Swarm v. Colvin

Filing 21

MEMORANDUM DECISION AND ORDER. Based upon the foregoing, the Court being otherwise fully advised in the premises, it is hereby ORDERED that the Commissioners 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 (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JASON SWARM,
Petitioner,

Case No. 1:13-CV-00183-CWD

v.

MEMORANDUM DECISION AND
ORDER

CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Administration,
Respondent.

INTRODUCTION
Currently pending before the Court for consideration is Petitioner Jason Swarm’s
(“Petitioner”) Petition for Review (Dkt. 1) of the Respondent’s denial of social security benefits,
filed April 15, 2013. The Court has reviewed the Petition for Review and the Answer, the
parties’ memoranda, and the administrative record (“AR”), and for the reasons that follow, will
affirm the Commissioner’s decision.
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on October 20, 2008, claiming disability beginning May 1, 2006, caused by
back pain. This application was denied initially and on reconsideration. Hearings were conducted

MEMORANDUM DECISION AND ORDER - 1

on November 19, 2010, May 12, 2011, and July 27, 2011, before Administrative Law Judge
(“ALJ”) Lloyd Hartford. The first hearing was continued to allow time for Petitioner to obtain
counsel and undergo a mental consultative examination. At the second hearing, Petitioner was
represented by counsel, and the ALJ heard testimony from Petitioner, Petitioner’s uncle, and
Petitioner’s examining physician, Dr. Nilsson. At the supplemental hearing on July 27, the ALJ
heard testimony from vocational expert Kent Granat and medical expert Margaret Moore. ALJ
Hartford issued a decision finding Petitioner not disabled on August 29, 2011. Petitioner timely
requested review by the Appeals Council, which denied his request for review on February 20,
2013.
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 Petitioner filed his application, he
was thirty four years of age. Petitioner was born in 1974. Petitioner obtained his GED, and he
has no significant prior work experience given lengthy periods of incarceration.
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, which was amended to
October 20, 2008. At step two, it must be determined whether the claimant suffers from a severe
impairment. The ALJ found Petitioner’s degenerative disc disease of the lumbar spine, obesity,
depressive disorder, and antisocial personality features severe within the meaning of the
Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed impairment. The
MEMORANDUM DECISION AND ORDER - 2

ALJ found that Petitioner’s impairments did not meet or equal the criteria for the listed
impairments, specifically considering Listings 1.04, 12.04, and 12.08. 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.
Although Petitioner had some work experience as a flagger and landscaper, the ALJ
found Petitioner had not engaged in any past relevant work. If a claimant demonstrates an
inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate, at
step five, that the claimant retains the capacity to make an adjustment to other work that exists in
significant levels in the national economy, after considering the claimant’s residual functional
capacity, age, education and work experience. The ALJ determined Petitioner retained the RFC
to perform light work, and Petitioner could perform such occupations as garment folder,
housekeeping cleaner, cleaner polisher, dowel inspector, waxer, and brimer.
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. Finch, 438 F.2d 920, 921 (9th Cir. 1971). An individual will be
determined to be disabled only if his physical or mental impairments are of such severity that he
not only cannot do 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).
MEMORANDUM DECISION AND ORDER - 3

On review, the Court is instructed to uphold the decision of the Commissioner if the
decision is supported by substantial evidence and is not the product of legal error. 42 U.S.C. §
405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474 (1951); Meanel v.
Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v. Sullivan, 924 F.2d 841,
846 (9th Cir. 1991). Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). It
is more than a scintilla but less than a preponderance, Jamerson v Chater, 112 F.3d 1064, 1066
(9th Cir. 1997), and “does not mean a large or considerable amount of evidence.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988).
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist that supports the petitioner’s claims.
42 U.S.C. § 405(g); Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir.
1995). Thus, findings of the Commissioner as to any fact, if supported by substantial evidence,
will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if there is substantial evidence
to support the decision of the Commissioner, the decision must be upheld even when the
evidence can reasonably support either affirming or reversing the Commissioner’s decision,
because the Court “may not substitute [its] judgment for that of the Commissioner.” Verduzco v.
Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).
When reviewing a case under the substantial evidence standard, the Court may question
an ALJ’s credibility assessment of a witness’s testimony; however, an ALJ’s credibility
assessment is entitled to great weight, and the ALJ may disregard a claimant’s self-serving
statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ makes a
careful consideration of subjective complaints but provides adequate reasons for rejecting them,
MEMORANDUM DECISION AND ORDER - 4

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).
DISCUSSION
Petitioner believes the ALJ erred at steps three and four. First, Petitioner argues the ALJ
should have found Petitioner met or medically equaled Listings 12.02, 12.04, 12.06, and 1.04
based upon the testimony of Dr. Nilsson. Second, Petitioner contends the ALJ failed to properly
develop the record or consider the evidence, because Petitioner’s demeanor at the hearing and
the State of Idaho’s vocational rehabilitation records support a finding of disability; the ALJ
improperly refused to grant counsel’s request to subpoena the consultative examiner; and, the
ALJ did not properly develop testimony from the vocational expert. Next, Petitioner finds fault
with the ALJ’s assessment of Petitioner’s credibility. And finally, Petitioner contends the ALJ
erred when evaluating the medical source opinions. 1
1.

Meet or Equal a Listing
If the claimant satisfies the criteria under a listing and meets the twelve month duration

requirement, the Commissioner must find the claimant disabled without considering age,
education and work experience. 20 C.F.R. § 404.1520(a)(4)(iii), (d). A claimant bears the
burden of producing medical evidence that establishes all of the requisite medical findings that
his impairments meet or equal any particular listing. Bowen v. Yuckert, 482 U.S 137, 146, n. 5

1

Petitioner asserted also that he was denied due process as a result of the above errors.
However, Petitioner’s arguments regarding due process relate to the merits of the decision,
which is not a proper ground for asserting violation of due process. See Evans v. Chater, 110
F.3d 1480, 1482 (9th Cir. 1997) (explaining that appeal may be taken on due process grounds for
procedural errors, but not regarding the merits of the prior decision or the means by which the
decision was reached.). Petitioner had a meaningful opportunity to be heard in this matter, given
three hearings were held, he was represented by counsel, and he has not been prevented from
seeking reconsideration in this Court of the adverse benefits determination. See Id. at 1482-83.
MEMORANDUM DECISION AND ORDER - 5

(1987). Further, if the claimant is alleging equivalency to a listing, the claimant must proffer a
theory, plausible or other, as to how his combined impairments equal a listing. See Lewis v.
Apfel, 236 F.3d 503, 514 (9th Cir. 2001).

An impairment, or combination of impairments, is medically equivalent to a
listing “if it is at least equal in severity and duration to the criteria of any listed
impairment,” considering “all evidence in [the] case record about [the] impairment(s) and
its effects on [the claimant] that is relevant….” 20 C.F.R. § 404.1526(a), (c). Further,
equivalence depends on medical evidence only; age, education, and work experience are
irrelevant. Id. at § 404.1526(c). Finally and critically, “the claimant’s illnesses ‘must be
considered in combination and must not be fragmentized in evaluating their effects.’”
Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995) (quoting Beecher v. Heckler, 756 F.2d
693, 694-95 (9th Cir. 1985)).
A.

Listings 12.02 (Organic Mental Disorders), 12.04 (Affective Disorders),
and 12.06 (Anxiety Related Disorders)

For a claimant to meet Listings 12.02, 12.04, or 12.06, he must show that he has
marked restrictions 2 “in at least two” of the following categories listed in Part B: 3
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.

2

Marked means “more than moderate, but less than extreme.” 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 12.00(C).
3
The Part B criteria are the same for each of the three listings, and to satisfy any one of the
listings, a claimant must meet both the Part A and Part B criteria. Petitioner finds fault only with the
ALJ’s consideration of the Part B criteria.
MEMORANDUM DECISION AND ORDER - 6

Petitioner argues the ALJ erred in his consideration of the evidence, because if it was
considered properly, the evidence supports a finding of marked limitations in the areas of
activities of daily living and social functioning, thereby meeting the Part B criteria in
each of the three listings. For example, Petitioner contends photographs of Petitioner’s
residence, submitted post-hearing, reflected a disheveled home indicating Petitioner was
unable to carry out activities of daily living. Further, Petitioner contends the ALJ failed to
follow certain provisions of the agency’s POMS in his consideration of the evidence
supporting Petitioner’s mental impairments, because the POMS manual indicates that the
inability to maintain a home environment in a socially acceptable manner is a reflection
of severe deficiencies in social functioning.
First, “POMS constitutes an agency interpretation that does not impose judicially
enforceable duties on either this court or the ALJ.” Lockwood v. Comm'r Soc. Sec.
Admin., 616 F.3d 1068, 1073 (9th Cir.2010). Rather, POMS and the interpretations in it
“are ‘entitled to respect,’ but ‘only to the extent that those interpretations have the power
to persuade.’” Id. (quoting Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000)
(internal quotations omitted)). The persuasive force of the guidance provided in POMS
depends on “the thoroughness evident in its consideration, the validity of its reasoning,
[and] its consistency with earlier and later pronouncements,” among other factors.
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). One additional factor is the extent to
which an interpretation in POMS relates to a regulation that imposes a mandatory

MEMORANDUM DECISION AND ORDER - 7

obligation or merely requires “consideration” of certain evidence. Lockwood, 616 F.3d at
1072–73.
Here, the POMS manual merely requires consideration of certain evidence, which
the ALJ properly considered. That Petitioner disagrees with the ALJ’s interpretation of
the evidence is not the standard upon review. Rather, the standard is whether substantial
evidence supports the ALJ’s decision, which it does.
In assessing the first category, activities of daily living, those activities include
cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a
residence, caring appropriately for one's grooming and hygiene, using telephones and
directories, and using a post office, among other activities. 20 C.F.R. pt. 404, subpt. P,
app. 1, § 12.00(C)(1); POMS § DI 22511.005. There was substantial evidence in the
record, which the ALJ discussed (AR 15), supporting the ALJ’s determination that
Petitioner suffered only mild restriction in his activities of daily living. The ALJ noted
Petitioner used his bicycle for transportation, was able to ride the bus independently,
shopped and cooked for himself, and did household chores. (AR 15.) 4 As an example,
Petitioner testified that he visited the library, (AR 100), and rode his bike from his house
to the bus stop so he could arrive at the hearing by himself on November 19, 2010 (AR
104).
4

That other evidence exists to support Petitioner’s argument that he suffered marked limitations
in his activities of daily living, such as photographs of Petitioner’s unkempt house and the state of his
clothing on a given day, is not sufficient to carry the day. “[T]he ALJ’s interpretation of [his] testimony
may not be the only reasonable one. But it is still a reasonable interpretation and is supported by
substantial evidence; thus, it is not our role to second-guess it.” Rollins v. Massanari, 261 F.3d 853, 857
(9th Cir. 2001).
MEMORANDUM DECISION AND ORDER - 8

Next, Petitioner finds fault with the ALJ’s failure to consider Petitioner’s inability
to maintain his home environment in a socially acceptable manner as sufficient evidence
to support a finding of marked difficulty in maintaining social function. However, POMS
§ DI 22511.005, upon which Petitioner relies, indicates that social function should be
evaluated on the basis of social appropriateness, independence, sustainability, and
quality. See also 20 C.F.R. pt. 404, subpt. P, app. 1, § 1200(C)(2). The ALJ found
Petitioner had moderate difficulties in social functioning, which determination is
supported by substantial evidence in the record. The ALJ discussed that Petitioner lived
independently in a trailer and visited with his family, which included regular social
interactions with his uncle five times each week. (AR 15.)
Finally, Petitioner contends the ALJ failed to properly consider the evidence
regarding Petitioner’s difficulty maintaining concentration, persistence, or pace. Pet.
Brief at 18 (Dkt. 16). Petitioner argues the ALJ failed to consider that Petitioner fell
asleep during the July 27, 2011 hearing, frequently shifted positions, and often appeared
for his vocational rehabilitation appointments unkempt and disheveled. Further,
Petitioner cites the significant deficits in his cognitive abilities.
Again, that there may be evidence to support a contrary interpretation of the
evidence is not the standard. The ALJ concluded Petitioner had moderate difficulties with
regard to concentration, persistence, or pace. There was substantial evidence in the record
to support that conclusion, which evidence included psychological testing conducted in
December of 2010 indicative of an average range of intellectual functioning. (AR 15,
MEMORANDUM DECISION AND ORDER - 9

513.) The conclusions reached by Dr. Morgan after performing psychological testing and
discussed by the ALJ included findings that Petitioner could understand and
communicate; his memory was within normal limits; and, he could sustain concentration
and persist in tasks requiring those abilities. (AR 15.) The record adequately supports the
ALJ’s conclusion that Petitioner suffers moderate difficulties.
B.

Listing 1.04

Petitioner argues he meets or medically equals the criteria of Listing 1.04. Pet.
Brief at 17-18 (Dkt. 16.) To meet this listing, a claimant must demonstrate he suffers
from:
“degenerative disc disease…resulting in compromise of a nerve root or the
spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report
of tissue biopsy, or by appropriate medically acceptable imaging,
manifested by severe burning or painful dysesthesia, resulting in the need
for changes in position or posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in inability to
ambulate effectively, as defined in 1.00B2b.
The evidence of record consists of an MRI report dated September 8, 2008. (AR
498.) The ALJ comprehensively covered the findings in the MRI, which noted no
evidence of nerve root compromise or compression; no evidence of spinal arachnoiditis;
MEMORANDUM DECISION AND ORDER - 10

and, no evidence of lumbar spinal stenosis. The ALJ considered also the substantial
evidence in the record concerning Petitioner’s ability to ambulate effectively, as defined
in Section 1.00B2b. The inability to ambulate effectively is “defined generally as having
insufficient lower extremity functioning to permit independent ambulation without the
use of a hand-held assistive device.” There was no evidence in the record that Petitioner
used any type of assistive device. Further, the ALJ considered physician’s notes that
indicated Petitioner walked from the examination room with a non-antalgic gait on June
8, 2011, and he was able to fully squat, perform a sit to stand motion with no difficulty,
and that his straight leg raise test was negative. (AR 526.)
Petitioner attempts to introduce evidence of a second MRI taken December 17,
2012. (Dkt. 16, Ex. A.) Petitioner contends this exhibit was “excluded from the official
record.” There is no evidence that the ALJ did not permit augmentation of the record at
the time, and no evidence that the MRI report was submitted to the Appeals Council for
review. Therefore, not only is the additional evidence well beyond the period of
consideration, the Court need not consider it because it is not part of the administrative
record. Brewes v. Comm’r of Soc. Sec. Admin, 682 F.3d 1157, 1162 (9th Cir. 2012).
Petitioner next contends that his obesity, in combination with his low back pain, is
equivalent to Listing 1.04 because he cannot ambulate effectively. Petitioner argues that
“snapshots” of Petitioner’s ability to walk are insufficient evidence here, because

MEMORANDUM DECISION AND ORDER - 11

Petitioner’s obesity, coupled with his back pain, contributes to Petitioner’s inability to
walk more than one block. 5
Petitioner cites to no evidence in the record indicating Petitioner is unable to
ambulate effectively within the meaning of the regulations. Other than claiming that a
“snapshot” of Petitioner’s ability to walk out of the exam room on June 8, 2011, is
insufficient, Petitioner offers no other evidence to overcome the ALJ’s consideration of
the substantial evidence of record that Petitioner had no difficulties walking, riding a
bike, shopping, or otherwise being able to use public transportation. In other words,
Petitioner seems to forget that there must be evidence of his alleged inability to walk.
Petitioner may not simply discredit the evidence in the record.
As for Petitioner’s contention that the ALJ failed to consider his obesity, the ALJ
states that he considered the effect of Petitioner’s obesity pursuant to SSR 02-01p. (AR
15.) Because obesity is not a separately listed impairment, a claimant will meet the listing
requirements if “there is an impairment that, in combination with obesity, meets the
requirements of a listing.” SSR 02–01p (2002). Equivalence is determined if a claimant’s
multiple impairments (including obesity) none of which meet the listing requirement, but
which when viewed in the aggregate are equivalent to a listed impairment. See id. The
Rule, however, explains:
[An ALJ] will not make assumptions about the severity or functional
effects of obesity combined with other impairments. Obesity in
5

Petitioner claims his obesity also contributes to him meeting Listing 12.04 and 12.08, which
listings pertain to affective disorders and personality disorders, but fails to articulate how other than
pointing to his inability to ambulate effectively. Pet. Brief at 16 (Dkt. 16.)
MEMORANDUM DECISION AND ORDER - 12

combination with another impairment may or may not increase the severity
or functional limitations of the other impairment. [The ALJ] will evaluate
each case based on the information in the case record.
Although Petitioner contends the ALJ erred by not considering obesity
when determining whether he meets or equals a listed impairment, Petitioner fails
to set forth any evidence to support the diagnosis and findings of a listed
impairment, as explained above. Further, the ALJ is not required to discuss the
combined effects of a claimant’s impairments or compare them to any listing in an
equivalency determination, unless the claimant presents evidence in an effort to
establish equivalence. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005).
Petitioner fails to offer “any theory, plausible or otherwise, as to how his
impairments combined to equal a listing impairment,” id., other than his
conclusory statements that they do. There is, accordingly, no error by the ALJ.
2.

Development of the Record and Consideration of the Evidence
The ALJ has a duty to develop the record even when the claimant is represented

by counsel. Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996) (citing Brown v. Heckler,
713 F.2d 441, 443 (9th Cir. 1983)). Even if there is evidence to the contrary, such does
not negate the substantial evidence in the record as a whole in support of the ALJ’s
determination. If the evidence before the ALJ is subject to more than one rational
interpretation, the Court must defer to the ALJ’s conclusion. Batson v. Comm’r of Soc.
Sec. Admin, 559 F.3d 1190, 1198-99 (9th Cir. 2004). The ALJ need not discuss all
evidence presented to him. Rather, he must explain why “significant probative evidence
MEMORANDUM DECISION AND ORDER - 13

has been rejected.” Vincent ex. Rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir.
1984) (quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981)).
The failure to discuss certain evidence does not require remand. Vincent, 739 F.2d
at 1394. Here, the evidence which the ALJ allegedly ignored was neither significant nor
probative. First, Petitioner contends that because he fell asleep during the three hour
hearing and shifted positions throughout, such behavior demonstrates Petitioner’s
inability to maintain concentration, persistence, or pace. However, Petitioner has failed to
explain how such behavior during a three hour hearing translates to the inability to work
at the occupations the ALJ ultimately found Petitioner able to perform. Nor does
Petitioner explain how such behavior is inconsistent with the ALJ’s RFC finding.
Next, Petitioner argues the ALJ’s decision failed to properly consider the State of
Idaho’s determination of Petitioner’s eligibility for vocational rehabilitation services. But
the ALJ included an extensive discussion about the vocational rehabilitation records. (AR
18.) The ALJ noted Vocational Rehabilitation determined that, although Petitioner’s
disabilities were chronic, they were stable and Petitioner could work. (AR 18, citing Ex.
10F at AR 577-604.) And, the ALJ incorporated the findings by vocational rehabilitation
services into his RFC finding. 6
Finally, Petitioner argues the ALJ failed to properly investigate and evaluate

6

The ALJ cited the disability services’ determination that Petitioner suffered from functional
limitations requiring no repetitive bending/twisting/stooping; may occasionally lift up to 25 lbs.,
frequently lift 15 lbs., and continuously lift 10 lbs.; no prolonged low frequency vibration; ad lib position
changes; and no high impact or strenuous activities. (AR 18, 601.) These limitations were incorporated
into the ALJ’s RFC finding. (AR 16.)
MEMORANDUM DECISION AND ORDER - 14

evidence, citing Petitioner’s “well-documented medical history that reflects Petitioner’s
significant deficits in reasoning and problem solving” such that the ALJ should have
determined Petitioner had “marked restrictions” in the activities of daily living. However,
it is not for the Court to second-guess the ALJ’s resolution or consideration of the
evidence. The Court discussed above the ALJ’s findings in this regard in the context of
Listings 12.02 and 12.04. Further, although Petitioner argues the ALJ failed to properly
investigate, Petitioner has not provided any evidence or argument that the duty to do so
was triggered. The duty to “conduct an appropriate inquiry” is triggered only upon a
finding that the evidence is ambiguous or the record is inadequate. Widmark v. Barnhart,
454 F.3d 1063, (9th Cir. 2006). Petitioner has demonstrated neither.
A.

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). Where, as here, a claimant
produces medical evidence of an underlying impairment that is reasonably expected to
MEMORANDUM DECISION AND ORDER - 15

produce some degree of the symptoms alleged and there is no affirmative evidence of
malingering, an ALJ must provide “clear and convincing reasons” for an adverse
credibility determination. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996); Greger v.
Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). 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.
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 considering claimant’s reputation for truthfulness and
inconsistencies in claimant’s testimony, or between claimant’s testimony and conduct,
claimant’s daily activities, claimant’s work record, and testimony from physicians and
third parties concerning the nature, severity and effect of the symptoms of which claimant
complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Also, the ALJ
may consider the location, duration and frequency of symptoms; factors that precipitate
and aggravate those symptoms; the amount and side effects of medications; and,
MEMORANDUM DECISION AND ORDER - 16

treatment measures taken by the claimant to alleviate those symptoms. See Soc. Sec.
Ruling 96-7p.
B.

Circular Reasoning

Petitioner first contends the ALJ used “circular reasoning” when he concluded
Petitioner’s medically determinable impairments “could reasonably be expected to cause
the alleged symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effect of these symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity assessment.” Pet. Brief at 20-21
(Dkt. 16); (AR 17). While Petitioner may be correct that the ALJ made the above
statement, that is as far as Petitioner’s argument goes. The ALJ’s statement is
inappropriate and inadequate only if the ALJ does not also provide sufficient reasons
supporting a finding that a claimant is not wholly credible. Medeiros v. Astrue, No. 3:11cv-00386-JE, 2012 WL 6929275 at *8 (Dec. 27, 2012). The ALJ provided extensive
analysis and support for his conclusion that Petitioner lacked credibility about the
limiting effects of his symptoms, citing the inconsistencies in the record as a whole and
discussing the medical findings; the MRI results; vocational rehabilitation’s functional
assessment; and, Petitioner’s own statements that he could ride a bicycle without
difficulty. (AR 17-20.) Further, the ALJ developed the record regarding Petitioner’s
alleged mental impairments, discussing Petitioner’s psychological testing results
indicating average mental performance, and comparing those recent results obtained in
2010 with similar results from when Petitioner was thirteen years of age. (AR 20-22.)
MEMORANDUM DECISION AND ORDER - 17

There was no error.
C.

Counsel’s Request to Subpoena Medical Consultant

Petitioner argues the ALJ erred by refusing Petitioner’s counsel’s request to
subpoena and cross-examine Dr. Chicoine, who examined Petitioner in June of 2011.
Petitioner sought to cross examine Dr. Chicoine because the doctor noted in his findings
that Petitioner did not note “signs of anxiety,” yet Dr. Chicoine was consulted to assess
Petitioner’s functional limitations. The ALJ denied counsel’s request, stating he would
not rely on Dr. Chicoine’s “statement that he did not know the signs or symptoms of
anxiety at the time he examined him to make a determination of whether or not the
claimant is disabled based on anxiety.” (AR at 47.) In other words, the medical opinion
regarding Dr. Chicoine’s assessment of Petitioner’s anxiety was not crucial to the ALJ’s
decision, and there was no error. See Solis v. Schwieker, 719 F.2d 301, 302 (9th Cir.
1983) (an ALJ abuses his discretion when he denies a claimant’s request to cross examine
a medical source where that source’s report is “crucial” to the ALJ’s decision).
D.

Vocational Expert Testimony

Petitioner argues the ALJ “failed to properly develop the expert testimony
regarding Petitioner’s ability to perform competitive work at a SGA level.” Pet. Brief at
21 (Dkt. 16). Petitioner argues that, because Mr. Granat, the vocational expert, did not
base his vocational opinion on any medical source opinion except those of Dr. Chicoine

MEMORANDUM DECISION AND ORDER - 18

and Dr. Moore, 7 the vocational opinion elicited by the ALJ is in error. In other words,
had the ALJ accepted the opinion of Mr. Granat based upon Petitioner’s expert, Dr.
Nilsson, the ALJ would have concluded Petitioner was disabled. Pet. Brief at 22.
Petitioner argues also that the ALJ disregarded other evidence in the record regarding
Petitioner’s physical limitations, such as the need for frequent breaks and to change
position.
The ALJ properly formed a hypothetical for the vocational expert at the hearing,
and included all of Petitioner’s limitations supported by substantial evidence in the
record. The hypothetical need not incorporate evidence from medical sources or the
Petitioner that was “permissibly discounted.” The ALJ’s discussion and analysis of the
medical opinions, and his reasons for rejecting Dr. Nilsson’s opinion, are addressed later
in this Memorandum.
Next, Petitioner again contends that the hypothetical did not account for
Petitioner’s sporadic engagement in daily activities, and therefore, his ability to perform
certain activities does not support his ability to engage in full-time work. Petitioner
claims that “substantial evidence must be in the record to show that the ‘claimant can do
most jobs,’ despite the limitations caused by the impairment. Stout v. Sec. of Health &
Human Serv., 579 F.Supp. 237, 240 (D. Idaho 1984). Petitioner, however, misinterprets
Stout, where the Court considered whether the ALJ erred at step two of the sequential
analysis. In that context, the Court found that 20 C.F.R. 404.1521 defined the phrase “‘no
7

Medical expert Dr. Moore testified at the hearing but did not otherwise examine Petitioner.

MEMORANDUM DECISION AND ORDER - 19

severe impairment’ as the ability and aptitude necessary to do most jobs.” Here, in
contrast, there was a finding of “severe” impairment at step two, and thus the reasoning
and analysis of Stout does not apply. There was, accordingly, no error committed by the
ALJ by virtue of not making such a finding.
Further, the relevance of Petitioner’s daily activities was considered in the context
of Petitioner’s credibility. The ability to engage in activities of daily living “may be
grounds for discrediting the claimant’s testimony” to the extent such activities contradict
claims of a totally disabling impairment. Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir.
2012). Because Petitioner testified to a degree of activity incompatible with his claims of
total and utter incapacity, the ALJ was entitled to reject Petitioner’s statements based
upon such evidence. It is not for this Court to engage in second guessing the ALJ’s
credibility determination when his determination constituted a reasonable interpretation
of the evidence presented. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“the
ALJ’s interpretation of her testimony may not be the only reasonable one. But it is still a
reasonable interpretation and is supported by substantial evidence; thus, it is not our role
to second-guess it.”).
3.

Medical Source Opinions
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).
MEMORANDUM DECISION AND ORDER - 20

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). 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 so doing. 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 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.
MEMORANDUM DECISION AND ORDER - 21

Barnhart, 340 F.3d 871 (9th Cir. 2003); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d
595 (9th Cir. 1999). An ALJ also may reject a treating 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).
Reports of treating physicians submitted relative to Petitioner’s work-related
ability are persuasive evidence of a claimant’s disability due to pain and his inability to
engage in any form of gainful activity. Gallant v. Heckler, 753 F.3d 1450, 1454 (9th Cir.
1984). 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)). Clear and convincing reasons must also be given to reject
a treating doctor’s ultimate conclusions concerning disability, especially when they are
not contradicted by another doctor. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
A.

Dr. Nilsson

Petitioner first objects to the ALJ’s alleged failure to properly consider Dr.
Nilsson’s testimony. Petitioner objects on the grounds that the ALJ improperly
discredited Dr. Nilsson’s testimony because he was referred and paid by Petitioner’s
attorney to examine Petitioner. Second, Petitioner claims the ALJ improperly discredited
Dr. Nilsson’s opinion because of Dr. Nilsson’s conclusion Petitioner suffered a brain
MEMORANDUM DECISION AND ORDER - 22

injury, which injury was not documented anywhere in the record. Third, Petitioner takes
issue with the ALJ’s statements that Dr. Nilsson was not familiar with social security
regulations and did not conduct independent testing. Petitioner argues the ALJ should
have given less weight to other medical testimony in the record, and that Dr. Nilsson’s
opinion should have been given controlling weight.
Dr. Nilsson, a neuropsychologist, evaluated Petitioner at the request of Petitioner’s
attorney on April 25, 2011. Dr. Nilsson spent over three hours interviewing Petitioner,
and a total of eight hours evaluating him. Because Petitioner reported falling and landing
on the back of his head at an early age, Dr. Nilsson concluded Petitioner suffered severe
“brain damage sustained early,” which brain damage had negatively influenced
Petitioner’s functional capacity. As part of his examination, Dr. Nilsson administered the
Beck Anxiety Inventory, the Beck Depression Inventory, the Wechsler Intelligence Scale
for Children (the WISC-III), the Rey Complex Figure Test and Recognition Trial, and the
Delis-Kaplan Executive Function System to test verbal fluency. Dr. Nilsson reviewed
also the medical records of Dr. John Morgan, who performed a mental status examination
and psychometric testing on December 27, 2010, and the same medical records
considered by the ALJ. Petitioner’s records dated back to 1988, from when Petitioner
was incarcerated as a teenager and evaluated as part of his incarceration. Dr. Nilsson’s
opinion contradicts other medical reports and findings, based solely upon Dr. Nilsson’s
opinion that Petitioner suffered a traumatic brain injury. In Dr. Nilsson’s opinion,
Petitioner’s symptoms are indicative of acquired brain injury, and as a result, Petitioner
MEMORANDUM DECISION AND ORDER - 23

would not be able to function independently. (AR 659.)
The ALJ discussed Dr. Nilsson’s findings extensively, (AR 21-22), and properly
rejected Dr. Nilsson’s opinions citing specific and legitimate reasons supported by
substantial evidence in the record. First, the ALJ rejected Dr. Nilsson’s opinions
regarding Petitioner’s traumatic brain injury. The ALJ had records dating back to
Petitioner’s teenage years, including records from shortly after Petitioner claims to have
suffered a fall. However, nowhere in the record was it documented that Petitioner
suffered a fall giving rise to a brain injury. Petitioner never reported suffering a brain
injury to any treating or examining source. The ALJ noted that Petitioner did not report a
history of brain injury to Dr. Bates, Dr. Morgan, or Dr. Chicoine, each of whom
conducted examinations of Petitioner in June of 2007, December 2010, and June of 2011,
respectively. Further, the ALJ noted the evaluation from the State Hospital North dated
February 1988, when Petitioner was thirteen years of age, did not give any indication
Petitioner suffered a traumatic head injury. The ALJ cited the evidence in the record from
that period indicating the results of Petitioner’s IQ testing were equivalent to the results
of IQ testing performed by Dr. Morgan in December of 2010. (AR 20-22.) Accordingly,
the ALJ discredited Dr. Nilsson’s opinion, which was formed on the basis that Petitioner
was suffering from a traumatic brain injury. (AR 22.)
Next, the ALJ noted Dr. Nilsson did not perform “cognitive testing or memory
testing.” Petitioner contends the ALJ improperly rejected Dr. Nilsson’s testimony on the
grounds he did not perform any independent testing. However, the AJL did not state that
MEMORANDUM DECISION AND ORDER - 24

Dr. Nilsson performed no testing, only that he did not independently administer cognitive
or memory tests, which is correct. Dr. Nilsson administered tests to assess anxiety,
depression, and verbal fluency. But, the ALJ noted that Dr. Nilsson relied upon the
memory testing and cognitive testing performed by Dr. Morgan on December 27, 2010,
and that Dr. Nilsson interpreted the test results differently than did Dr. Morgan. (AR 22.)
Here, the ALJ was entitled to rely upon the opinion of Dr. Morgan based upon the
medical record as a whole and to reject Dr. Nilsson’s interpretation of Dr. Morgan’s test
results. The ALJ noted that Dr. Morgan’s interpretation of the cognitive test results
indicated Petitioner could understand verbal communications, that his immediate, recent
and past memory abilities were within normal limits, and Petitioner could adapt to an
employment environment. (AR 20-21.) The ALJ discussed Dr. Morgan’s findings of
average intelligence, which the ALJ noted had not changed since Petitioner’s last IQ
testing in 1988. (AR 22.) Further, the ALJ noted that Dr. Morgan’s assessment was
consistent with Petitioner’s lack of any treatment for mental health disorders and the lack
of any mention in the record to other treatment providers about any mental impairments
caused by a brain injury. (AR 21.) 8
Further, the ALJ discredited Dr. Nilsson’s opinion based upon Petitioner’s
testimony about his daily activities, which the ALJ found inconsistent with Dr. Nilsson’s
opinions. (AR 23, 24.) The ALJ noted that Petitioner’s description of his daily activities,
8

The ALJ noted that the medical records from prior evaluations concluded Petitioner’s
cognitive abilities indicated “no organicity,” in direct conflict with Dr. Nilsson’s opinion that
Petitioner suffered a brain injury from a fall, which opinion was based upon Petitioner’s self reports that the ALJ found not credible. (AR 21.)
MEMORANDUM DECISION AND ORDER - 25

which included being able to: shop, cook, clean, travel to the employment center to fill
out resumes; acquire a part-time job pulling weeds and complete community service
requirements; do his own laundry; bike; socialize with others where he lived; and help his
uncle, all contradicted Dr. Nilsson’s opinion that, if Petitioner was left alone, he would
“isolate, become socially withdrawn, and be unable to function independently.” (AR 22,
24.)
Finally, the ALJ noted that Petitioner sought Dr. Nilsson’s opinion through
attorney referral, and Dr. Nilsson’s lack of familiarity with Social Security rules and
regulations. (AR 22.) However, the ALJ did not use those facts as the sole basis for
rejecting Dr. Nilsson’s opinion. An ALJ is permitted to question a doctor’s credibility on
the grounds that the physician’s opinion was solicited by counsel. Saelee v. Chater, 94
F.3d 520, 522-23 (9th Cir. 1996). And, although the ALJ’s observation that Dr. Nilsson
was not familiar with Social Security rules and regulations is not a legitimate reason to
discount Dr. Nilsson’s opinion, any error was harmless because the ALJ provided other
specific and legitimate reasons for discounting Dr. Nilsson’s opinion. Bray v. Comm’r o
Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). The ALJ’s observation about Dr.
Nilsson’s reason for retention is a permissible credibility determination given the plethora
of medical opinions contradictory to Dr. Nilsson’s opinion, and the lack of any evidence
in the record of a traumatic brain injury. See Saelee, 94 F.3d at 523. Further, the ALJ’s
rejection of Dr. Nilsson’s opinion was not based solely upon the fact he was retained by
Petitioner’s counsel and unfamiliar with Social Security rules and regulations.
MEMORANDUM DECISION AND ORDER - 26

The ALJ did not abuse his discretion in rejecting Dr. Nilsson’s opinion given the
substantial evidence in the record contradicting that opinion, and upon which the ALJ
relied.
B.

Dr. Moore and Dr. Morgan

The ALJ gave great weight to the testimony of medical expert Dr. Margaret
Moore, who testified at the July 27, 2011 hearing, and Dr. John Morgan, who examined
Petitioner on December 27, 2010. An ALJ may reject the testimony of an examining, but
non-treating physician, in favor of a nonexamining, nontreating physician when he gives
specific, legitimate reasons for doing so, and those reasons are supported by substantial
evidence in the record. Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995.) Opinions of
a nonexamining, testifying medical advisor may serve as substantial evidence when the
opinions are supported by other evidence in the record and are consistent with it. Morgan
v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 9 “The ALJ can meet
this burden by setting out a detailed and thorough summary of the facts and conflicting
clinical evidence, stating his interpretation thereof, and making findings.” Morgan, 169
F.3d at 600–601.
Dr. Morgan conducted a thorough interview with Petitioner and obtained his social
9

Petitioner contends that the ALJ is not entitled to rely upon the testimony of Dr. Moore because
she did not make objective observations or perform independent testing. However, Petitioner’s argument
is contrary to the holding in Morgan. Nor has Petitioner explained how Dr. Moore’s opinion, which was
based upon a thorough review of Dr. Nilsson’s report and all the medical evidence in the record,
including Petitioner’s self-reports contained therein, was “compromised” because she did not listen to the
audio recording of the hearing on May 12, 2011, which included Petitioner’s testimony, his uncle’s
testimony, and Dr. Nilsson’s testimony. There was ample evidence in the record containing Petitioner’s
self-reports of his activities to his examining physicians, and Dr. Moore had the benefit of reviewing Dr.
Nilsson’s report.
MEMORANDUM DECISION AND ORDER - 27

history. (AR 510.) Dr. Morgan administered the Wechsler Adult Intelligence Scale – IV,
which indicated Petitioner tested at the average range of intellectual functioning. (AR
514; AR 20-21.)
Dr. Moore testified as a psychological expert about Petitioner’s psychological
impairments, and considered all of the historical information in the record as well as
Petitioner’s most recent medical records. Dr. Moore discussed the fact that Petitioner
lived alone and independently, she discredited Dr. Nilsson’s review of the medical
records, and noted that Petitioner’s vocational rehabilitation services review showed no
indication of cognitive problems preventing employment. Dr. Moore explained her
rationale in great detail as to why Petitioner did not meet or equal any of the mental
health listings. Further, she relied upon Dr. Morgan’s cognitive test results, which in her
opinion indicated Petitioner showed strength in the non-verbal realm, and that
Petitioner’s verbal skills were “not bad either.” (AR 25, 57.) According to Dr. Moore,
Petitioner had moderate limitations in maintaining concentration, persistence and pace,
and was capable of completing work on a satisfactory basis. (AR 26.)
The ALJ discussed Dr. Moore’s opinions at length in his decision, (AR 24-26),
and properly considered and relied upon the opinions of Dr. Moore and Dr. Morgan. For
example, the ALJ noted that Dr. Moore’s thorough and careful review of Petitioner’s
entire record, Petitioner’s daily activities, other physicians’ treatment notes, and the
clinical findings of Dr. Morgan, supported a finding that Petitioner suffered no more than
moderate psychological limitations. Further, the ALJ noted Dr. Nilsson’s opinion was
MEMORANDUM DECISION AND ORDER - 28

largely based upon Petitioner’s subjective reports, which the ALJ found not credible. (AR
27.) Other than presenting unsubstantiated arguments that Dr. Moore’s opinion was not
consistent with the record and was vague, Petitioner has not identified any area of error
other than that he disagrees with the ALJ’s findings. But the ALJ provided specific and
legitimate reasons for giving Dr. Moore’s opinions, which in turn relied upon the
psychological testing of Dr. Morgan, great weight versus the opinions of Dr. Nilsson. The
ALJ’s reasons are 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.
September 16, 2014

MEMORANDUM DECISION AND ORDER - 29