Piccione v. Astrue

Filing 18

MEMORANDUM DECISION AND ORDER re: 1 Petition for Review filed by Laura Piccione. Based on the foregoing, Petitioners Petitioner for Review (Dkt. 1) is DENIED, the decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety, with prejudice. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

LAURA PICCIONE,
Case No. 1:10-cv-00509-REB
Petitioner,

MEMORANDUM DECISION
AND ORDER

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

Now pending before the Court is Petitioner Laura Piccione’s Petition for Review (Dkt.
1), filed October 11, 2010, seeking review of the Social Security Administration’s final decision
to deny her disability benefits. This action is brought pursuant to 42 U.S.C. § 405(g). Having
carefully reviewed the record and otherwise being fully advised, the Court enters the following
Memorandum Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
On March 15, 2005, Laura Piccione (“Petitioner” or “claimant”) applied for Social
Security Disability Insurance Benefits and SSI disability benefits, alleging a disability onset date
of November 10, 2004, when she was 53 years old. (AR 15, 32, 332). Administrative Law
Judge (“ALJ”) Lloyd E. Hartford conducted a hearing and issued a decision on July 19, 2007,
denying Petitioner’s claim for disability. (AR 332-41). Petitioner untimely requested review by
the Appeals Council, but the Appeals Council found good cause for the late request. (AR 351).
On July 31, 2009, the Council remanded the application to the ALJ to obtain treatment records

MEMORANDUM DECISION AND ORDER - 1

and, if warranted, to obtain supplemental evidence from a vocational expert as to whether
Petitioner can perform her past relevant work. (AR 352-53).
While the Appeals Council was considering her appeal, on March 26, 2008, Petitioner
filed a second Social Security Disability benefits application. (AR 15). Petitioner’s claim was
initially denied and, again, denied on reconsideration. (AR 354, 359). Petitioner timely filed a
Request for Hearing before an ALJ. Both the first and second applications were consolidated for
decision. On November 3, 2009, ALJ Lloyd E. Hartford presided over the second hearing, held
in Boise, Idaho, at which time Petitioner, represented by attorney Jacob Bernhardt, appeared and
testified. (AR 690-775). A vocational expert, Beth Cunningham, also appeared and testified. At
the time of the hearing, Petitioner had past relevant work as a bus driver and administrative
assistant. (AR 24).
On March 16, 2010, the ALJ issued a decision, denying Petitioner’s claims, finding that
Petitioner was not disabled within the meaning of the Social Security Act. (AR 23-38).
Petitioner timely requested review from the Appeals Council on May 13, 2010. (AR 647-49).
The Appeals Council considered additional evidence submitted into the record and then denied
review on September 17, 2010 (AR 8-10), rendering the ALJ’s decision the Commissioner’s
final decision. Plaintiff now seeks judicial review of the Commissioner’s decision to deny
benefits, arguing that the ALJ failed to consider Petitioner’s upper extremities’ limitations, did
not properly support his finding that Petitioner’s testimony and allegations are not credible, and
erred when he did not categorize Petitioner’s breast cancer as a severe impairment. Pet.’s Br.,
pp. 11-12.

MEMORANDUM DECISION AND ORDER - 2

II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. 42 U.S.C. § 405(g); Matney ex. rel. Matney v. Sullivan, 981
F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990).
Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42
U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ’s factual
decisions, they must be upheld, even when there is conflicting evidence. Hall v. Sec'y of Health,
Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
“Substantial evidence” is defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec’y of Health & Human
Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less
than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir.1975);
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), and “does not mean a large or
considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a whole
to determine whether it contains evidence that would allow a reasonable mind to accept the
conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019.
The ALJ is responsible for determining credibility and resolving conflicts in medical testimony,
Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984), resolving ambiguities, see Vincent ex. rel.
Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984), and drawing inferences logically
flowing from the evidence, Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Where the

MEMORANDUM DECISION AND ORDER - 3

evidence is susceptible to more than one rational interpretation in a disability proceeding, the
reviewing court may not substitute its judgment or interpretation of the record for that of the
ALJ. Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s
construction of the Social Security Act is entitled to deference if it has a reasonable basis in law.
See id. However, reviewing federal courts “will not rubber-stamp an administrative decision that
is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying
the statute.” Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
III. DISCUSSION
A.

Sequential Process
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a

sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§
404.1520, 416.920) - or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) - within
the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). SGA is
defined as work activity that is both substantial and gainful. “Substantial work activity” is work
activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a),
416.972(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not
a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA,
disability benefits are denied, regardless of how severe her physical/mental impairments are and

MEMORANDUM DECISION AND ORDER - 4

regardless of her age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If
the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ
found that Petitioner had not engaged in SGA after November 10, 2004, the alleged onset date.
(AR 17). Petitioner does not dispute this finding.
The second step requires the ALJ to determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is severe and meets the duration
requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination
of impairments is “severe” within the meaning of the Social Security Act if it significantly limits
an individual’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c).
An impairment or combination of impairments is “not severe” when medical and other evidence
establish only a slight abnormality or a combination of slight abnormalities that would have no
more than a minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921.
If the claimant does not have a severe medically determinable impairment or combination of
impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the
ALJ found that Petitioner had the following severe impairments: fibromyalgia, headaches, and
obesity. (AR 17). Petitioner argues that her osteoarthritis and breast cancer should have been
considered to be severe.
The third step requires the ALJ to determine the medical severity of any impairments;
that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
answer is yes, the claimant is considered disabled under the Social Security Act and benefits are
awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor

MEMORANDUM DECISION AND ORDER - 5

equal one of the listed impairments, the claimant’s case cannot be resolved at step three and the
evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner does not have an
impairment (or combination of impairments) that meets or medically equals a listed impairment
(AR 18-19). Petitioner disagrees.
The fourth step of the evaluation process requires the ALJ to determine whether the
claimant’s residual functional capacity is sufficient for the claimant to perform past relevant
work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s residual functional
capacity is her ability to do physical and mental work activities on a sustained basis despite
limitations from her impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual’s
past relevant work is work performed within the last 15 years or 15 years prior to the date that
disability must be established; also, the work must have lasted long enough for the claimant to
learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b),
404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner has the residual
functional capacity to perform the full range of light work as defined in 20 C.F.R. § 404.1567(b).
(AR 19). The ALJ concluded that Petitioner is capable of performing past relevant work as an
administrative assistant and is not disabled. (AR 24). Accordingly, the ALJ did not reach the
fifth step, which considers whether the Petitioner retains the ability to do alternate work and
whether such alternate work exists in significant numbers in the national economy. 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10
F.3d 678, 681 (9th Cir. 1993).

MEMORANDUM DECISION AND ORDER - 6

B.

Analysis
1.

ALJ’s Credibility Assessment

The ALJ determined that Petitioner’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but found Petitioner’s “statements
concerning the intensity, persistence and limited effects of those symptoms are not credible to
the extent they are inconsistent with the . . . residual functional capacity assessment.” AR 21.
Petitioner argues that the ALJ did not properly support his finding that her testimony and
allegations were not credible. Pet.’s Br., pp. 15-18 (Dkt. 13).
In determining whether a claimant’s testimony regarding subjective pain or symptoms is
credible, an ALJ must engage in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028,
1035-36 (9th Cir. 2007). “First, the ALJ must 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.’” The ALJ here found that Petitioner had submitted
evidence of such underlying impairment. Because Petitioner met the first step of the analysis,
and there does not appear to be any evidence of malingering, the ALJ can reject the Petitioner’s
testimony about the severity of the symptoms only “by offering specific, clear and convincing
reasons for doing so.” Id. (citing Smolen, 80 F.3d at 1281). These reasons must be supported by
substantial evidence in the record. Reginnetter v. Cmm’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 finding,
the Court will not engage in second-guessing. Thomas v. Barnhart, 278 F.3d 957, 959 (9th Cir.
2002).

MEMORANDUM DECISION AND ORDER - 7

When determining credibility, the ALJ may consider:
(1) whether the claimant engages in daily activities inconsistent
with the alleged symptoms; (2) whether the claimant takes
medication or undergoes other treatment for the symptoms; (3)
whether the claimant fails to follow, without adequate explanation,
a prescribed course of treatment; and (4) whether the alleged
symptoms are consistent with the medical evidence.”
Lingenfelter, 504 F.3d at 1040. See also, Light v. Soc. Sec. Admin., 119 F.3d 789, 791 (9th Cir.
1997) (stating claimant’s reputation, inconsistencies either in testimony or between testimony
and conduct, daily activities, past work record, and testimony from physicians and third parties
concerning the nature, severity, and effect of the alleged symptoms are all properly considered
by an ALJ in a credibility determination). Additionally, an ALJ’s observations of a claimant’s
manner and demeanor do not render his decision improper when his decision is only partially
based on those observations. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th
Cir. 1999); see also Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (stating that ALJ’s
inclusion of personal observation was not improper when ALJ also considered Petitioner’s
testimony, opinions of treating and examining physicians, and objective medical evidence).
Here, the ALJ discussed the evidence he considered in making the credibility
determination. First, the ALJ noted that Petitioner has been on chronic narcotic therapy for pain,
which weighed in her favor, but noted that her treating physician’s “notes for the last five years
show the pain medication is fairly effective in managing her pain, her pain complaints have not
escalated and narcotic pain dosage has not escalated, and there are no complaints of uncontrolled
pain.” AR 21. The ALJ cites to several treatment notes in the record to support this observation.
Although Petitioner points to other notes in the record that she argues “make repeatedly clear
that [Dr. O’Brien] only hoped for a 50% improvement in her pain level,” Pet.’s Reply Br., p. 2
MEMORANDUM DECISION AND ORDER - 8

(Dkt. 17), the records also contain notes that support the ALJ’s view that Petitioner’s pain is
effectively managed. For instance, one of the records Petitioner cites contains a statement by Dr.
O’Brien that “we’re right on track . . . she’s > 50% better w/ was our goal.” AR 231 (cited by
Petitioner at Docket 17, p. 2). See also Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir.
2008) (explaining that use of effective medications may undermine a claimant’s alleged
limitations).
Second, the ALJ considered Petitioner’s testimony that she cannot work due to fatigue,
but found that no physician had indicated a medical need existed for excessive rest or inactivity.
AR 21. The ALJ noted that Dr. O’Brien had advised Petitioner to exercise. Id. See also, e.g.,
AR 216.
Third, the ALJ considered Petitioner’s work history and found that her “allegations of an
inability to work appear to be mostly related to her inability to return to her usual past
occupation as a city bus driver.” AR 22. The ALJ noted that Petitioner was off work for only a
brief period of time and then worked for over a year after the car accident she alleges caused
some of her disabling symptoms. Nonetheless, the ALJ found that an inability to drive a bus for
eight hour days is not a totally incapacitating limitation and Petitioner’s medical conditions,
pain, and narcotic use have never stopped her from driving her own vehicle. AR 22.
Fourth, the ALJ considered Petitioner’s activities of daily living and explained that
“[w]hile her activities are not extensive, she is able to do usual activities such as household
chores, read, watch TV, and drive,” and this “shows adequate use of her upper extremities and
adequate attention.” AR 22. While a claimant does not have to be “utterly incapacitated” to be
considered disabled, if a claimant engages in numerous daily activities involving skills that could

MEMORANDUM DECISION AND ORDER - 9

be transferred to the workplace, the ALJ may discredit the claimant’s allegations upon making
specific findings relating to those activities. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989);
see also Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir. 1999) (claimant’s ability to fix meals, do
laundry, work in the yard, and occasionally care for his friend's child was evidence of claimant's
ability to work). The activities cited by the ALJ do not necessarily demonstrate an ability for
Petitioner to perform all work activities, but the ALJ relied on them to assess Petitioner’s use of
her upper extremities and explained that “while not the only factor, her pain has been managed
fairly well with medication.” AR 22. Thus, the ALJ considered Petitioner’s daily activities in a
limited setting and in conjunction with several other factors in assessing Petitioner’s credibility.
The fifth factor the ALJ considered in making his credibility determination were
statements Petitioner made at the hearing. The ALJ stated:
Regarding the functional limitations set forth by Dr. O’Brien, the
claimant testified several times she was present when her doctor
completed the forms and he put down what she told him and stated
how would he know otherwise. When the undersigned pointed out
to her that Dr. O’Brien indicated she can sit a total of 8 hours and
stand/walk a total of 4 hours . . .; she denied that she told Dr.
O’Brien that and suggested her doctor wrongly circled that on the
form.
AR 22. The hearing transcripts provide support for the ALJ’s finding that Petitioner’s
statements were inconsistent. Upon questioning, Petitioner first stated that Dr. O’Brien asked
her questions and she told him how long she had to lie down and how long she could sit at one
time when he completed a residual functional capacity evaluation. AR 725- 27. She explained
“how’s . . . he going to know if he don’t have me there?” and then she acknowledged that she
was in Dr. O’Brien’s office the day the evaluation was completed. AR 728; see also AR 484.
After further questioning, when the ALJ pointed out that Dr. O’Brien reported Petitioner could
MEMORANDUM DECISION AND ORDER - 10

sit eight hours and stand or walk for four hours in an eight hour workday, Petitioner said she was
not sure she told Dr. O’Brien anything on the day he completed the evaluation, that his
assessment is contrary to her actual abilities because she can only sit for two and walk for one
and stand for one, and later that she “didn’t tell him” what to put on the form. AR 729.
Petitioner argues that “the ALJ’s questioning on [the] matter was extensive and largely
accusatory,” and it caused her to become flustered and start equivocating on some answers.
Pet.’s Br., p. 17 (Dkt. 13). It is often hard to glean from a transcript the tone of a hearing, but the
record indicates some testiness in the exchange between Petitioner and the ALJ. It appears that
both the ALJ and the Petitioner were frustrated in trying to either understand the questions or the
responses. However, the ALJ asked the questions several times, in several ways, in what
appears to be an attempt to get answers to his questions and then to get an explanation for any
inconsistencies. This was an appropriate subject of inquiry. “One strong indication of the
credibility of an individual’s statements is their consistency, both internally and with other
information in the case record.” Social Security Ruling 96-7p, 1996 WL 374186 at *5 (July 2,
1996).
Here, even if the Court were to discount the inconsistencies in Petitioner’s statements by
adopting Petitioner’s view that the answers were equivocal because of the nature of the ALJ’s
questioning, her statements that she could sit only two hours and walk or stand only one would
still be inconsistent with Dr. O’Brien’s report that she could sit for eight hours and walk or stand
for four. Additionally, whatever the ALJ’s mind set in questioning Petitioner may have been, the
evidence he relied on was appropriately considered in the context of the record in this case.
Accordingly, the Court finds substantial evidence, based both on the Petitioner’s inconsistent

MEMORANDUM DECISION AND ORDER - 11

answers, and their inconsistency with some of Dr. O’Brien’s report, to support the ALJ’s
consideration of inconsistencies in his credibilty determination.
The sixth and final factor the ALJ considered in assessing Petitioner’s credibility was his
own observations of Petitioner:
During her Social Security hearing which lasted nearly two hours,
she stood once or twice and then she sat down again and did not
appear to be in actual discomfort. She was also able to testify in a
coherent relevant manner for two hours, understood and tracked
questions, and paid attention.
AR 22. The ALJ put his observations in context, explaining that “[t]he observations regarding
the claimant’s appearance and demeanor while testifying were but one factor which [was]
considered in conjunction with the other evidence of record.” AR 22 (emphasis added).
Standing alone, this limited observation would not amount to a clear and convincing
reason to reject Petitioner’s testimony about the intensity, persistence, and limiting effects of her
symptoms. However, taking all of the ALJ’s considerations together in the context of the record,
they amount to substantial evidence supporting clear and convincing reasons for the ALJ’s
credibility finding. Although there is evidence in the record to the support Petitioner’s view, and
the Court does not dispute that Petitioner has medical issues that appear to cause her some
difficulties, this Court’s role on review is not to assess Petitioner’s credibility and determine
whether she is disabled. Rather, this Court is required to consider whether there is enough
evidence to support the ALJ’s findings and decision. Here, there is. The Court will not engage
in second-guessing, see Thomas v. Barnhart, 278 F.3d 957, 959 (9th Cir. 2002), because, if 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).

MEMORANDUM DECISION AND ORDER - 12

2.

Petitioner’s Impairments
i.

Breast Cancer

Petitioner was diagnosed with breast cancer afer a mammogram performed on February
2, 2009 detected a mass in her breast, she had a partial mastectomy on March 4, 2009, and had
radiation and chemotherapy treatment. AR 589, 603, 632. She argues that the ALJ erred by not
categorizing her breast cancer as a severe impairment. Pet’s Br., pp. 18-19 (Dkt. 13).
A severe impairment is one that has lasted or is expected to last for a continuous period
of twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§ 404.1505, 404.1509, 416.905,
416.909; Barnhart v. Walton, 535 U.S. 212, 217 (2002). In this regard, the ALJ found that
Petitioner’s “breast cancer and residuals of treatment did not last and/or remain severe for 12
months.” AR 18. The Appeals’ Council was presented with additional treatment records for
treatment of lymphedema1, an issue related to the breast cancer, that the ALJ did not have access
to. The Council considered the ALJ’s determination and the new evidence2 and concluded:
The additional evidence indicates that your breast cancer
chemotherapy ended in December 2009, you were treated for mild
lymphedema from November 2009 through January 2010, had
normal upper extremity venous exams, and a negative/benign
mammogram in March 2010. This does not establish that you are
more limited than found by the [ALJ].3
1

“Lymphedema is swelling as a result of obstruction of lymphatic vessels or lymph
nodes and the accumulation of large amounts of lymph in the affected region.” Slayton v. Apfel,
No. 98-1885, 1999 WL 152614, *1 (4th Cir. Mar. 22, 1999) (citing STEDMAN’S MEDICAL
DICTIONARY 1004 (26th ed. 1995)).
2

The new evidence considered by the Appeals Council are medical records from St.
Luke’s Regional Medical Center related to treatment of Petitioner’s breast cancer and
lymphedema between October 29, 2009 and March 8, 2010. See AR 652-88.
3

The Appeals Council must consider new and material evidence relating to the period on
or before the date of the ALJ's decision and shall “evaluate the entire record including the new
MEMORANDUM DECISION AND ORDER - 13

AR 9 (footnote added); see also AR 652, 654. Although Petitioner acknowledges in her brief
that “[p]hysical therapy for her lymphedema lasted through January 12, 2010, when she was
discharged after having received the tools necessary to help her treat the lymphedema herself,”
she points out that the therapist ordered a re-evaluation and new compression garments every 612 months. Pet.’s Br., pp. 18-19 (Dkt. 13); see also AR 681. Petitioner argues that “[c]learly the
swelling and pain had not fully abated by this discharge date, and the lymphedema was expected
to be an ongoing problem.” Pet.’s Br., p. 19.
As Respondent points out, Petitioner was discharged with a note that treatment “achieved
100% of goals.” AR 681. Additionally, the Appeals Council cited to the normal upper extremity
venous exams and found the lymphedema to be mild. Although the possibility exists that
Petitioner will continue to have issues with lymphedema, she was released from therapy for this
condition after achieving the goals of her therapy. It is the Petitioner’s burden to demonstrate
the 12-month duration of her breast cancer and residuals, and also the severity of that condition.
Considering the evidence before the ALJ, and the Appeals Council’s finding that the new
evidence does not impact the ALJ’s decision as to Petitioner’s work-related limitations, the
Court will not overturn the ALJ’s determination that the Petitioner failed to meet the duration or
severity requirements.4

and material evidence” and “then review the case if it finds the [ALJ's] action, findings, or
conclusion is contrary to the weight of the record.” 20 C.F.R. 404.970.
4

The decision at issue on appeal is the ALJ’s decision. Because the question on judicial
review is whether the final decision of the Commissioner is supported by substantial evidence,
the status of new evidence in a case such as this one presents an issue for the reviewing court.
See 42 U.S.C. § 405(g). When the Appeals Council denies review, the decision of the ALJ is the
final decision. See O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994); Keeton v. Dep't of
Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994); Browning v. Sullivan, 958 F.2d
MEMORANDUM DECISION AND ORDER - 14

ii.

Upper Extremities

Petitioner also argues that the ALJ erred by failing to assess the functional limitations
associated with her osteoarthritis in her hands and shoulder, as well as her lymphedema. Pet’s
Br., pp. 12-15 (Dkt. 13). With regard to the lymphedema, the medical records associated with
that diagnosis were provided to the Appeals Council after the ALJ issued his unfavorable
decision. Thus, there was no error in how the ALJ assessed functional limitations relative to the
lymphedema as he had no records to consider.
With regard to Petitioner’s hand and shoulder ailments, Petitioner argues that they had
more than a minimal effect on her ability to work and the ALJ should have either characterized
them as severe impairments or, in the alternative, considered their impact when assessing
Petitioner’s residual functional capacity (“RFC”). Pet’s Br., p. 12 (Dkt. 13). Petitioner relies on
a December 15, 1994 report from an orthopaedic surgeon, Michael Phillips, to support her
claimed limitations. Id.; see also AR 512-17. She notes that she had complained to Dr. Phillips
about pain and swelling when doing keyboard work and told Dr. Phillips that “she had been
advised to avoid keyboard work and has limited her activities to filing and other clerical duties.”
AR 514. Both of these statements are based on Petitioner’s self-report and not Dr. Phillips’s

817, 822 (8th Cir. 1992); Russell v. Brown, 856 F.2d 81, 83-84 (9th Cir. 1988); 20 C.F.R. §§
404.955; 404.967 et seq.; 416.1455; 416.1467. Only if the Appeals Council grants review, and
then issues a decision on the merits, does the Appeals Council’s decision become the final
decision of the Commissioner. Russell, 856 F.2d at 83-84; Browning, 958 F.2d at 822.
However, because the Commissioner here does not contest whether the evidence
submitted to the Appeals Council should be considered by this court, see Ramirez v. Shalala, 8
F.3d 1449, 1452 (9th Cir. 1993), the new evidence will become part of the record on review,
even though that evidence was never before the ALJ. “We properly may consider the additional
materials because the Appeals Council addressed them in the context of denying Appellant’s
request for review.” Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000).
MEMORANDUM DECISION AND ORDER - 15

opinion. Additionally, the remainder of Dr. Phillips’s report does not support Petitioner’s claim
of severe limitations.
Dr. Phillips’s report states that, in 1994, Petitioner had “no restriction of abduction,
forward flexion, internal or external rotation” in her shoulder. AR 516. Although the report
diagnoses Petitioner with osteoarthritis of the small joints of the hands, and states that
Petitioner’s condition is “permanent and stationary,” it goes on to state that Dr. Phillips detects
“no measurable permanent physical impairment.” AR 517. Dr. Phillips also opines:
At present I see no contraindication to the patient continuing in her
present usual and customary occupation [working in a clerical
position at U.S. West Communications]. I do not believe
restrictions are necessary at this time. Treatment, I believe, can be
limited to the usage of palliative over the counter medication as
required.
AR 513, 517 (emphasis added). See also AR 521 (January 10, 1994 radiology report of imaging
for Petitioner’s hands and wrists stating: “The soft tissues are normal. There is minimal
hypertrophic spurring at the articular margins of a few of the . . . joints. . . . Minimal
osteoarthritis. This is of questionable significance.”).
Petitioner argues that because of the “degenerative nature” of osteoarthritis, her
“condition will not have improved, but will have further degraded over the subsequent years.”
Pet.’s Br., p. 16 (Dkt. 13). However, Petitioner cites no medical record evincing that the
condition has degraded or to what degree. Petitioner urges the Court to “presume that if [she]
attempted to return to work in an office setting where typing was required, her symptoms would
return.” Id. This Court cannot make presumptions about Petitioner’s limitations, rather, the
Court’s review is limited to whether the existing record provides adequate support for the ALJ’s
decision. Moreover, a report by Petitioner’s treating physician in 2008 states that she would be
MEMORANDUM DECISION AND ORDER - 16

able to grasp, turn and twist objects with her hands and engage her fingers in fine manipulation
100% of the time in an eight hour work day. AR 489
A similar circumstance is at issue with Petitioner’s shoulder problem. Petitioner relies on
a report from September 4, 2001 to support her claimed shoulder limitations. Id.; AR 153-58.
This report is from three years prior to the disability start period. Although information from
before the period of disability is relevant, these reports do not establish a limitation that
continued into the period of claim disability. Additionally, the report from her last visit (on
February 28, 2000) to the orthopaedist who performed her shoulder surgery, states:
[Petitioner] is seven months status post her left shoulder
arthroscopy with subacromial decompression and
acromioclavicular joint resection. [She] states that she is doing
much better. Her shoulder is significantly improved when
compared to preoperatively. She has become more functional and
only complains of occasional mild discomfort in her shoulder. At
her work place they have done away with the nonpower steering
vehicles thus she is able to drive all available vehicles. She states
she tolerates this well with some occasional discomfort. . . . . She
has 5/5 strength to resist forward elevation and external rotation
and internal rotation. . . . [She] is doing excellent and at this point I
believe she has reached her maximal medical improvement. I have
no restrictions for Laura now nor do I have restriction for her in
the future.
AR 147 (emphasis added). Again, the Court cannot surmise from these records that “further
deterioration is likely.” Pet.’s Br., p. 17 (Dkt. 13).
Thus, the only evidence in the record that supports Petitioner’s argument that her
osteoarthritis in her hands and shoulders limit her ability to work during the period of alleged
disability (2004-2010), are assessments completed by Petitioner’s treating physician, Dr.
Michael O’Brien, a neurologist, AR 220-23, 488-89, and one record indicating that Petitioner

MEMORANDUM DECISION AND ORDER - 17

was prescribed pain medications after complaining of pain across her shoulders and back, AR
467.
Dr. O’Brien completed his first assessment for Standard Insurance Company on March 1,
2005 and checked boxes stating that Petitioner would only be able to “occasionally” reach at,
below, and above shoulder level. AR 221. Dr O’Brien’s second assessment was an RFC
Questionnaire competed in September of 2008, in which he reports that Petitioner would only be
able to reach 25% of the time during an eight-hour workday. AR 489. That same report found
that she would be able to grasp, turn and twist objects with her hands and engage her fingers in
fine manipulation 100% of the time in an eight hour work day. Id. Thus, the only issue is
whether the ALJ properly discounted Dr. O’Brien’s assessment about Petitioner’s reaching
limitations as he did not assess hand limitations.
The ALJ explained his reasons for not adopting Dr. O’Brien’s reaching restriction:
Dr. O’Brien did not impose functional restrictions during the
course of treatment and treatment records did not support
limitations regarding use of her upper arms, he characterized her
pain as being under control as long as she took her medication and
her condition as being stable, and he mentioned no observations of
marked or extreme functional loss on examinations in the five
years he has treated her.
AR 23. The ALJ also gave little weight to Dr. O’Brien’s restrictions on Petitioner’s arm use
(and other assessments) because “it is evident that he relied heavily on claimant’s subjective
report of her symptoms and limitations.” AR 23. Finally, the ALJ relied on RFC assessments
performed by non-examining state agency physicians. See Magallanes v. Bowen, 881 F.2d 747,
751 (9th Cir. 1989) (explaining that the ALJ must give specific, legitimate reasons for rejecting

MEMORANDUM DECISION AND ORDER - 18

controverted medical opinions and may do so by summarizing the conflicting evidence in detail
and interpreting it).
The ALJ “may discredit treating physicians’ opinions that are conclusory, brief, and
unsupported by the record as a whole . . . or by objective medical findings[.]” Batson, 359 F.3d
at 1195 (“The ALJ discounted Dr. Keenen’s view because it was in the form of a checklist, did
not have supportive objective evidence, was contradicted by other statements and assessments of
Batson’s medical condition, and was based on Batson's subjective descriptions of pain.”); see
also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (explaining that the ALJ need not
consider those limitations which depend on the petitioner's subjective complaints if petitioner's
complaints have not been deemed credible). The Court concludes the ALJ appropriately
considered Petitioner’s alleged hand and shoulder limitations and weighed the evidence of record
in assessing the RFC.
IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences
from facts and determining credibility. Allen, 749 F.2d at 579; Vincent ex. Rel. Vincent, 739
F.2d at 1394; Sample, 694 F.2d at 642. If the evidence is susceptible to more than one rational
interpretation, one of which is the ALJ’s, a reviewing court may not substitute its interpretation
for that of the ALJ. Key, 754 F.2d at 1549.
The evidence upon which the ALJ relied can reasonably and rationally support his
conclusions, despite the fact that such evidence may be susceptible to a different interpretation.
Accordingly, the ALJ’s decision as to Petitioner’s alleged disability is based on proper legal
standards and supported by substantial evidence. Therefore, I conclude that the Commissioner’s

MEMORANDUM DECISION AND ORDER - 19

determination that Petitioner is not disabled within the meaning of the Social Security Act is
supported by substantial evidence in the record and is based upon an application of proper legal
standards.
V. ORDER
Based on the foregoing, Petitioner’s Petitioner for Review (Dkt. 1) is DENIED, the
decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety, with
prejudice.

DATED: March 28, 2012.

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 20