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Harrison v. Saul

United States District Court, D. Idaho

September 19, 2019

BRYAN T. HARRISON, Petitioner,
ANDREW SAUL,[1]Commissioner of Social Security Administration, Respondent.


          Honorable Candy W. Dale, United States Magistrate Judge.


         Currently pending before the Court is Bryan Harrison’s Petition for Review of the Respondent’s denial of social security benefits, filed on April 20, 2018. (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 remand the decision of the Commissioner.


         Petitioner filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, on May 8, 2014. This application was denied initially and on reconsideration, and a hearing was conducted on April 14, 2016, before Administrative Law Judge (ALJ) Michelle Kelley. After considering testimony from Petitioner and a vocational expert, ALJ Kelley issued a decision on November 23, 2016, finding Petitioner not disabled. Petitioner timely requested review by the Appeals Council, which denied his request for review on February 16, 2018.

         Petitioner timely 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 alleged disability onset date of January 30, 2014, Petitioner was thirty-four years of age. Petitioner obtained an Associate’s degree in behavioral and social science. Petitioner received a commercial helicopter pilot’s certificate and flight instructor certificate, both of which are no longer valid. His past relevant work experience includes work as a customer service representative, technical support representative, certified flight instructor, relay operator, valet driver, and ticket broker.


         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 his alleged onset date of January 30, 2014. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner’s depressive disorder, anxiety disorder, somatoform disorder, and migraines 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 mental impairments did not meet or equal the criteria for any listed impairment. The ALJ specifically considered whether the severity of Petitioner’s mental impairments, considered singly and in combination, met or medically equaled the criteria of listings 12.04 (Affective Disorders), 12.06 (Anxiety Related Disorders), and 12.08 (Personality Disorders). (AR 21.) See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (effective August 12, 2015).[2] If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess the claimant’s residual functional capacity (RFC) and then determine, at step four, whether the claimant has demonstrated an inability to perform past relevant work.

         The ALJ determined Petitioner retained the RFC to perform a full range of work at all exertional levels, but had the following nonexertional limitations: he could understand, remember, and carry out unskilled tasks up to the specific vocational preparation (SVP) of 2 and GED reasoning of 3; he should have no interaction with the public and only occasional interaction with supervisors and coworkers; he should be limited to occasional judgments and decisions for unskilled work and limited to occasional changes in a routine work setting; and he should not work at a fixed production rate, but he would be able to perform goal oriented work. (AR 22.) According to the vocational expert, an individual with the above RFC would be limited to unskilled work. (AR 63.)

         In determining Petitioner’s RFC, the ALJ found that Petitioner’s impairments could reasonably be expected to cause the symptoms he alleged, but that his descriptions of the intensity, persistence, and limiting effects of his conditions were not entirely consistent with the medical evidence and his daily activities. (AR 24-25.) The ALJ analyzed the evidence in the record separately with regard to Petitioner’s migraines and his mood disorders.

         The ALJ cited three reasons based upon her review of the medical evidence of record to discredit Petitioner’s testimony about the frequency and severity of his migraines. First, the ALJ noted Petitioner recorded the frequency of his migraines in a journal, but discredited the evidence because there were only two treatment notes documenting headaches, which occurred on July 23, 2014, and September 25, 2014. Second, the ALJ discredited Petitioner’s account of his headache severity, because treatment records indicated Petitioner had not tolerated control-type medications, and he was instead using abortive therapy with Imitrex. The ALJ also cited Petitioner’s failure to follow through with a recommended neurology consult due to inability to afford treatment, and the lack of brain imaging, to discount Petitioner’s assessment of his headaches’ severity. (AR 24-25.) Based upon the above, the ALJ concluded that the treatment records are “generally consistent with the claimant’s testimony that most days per month he is functional.” (AR 25.)

         Turning to Petitioner’s mood disorders, the ALJ relied primarily upon clinical observations recorded in Petitioner’s medical records to discount the alleged severity and frequency of Petitioner’s depressive episodes. For instance, she discredited Petitioner’s allegations that his depressive episodes were severe and frequent, because only two treatment records, dated May 15, 2014, and February 13, 2015, noted instances of worsening depression. Next, she cited observations about Petitioner’s appearance recorded in the medical records, where he was described as in “no acute distress,” and that he looked “well.” She cited also one report from April 2016 which stated that Petitioner was “healthy appearing and in no acute distress…no appearance of depression.” (AR 25.) In reliance upon these four medical records, the ALJ concluded “clinical observations do not wholly support the alleged severity of the claimant’s depression.” (AR 25.)

         The ALJ also discounted Petitioner’s symptom reports for three additional reasons. First, she noted one medical report indicated his psychological symptoms improved with treatment and medication. (AR 25.) Second, she cited Petitioner’s failure to consistently follow recommended treatment, which occurred twice in 2014 and once in 2015, because he stopped taking his antidepressant medications without consulting his providers. (AR 25.) And last, she noted he used marijuana against medical advice. (AR 25.)

         The ALJ examined also Petitioner’s daily activities, which she found inconsistent with someone “alleging complete disability.” (AR 24.) For instance, the ALJ noted Petitioner reported no problems with personal care, household chores, and meal preparation. (AR 24.) The ALJ remarked Petitioner could drive and shop in stores up to three times per month as well. (AR 24.)

         Next, the ALJ considered the opinions of Petitioner’s treating providers, Zachary Halversen, M.D.,[3] and Verna Roberts, Ph.D.; and consultative examiner Donald Whitley, Ph.D.[4] Both Dr. Halversen and Dr. Roberts were of the opinion Petitioner had marked limitations in several areas of social functioning, which would result in more than two absences each month and an inability to adhere to a forty hour per week schedule on a consistent basis. The ALJ gave the opinions of Dr. Halversen “minimal weight” because they were internally inconsistent; inconsistent with his treatment notes and objective findings; inconsistent with other objective findings; and inconsistent with Petitioner’s activities of daily living. (AR 26.)

         Similarly, the ALJ gave Dr. Roberts’ opinions little weight based upon the limited treatment history; her note that Petitioner’s test results revealed some exaggeration; lack of support in her treatment records; inconsistency among her opinions; and her failure to explain how she measured Petitioner’s social functioning, concentration, persistence, pace, or episodes of decompensation. (AR 27.)

         Dr. Whitley performed a consultative examination on September 25, 2014. (AR 26.) He presented his clinical observations in a narrative format, concluding Petitioner had good concentration; poor to fair short-term memory; and fair adaptability to different situations, among other conclusions. The ALJ determined “the vague statements within [Dr. Whitley’s] opinion are generally consistent with the above residual functional capacity. Therefore, the undersigned affords only some significant weight to this opinion.” (AR 26.)

         The ALJ instead relied upon the opinions of the two state agency medical consultants and two state agency psychological consultants, who provided their opinions over the course of their records review during 2014. (AR 27.) The medical consultants, who neither examined nor treated Petitioner, determined Petitioner’s migraines were “nonsevere,” “intermittent,” and “improved.” (AR 27.) The ALJ gave these opinions “significant weight.” (AR 27.) The non-examining psychological consultants similarly opined Petitioner’s mood disorders resulted in, at most, mild difficulty in concentration, persistence or pace. (AR 27.) The ALJ gave the psychological opinions “some weight,” finding them to be “well supported.” (AR 27.)

         Based upon her evaluation of the record as summarized above, the ALJ found Petitioner was not able to perform his past relevant work, but retained the RFC to perform the requirements of representative occupations such as Office Helper, Checker I, and Laundry Folder. (AR 29-30.) Consequently, the ALJ determined Petitioner was 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 gainful 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 petitioner’s 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).

         When reviewing a case under the substantial evidence standard, 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).


         Petitioner argues the ALJ erred at steps three and four of the sequential evaluation. He asserts the ALJ did not consider whether the combined effect of Petitioner’s mood disorders and his migraines medically equaled a listing at step three. Pet. Brief at 12. Next, Petitioner maintains the ALJ improperly evaluated the opinions of his treating providers, Drs. Halversen, Mayo, and Roberts. Pet. Brief at 17. And last, he contends the ALJ erroneously assessed Petitioner’s credibility. Pet. Brief at 20. Accordingly, Petitioner argues the ALJ’s errors resulted in an inaccurate RFC that failed to account for all his medically determinable impairments and their effect as a whole on his capacity to perform work. Petitioner asks the Court to reverse the ALJ’s decision, and find Petitioner eligible to receive benefits.

         Respondent argues the ALJ gave specific and legitimate reasons for rejecting the opinions of Petitioner’s treating physicians, and adequately supported her credibility determination by reference to substantial evidence in the record. Respondent contends also that Petitioner failed to challenge all of the reasons the ALJ gave for discounting Petitioner’s credibility, and therefore waived his right to challenge them. Last, Respondent asserts the ALJ supported her reasons for finding Petitioner did not meet a listing, and that Petitioner did not contest the ALJ’s evaluation of the four broad areas of functioning.

         Each of the alleged errors will be discussed in turn, beginning with the ALJ’s credibility assessment, and then turning to her evaluation of the physician opinions and last, to the finding concerning listing level severity. The Court will proceed in this order because the adverse credibility finding appears to be the underpinning of the ALJ’s other findings.

         1. Credibility

         The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). The ALJ’s findings must be supported by specific, cogent reasons. Reddick, 157 F.3d at 722. If a claimant produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective complaints of pain based solely on lack of medical evidence. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). See also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (holding that an ALJ may not discredit a claimant’s subjective testimony on the basis that there is no objective medical evidence that supports the testimony).

         The ALJ must first determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). The claimant is not required to show that his impairment could reasonably be expected to cause the severity of the symptom he has alleged; he need only show that it could reasonably have caused some degree of the symptom. Id. Nor must a claimant produce objective medical evidence of the pain or fatigue itself, or the severity thereof. Id.

         If the claimant satisfies the first step of this analysis, and there is no evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of his symptoms only by offering specific, clear and convincing reasons for doing so. Burch, 400 F.3d at 680. This is not an easy requirement to meet---the clear and convincing standard is the most demanding required in Social Security cases. Garrison, 759 F.3d at 1014–15 (citations omitted) (internal quotation marks omitted).

         In evaluating credibility, the ALJ may engage in ordinary techniques, including considering claimant’s reputation for truthfulness and inconsistencies in claimant’s testimony, or between claimant’s testimony and conduct, claimant’s daily activities, claimant’s work record, and testimony from physicians and third parties concerning the nature, severity and effect of the symptoms of which claimant complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Also, the ALJ may consider the location, duration and frequency of symptoms; factors that precipitate and aggravate those symptoms; the amount and side effects of medications; and treatment measures taken by the claimant to alleviate those symptoms. See Soc. Sec. Ruling 96-7p.

         A. Headaches

         Petitioner argues the ALJ erred in rejecting the testimony he offered at the hearing and the evidence in the record regarding the frequency and severity of his headaches. Specifically, Petitioner contends the ALJ did not discuss the evidence demonstrating that Petitioner suffered from migraines which occurred up to three times each month or more, rendering him unable to leave the house. According to the vocational expert, an individual limited to unskilled work missing three or more days of work in a given month would be precluded from all work. (AR 65.)

         Respondent argues Petitioner failed to challenge the specific reasons provided by the ALJ for discounting his credibility in his opening brief, and that the unchallenged reasons were supported by the record as a whole. Respondent notes the ALJ cited the lack of treatment records, clinical observations, improvement with treatment, and failure to follow treatment as adequate reasons for the ALJ’s adverse credibility finding. Petitioner in his reply brief argues to the contrary, contending that the ALJ failed to evaluate the medical record as a whole, and instead relied upon isolated entries in certain medical records. Petitioner contends that, if the reasons the ALJ gave for rejecting Petitioner’s credibility were accepted, Petitioner would be required to ...

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