Shipton v. Astrue

Filing 18

MEMORANDUM DECISION AND ORDER granting 1 Petition for Review. This matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. 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 (cjm)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

TONYA L. SHIPTON,
Case No. CV 12-482-S-REB
Petitioner,

MEMORANDUM DECISION AND
ORDER

vs.
CAROLYN W. COLVIN, Commissioner of Social
Security,
Respondent.

Now pending before the Court is Petitioner Tonya L. Shipton’s Petition for Review (Dkt.
1), filed September 18, 2012, 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 July 23, 2009, Tonya L. Shipton (“Petitioner”) applied for Social Security Disability
Insurance and Supplemental Security Income Benefits, alleging a disability onset date of May
16, 2004, when she was 40 years old. AR 24. Petitioner’s claim was initially denied and, again,
denied on reconsideration. AR 127, 130. Petitioner timely filed a Request for Hearing before an
Administrative Law Judge (“ALJ”). On January 24, 2011, ALJ Lloyd E. Hartford held a hearing
at which time Petitioner, represented by attorney Jacob Bernhardt, appeared and testified. AR
47-126. Medical expert Kristy Farnsworth, vocational expert Anne Aastum, and two witnesses

MEMORANDUM DECISION AND ORDER - 1

for the claimant, Dr. David Nilsson and her father, James Harshfield, appeared and testified as
well. Id. At the time of the hearing, Petitioner had past relevant work as a fast food worker. AR
33.
On March 31, 2011, the ALJ issued a decision, denying Petitioner’s claims, finding that
Petitioner was not disabled within the meaning of the Social Security Act. AR 24-34. Petitioner
timely requested review from the Appeals Council on June 20, 2011. AR 7-12. The Appeals
Council then denied review on July 31, 2012 (AR 1-6) rendering the ALJ’s decision the
Commissioner’s final decision. Plaintiff now seeks judicial review of the Commissioner’s
decision to deny benefits. Petitioner contends the ALJ erred by failing to properly consider all of
her severe impairments, made an improper credibility determination of Petitioner and did not
properly consider the lay evidence or properly weigh the medical opinion evidence.
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

MEMORANDUM DECISION AND ORDER - 2

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
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).

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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
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 March 1, 2008, the alleged onset date. AR
26.
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).

MEMORANDUM DECISION AND ORDER - 4

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: bipolar disorder, post traumatic
stress disorder (PTSD), personality disorder, and a learning disorder. AR 26.
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
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 27.
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

MEMORANDUM DECISION AND ORDER - 5

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 a full range of work at all exertional levels but with the following
nonexertional limitations: the claimant has a marked limitation in the ability to understand and
remember detailed instructions, and a moderate limitation in the ability to carry out detailed
instructions; she has a moderate limitation in the ability to maintain attention and concentration
for extended periods; the claimant has a moderate degree of limitation in the ability to accept
instruction and respond appropriately to criticism from supervisors; the claimant has moderate
limitations in adapting to changes in a workplace routine; she has a moderate limitation in the
ability to set realistic goals and make plans independent of others. AR 27-28. The ALJ also
determined that Petitioner was capable of performing past relevant work as a fast food worker
and, therefore, not disabled. AR 33-34.
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of his impairments, the burden shifts to the Commissioner to show
that the claimant retains the ability to do alternate work and to demonstrate that 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). If the claimant is able to do other work, he is not disabled; if the claimant is not able
to do other work and meets the duration requirement, he is disabled. Although the ALJ found
Petitioner not disabled at step four, he also found, at step 5, that she is capable of making a
successful adjustment to other work that exists in significant numbers in the national economy.

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AR 33-34.
B.

Analysis
1.

Overview

The ALJ’s decision, while it discusses a broad range of all the evidence and testimony, is
deficient in that it does not sufficiently provide, or consider, the context for much of the
testimony and evidence that the ALJ relies upon in finding that Petitioner is not disabled. See
Reddick v. Chater, 158 F.3d 715, 722-23 (9th Cir. 1998) (ALJ’s paraphrasing of the record is not
entirely accurate regarding the content or tone of the record). The full record, considered in
context, does not support the ALJ’s decision, even under a deferential standard of review.
Significantly, an ALJ cannot “selectively focus” on evidence that tends to suggest nondisability.
Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). With this in mind, the Court issues
the following decision.
2.

Medical Evidence

Petitioner takes issue with the ALJ’s treatment of examining physician Dr. Nilsson’s
report and testimony and argues the ALJ improperly gave too much weight to the opinion of the
medical expert, Dr. Farnsworth.
Ninth Circuit case law 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

MEMORANDUM DECISION AND ORDER - 7

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). If the
treating physician’s opinion is not contradicted by another doctor, it may be rejected only for
“clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.1991). If the
treating doctor’s opinion is contradicted by another doctor, the Commissioner may not reject the
treating physician’s opinion without providing “specific and legitimate reasons” supported by
substantial evidence in the record for doing so. Murray v. Heckler, 722 F.2d 499, 502 (9th
Cir.1983).
An ALJ is not required to accept an opinion of a treating physician if it is conclusory and
not supported by clinical findings. Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th
Cir. 1992). Additionally, an ALJ is not bound to a physician’s opinion of 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 at 1216; Connett v. Barnhart, 340
F.3d 871 (9th Cir. 2003); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595 (9th Cir. 1999).
The ALJ states he affords the opinion of Dr. Nilsson “little weight” for the following
reasons: his opinion is heavily reliant upon a neuropsychological examination he performed in
December 2010, is not consistent with Petitioner’s past employment and level of functioning
exhibited in other evidence of record, and is contradicted by Petitioner’s ability to pass a

MEMORANDUM DECISION AND ORDER - 8

Certified Nursing Assistant (CNA) licensing examination. AR 32.
Dr. Nilsson’s report is the most objective medical evidence in the record. He and his
Ph.D assistant conducted several neuropsychological tests on Petitioner. The result of such
testing is that Petitioner suffers from a specific brain injury acquired early in life, such as fetal
alcohol syndrome, that severely impacts her ability to reason and problem solve. It also
indicates that she is needs significant persistence, structure, and external support in completing
her activities of daily routine. AR 388-395.
With regard to Petitioner’s prior work history, the ALJ cites to her work history from
1998, 1999, 2001, 2002, 2003 and 2004. See AR 120. Petitioner’s work history prior to her
alleged onset date (March 2008) which indicates she was capable of performing substantial
gainful activity during those years is not a specific and legitimate reason for rejecting Dr.
Nilsson’s opinion. While evidence of employment “during any period” of claimed disability
may be probative of claimant’s ability to work, 20 C.F.R. §§ 440.1571, 416.951 (emphasis
added), that does not mean her work history from at least four years prior to the alleged onset
date is similarly probative. Further, these years of employment coincide with the time when she
was married and it was indicated at the hearing that the level of support provided to Petitioner by
her ex-husband was an important factor in her ability to find and maintain employment. See
AR116, 122, 123. Further, a closer look at the record shows that Petitioner’s work shows
multiple jobs of relatively short duration, even in the same year. This indicates that she cannot
hold a job for a significant period of time, which would be consistent with testimony and Dr.
Nilsson’s report about her ability to follow through and stay focused. See AR 226-234.
With respect to the CNA examination, the ALJ overstates the importance of Petitioner

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passing this examination in rejecting Dr. Nilsson’s opinion. While it is indeed relevant, the ALJ
gives no credence to explanatory and uncontradicted testimony and evidence that explains how
she took the classes and passed the licensing examination. Petitioner’s father testified, discussed
further infra, that he and his wife did all of Petitioner’s work along side of her and literally
coached her through the entire course and examination.1 His testimony about the difficulties
Petitioner had in trying to complete the course and take the CNA examination, as well as the
difficulties she has in staying on task, and doing tasks, around their household, are consistent and
corroborative of the brain injury deficits that Dr. Nilsson described and opined upon. Hence,
even though the Petitioner’s work history and CNA license are relevant to the disability
determination, the ALJ gives them more weight than they are entitled in the context of how they
occurred and their surrounding circumstances.
With respect to the treatment notes from the mental health clinic, these do indicate a
higher level of functioning than that found by Dr. Nilsson. However, the context of her mental
health treatment must be considered. Petitioner received mental health treatment following her
suicide attempt in 2008. Much of the treatment notes discuss Petitioner’s improvement in terms
of mood and her bipolar disorder and how she is handling her medications. They do not address
her ability to work or her brain deficits, but rather focus on whether she is having any ‘psychotic
or manic symptoms.’ See AR 347-52. While these treatment notes do reflect that Petitioner is
improving in terms of her bipolar diagnosis, they are not a clear and convincing reason for

1

Petitioner’s father testified that he researched and essentially wrote the paper she
needed to pass the class and that he and his wife had a list of questions that would be on the
CNA examination and reviewed them with Petitioner over and over again. Further, he said that
even though she had passed the CNA examination, in hindsight he did not think she could
maintain employment as a CNA. AR 113-155.
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rejecting the opinion of Dr. Nilsson, which is focused on a neurologic injury. The fact that her
mood is stable and improved does not make discount Dr. Nilsson’s findings that Petitioner has
significant cognitive limitations in terms of reasoning and problem solving.
As an examining physician, Dr. Nilsson’s opinion is entitled to more weight than
nonexamining physicians such as Dr. Farnsworth and Drs. Stephenson and Sanford. Even if
those opinions conflict with Dr. Nilsson’s, the ALJ still must provide specific and legitimate
reasons for rejecting his opinion. While the ALJ does provide reasons that may be valid
otherwise, as discussed supra, again, such reasons speak too little or not at all to the context in
which they occur. Yes, Petitioner passed a CNA examination, but only with step-by-step
assistance of, and with course work being done for her by, her parents throughout the entire
course. Similarly, while she did have jobs that amounted to substantially gainful activity in
earlier years, these were achieved with the support and assistance of her ex-husband. The record
also reflects that Petitioner did not maintain these jobs for substantial lengths of time. The
context of these “reasons” given by the ALJ for rejecting an examining physician’s opinion are
just as important the reasons themselves. Accordingly, the Court finds that the ALJ improperly
rejected or gave too little weight to the opinion of Dr. Nilsson and remands for further
consideration of his opinion. 2

2

Petitioner also takes issue with the fact that a report from Phares Book, Psy.D. (AR
419-24) was never considered as it was provided to the Appeals Council but never reviewed
because Petitioner’s request for review was declined. Pet.’s Brief, p. 17. This report is a
Guardian Ad Litem report prepared in conjunction with court proceedings to determine custody
for Petitioner’s two young children. Specifically, Petitioner points out that this report states:
“[Petitioner] has cognitive impairment that is so substantial that she should not be responsible for
these children or maintain legal or physical custody of them alone.” AR 424. A court should
remand for consideration of “new” evidence if that evidence is material, meaning there is a
reasonable possibility it would change the ALJ’s decision. See Booz v. Sec’y of Health &
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3.

Severe Impairments/Residual Functional Capacity

While the Court recognizes that the severity requirement is a de minimis screening device
used to dispose of groundless claims, the Court also notes even if an impairment is improperly
determined to be not severe at step two, the error is harmless if the ALJ nonetheless considers
any limitations caused by the impairment when determining a claimant’s residual functional
capacity. See Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); Lewis v. Astrue, 498 F.3d
909, 911 (9th Cir. 2007).
Given the Court’s discussion of Dr. Nilsson’s opinion supra, the Court finds that this step
of the sequential process should be reevaluated once Dr. Nilsson’s report and opinion is properly
considered.
4.

Lay Witness Testimony

Petitioner contends the ALJ erred by giving little weight to the lay evidence presented by
Petitioner’s adoptive father, James Harshfield, and wrongfully evaluated his testimony as a “non
medical source.”
An ALJ must consider evidence from sources other than the claimant, including family
members and friends, to show the severity of a claimant’s impairment. 20 C.F.R.
§ 404.1513(d)(4); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). The ALJ is

Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984). Material also means the new evidence
bears “directly and substantially on the matter in dispute.” Ward v. Schweiker, 686 F.2d 762,
764 (9th Cir. 1982). Dr. Book’s report is not new medical evidence, it is a guardian ad litem
report completed for the court in Petitioner’s child custody case with her ex-husband. The
Court finds that this “new” evidence is not material as it does bear “directly and substantially”
on the issue of Petitioner’s disability and that remanding on just this issue is not appropriate.
However, the Court does find the evidence to be relevant and it should be considered by the ALJ
upon remand.
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required to consider competent lay testimony, but in rejecting such evidence, he must only give
reasons for doing so that are “germane to [the] witness.” Carmickle v. Comm’r, Soc. Sec.
Admin., 533 F.3d 1155, 1164 (9th Cir. 2008).
As with Dr. Nilsson’s report, the Court concludes while the ALJ does provide reasons for
rejecting Dr. Harshfield’s testimony and opinions regarding his daughter’s limitations, he does
not sufficiently consider the context and evidence of such testimony. There is no problem with
giving less credence to Dr. Harshfield because he is a “non medical source,” despite Petitioner’s
argument in that regard, but the other reasons given by the ALJ do not satisfy the applicable
standard.
Similar to what Dr. Nilsson provided in his report and testimony, Dr. Harshfield,
Petitioner’s father, testified to just how much support and care Petitioner needs in order to
function on a daily basis. He stated she needs constant reminders and directions when cleaning
the house and taking care of her children. He testified that he and his wife did all her course
work with her for her CNA class and coached her through the examination process. He stated
without their support, she could not function. AR 112-125. Dr. Harshfield testified that
Petitioner needs someone to keep her in line all the time or else she is unable to complete tasks.
He stated she gets confused easily and is not capable of following through with most tasks. The
Petitioner was in his household during her growing up years. He has been around her and
observed her during her married adult years, even though she was not living in his household.
Now, she and her two youngest children are living in his household again. He has a substantial
amount of knowledge and experience to draw on in testifying about what she is able to do and
what she cannot do, and his testimony is consistent with the report of Dr. Nilsson who discussed

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the amount of support someone with Petitioner’s deficits needs in order to function.
The ALJ, however, gave similar reasons for rejecting Dr. Harshfield’s opinion as he did
Dr. Nilsson’s, primarily by referencing her past work history and her medical treatment records.
The Court incorporates its discussions of these supra in its analysis of Dr. Nilsson’s opinion.
The ALJ leaves behind the context of this evidence, and without such context his conclusions are
not supportable.
As a result, the ALJ did not provide a fair account of Dr. Harshfield’s testimony. Lay
witnesses are in the position to provide competent testimony as they observe the claimant on a
regular basis. The Court finds, that particularly in light of the ALJ’s incomplete consideration of
Dr. Nilsson’s opinion, it is unclear whether Dr. Harshfield’s description of Petitioner’s
difficulties in completing tasks, staying focused, and need for constant support and oversight
would have resulted in the same RFC or disability determination.
5.

Petitioner Credibility

Because the Court has already determined that this case should be remanded for the
reasons discussed supra, it will not get into an in depth review of the ALJ’s credibility
determination as to Petitioner. The Court found Petitioner’s testimony to be relevant but also
attenuated from the ultimate issue of her functional limitations and ability to work.
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

MEMORANDUM DECISION AND ORDER - 14

for that of the ALJ. Key, 754 F.2d at 1549.
However, the ALJ did not properly consider all of the evidence. As discussed at the
outset, the Court finds that the ALJ failed to consider all the evidence because his decision fails
to incorporate the context and interconnections of the relevant testimony, particularly the
testimony of Dr. Nilsson and Petitioner’s adoptive father, Dr. Harshfield. The ALJ cannot pick
and choose from the record and cite only the evidence that supports his conclusion. There is
evidence that Petitioner has severe functional limitations that are supported by objective medical
evidence in the record.
This is not to say that this Court conclusively finds that Petitioner is disabled. Relatedly,
it is not for this Court to resolve the question of whether Petitioner is disabled when considering
all the relevant medical evidence and how Dr. Nilsson’s and Dr. Harshfield’s opinions may
factor into the ALJ’s determination. Rather, the Court is tasked with reviewing the basis of the
ALJ’s decision, highlighting those areas that may call into question the decisions reached by the
ALJ, and, in doing so, should not be misunderstood as substituting its own judgment for that of
the ALJ.
The Court finds the cumulative nature of the ALJ’s decision does not afford the Court
confidence that the ALJ fully considered all the evidence in the record, at least how it is reflected
in the decision. This action is therefore remanded.
V. ORDER
Based on the foregoing, Petitioner’s request for review (Dkt. 1) is hereby GRANTED.
This matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings
consistent with this Memorandum Decision and Order. See Melkonyan v. Sullivan, 501 U.S. 89,

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99-100 (1991).

DATED: March 31, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

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