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Bayless v. Saul

United States District Court, D. Idaho

September 20, 2019

ANDREW SAUL,[1] Commissioner of Social Security Administration, Respondent.




         Pending before the Court is Tammy Bayless’s Petition for Review of the Respondent’s denial of social security benefits, filed on August 13, 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 February 13, 2015. This application was denied initially and on reconsideration, and a hearing was conducted on April 3, 2017, before Administrative Law Judge (ALJ) Stephen Marchioro. After considering testimony from Petitioner and a vocational expert, ALJ Marchioro issued a decision on August 4, 2017, finding Petitioner not disabled. Petitioner timely requested review by the Appeals Council, which denied her request for review on June 28, 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 24, 2015, Petitioner was fifty-four years of age.[2] Petitioner obtained her GED in 1985. Her past relevant work experience includes work as training supervisor for a school bus company.


         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 onset date of January 24, 2015. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner’s obesity, fracture of right lower extremity, post-traumatic stress disorder, major depressive disorder, and panic disorder severe within the meaning of the Regulations. The ALJ found also that Petitioner’s irritable bowel syndrome (IBS) and rheumatoid arthritis were non-severe, because the conditions were adequately controlled with prescription medications. (AR 27.)[3]

         Step three asks whether a claimant’s impairments meet or equal a listed impairment. The ALJ found that Petitioner’s musculoskeletal and mental impairments did not meet or equal the criteria for any listed impairment. The ALJ considered Listings 1.02 (Major Dysfunction of a Joint), 12.04 (Depressive Disorders), 12.06 (Anxiety Disorders), and 12.15 (Trauma and Stressor Related Disorders). (AR 29.) 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 medium work as defined by 20 C.F.R. § 404.1567(c) with limitations. The ALJ found Petitioner could frequently operate foot controls with her right lower extremity; occasionally climb ramps and stairs; never climb ropes, ladders and scaffolds; frequently balance, stoop, kneel, crouch, and crawl; occasionally be exposed to vibrations; and that she must avoid all use of unguarded moving mechanical parts and exposure to unprotected heights. The ALJ further limited Petitioner to performing work tasks consisting of only simple, routine tasks, with occasional interaction with the public and coworkers, and found she would work best in small, familiar groups. The ALJ found also that Petitioner would require access to a bathroom such as is normally available in an office or similar workplace environment. (AR 30.)

         In determining Petitioner’s RFC, the ALJ found that Petitioner’s impairments could reasonably be expected to cause the symptoms she alleged, but that her statements about the intensity, persistence, and limiting effects of her conditions were not entirely consistent with the medical evidence and her treatment history. (AR 31.) In doing so, the ALJ considered the opinions of the state agency physicians, Drs. Myung Song, D.O., and Michael O’Brien, M.D. Both Drs. Song and O’Brien were of the opinion that Petitioner was limited to light work. (AR 34.) The ALJ gave their opinions “limited weight” on the grounds that they were examining sources who did not review the entire record available, and because their opinions were inconsistent with Petitioner’s treatment history. (AR 34.)

         The ALJ also considered four lay witness statements from Petitioner’s husband, her supervisor from her last job, a friend and former co-worker, and her step-father. (AR 34.) The ALJ assigned their statements limited weight, because none was medically trained; their assessments were colored by their affection for Petitioner; and the statements were not consistent with the opinions of the medical sources.

         Based upon his evaluation of the record and the hypothetical posed to the vocational expert, the ALJ found Petitioner was not able to return to her past relevant work. 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. Here, the ALJ determined Petitioner was able to perform work as a stuffer and as a picker, which are medium exertional level jobs available in significant numbers in the national economy. 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 his physical or mental impairments are of such severity that he not only cannot do her previous work but is unable, considering his 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).


         Petitioner argues the ALJ erred at step four of the sequential evaluation. Petitioner asserts the ALJ improperly evaluated the opinions of Drs. Song and O’Brien; did not give germane reasons for discounting the statements of the lay witnesses; and improperly evaluated Petitioner’s credibility. Petitioner argues the ALJ’s errors resulted in an inaccurate RFC that failed to account for all her medically determinable impairments and their effect as a whole on her capacity to perform work. She contends also that, if the opinions of Drs. Song and O’Brien were properly credited, Rule 202.06 of the Medical-Vocational Guidelines would require a finding of disabled. Petitioner asks the Court to reverse the ALJ’s decision and remand for further consideration.

         1. Physician Opinion

         In social security cases, there are three types of medical opinions: “those from treating physicians, examining physicians, and non-examining physicians.” Valentine v. Comm'r, 574 F.3d 685, 692 (9th Cir. 2009) (citation omitted). “The medical opinion of a claimant’s treating physician is given ‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record.’” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)); see also SSR 96-2P, 1996 WL 374188, at *1 (S.S.A. July 2, 1996) (stating that a well-supported opinion by a treating source which is not inconsistent with other substantial evidence in the case record “must be given controlling weight; i.e. it must be adopted.”). Generally, more weight should be given to the opinion of a treating physician than to the opinions of physicians who do not treat the claimant, and the weight afforded a non-examining physician’s opinion depends on the extent to which he provides supporting explanations for his opinions. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).

         The ALJ may reject the uncontradicted opinion of a physician by stating “clear and convincing reasons that are supported by substantial evidence.” Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). However, “[i]f a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.” Id. (citation omitted); see also SSR 96-2P, at *5 (“[T]he notice of the determination or decision must contain specific reasons for the weight given to the treating source’s medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons for that weight.”).

         “The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Factors that an ALJ may consider when evaluating any medical opinion include “the amount of relevant evidence that supports the opinion and the quality of the explanation provided; the consistency of the medical opinion with the ...

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