are conclusive. 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 Treichler v. Comm'r of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).

         “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); Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The standard requires more than a scintilla but less than a preponderance (Trevizo, 871 F.3d at 674), 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. Richardson, 402 U.S. at 401; see also Ludwig, 681 F.3d at 1051. The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Treichler, 775 F.3d at 1098. Where the evidence is susceptible to more than one rational interpretation, the reviewing court must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record. Ludwig, 681 F.3d at 1051. In such cases, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. Batson v. Comm'r of Social Sec., 359 F.3d 1190, 1196 (9th Cir. 2004).

         With respect to questions of law, the ALJ's decision must be based on proper legal standards and will be reversed for legal error. Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015); Treichler, 775 F.3d at 1098. Considerable weight must be given to the ALJ's construction of the Social Security Act. See Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 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.” 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 (20 C.F.R. §§ 404.1520, 416.920) - or continues to be disabled (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”). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is work activity that is both substantial and gainful. 20 C.F.R. §§ 404.1572, 416.972. “Substantial work activity” is work activity that involves doing significant physical or mental activities. 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. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant is engaged in SGA, disability benefits are denied regardless of her medical condition, age, education, and work experience. 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 did not engage in substantial gainful activity during the period from her alleged onset date of October 1, 2012 through the date of the ALJ's decision. (AR 24.)

         The second step requires the ALJ to determine whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” within the meaning of the Social Security Act if it significantly limits an individual's physical or mental 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 establishes only a slight abnormality or a combination of slight abnormalities that cause no more than minimal limitation on an individual's ability to work. SSR 96-3p, 1996 WL 374181 (July 2, 1996); see also 20 C.F.R. §§ 404.1521, 416.921. If the claimant does not have a severe medically determinable impairment or combination of impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that, through the date last insured, Petitioner had the following severe impairments: “degenerative disk disease of the lumbar spine and generalized osteoarthritis.” (AR 24.)

         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. 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. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant's impairments neither meet nor equal a listed impairment, her claim cannot be resolved at step three and the evaluation proceeds to step four. 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the ALJ found that Petitioner did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (AR 24-25.)

         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. 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. 20 C.F.R. §§ 404.1545, 416.945. An individual's past relevant work is work she performed within the last 15 years or 15 years prior to the date that disability must be established, as long as the work was substantial gainful activity and lasted long enough for the claimant to learn to do the job. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner had the RFC:

to perform sedentary work as defined in 20 CFR 40.1567(a) except she can lift, carry, push, and pull 10 pounds occasionally and less than 10 pounds frequently; can stand and walk 4 hours and sit 8 hours of an 8-hour workday (with normal breaks); can occasionally climb ramps and stairs, stoop, and crawl; can frequently kneel and crouch; and can never climb ladders, ropes, or scaffolds. The claimant must avoid concentrated exposure to vibration.

(AR 25.) Based on Petitioner's RFC, the ALJ further found that Petitioner was capable of performing her past relevant work as a Police Dispatcher. (AR 28.) Accordingly, he concluded that Petitioner “has not been under a disability, as defined in the Social Security Act, from October 1, 2012, through the date of this decision.” (AR 28.) The ALJ did not reach the fifth step of the sequential analysis.

         B. Analysis

         Petitioner raises two issues with the ALJ's decision. First, she argues the RFC the ALJ assigned is unsupported by substantial evidence because the ALJ failed to follow the treating physician rule. Second, she argues the ALJ's credibility determination with respect to Petitioner is unsupported by substantial evidence. See generally Pet'r's Mem. ISO Pet. for Review (Dkt. 16). Each argument will be addressed in turn.

         1. The RFC Was Not Supported By Substantial Evidence.

         Petitioner contends the ALJ's RFC assessment is unsupported by substantial evidence because he improperly discounted the medical opinions of treating provider Dr. Brad C. Erikson, D.O., and because he failed to incorporate into the RFC a portion of the medical opinion of consultative examiner Dr. Charles Boge, M.D., despite giving his opinion significant weight. Pet'r's Mem. ISO Pet. for Review 11-18 (Dkt. 16).

         An ALJ must state “clear and convincing reasons that are supported by substantial evidence” to reject an uncontradicted opinion of a treating physician. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). To reject a contradicted opinion of a treating physician, an ALJ must provide “specific and legitimate reasons that are supported by substantial evidence.” Id.

         A. The ALJ Erred in Rejecting Dr. Erikson's Medical Opinion.

         Dr. Erikson is a treating provider who rendered three separate medical opinions in this case. (AR 382, 409-411, 412.) In March 2014, he opined that Petitioner “is not able to be gainfully employed. This mainly stems from not being able to stand for very long periods of time or sit for very long periods of time without discomfort in her back, feet or ankles. It is of my belief that she is not a candidate to be rehabilitated for work, unless there is something extremely light duty, but even desk work would probably be problematic.” (AR 382.) In January 2016, he further opined that Petitioner “still lives in significant pain with a constant dull ache in her legs and back that does not allow her to work.” (AR 412.) Finally, Dr. Erikson completed a physical assessment form in January 2016 in which he gave his opinion as to several work-related limitations: Petitioner could sit only three hours and stand or walk only one hour in an 8-hour workday, Petitioner would need to take unscheduled breaks multiple times per hour during a workday, and Petitioner ...


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