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Lewis v. Berryhill

United States District Court, D. Idaho

February 26, 2019

NICOLE S. LEWIS, Petitioner,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Respondent.

          MEMORANDUM DECISION AND ORDER

          Candy W. Dale, U.S. Magistrate Judge

         INTRODUCTION

         Currently 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.

         PROCEDURAL HISTORY

         Petitioner 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.

         Petitioner 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).

         At the 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.

         SEQUENTIAL PROCESS

         The 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 severe.

         Step 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.

         If a 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 are credible.

         Here, 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 food worker.

         If a 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.

         STANDARD OF REVIEW

         Petitioner 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. § 423(d)(2)(A).

         On 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, 565 (1988).

         The 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).

         On 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).

         DISCUSSION

         Petitioner 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 discussed below.

         1.Physician Opinions

         Petitioner 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.)

         Case 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).

         Reports 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 ...


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