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Kiedrowski v. Berryhill

United States District Court, D. Idaho

March 8, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Respondent.


          Candy W. Dale, U.S. Magistrate Judge


         Currently 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 Commissioner.


         Petitioner filed a Title II application for Disability Insurance Benefits and Supplemental Security Income on September 30, 2014, claiming disability since April 14, 2014, [1] due 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).

         At the 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 retail cashier.


         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. 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 Regulations.

         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, 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.

         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, 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.


         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 work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

         On 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).

         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).


         Petitioner 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.

         A. Physician testimony

         Petitioner 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.

         Ninth 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).

         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). 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).

         Additionally, 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).

         In this 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 Petitioner's providers.

         On 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 445.)

         Petitioner, 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.

         In 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. Id.

         In 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.)

         In June 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.

         A few 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. ...

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