Tipton v. Colvin

Filing 22

MEMORANDUM DECISION AND ORDER. Based on the foregoing, 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 (st)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

DIANE C. TIPTON,

Case No.: 1:13-cv-00359-REB

Plaintiff,

MEMORANDUM DECISION AND
ORDER

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

Pending before this Court is Diane C. Tipton’s Petition for Review (Docket No. 1),
seeking review of the Social Security Administration’s final decision to deny her claim for Title
II Social Security disability benefits and Title XVI Supplemental Security Income benefits. The
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
In May/April 2010, Diane C. Tipton (“Petitioner”) filed an application for Social Security
disability benefits and protectively filed an application for Supplemental Security Income
benefits – in both applications, Petitioner alleged a disability onset date of March 1, 2010.
Petitioner’s claims were initially denied on June 10, 2010 and, again, on reconsideration on
September 2, 2010. On or around October 15, 2010, Petitioner timely filed a Request for
Hearing before an Administrative Law Judge (“ALJ”). On November 14, 2011, ALJ Lloyd E.
Hartford held a hearing in Boise, Idaho, at which time Petitioner, represented by attorney Debra

MEMORANDUM DECISION AND ORDER - 1

Young Irish, appeared and testified. An impartial medical expert, Thomas E. Atkin, and an
impartial vocational expert, Anne F. Aastum, also appeared and testified.
On January 9, 2012, the ALJ issued a decision denying Petitioner’s claims, finding that
Petitioner was not disabled within the meaning of the Social Security Act. Petitioner timely
requested review from the Appeals Council on February 1, 2012. On July 18, 2013, the Appeals
Council denied Petitioner’s request for review, making the ALJ’s decision the final decision of
the Commissioner of Social Security.
Having exhausted her administrative remedies, Petitioner timely files the instant action,
raising the following issues: (1) whether the ALJ’s finding that Petitioner’s residuals from her
stroke are not severe is properly supported; (2) whether the ALJ’s finding that Petitioner’s
allegations and testimony are not credible is properly supported by the evidence; and (3) whether
the ALJ’s residual functional capacity accurately reflects the limitations supported by the record.
See Pet.’s Brief, pp. 5-6 (Docket No. 18). Petitioner therefore requests that this Court reverse the
ALJ’s decision or, alternatively, remand the case for further proceedings. See id. at p. 13; see
also Pet. for Review, p. 2 (Docket No. 1).1
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

1

On October 9, 2013 (after this action was initiated but before Petitioner filed her
opening brief), the Social Security Administration granted Petitioner’s subsequent application
for Title II Social Security disability benefits and awarded Petitioner disability benefits
beginning August 2012. See 10/9/13 Ltr., attached as Ex. A to Pet.’s Brief (Docket No. 18, Att.
1).
MEMORANDUM DECISION AND ORDER - 2

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 (see 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
(see 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 (see 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

MEMORANDUM DECISION AND ORDER - 3

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
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 has not engaged in substantial gainful activity since March 1, 2010, the
alleged disability onset date. (AR 24).
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
MEMORANDUM DECISION AND ORDER - 4

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: (1) status-post abdominal wall
sarcoma, (2) status-post sarcoma resection, (3) bipolar disorder, and (4) depression. (AR 24).
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’s above-listed
impairments, while severe, do not meet or medically equal, either singly or in combination, the
criteria established for any of the qualifying impairments. (AR 25).
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
MEMORANDUM DECISION AND ORDER - 5

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 light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b),
except “work must be low in stress, defined as having few changes in work settings or routines.”
(AR 26).
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of her 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, she is not disabled; if the claimant is not able
to do other work and meets the duration requirement, she is disabled. Here, the ALJ found that
Petitioner is capable of performing past relevant work as a hotel desk clerk because, according to
the ALJ, such work does not require the performance of work-related activities precluded by
Petitioner’s residual functional capacity. (AR 29).
B.

Analysis
1.

The ALJ Properly Supported His Finding that Residuals from Petitioner’s Stroke
Were Not Severe

The ALJ acknowledged that Petitioner suffered a stroke in the 1990's, but concluded that
any associated impairment was not severe because (1) “she continued to work thereafter,” (2)

MEMORANDUM DECISION AND ORDER - 6

“[a]t no point in the recent records did [Petitioner] complain of work-related limitations due to
her stroke,” and (3) “no objective treatment notes indicate any further symptoms from [her
stroke].” (AR 25). Through this appeal, Petitioner argues that her stroke residuals caused more
than minimal limitations in basic work activities (a limited ability to sustain fine manipulation
and an inability to lift more than 10 pounds) and, as such, “[t]he ALJ should have included this
as a severe impairment . . . .” Pet.’s Brief, p. 7 (Docket No. 18). There is certainly room in the
record to make this argument, but it did not persuade the ALJ.
There is no question that Petitioner suffered a stroke in 1996 that affected her right side.
However, other than pointing to several instances in the record making note of the incident and
its corresponding physical impact (some of which actually preceded Petitioner’s alleged March
1, 2010 disability onset date), Petitioner points to no evidence suggesting that the stroke’s
residuals contribute to any greater functional limitations than the ALJ separately assessed
relative to Petitioner’s other recognized severe impairments. For example, Petitioner cites to the
following:
•

February 16, 2007: More than three years before her alleged disability onset
date, Petitioner visits Amber Vickers, PA-C, “to establish care and get refills
on high cholesterol medication, depression, and high blood pressure.”
Though Petitioner claimed she “has a hard time with numbers and writing at
times,” PA-C Vickers noted normal sensation, reflexes, coordination, muscle
strength, and tone. There is no mention of any significant stroke-related
limitations. (AR 506-509).

•

December 30, 2008: More than a year before her alleged disability onset
date, Petitioner visits Licensed Psychologist, Michael Johnston, Ph.D., for a
“Psychological Evaluation.” In relaying her history to Dr. Johnston,
Petitioner “indicate[s] she had a stroke, resulting in some loss of motor
functioning in the right side of her body, vision issues, sensation problems,
and poor concentration.” After running various tests and procedures, Dr.
Johnston listed off various “functional limitations” (none of which speak to
stroke-related impairments specifically) but nonetheless identified “possible
jobs” for Petitioner as including human resource worker, bookkeeper, meter

MEMORANDUM DECISION AND ORDER - 7

reader, food preparation, delivery driver, shelf stocker, production worker,
computer operator, postal clerk, transcriptionist, floral arranger, information
booth teller, or bank teller. (AR 614-619).
•

June 9, 2010: Nearly three months after her alleged disability onset date,
Robert E. Vestal, M.D., performs a “Case Analysis.” Therein, Dr. Vestal
indicated that Petitioner “has a history of . . . cerobrovascular disease (S/P
left stroke with right carotid endarterectomy in 1997) with residual
dysfunction of right hand.” Dr. Vestal concluded that Petitioner “does not
meet or equal a listing” and “[i]t is reasonable to project that she will be able
to perform light work activities within 12 months of the onset date with
limitation of the use of her right hand due to residual effects of her stroke.”
(AR 458).

•

June 10, 2010: Nearly three months after her alleged disability onset date,
Ward Dickey, M.D., performs a “Physical Residual Functional Capacity
Assessment.” While Dr. Dickey indicated that Petitioner had fine
manipulation limitations, he clarified that Petitioner had “minimal functional
deficit” and that Petitioner would only be “limited from constant and
repetitive use to frequent right-sided fingering.”2 (AR 459-466).

•

June 18, 2010: Nearly three months after her alleged disability onset date,
Petitioner visits Nikki Rota, PA-C, complaining of anxiety and depression.
As to Petitioner’s “past medical history,” it was noted that she suffered a
stroke in 1996 and had “some [right-]sided deficit.” Even so, Petitioner
denied any “disturbances in coordination.” (AR 487-489).

•

September 28, 2010: Roughly six months after her alleged disability onset
date, Petitioner visits Nurse Practitioner Colleen K. Lambertz in between
cancer treatments/follow-ups (Petitioner was diagnosed with synovial
sarcoma of the abdominal wall in March 2010), complaining of a “[s]ense of
falling, and vomiting with dizziness.” At that time, it was noted that
Petitioner “has a history of ‘massive stroke’ in 1998, with residual right hand
weakness” and that “[h]er right hand rapid alternating movements are slightly
weak compared to the left.” Still, Petitioner’s strength was listed at “5/5" for
“upper and lower extremities.” (AR 572-574).

2

The undersigned recognizes that Dr. Dickey’s description of Petitioner’s manipulative
limitations in this latter respect could have different meanings – either (1) that Petitioner is
limited in constant and repetitive use, including frequent right-sided fingering, or (2) that
Petitioner is limited from constant and repetitive use, but is capable of frequent right-sided
fingering. Regardless, neither interpretation prevents a finding that Petitioner is capable of light
work as the ALJ eventually determined.
MEMORANDUM DECISION AND ORDER - 8

•

January 24, 2011: Less than one year after her alleged disability onset date,
Petitioner visits Norman Zuckerman, M.D., in what appears to be a scheduled
follow-up appointment relative to her cancer treatment. At that time, it was
noted that Petitioner has “mild residual right hand dysfunction.” Petitioner
also indicated that “[s]he works at a counter and states she has to stand eight
hours a day but because of symptoms of fatigue[3] is unable to do so and
requests disability.” Ultimately, Dr. Zuckerman concludes that Petitioner “is
in complete remission” and schedules to see her “for routine follow-up in
three months’ time.” During (AR 620) (emphasis added).

See Pet.’s Brief, pp. 2 & 6-7 (Docket No. 18).
These instances merely reveal that, historically speaking, Plaintiff had a stroke in 1996
and has had to contend with “mild” manipulative limitations of her right hand; they do not
demonstrate that these limitations ever prevented her from performing light work. See, e.g., (AR
82) (medical expert, Thomas E. Atkin, testifying at hearing that “as is indicated in the record,
[Petitioner] has functioned cognitively within an acceptable range since that stroke.”). To be
sure, at most, these instances suggest that Petitioner’s subjective claim of disability is more
closely related to generalized fatigue rather than from any residuals stemming from her stroke
nearly 15 years before.
It is not enough here to point to the fact of, or recite particulars of medical records
making reference to, her stroke and her stroke-associated problems with her right hand.
Petitioner also must finish connecting the causation dots. She must show that these
problems/residuals result in physical limitations that (1) significantly limit her ability to perform
basic work activities (in essence, the definition of “severe” under the Social Security Act (see
supra)), and (2) are not already subsumed by the ALJ’s consideration of Petitioner’s actually-

3

That same day, in a “Progress Note” from Stephen C. Smith, M.D., it was similarly
noted that Petitioner “continues to fatigue very easily and is not able to work.” (AR 622).
MEMORANDUM DECISION AND ORDER - 9

determined-to-be severe impairments and corresponding RFC assessment. See, e.g., Bigpond v.
Astrue, 280 Fed. Appx. 716, 718 (10th Cir. 2008) (“Although [the petitioner] recites what these
records say, she does not explain how they show that her cardiac problems made her unable to
engage in any substantial gainful activity.”). Simply put, the offered medical evidence does not
support such an argument.4
2.

Petitioner’s Credibility

Petitioner strongly disagrees with the ALJ’s challenge to her credibility. See Pet.’s Brief,
pp. 8-11 (Docket No. 18). It is black letter law in these cases that as the trier of fact, the ALJ is
in the best position to make credibility determinations and, for this reason, his determinations are
entitled to great weight. See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990). In
evaluating a claimant’s credibility, the ALJ may consider 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. See Light v. Soc. Sec. Admin., 119 F.3d 789, 791 (9th Cir. 1997). In short,
“[c]redibility decisions are the province of the ALJ.” Fair v. Bowen, 885 F.2d 597, 604 (9th Cir.
1989). It should be noted, however, that to reject a claimant’s testimony, the ALJ must make
specific findings stating clear and convincing reasons for doing so. See Holohan v. Massanari,
246 F.3d 1195, 1208 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)).
Here, the ALJ provided sufficient reasons for calling into question Petitioner’s credibility.
Here, the ALJ agreed with Petitioner that her “medically determinable impairments could
reasonably be expected to cause the alleged symptoms,” but then went on to conclude that her

4

To the extent Petitioner argues that the ALJ did not properly consider her testimony at
the November 4, 2011 hearing (see Pet.’s Brief, p. 7 (Docket No. 18)), such an argument is
addressed later within this Memorandum Decision and Order.
MEMORANDUM DECISION AND ORDER - 10

“statements concerning the intensity, persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with [Petitioner’s] residual functional capacity
assessment.” (AR 27).5 In reaching this conclusion, the ALJ listed the particular reasons for
rejecting Petitioner’s testimony concerning her alleged disability and inability to work.
For the most part, the ALJ reviewed “the objective medical evidence” to buttress his
credibility determination, concluding that “the record does not support [Petitioner’s] allegations
concerning disabling impairments as of . . . the alleged [disability] onset date.” See id. For
example, after reviewing the treatment notes addressing Petitioner’s cancer, the ALJ
acknowledged that, while Petitioner genuinely experienced symptoms typically associated with a
cancer diagnosis, they were limited given that her cancer was successfully treated. See id. (“In
sum [Petitioner] did undergo surgery to resect her cancer, which certainly suggests that the
symptoms were genuine. While that fact would normally weigh in [Petitioner’s] favor, it is

5

Petitioner suggests that the ALJ’s credibility analysis was improperly driven by her
residual functional capacity assessment – essentially arguing that any testimony at odds with the
ALJ’s assessment of her residual functional capacity was erroneously deemed not credible. See
Pet.’s Brief, p. 8 (Docket No. 18). A claimant’s credibility cannot turn solely upon whether her
testimony neatly aligns with her residual functional capacity assessment; otherwise nearly every
claimant’s credibility would be questioned on appeal. See, e.g., Kilbourne v. Comm’r of Soc.
Sec., 2011 WL 1357330, at *4 (D. Or. 2011). The ALJ here did not make such a mistake;
instead, he properly analyzed the record (including Petitioner’s testimony) to determine
Petitioner’s residual functional capacity and, in doing so, weighed Petitioner’s testimony against
what the record revealed by way of her ability to perform work-related tasks. See infra. In other
words, though the use of such common boilerplate language runs the risk of “getting things
backwards,” its mere use is not cause for remand if the ALJ’s conclusion is followed by
sufficient reasoning. See, e.g., Jones v. Comm. of Soc. Sec., 2012 WL 6184941, at *4 (D. Or.
2012) (boilerplate language is conclusion which may be affirmed if ALJ’s stated reasons for
rejecting plaintiff’s testimony are clear and convincing); Bowers v. Astrue, 2012 WL 2401642, at
*9 (D. Or. 2012) (concluding that this language erroneously reverses analysis, but finding such
error harmless because ALJ cited other clear and convincing reasons for rejecting claimant’s
testimony).
MEMORANDUM DECISION AND ORDER - 11

offset by the fact that the record reflects that the surgery was successful in removing all
cancerous growth.”).6 As such, the ALJ appropriately concluded that “[Petitioner’s] complaints
of disabling pain and associated symptoms from her cancer were not supported by the objective
treatment notes.” (AR 28); see also (AR 82) (medical expert, Thomas E. Atkin, testifying at
hearing that “chemo-fog and having problems secondary to chemotherapy is not unusual.
However . . . we don’t have anything in the record that quantifies any kind of limitation
secondary to that.”).
The ALJ also made reference to the absence of treatment records suggestive of any
debilitating mental impairment. (AR 28). While the fact that Petitioner may not have been able

6

Petitioner selectively challenges aspects of the ALJ’s determination in this respect,
arguing that, contrary to the ALJ’s suggestions otherwise, she did experience complications and
side effects from chemotherapy and radiation treatment. See Pet.’s Brief, pp. 8-9 (Docket No.
18). However, even if some complications existed, it is clear, as noted by the ALJ, that the
medical evidence reflects a situation where Petitioner’s cancer was effectively treated from a
disability standpoint. (AR 27-28) (citing (AR 567) (as of 11/15/10, indicating Petitioner “is
feeling quite well,” “her nausea is completely improved,” her “energy level is slowly
improving,” that “there is a chance that she has acquired a new job,” and “she is very excited
about the possibility of regaining employment”); (AR 565) (as of 11/22/10, indicating Petitioner
tolerated treatment goal “extremely well”); (AR 620) (as of 1/24/11, indicating Petitioner
“completely recovered” from encephalopathy, “works at a counter” (but describes being unable
to do so because of fatigue), “denies any significant pain” for which she occasionally takes overthe-counter medication, and “is in complete remission”); (AR 624) (as of 5/2/11, stressing
“importance of daily exercise seven days a week” and indicating that Petitioner “complains of
fatigue” but “works at a front desk of a hotel in Nampa”); (AR 626) (as of 8/25/11, indicating
Petitioner “has postoperative pain, but is now on just occasional analgesics,” “complains of mild
fatigue,” “is exercising and stretching,” “is in complete remission,” and “is NED [no evidence of
disease]”); (AR 628) (as of 8/25/11, Petitioner indicating she has been doing “great,” “denies any
nausea or vomiting,” “has had no flank pain,” “no dysuria or hematuria,” “no cough or shortness
of breath,” “no headaches,” “no complaints at all at the present time,” pain as 3/10, and “in no
acute distress”)). Additionally, Petitioner’s testimony at the hearing that Dr. Zuckerman told her
that chemotherapy caused her brain damage (AR 75-77) is not even remotely suggested within
Dr. Zuckerman’s treatment notes. See supra. Likewise, Petitioner’s testimony that her pain
registers an 8/10 “every day” (AR 64-65) conflicts with what she told Dr. Smith in August 2011;
at that time, Petitioner told Dr. Smith that her pain was 3/10. See supra.
MEMORANDUM DECISION AND ORDER - 12

to afford certain treatments is not dispositive on the issue of Petitioner’s credibility, the fact
remains that no medical professional opined that Petitioner is unable to work due to her bipolar
disorder or depression (both of which the ALJ nonetheless considered to be severe (see supra)).7
Petitioner’s reliance on Dr. Johnston’s December 20, 2008 “Psychological Evaluation” does not
change this fact. See Pet.’s Brief, p. 10 (Docket No. 18). There, it is true that Dr. Johnston
identified certain of Petitioner’s “functional limitations,” but he specifically went on to discuss
“job considerations” that listed no less than 13 “possible jobs suited for [Petitioner’s]
personality” – despite Petitioner’s previously-identified functional limitations. (AR 614-619).
To this end, it is undisputed that Dr. Johnston’s opinions preceded Petitioner’s alleged disability
onset date by roughly 16 months, during which time Petitioner presumably continued to work
and, thus, could not have been considered disabled under the Social Security Act. See, e.g.,
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (“Medical opinions
that predate the alleged onset of disability are of limited relevance.”); see also (AR 86) (medical
expert, Thomas E. Atkin, testifying at hearing that Dr. Johnston’s report reflects limitations that
“have been in existence for somewhere between 15 years or longer.”).
Finally, the ALJ considered Petitioner’s daily activities (reflected in Petitioner’s
occasional, post-alleged disability onset date work activity) in his credibility analysis – if a
claimant engages in numerous daily activities involving skills that could be transferred to the

7

This decision was made even though the physicians employed by the Disability
Determination Services found that Petitioner’s bipolar disorder and depression were not severe
for the requisite duration. (AR 550-563) (“The medical evidence does not fully support the
[Petitioner’s] statements regarding her physical and mental allegations. Therefore, the
[Petitioner] is considered partially credible.”). Instead, the ALJ adopted the testimony of the
medical expert, Thomas E. Atkin, a clinical psychologist, who testified at the hearing that he
considered Petitioner’s bipolar disorder and depression to be severe, but still opined that there is
nothing in the record precluding Petitioner from working. (AR 28 & 84-88).
MEMORANDUM DECISION AND ORDER - 13

workplace, the ALJ properly may question that claimant’s allegations. See Burch v. Barnhart,
400 F.3d 676, 681 (9th Cir. 2005). In apparent incongruity with Petitioner’s complaints of
disabling pain, the ALJ referenced evidence in the record indicating that Petitioner has worked
after her alleged disability onset date. (AR 24 & 29). According to the ALJ, even though such
instances “did not constitute disqualifying substantial gainful activity,” they do “indicate that
[Petitioner’s] daily activities have, at least at times, been somewhat greater than the [Petitioner]
has generally reported.” (AR 29); see also, e.g., Fair, 885 F.2d at 602 (“[I]f a claimant is able to
spend a substantial part of his day engaged in pursuits involving the performance of physical
functions that are transferable to a work setting, a specific finding as to this fact may be
sufficient to discredit an allegation of disabling excess pain.”). On such evidence, it is proper for
the ALJ to conclude that the effects of her symptoms are not as severe as Petitioner alleges.
Besides critiquing the ALJ’s references to the record and overall conclusions on these
points, Petitioner does not cite to any evidence supporting an actual claim of disability. See
Burch at 681 (lack of medical evidence cannot form solid basis for discounting pain testimony,
but can be considered by ALJ in credibility analysis).8 While such a reality, considered
separately, may not conclusively rebut Petitioner’s claims of disability, when combined with the
other reasons offered by the ALJ, they collectively support the ALJ’s conclusions concerning

8

Petitioner submits that, at the very least, the ALJ should have considered a 12-month,
closed period of disability while “she was receiving chemotherapy, radiation therapy, or
recovering from the effects of these treatments.” Pet.’s Brief, pp. 10-11 (Docket No. 18).
However, the record reveals that, within a year of her cancer diagnosis in March 2010, she either
was working, or looking to work. See (AR 567) (as of 11/15/10, “[t]here is a chance that she has
acquired a new job” and that “she is very excited about the possibility of regaining
employment”). Moreover, even if Petitioner herself claimed to be unable to stand eight hours
per day as of January 24, 2011 (see (AR 620)), it does not follow that she is completely
incapable of performing light work as the ALJ ultimately found (even if, in fact, the extent of her
physical limitations during this time were supported by the medical evidence). See infra.
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Petitioner’s credibility. See 20 C.F.R. § 416.929(a) (“In determining whether you are disabled,
we consider all your symptoms, including pain, and the extent to which your symptoms can
reasonably be accepted as consistent with the objective medical evidence, and other evidence.”);
Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (holding that “contradictions between
claimant’s testimony and the relevant medical evidence” provided clear and convincing reason
for ALJ to reject petitioner’s subjective symptom testimony).
Therefore, clear and convincing reasons arguably exist as to why the ALJ did not find
Petitioner’s testimony entirely credible. This is not to say, however, that this Court conclusively
finds Petitioner not to be disabled under the applicable rules and regulations or that Petitioner
does not suffer from chronic pain; indeed, as expected, Petitioner tries to identify somewhat
conflicting evidence in support of her position. While such conflicting evidence may not have
been given the weight Petitioner would have preferred, the ALJ’s decision to doubt Petitioner’s
credibility in denying disability benefits contains clear and convincing reasons for doing so. As
required by controlling law, the ALJ will not be second-guessed here. See Batson v. Comm’r of
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (“[T]he Commissioner’s findings are
upheld if supported by inferences reasonably drawn from the record, and if evidence exists to
support more than one rational interpretation, we must defer to the Commissioner’s decision.”)
(internal citations omitted). Therefore, the Court will not substitute its judgment when the
evidence in the record can support the ALJ’s findings.
3.

Petitioner’s Residual Functional Capacity

An applicant’s residual functional capacity is an assessment of that individual’s ability to
do sustained work-related physical and mental activities in a work setting on a regular and
continuing basis – in other words, what an individual can still do despite her limitations. See
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SSR 96-8P. In assessing an applicant’s residual functional capacity, the ALJ must consider all
of the relevant evidence in the case record, including information about the individual’s
symptoms and any “medical source statements” submitted by an individual’s treating source or
other acceptable medical sources. See id. An ALJ’s residual functional capacity determination
is upheld if it is supported by substantial evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217
(9th Cir. 2005). Here, Petitioner contends that the ALJ was mistaken as a matter of law in his
conclusion that Petitioner has the residual functional capacity to perform light work in low stress
environments (AR 26), arguing that he “failed to include restrictions well-supported by the
evidence.” Pl.’s Brief, p. 12 (Docket No. 18). The Court disagrees.
“Light work” is defined as:
[L]ifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job
is in this category when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work,
you must have the ability to do substantially all of these activities . . . .
20 C.F.R. § 404.1567(b). Petitioner’s June 10, 2010 “Physical Residual Functional Capacity
Assessment” clearly aligns with this definition. There, Dr. Dickey reviewed Petitioner’s medical
file and concluded that Petitioner (1) could occasionally lift 20 pounds; (2) could frequently lift
10 pounds; (3) could stand and/or walk (with normal breaks) for about six hours in an eight-hour
workday; (4) could sit (with normal breaks) for about six hours in an eight-hour workday; (5)
was not limited in pushing or pulling; (6) had no postural limitations; (7) had only limited
fingering manipulations (see supra), but otherwise no manipulative limitations; (8) had no visual
limitations; (9) had no communicative limitations; and (10) had not environmental limitations.

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(AR 459-466). Importantly, Dr. Dickey also indicated that “[n]o opinions from [treating
sources] regarding [Petitioner’s] durational or restrictions” existed in the file. (AR 465).
Yet, Petitioner represents that she has restrictions that are “well-supported by the
evidence.” See supra. But her instances of “well-supported” evidence seem to fall short of that
rhetorical marker. Petitioner claims to have “testified” that she sleeps excessively (20 hours per
day). See Pet.’s Brief, p. 12 (Docket No. 18). Other than in the hearing, there is no such
corresponding documentation in the record. Furthermore, Petitioner’s continued reliance upon
Dr. Johnston’s December 20, 2008 “Psychological Evaluation” and its referenced “functional
limitations” (see id.) misses the point – again, Dr. Johnston’s evaluation not only came before
Petitioner’s alleged disability onset date, he also listed multiple jobs suited to Petitioner’s
abilities, even considering any limitations she might have had as of that time. See supra; see
also (AR 82-83) (medical expert, Thomas E. Atkin, discussing Dr. Johnston’s diagnostic testing
and testifying at hearing that “as is indicated in the record, [Petitioner] has functioned
cognitively within an acceptable range since that stroke” and that, while it is reasonable to
assume that Petitioner had some deficits as a result of stroke, “she’s still within the normal
range.”). Finally, to the extent Petitioner claims that the ALJ failed to properly develop the
record in reaching an opinion as to her residual functional capacity assessment (see Pet.’s Brief,
pp. 10 & 12 (Docket No. 18)), such a duty is only triggered when there is “ambiguous evidence”
or the ALJ has found “the record inadequate to allow for proper evaluation of the evidence.”
Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). But here, there is no ambiguous
evidence – there is arguably not even conflicting evidence from treatment notes supporting
Petitioner’s alleged wholesale inability to work at all.

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With all of this in mind, the ALJ acknowledged Petitioner’s verifiable limitations in
concluding that she had the residual functional capacity to perform light work – still tempering
that conclusion in stating that such work should be low in stress. This Court in its review is not
charged with making a disability determination; rather, it must assess whether the ALJ’s findings
are supported by the record. In undergoing such a review, it cannot be said that the ALJ
disregarded Petitioner’s medical history. This conclusion, while potentially at odds with
another’s interpretation of the same record, is nonetheless supported by specific and legitimate
reasons, consistent with evidence in the record. As a result, the ALJ’s decision will not be
disturbed here.
IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences
from facts and determining credibility. See 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. See Key, 754 F.2d at 1549.
The evidence upon which the ALJ relied can reasonably and rationally support his wellformed 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 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.
The Commissioner’s decision is affirmed.
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V. ORDER
Based on the foregoing, the decision of the Commissioner is AFFIRMED and this action
is DISMISSED in its entirety with prejudice.
DATED: September 24, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

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