United States District Court, D. Idaho
NICOLE S. LEWIS, Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Respondent.
MEMORANDUM DECISION AND ORDER
W. Dale, U.S. Magistrate Judge
pending before the Court is Nicole S. Lewis' Petition for
Review of the Respondent's denial of social security
benefits filed December 22, 2017. (Dkt. 1.) The Court has
reviewed the Petition and the Answer, the parties'
memoranda, and the administrative record (AR). For the
reasons that follow, the Court will remand to the
Commissioner for proceedings consistent with this opinion.
filed an application for Disability Insurance Benefits and
Supplemental Security Income on January 27, 2014, alleging
disability based on a combination of impairments including
intracranial hypertension, arthritis of the knees, and
depression. This application was denied initially and on
reconsideration, and a hearing was held on July 7, 2016,
before Administrative Law Judge (ALJ) David Willis. After
hearing testimony from Petitioner and vocational expert Anne
T. Arrington, ALJ Willis issued a decision finding Petitioner
not disabled on September 12, 2016. (AR 17-31.) Petitioner
timely requested review by the Appeals Council, which denied
her request for review on October 24, 2017.
appealed this final agency decision to the Court. The Court
has jurisdiction to review the ALJ's decision pursuant to
42 U.S.C. § 405(g).
time of the alleged disability onset date of January 26,
2013, Petitioner was twenty-eight years of age. Petitioner
has a high school diploma. Her prior employment experience
includes work as a newspaper delivery person, sandwich maker,
cashier, and fast food worker.
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. Here, the ALJ found Petitioner had not
engaged in substantial gainful activity since her alleged
onset date of January 26, 2013. At step two, it must be
determined whether the claimant suffers from a severe
impairment. Here, the ALJ found Petitioner's intracranial
hypertension, pseudotumor cerebri, migraines, depression, and
obesity severe within the meaning of the Regulations. (20
C.F.R. pt. 404.1520(c) and 404.1521(b)). The ALJ found
Petitioner's bilateral knee pain and low back pain not
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 the listed
impairments, specifically considering Petitioner's mental
impairments under Listing 12.04, and Petitioner's
obesity, as required by Social Security Ruling 02-1p.
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. In assessing Petitioner's RFC, the
ALJ determines whether Petitioner's complaints about the
intensity, persistence, and limiting effects of her symptoms
the ALJ found Petitioner's complaints were not entirely
credible, based on certain inconsistencies in
Petitioner's testimony compared to the objective medical
evidence of record, and Petitioner's prior statements.
Upon consideration of the medical opinion evidence, the ALJ
gave significant weight to the assessment of state-agency
medical consultants, Barry Cusack, M.D., and Robert Vestal,
M.D., and limited weight to the headache medical source
statement completed by Petitioner's treating physician,
James Whiteside, M.D. Also, at step four, the ALJ found
Petitioner was not able to perform her past relevant work as
a newspaper delivery person, sandwich maker, cashier, or fast
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. At step five, the ALJ found Petitioner could
perform sedentary jobs that exist in significant numbers in
the national economy, including that of a document scanner,
accounts clerk, or manual food processor. Consequently, the
ALJ determined Petitioner was not disabled.
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.
review, the Court is to uphold the Commissioner's
decision if it 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 relevant evidence that 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,
Court cannot disturb the Commissioner's findings if they
are supported by substantial evidence, even though other
evidence may exist that supports the 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).
review, 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).
asserts the ALJ erred at step four. Specifically, Petitioner
argues the ALJ erred by: rejecting the opinion of a treating
physician without providing clear and convincing reasons for
doing so; failing to provide clear and convincing reasons for
his finding that Petitioner's testimony was not credible;
rejecting the testimony of a lay witness, Petitioner's
husband, without providing a germane reason; and finally, by
determining an RFC not supported by substantial evidence.
Each challenge to the ALJ's determination will be
alleges that the ALJ committed reversible error when he
rejected or assigned little weight to the opinion of a
treating physician without providing clear and convincing
reasons. (Dkt. 13 at 8.)
law from the United States Court of Appeals for the Ninth
Circuit distinguishes among the opinions of three types of
physicians: (1) those who treat the claimant (treating
physicians); (2) those who examine but do not treat the
claimant (examining physicians); and (3) those who neither
examine nor treat the claimant (non-examining physicians).
Lester v. Chatter, 81 F.3d 821, 830 (9th Cir. 1995).
Generally, more weight is accorded to the opinion of a
treating source than to non-treating physicians. Winans
v. Bowen, 853 F.2d 643, 647 (9th Cir.1987). If the
treating physician's opinion is not contradicted by
another doctor, it may be rejected only for “clear and
convincing” reasons. Baxter v. Sullivan, 923
F.2d 1391, 1396 (9th Cir.1991). If the treating doctor's
opinion is contradicted by another doctor, the Commissioner
may not reject the treating physician's opinion without
providing “specific and legitimate reasons”
supported by substantial evidence in the record for so doing.
Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983).
In turn, an examining physician's opinion is entitled to
greater weight than the opinion of a non-examining physician.
Pitzer v. Sullivan, 908 F.2d 502, 506 (9th
Cir.1990); Gallant v. Heckler, 753 F.2d 1450 (9th
Cir.1984). An ALJ is not required to accept an opinion of a
treating physician if it is conclusory and not supported by
clinical findings. Matney ex rel. Matney v.
Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).
Additionally, an ALJ is not bound to a physician's
opinion of a petitioner's physical condition or the
ultimate issue of disability. Magallanes v. Bowen,
881 F.2d 747, 751 (9th Cir. 1989). If the record as a whole
does not support the physician's opinion, the ALJ may
reject that opinion. Batson v. Comm'r of Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Items in
the record that may not support the physician's opinion
include clinical findings from examinations, conflicting
medical opinions, conflicting physician's treatment
notes, and the claimant's daily activities. Id.;
Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005);
Connett v. Barnhart, 340 F.3d 871 (9th Cir. 2003);
Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d
595 (9th Cir. 1999). However, an ALJ may reject a treating
physician's opinion if it is based “to a large
extent” on a claimant's self -reports that have
been property discounted as not credible. Tommasetti v.
Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
of treating physicians submitted relative to a claimant's
work-related ability are persuasive evidence of a disability
due to pain and her inability to engage in any form of
gainful activity. Gallant v. Heckler, 753 F.3d 1450,
1454 (9th Cir. 1984). Although the ALJ is not bound by expert
medical opinion on the issue of disability, he must give
clear and convincing reasons supported by substantial
evidence for rejecting such an opinion where it is
uncontradicted. Bayliss v. Barnhart, 427 F.3d 1211,
1216 (9th Cir. 2005); Gallant, 753 F.2d at 1454
(citing Montijo v. Secretary of Health & Human
Services, 729 F.2d 599, 601 (9th Cir.1984); Rhodes
v. Schweiker, 660 F.2d 722, 723 (9th Cir.1981)). Clear
and convincing reasons must also be ...