United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
W. Dale, U.S. Magistrate Judge
pending before the Court for its consideration is Shanna
Michelle Kiedrowski's Petition for Review of the
Respondent's denial of social security benefits, filed
November 6, 2017. (Dkt. 1.) The Court has reviewed the
Petition for Review and the Answer, the parties'
memoranda, and the administrative record (AR), and for the
reasons that follow, will affirm the decision of the
AND FACTUAL HISTORY
filed a Title II application for Disability Insurance
Benefits and Supplemental Security Income on September 30,
2014, claiming disability since April 14, 2014,
to degenerative disk disease-status post lumbar fusion,
osteoarthritis of the right sacroiliac joint, Ehlers-Danlos
syndrome, and obesity. This application was denied initially
and on reconsideration, and a hearing was held on October 4,
2016, before Administrative Law Judge (ALJ) Mark Kim. After
hearing testimony from Petitioner, vocational expert Polly
Peterson, and medical expert John Kwock, M.D., ALJ Kim issued
a decision finding Petitioner not disabled on November 22,
2016. Petitioner timely requested review by the Appeals
Council, which denied her request for review on September 6,
2017. Petitioner appealed this final 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 hearing, Petitioner was 38 years of age.
Petitioner has a high school level education, is married, and
lives with her husband and three teenage children.
Petitioner's prior employment experience includes work as
a human resource administrator, a front desk clerk, and a
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. The ALJ found Petitioner had not engaged in
substantial gainful activity since her alleged amended onset
date, September 25, 2014. At step two, it must be determined
whether the claimant suffers from a severe impairment. The
ALJ found each of Petitioner's impairments - degenerative
disc disease of the lumbar spine-status post lumbar fusion,
osteoarthritis of the right sacroiliac joint, Ehlers-Danlos
syndrome, and obesity- severe within the meaning of the
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, 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.R.F. 404.1520(d). 404.1525 and 404.1526). 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. The ALJ found Petitioner was not able to
perform her past relevant work as a human resource
administrator, front desk clerk, or retail cashier.
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, considering
Petitioner's age of 36 years at the time of the alleged
onset date, high school level education, and work experience,
that she retained the capacity to perform a limited range of
sedentary work, as defined in 20 C.F.R. 404.1567(a). The ALJ
imposed the following limitations in addition to the
sedentary occupational base: Petitioner can no more than
occasionally push or pull with right lower extremities or
frequently balance; can occasionally can stand, kneel and
climb ramps and stairs, but never crouch, crawl or climb
ladders, ropes or scaffolds; must avoid all exposure to
excessive vibrations and hazards; and, perform no more than
simple, routine tasks due to physical pain and the effects of
medication. Considering testimony from vocational expert
Peterson, and providing the forgoing limitations, the ALJ
found Petitioner could perform the requirements of
representative occupations such as document preparer, final
assembly optical, and lamp shade assembler. As such, the ALJ
found Petitioner 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 work
which exists in the national economy. 42 U.S.C. §
review, the Court is instructed to uphold the decision of the
Commissioner if the decision 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 such relevant evidence as 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).
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).
believes the ALJ erred at step four of the sequential process
in three ways. First, Petitioner argues the ALJ failed to
provide specific and legitimate reasons supported by
substantial evidence when assigning little weight to the
findings of treating providers and assigning greater weight
to the opinions of an examining physician and non-examining
medical sources. Second, Petitioner argues the ALJ failed to
provide reasons germane to each lay witness when assigning
less than full weight to their testimony. Third, Petitioner
argues the ALJ's RFC findings failed to include
limitations identified by Petitioner's treating
physicians and was thus defective. Respondent disagrees,
arguing the ALJ reasonably evaluated the medical opinion
evidence because there was little to no medical evidence in
the record supporting Petitioner's allegations of severe
pain and limitation. Respondent contends also that the ALJ
gave sufficient reasons germane to the lay witnesses to
discount their testimony.
argues the ALJ erred in rejecting or assigning little weight
to the opinions of her treating neurologist, treating primary
care physician, and treating rheumatologist, and assigning
more weight to the opinions of an examining but non-treating
provider, a state-agency reviewing physician, and the
non-examining testifying medical advisor. After careful
consideration and noting that there is evidence in the record
to make an alternative finding, the Court finds the ALJ gave
legitimate and specific reasons supported by substantial
evidence in the record for assigning little weight to the
treating physicians' opinions, and thus did not commit
legal or factual error.
Circuit cases distinguish 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).
“The ALJ is responsible for resolving conflicts in the
medical record.” Carmickle v. Comm'r, Soc. Sec.
Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). Generally,
the ALJ accords more weight to the opinions of treating
physicians than to non-treating physicians. Winans v.
Bowen, 853 F.2d 643, 647 (9th Cir.1987). If a treating
physician's opinion is not contradicted by another
physician, it may be rejected only for “clear and
convincing” reasons. Baxter v. Sullivan, 923
F.2d 1391, 1396 (9th Cir.1991). If a treating physician's
opinion is contradicted by another physician, 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).
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). However, 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 bound to any physician's opinion of a
claimant'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 a
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 a 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).
matter, the ALJ assigned little weight to the opinions of
Petitioner's treating providers based in large part on
his review of the opinions in light of the objective medical
evidence in the record as a whole. (See AR 27.)
Considering this justification, prior to reviewing the
ALJ's decision as to each provider, the Court will
provide a brief summary of Petitioner's medical history,
as is discernable by a review of the objective medical
evidence in the record as well as the treatment notes of
April 4, 2006, Petitioner suffered a work-related injury. (AR
214; 546.) She fell onto her left buttock on a hard floor
surface while attempting to move a cement mixer. Id.
Testing performed after the accident revealed that Petitioner
had sensory loss in her lower left extremity. Id.
Petitioner returned to work after the accident. Initially,
she received chiropractic treatment and sacroiliac joint (SI)
injections to treat her injuries. Id. At that time,
Petitioner reported having difficulty walking more than one
half of a mile due to pain in her lower left extremity. (AR
who is 5 feet 5 inches tall, weighed approximately 123 pounds
in 2006. (AR 444.) An MRI of Petitioner's lumbosacral
spine taken on July 7, 2006, showed a possible bilateral pars
defect at ¶ 5 and a grade I anterolisthesis on L5-S1, as
well as a disc bulge at ¶ 5-S1, with moderate bilateral
foraminal stenosis. Eventually, on August 9, 2007, Petitioner
had surgery to correct the defect in her spine-a L5-S1
discectomy, with posterior effusion and internal fixation,
with pedicle screws and end rods. Id. Petitioner
continued to work after recovery from her spinal surgery.
September and October of 2008, Petitioner was seen seven
times by Kevin Marsh, D.C., for complaints of back pain. (AR
475-77.) The primary chiropractic diagnosis was thoracic
somatic dysfunction and associated myofascial pain syndrome.
2010, Petitioner weighed 155 pounds. (AR 548.) At that time,
she reported minimal lower back pain that became severe as
the day progressed. (AR 547.) She reported being able to sit
or stand for about 30 minutes at a time before having to
change to the opposite, either sitting or standing.
Id. As in 2006, Petitioner reported being able to
walk for about one half of a mile. Id.
Petitioner's gait was normal in 2010. (AR 549.) An
examining physician found Petitioner would be expected to be
able to sit for 30 minutes at a time for up to 4 hours during
a work day and stand or walk for 30 minutes for up to four
hours during a work day. (AR 549.)
2014, Petitioner reportedly injured her back again while
moving a steam cleaner. (AR 72; 380; 572.) In July 2014,
Petitioner weighed 193 pounds, with a body mass index of
31.4. (AR 573.) She was unable to tolerate sitting for any
extended period of time. Id. Her sacroiliac (SI)
joints were tender to palpation. Id. She had
decreased light touch sensory in her right leg and foot.
Id. Changes to her gait had also taken place since
2010. Id. In 2014, Petitioner had difficulty with
heel walking due to pain, and her gait was mildly antalgic.
months later, in September 2014, Petitioner presented for an
office visit being “absolutely miserable with pain in
her sacroiliac area.” (AR 575.) From this point
forward, the medical records show Petitioner consistently
reported SI pain, was prescribed and took medication for it,
and participated in physical therapy to obtain pain relief.
Petitioner planned to undergo an SI joint fusion surgery as
an effort to eliminate or reduce her SI pain. Id. In
addition to developing significant SI pain, in 2015,
Petitioner was diagnosed with chronic pain syndrome and
Ehlers-Danlos syndrome. ...