Harris v. Astrue

Filing 19

MEMORANDUM DECISION AND ORDER the Commissioner's decision finding that the Petitioner is not disabled within the meaning of the Social Security Act is AFFIRMED and that the petition for review is DISMISSED. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TROY G. HARRIS,
Petitioner,

Case No. 1:10-cv-00507-CWD

v.

MEMORANDUM DECISION AND
ORDER

MICHAEL J. ASTRUE,
Commissioner of Social Security
Administration,
Respondent.

INTRODUCTION
Currently pending before the Court is Petitioner Troy Harris’ (“Petitioner”)
Petition for Review (Dkt. 1) of the Respondent’s denial of social security benefits, filed
on October 9, 2010. The Court has fully reviewed and considered the Petition for Review,
the Answer, the parties’ memoranda, and the administrative record (“AR”), and for the
reasons that follow, will affirm the decision of the Commissioner.
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental

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Security Income on September 18, 2007, amending his date of alleged disability to
August 14, 2007. In his petition, Petitioner alleged disability due to neck and back pain as
well as psychological and sleeping disorders. The application was denied initially and on
reconsideration, and a hearing was held before before Administrative Law Judge (“ALJ”)
Robin Henrie on April 14, 2010. After hearing testimony from Petitioner and Vocational
Expert John F. Hurst, M.S., ALJ Henrie issued a decision finding Petitioner not disabled
on May 11, 2010. Petitioner timely requested review by the Appeals Council, which
denied his request for review on August 10, 2010.
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 forty-five years of age. Petitioner
completed a high school education. Due to his incarceration for fifteen years prior to his
release date of August 14, 2007, Petitioner has no prior work experience.

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 substantially gainful activity. The ALJ
found Petitioner had not engaged in substantial gainful activity since his alleged onset
date. At step two, it must be determined whether the claimant suffers from a severe

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impairment. The ALJ found Petitioner’s degenerative disc disease of the lumbar and
cervical spine, as well as his adjustment disorder with depressed mood and generalized
anxiety disorder, 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 do not meet or equal the criteria
for any listed impairments, having specifically considered Listing 12.04 and 12.06 for his
mood disorders and anxiety disorder. 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 had no past relevant work, and therefore proceeded to
step five. If a claimant demonstrates an inability to perform past relevant work, or in this
case has no 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. The Commissioner
concluded that Petitioner has the RFC to perform the full range of light unskilled work,
with limitations to accommodate Petitioner’s physical and psychological impairments.

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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. Fitch, 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 his 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,

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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 and 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 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).

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DISCUSSION
Petitioner believes the ALJ erred at step four in his assessment of Petitioner’s
RFC. Specifically, Petitioner objects to the ALJ’s finding that Petitioner was not fully
credible, and the ALJ’s evaluation of the medical evidence of record. Finally, Petitioner
contends that the ALJ should have developed the record more fully due to the lack of
medical evidence. Each of these assignments of error will be discussed in turn.
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). Unless there is affirmative
evidence showing that the claimant is malingering, the ALJ must provide clear and
convincing reasons for rejecting pain testimony. Burch, 400 F.3d at 680. General
findings are insufficient; the ALJ must identify what testimony is not credible and what
evidence undermines the claimant’s complaints. Reddick, 157 F.3d at 722.

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The reasons an ALJ gives for rejecting a claimant’s testimony must be supported
by substantial evidence in the record. Regennitter v. Comm’r of Soc. Sec. Admin., 166
F.3d 1294, 1296 (9th Cir. 1999). If there is substantial evidence in the record to support
the ALJ’s credibility finding, the Court will not engage in second-guessing. Thomas v.
Barnhart, 278 F.3d 957, 959 (9th Cir. 2002). When the evidence can support either
outcome, the court may not substitute its judgment for that of the ALJ. Tackett v. Apfel,
180 F.3d 1094, 1098 (9th Cir. 1999).
In evaluating credibility, the ALJ may engage in ordinary techniques of credibility
evaluation, including consideration of a 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.
Although the ALJ accepted the medical evidence indicating Petitioner suffered
from degenerative disc disease and psychological impairments, the ALJ found little
objective bases to support Petitioner’s alleged severe functional limitations due to his
impairments. First, the ALJ cited the lack of medical evidence. Despite having suffered

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injuries in two car accidents in 1981 and 1982, both of which were prior to his
incarceration, and experiencing physical attacks while in prison, medical records
maintained while Petitioner was incarcerated contain no indication that Petitioner was
treated for any symptoms related to pain in his back or neck. (AR 280– 85.) Moreover,
after Petitioner’s release from prison in August of 2007, he sought no treatment for pain
and was not taking any pain medication whatsoever, including over the counter pain
medication. (AR 52, 294, 300.)
Petitioner underwent a consultative examination by Dr. Hill, an orthopedist. Dr.
Hill found Petitioner had full range of motion, strength of 5/5 throughout, normal
reflexes, the ability to ambulate without pain, and no physical limitations other than a
finding that Petitioner would need to change positions as needed for pain management
and he would be limited to lifting or carrying no more than fifty pounds. (AR 293–95.) At
the hearing, Petitioner’s counsel conceded that Petitioner’s physical limitations would not
rule out full-time employment, but would limit him to some types of medium work, or
light or sedentary work. (AR 45–46.) Petitioner’s physical limitations and subjective
complaints of pain were therefore not the basis for Petitioner’s appeal.
Instead, Petitioner focused largely upon his mental impairments. (Pet. Brief at 6,
AR 324.) Petitioner reported poor sleep necessitating naps throughout the day, fatigue,
depression, and anxiety due to his long incarceration and social isolation while in prison,
precluding him from working a full work day. The ALJ discounted Petitioner’s credibility

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on the basis that the medical evidence, lack of treatment despite such allegedly severe
symptoms, and Petitioner’s activities of daily living suggested Petitioner could function at
a higher level than he claimed.
Donald Whitley II, Ph.D., performed a consultative psychological exam of
Petitioner on August 7, 2008. During the exam, Dr. Whitley noted that Petitioner reported
sleep disturbances since being released from prison, along with anxiety and depression.
(AR 278.) However, Dr. Whitley noted Petitioner had no treatment, either in prison or
since his release, for his mental health problems, and was never hospitalized or admitted
to the emergency room. (AR 288.) Petitioner reported that he was told by potential
employers he would be ineligible to work until 2014 due to his criminal history. (AR
288.) Dr. Whitley noted no problems with concentration, memory, or comprehension, and
he was oriented to time, place and person.
Dr. Whitley’s ultimate conclusion was that, while Petitioner certainly has some
depression, it appeared to be situational. Petitioner had the ability to manage his own
finances, drive, perform activities of daily living; he acted socially appropriate; and
generally, he had good understanding of the questions asked of him. Dr. Whitley thought
that it “would be appropriate for vocational rehabilitation to be involved with [Petitioner]
in helping him develop skills and focus to jobs.” (AR 292.)
The only other mental health record of any significance is a mental health
assessment given by Ted Warstadt, M.S., on March 25, 2009, which the ALJ considered.

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(AR 23, 302–03.) Although Mr. Warstadt determined Petitioner was suffering from
adjustment disorder with depressed mood, he reached the opinion that Petitioner’s basic
living skills, appearance and hygiene, speech, and perceptions were all within normal
limits. (AR 302.) Mr. Warstadt recommended social services for assisting Petitioner with
his feelings of depression and hopelessness. Thus, the medical evidence in the record
concerning Petitioner’s mental impairments provide substantial evidence for the ALJ’s
determination that Petitioner, perhaps with appropriate assistance, would be able to work.
Second, the ALJ discounted Petitioner’s credibility based upon the lack of
treatment after Petitioner’s release from prison in August of 2007. Despite reporting
severe limitations due to his metal impairments, the first record of any treatment for his
psychological impairments is a notation of medication prescriptions from December of
2009. (AR 300.) Although the ALJ held the record open at the conclusion of the hearing
so that Petitioner could submit his mental health treatment records, the only record
submitted was the medication record dated December 5, 2009, and an “encounter note”
dated April 27, 2010, from Region 6 Mental Health. (AR 299–305.) The lack of
treatment measures taken by Petitioner to alleviate his symptoms is a legitimate factor for
the ALJ to consider when making a credibility determination.
Last, the ALJ discounted Petitioner’s credibility based upon Petitioner’s self
reports of his daily activities. The ALJ noted that Petitioner could care for his personal
needs; prepare simple meals; perform household chores, including laundry and ironing;

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watch television; manage his finances; drive; shop; and, visit with friends. (AR 24, 57.)
The ALJ further cited that Petitioner admitted to consistently looking for and applying for
work after his release from prison in August of 2007. (AR 24, 50.) The reports from Dr.
Whitley and Mr. Warstadt support the ALJ’s conclusion that Petitioner’s activities
suggested his limitations were not as severe as Petitioner reported.
Petitioner argues that the ALJ erred by ignoring or overlooking the intermittent
nature of his activities of daily living, and his inability to consistently perform such
activities on a sustained basis. However, the Court perceives no error. First, as discussed
above and as noted by the ALJ, the record shows that, despite debilitating symptoms
reported by Petitioner, there is no record of ongoing treatment after his alleged onset date
of disability. Second, there is evidence in the record indicating Petitioner’s ability to
perform household chores and other daily activities on a much more consistent and
sustained basis than is being claimed. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.
2005) (“Although the evidence of Burch’s daily activities may also admit of an
interpretation more favorable to Burch, the ALJ’s interpretation was rational, and ‘[w]e
must uphold the AL’s decision where the evidence is susceptible to more than one
rational interpretation.’”). The case in point is Petitioner’s consistent ability to look for
and apply for jobs on a regular basis, as well as the conclusions drawn by Dr. Whitley and
Mr. Warstadt.
Accordingly, there is substantial evidence in the record supporting the ALJ’s

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finding that Petitioner is not fully credible with respect to the limiting effects of his
mental impairments.
2.

Medical Evidence
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 (nonexamining 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 nontreating physicians. Winans v. Bowen, 853
F.2d 643, 647 (9th Cir.1987). In turn, an examining physician’s opinion is entitled to
greater weight than the opinion of a nonexamining 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 a physician’s opinion about 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.

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Comm’r of Soc. Sec. Admin., 169 F.3d 595 (9th Cir. 1999). An ALJ also may reject a
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).
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)).
As an initial matter, a review of the record indicates that Dr. Whitley is considered
an examining physician because Petitioner did not have an ongoing treatment relationship
with Dr. Whitley. No other physician examined Petitioner. The Commissioner must
provide “clear and convincing” reasons supported by substantial evidence in the record
for rejecting the uncontradicted opinion of an examining physician. Lester v. Chater, 81
F.3d 821, 931 (9th Cir. 1995). Mr. Warstadt, as a social worker, is not considered an
acceptable medical source, but his opinion is appropriately considered as an opinion of an
“other non-medical source.” Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1224
The opinion evidence the ALJ rejected are the two GAF1 scores of 50 given by Dr.

1

GAF stands for Global Assessment Function.

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Whitley on August 7, 2008, and by Mr. Warstadt on March 25, 2009. (AR 26, 286, 303.)
According to the Diagnostic and Statistical Manual of Mental Disorders, a GAF score of
50 indicates a serious impairment in social and occupational functioning, Escardlille v.
Barnhart, 2003 WL 21499999 at *6 (E.D. Pa. June 24, 2003), and an individual may or
may not be able to work with a score in the 50 to 60 range. Nat’l Org. Of Social Security
Claimants’ Representatives, S OCIAL S ECURITY P RACTICE G UIDE volume 5 § 40.02[2] at
40-24 (1999). The ALJ rejected the GAF scores of both Dr. Whitley and Mr. Warstadt on
the grounds that the scores were not supported by Petitioner’s activities of daily living,
the lack of treatment, and the assessments of each practitioner, which the ALJ found
inconsistent with a low GAF score. In addition, the ALJ found that the GAF score was an
unreliable indicator of Petitioner’s ability to perform work-related activities given the
record as a whole.
The ALJ properly rejected Dr. Whitley’s and Mr. Warstadt’s opinions, based upon
the GAF scores of 50, that Petitioner was unable to engage in employment-related
activities. First, nothing in the assessments given by Dr. Whitley or Mr. Warstadt provide
any support for such low scores other than Petitioner’s subjective complaints, which, as
discussed above, were properly discounted. See Tonapetyan v. Halter, 242 F.3d 1144,
1149 (9th Cir. 2001) (ALJ may disregard physician’s opinion premised on the subjective
complaints of the claimant whom the ALJ properly finds not credible). In addition, the
ALJ noted that, despite such a low GAF score, the record failed to indicate Petitioner

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sought any further mental health treatment, he was not hospitalized for his condition, and
he was not undergoing any ongoing treatment (considering the lack of treatment notes
from Region 6 Mental Health, where Petitioner was supposedly receiving regular
treatment). (See AR 304– 305.)2
Finally, the ALJ cited the inconsistency in Dr. Whitley’s report as not reflective of
such a low GAF score. Dr. Whitley’s ultimate conclusion was that Petitioner has
“possibly some sleep disturbance” and “some depression,” which appears to be situational
because of Petitioner’s inability to find employment “because of his criminal history.” But
Dr. Whitley recommended “vocational rehabilitation . . . in helping him develop skills,”
without concluding that Petitioner could not work.
Accordingly, the Court finds that the ALJ properly discounted the medical and
other opinion sources to the extent they were inconsistent with the ALJ’s assessment of
Petitioner’s residual functional capacity. The Court finds the ALJ did not err in
determining that Petitioner retained the residual functional capacity for light unskilled
work, as restricted by Petitioner’s documented physical and mental limitations. (See AR
21.)
3.

Duty to Develop the Record
Petitioner argues that the ALJ’s rejection of Dr. Whitley’s and Mr. Warstadt’s

2

Petitioner was given an opportunity to supplement the record with his ongoing treatment
records. Only one record of an “encounter note” dated April 27, 2010, was submitted by
Petitioner’s attorney.
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opinion evidence—the GAF scores—left the ALJ with “nothing to support his findings.”
(Pet. Reply at 9, Dkt. 15.) It is true that the ALJ has an independent duty to “fully and
fairly develop the record and to assure that the claimant’s interests are considered.”
Tonapetyan, 242 F.3d at 1150. If the ALJ finds that the record is inadequate to allow for
proper evaluation of the evidence, the ALJ has a duty to “conduct an appropriate inquiry.”
Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). The ALJ may discharge this duty
in several ways, including: subpoenaing the claimant’s physicians, submitting questions
to the claimant’s physicians, continuing the hearing, or keeping the record open after the
hearing to allow supplementation of the record. Tidwell v. Apfel, 161 F.3d 599, 602 (9th
Cir. 1998).
Here, where the record regarding Petitioner’s mental health treatment was
potentially undeveloped, the ALJ kept the record open so that Petitioner could supplement
the record with the full record from the Department of Health and Welfare. (AR 43, 92.)
At that point, the ALJ satisfied his duty to more fully develop the record. Tidwell, 161
F.3d at 602 (holding that the ALJ adequately fulfilled his obligation to develop the record
by keeping it open so that the claimant’s physician could submit supplemental
responses.).
No other issues were brought to the ALJ’s attention, and the ALJ made no
determination that the record otherwise was inadequate or ambiguous to allow for proper
evaluation of the evidence. Accordingly, the Court finds no error with the ALJ’s

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development of the record.

CONCLUSION
The Court concludes that the ALJ developed the record fully and fairly with
respect to Petitioner’s mental impairments. In addition, the ALJ’s assessment of
Petitioner’s physical and mental impairments is free of legal error and supported by
substantial evidence in the record.

ORDER
Based upon the foregoing, the Court being otherwise fully advised in the premises,
it is hereby ORDERED that the Commissioner’s decision finding that the Petitioner is
not disabled within the meaning of the Social Security Act is AFFIRMED and that the
petition for review is DISMISSED.

March 08, 2012

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