United States District Court, D. Idaho
ANITA J. BRYSON, Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Respondent.
MEMORANDUM DECISION AND ORDER
Honorable Ronald E. Bush Chief U.S. Magistrate Judge.
is Petitioner Anita J. Bryson's Petition for
Review (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.
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.)
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.)
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.
STANDARD OF REVIEW
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).
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).
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
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).
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.
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.
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.)
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.)
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
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.
The RFC Was Not Supported By Substantial Evidence.
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.
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.
The ALJ Erred in Rejecting Dr. Erikson's Medical
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 ...