Goodman v. Colvin

Filing 20

MEMORANDUM DECISION AND ORDER. 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 (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LINDA M. GOODMAN,
Petitioner,

Case No. 1:13-CV-00413-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 Linda Goodman’s Petition for
Review (Docket No. 1) of the Respondent’s denial of social security benefits, filed September
18, 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 decision of the Commissioner.
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on August 6, 2009, claiming disability caused by back pain, disc and joint

MEMORANDUM DECISION AND ORDER - 1

disease, scoliosis, depression, brain damage, and headaches. This application was denied initially
and on reconsideration, and a hearing was held on October 25, 2011, before Administrative Law
Judge (“ALJ”) Kurt Schuman. After hearing testimony from Petitioner, Petitioner’s husband, a
vocational expert, and a medical expert, ALJ Schuman issued a decision finding Petitioner not
disabled on October 31, 2011. Petitioner timely requested review by the Appeals Council, which
denied her request for review on July 17, 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 of the hearing, Petitioner was 57 years of age. Petitioner completed high
school. Petitioner’s prior work experience includes work as a cashier at K-Mart, where she was
working part-time for twenty hours each week at the time of the hearing.
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 her alleged onset date of January 1, 2009. 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 cervical and lumbar spine, scoliosis of the
lumbar spine, seizure disorder, headaches, gastroesophageal reflux disease, hypertension, and
hyperlipidemia severe within the meaning of the Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed impairment. The
ALJ found that Petitioner’s impairments did not meet or equal the criteria for the listed
impairments, specifically considering Listing 12.00C to assess the severity of her mental
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impairments. If a claimant’s impairments do not meet or equal a listing, the Commissioner must
assess the claimant’s residual functional capacity (“RFC”) and determine, at step four, whether
the claimant has demonstrated an inability to perform past relevant work.
The ALJ found Petitioner was able to perform her past relevant work as a survey worker,
cashier checker, and school cafeteria cook. Because the ALJ found Petitioner able to perform her
past relevant work, the ALJ did not consider whether the Petitioner retained the capacity to make
an adjustment to other work at step five.
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 her physical or mental impairments are of such severity that she
not only cannot do her previous work but is unable, considering her age, education, and work
experience, to engage in any other kind of substantial gainful work which exists in the national
economy. 42 U.S.C. § 423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Commissioner if the
decision is supported by substantial evidence and is not the product of legal error. 42 U.S.C. §
405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474 (1951); Meanel v.
Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v. Sullivan, 924 F.2d 841,
846 (9th Cir. 1991). Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). It
MEMORANDUM DECISION AND ORDER - 3

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,
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 contends the ALJ erred at step four because the ALJ failed to properly consider
the Petitioner’s statements regarding the intensity, persistence, and limiting effects of her
symptoms. Thus, the Petitioner claims the ALJ’s RFC assessment was incorrect, and he should
MEMORANDUM DECISION AND ORDER - 4

not have found Petitioner capable of light work. Second, Petitioner contends the ALJ did not
properly consider the lay testimony of her husband, who testified about Petitioner’s seizures and
falls. And finally, Petitioner argues the ALJ did not consider the opinion of her treating
physicians, specifically psychiatrist Mason Robison and neurologist Richard Hammond.
1.

Petitioner’s Residual Functional Capacity
At the fourth step in the sequential process, the ALJ determines whether the impairment

prevents the claimant from performing work which the claimant performed in the past, i.e.,
whether the claimant has sufficient residual functional capacity to tolerate the demands of any
past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). A claimant’s residual
functional capacity is the most she can do despite her limitations. 20 C.F.R. § 404.1545(a). An
ALJ considers all relevant evidence in the record when making this determination. Id.
Generally, an ALJ may rely on vocational expert testimony. 20 C.F.R. § 404.1566(e); Bayliss v.
Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). An ALJ must include all limitations supported
by substantial evidence in his hypothetical question to the vocational expert, but may exclude
unsupported limitations. Bayliss, 427 F.3d at 1217. The ALJ need not consider or include
alleged impairments that have no support in the record. See Osenbrock v. Apfel, 240 F.3d 1157,
1163–64 (9th Cir. 2000).
The ALJ restricted Petitioner to light work, with restrictions that included no more than
frequent balancing and climbing of ramps and stairs; no more than occasional stooping,
crouching, kneeling, crawling and overhead reaching with her left upper extremity; no climbing;
no concentrated exposure to excessive vibration; moderate use of moving machinery and
unprotected heights; and work that requires no more than frequent routine decision making and
frequent workplace changes. (AR 17.) Substantial evidence in the record supports the ALJ’s
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RFC finding.
On her disability application, Petitioner alleged disability due to back pain, disc disease,
scoliosis, seizure disorder, headaches, GRD, hypertension, and hyperlipidemia. (AR 15.)
Petitioner, when filling out her disability form, checked every single box, alleging that her
impairments caused her difficulty lifting, squatting, bending, standing, reaching, walking, sitting,
kneeling, talking, hearing, climbing stairs, seeing, remembering, completing tasks, concentrating,
understanding, following instructions, using her hands, and getting along well with others. (AR
213.) However, the ALJ considered the medical evidence of record, finding that it did not
support the alleged functional limitations Petitioner described.
The ALJ included a detailed discussion of the medical evidence of record in his written
determination. (AR 19.) First, the ALJ considered Petitioner’s disc disease, scoliosis, and
headaches. The ALJ noted that despite Petitioner’s complaints of disabling pain as a result of
these conditions, the medical evidence indicated her back demonstrated normal curvature, she
was able to stand on tip-toes, and displayed a normal gait. (AR 19, 268, 316, 318-19.) The ALJ
cited Petitioner’s x-rays taken at the time she visited the emergency room on April 12, 2009,
which indicated only mild degenerative disc changes at L2-L3 and L3-L4. (AR 19, 317-18.)
Next, the ALJ considered Petitioner’s headaches, which were apparently exacerbated
after a motor vehicle accident sustained on April 30, 2009. (AR 19, 315.) The ALJ noted
petitioner was diagnosed with tension headache, post-accident. Her neurologist, Dr. Hammond,
indicated in June of 2009 the Petitioner’s headaches were caused by whiplash as a result of the
accident. (AR 19, 270.) The ALJ discussed Dr. Hammond’s findings and conclusions in detail,
which noted “classic whiplash,” but that she had a normal station and was able to ambulate
without assistance. (AR 19, 270.) Dr. Hammond referred her to physical therapy.
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The ALJ then discussed Petitioner’s failure to follow through with physical therapy. (AR
19.) During her third physical therapy visit, Petitioner insisted the therapist fill out her disability
form, despite the therapist’s opinion that, with home exercise, Petitioner could hope to regain
85% improvement. (AR 20, 254.) The ALJ noted that the physical therapist was of the opinion
Petitioner “does not demonstrate a desire to improve.” (AR 20.) A follow up visit to Dr.
Hammond indicated he was of the opinion that “there are lots of people with neck and back pain
similar to her that still continue to work.” (AR 268.) Finally, the ALJ noted that, in February of
2010, Petitioner reported her headaches improved by 50% since she began medication. (AR 20,
323, 378-79, 420, 458.)
The ALJ discussed also Petitioner’s seizure disorder. He cited the fact that an EEG in
July of 2009 did indicate evidence of focal and generalized irritability compatible with head
trauma. (AR 20.) Then, in October 2009, a follow up EEG revealed compatibility with a clinical
seizure state with a primary left temporal focus and possible second independent focus in the
right anterior temporal derivatives. (AR 20, 336). But, the ALJ cited the evidence in the record
that despite her seizures, Petitioner continued to drive, and her doctor at the time did not indicate
she could not drive. (AR 20.)
The ALJ next discussed Petitioner’s GERD, hypertension, and hyperlipidemia, which
were well controlled with medication. (AR 20, 312-313, 323, 420, 458.)
The ALJ gave significant weight to the medical expert, Dr. Atkin, who reviewed the
medical records and was present during Petitioner’s testimony at the hearing. The ALJ reached
the opinion that, as a result, Dr. Atkin’s analysis was the most comprehensive of all opinions in
the record. (AR 21.) Dr. Atkins testified Plaintiff had no more than a mild limitation in her
ability to maintain social functioning or sustain concentration, persistence and pace. (AR 21, 16,
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75-76.) Secondarily, the ALJ credited the state agency reviewing physicians, who were of the
opinion that Petitioner retained the mental and physical capacity to perform work related
functions. (AR 21, 338-50, 352-57.)
Petitioner generally argues that the above evidence, coupled with Petitioner’s testimony,
indicates Petitioner must live with these conditions and is making an effort to treat her symptoms
with medication but that her symptoms still interfere with her ability to sustain full-time work.
Pet. Brief at 5. However, when medical reports could support a contrary opinion or are otherwise
inconclusive, “questions of credibility and resolution of conflicts in the testimony are functions
solely of the Secretary.” Morgan v. Comm’r of Social Security Admin., 169 F.3d 595, 601 (9th
Cir. 1999). It is not for the Court to second guess the ALJ under the circumstances here, as there
is substantial medical evidence of record supporting the ALJ’s conclusion that Petitioner is
capable of light work and can return to her prior work.
2.

Petitioner’s Credibility
The ALJ is responsible for determining credibility, resolving conflicts in medical

testimony, and resolving ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
The ALJ’s findings must be supported by specific, cogent reasons. Reddick, 157 F.3d at 722. If
a claimant produces objective medical evidence of an underlying impairment, an ALJ may not
reject a claimant’s subjective complaints of pain based solely on lack of medical evidence.
Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). See also Light v. Soc. Sec. Admin., 119
F.3d 789, 792 (9th Cir. 1997) (holding that an ALJ may not discredit a claimant’s subjective
testimony on the basis that there is no objective medical evidence that supports the testimony).
Unless there is affirmative evidence showing that the claimant is malingering, the ALJ must
provide clear and convincing reasons for rejecting pain testimony. Burch, 400 F.3d at 680.
MEMORANDUM DECISION AND ORDER - 8

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 treatment measures taken by the claimant to alleviate those symptoms. See
Soc. Sec. Ruling 96-7p.
Here, the ALJ rejected Petitioner’s accounts of disabling pain, finding her complaints not
fully credible. The ALJ cited several “clear and convincing reasons” to reject her testimony that
her back, neck, and headache pain rendered her incapacitated. At the hearing, Petitioner testified
she could not count change and could not concentrate or remember how to do things. (AR 40.)
But the ALJ noted she could grocery shop, pay bills, count change in her cashier position at KMEMORANDUM DECISION AND ORDER - 9

Mart, use a checkbook, and handle a savings account. (AR 19.) Petitioner testified she had been
working at K-mart for 20 hours a week for the past four years. (AR 43.) Petitioner testified also
that her knees, back, shoulder, discs, and joints hurt to the point it was painful to stand. (AR 44.)
But, the ALJ noted that in addition to her part time job, Petitioner could address her personal
needs, take care of her husband, children and pets, prepare meals, and perform housekeeping
duties such as laundry and cleaning. (AR 19, 208-15.) Further, the ALJ, by discussing the
medical evidence of record, indicated the medical evidence was inconsistent with Petitioner’s
self-reports of disabling pain. (AR 19-21.)
Thus, while the ALJ found Petitioner did indeed suffer from limitations caused by pain,
he discredited Petitioner’s reports that her pain limited her from all work. He cited clear and
convincing reasons in his written determination supporting his opinion, and the resulting RFC. In
conclusion, the ALJ discredited Petitioner’s pain testimony due to the inconsistencies between
her allegations of complete disabling pain, which contradicted the medical evidence and her own
statements regarding her daily activities. (AR 21.) The ALJ did not err.
3.

Physician Testimony
Petitioner argues it was error for the ALJ to fail to consider the opinion of Petitioner’s

treating psychiatrist, Dr. Mason Robison, who diagnosed Petitioner with major depression
recurrent severe, ADHD, dependent personality, and resulting learning disability. According to
Dr. Robison, Petitioner’s mental condition was severe enough to cause a disturbance in the role
performance or coping skills in several areas, including vocational, financial, social, and family.
(AR 259.)
But the ALJ did consider Dr. Robison’s opinions at step two of his analysis. (AR 16-17.)
Although the ALJ did not specifically name Dr. Robison, in his findings, the ALJ discussed
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Petitioner’s mental impairments of major depressive disorder and ADHD, concluding they did
not cause more than “minimal limitations in the claimant’s ability to perform basic mental work
activities and are therefore nonsevere.” (AR 16.) By finding her mental limitations non-severe,
the ALJ did not discuss her limitations further in his RFC finding, other than to limit her to work
that required no more than “routine” decision making and “routine” workplace changes. (AR
17.) The ALJ’s RFC therefore adequately considered Petitioner’s functional limitations caused
by her non-severe mental impairments.
Next, Petitioner argues the ALJ erred because he did not consider Dr. Hammond’s
statement that Petitioner may have complex partial seizures and suffers from frequent falls. (AR
482.) Dr. Hammond, in an office follow up note dated June 11, 2012, did note Petitioner reported
seizures and falls as a result. Importantly, Dr. Hammond noted the scans of her head taken over
the years were “unrevealing.” In fact, Dr. Hammond’s note indicates the CT scan of Petitioner’s
head was “normal,” and an MRI in 2010 was reported as “normal.” (AR 483.) Dr. Hammond
was of the opinion that Petitioner “may very well be having seizures …[and] complex partials,”
but because Petitioner’s 2009 imaging studies did not reveal any “obvious seizure discharges,”
Dr. Hammond elected to order additional tests. (AR 483.)
In other words, Dr. Hammond’s notes are inconclusive, and entirely consistent with the
ALJ’s analysis and conclusion that Plaintiff did have a seizure disorder, but that it did not
significantly interfere with her ability to perform work related functions. (AR 15, 20)
Furthermore, Dr. Hammond’s June 2012 follow up visit occurred after the ALJ issued his written
determination on November 21, 2011. And other than making a blanket assertion that the ALJ
failed to consider the follow up note, Petitioner does not identify how the June 2012 records
undermine the ALJ’s opinion.
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4.

Lay Witness Testimony
Petitioner correctly notes that the ALJ did not discuss Mr. Goodman’s testimony. During

the hearing, Petitioner’s husband testified he has witnessed her absence seizures, and that they
occur “once or twice a day” where she “zones out” for a minute or two. (AR 69.) Mr. Goodman
testified also that his wife has fallen, and does so at least once or twice a week. (AR 70.)
Generally, an ALJ must consider evidence from sources other than the claimant,
including family members and friends, to show the severity of a claimant’s impairment. 20
C.F.R. § 404.1513(d)(4); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). Lay
testimony regarding a claimant’s symptoms constitutes competent evidence that an ALJ must
take into account, unless he or she expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)
(citing Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (internal citations omitted));
Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294 (9th Cir. 1999). But, “where the
ALJ’s error lies in failure to properly discuss competent lay testimony favorable to the claimant,
a reviewing court cannot consider the error harmless unless it can confidently conclude that no
reasonable ALJ, when fully crediting the testimony, could have reached a different disability
determination.” Stout v. Comm’r of Soc. Sec. Admin., 454 F3d 1050, 1056 (9th Cir. 2006). In
other words, if the error is harmless, and inconsequential to the ultimate non-disability
determination in the context of the record as a whole, the failure to discuss lay testimony is not
grounds for reversal. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012.)
Mr. Goodman’s testimony did not describe any limitations beyond those Petitioner
herself described, which the ALJ discussed at length and rejected based on well-supported, clear
and convincing reasons. Specifically, the ALJ determined that Petitioner’s claim of a seizure
MEMORANDUM DECISION AND ORDER - 12

disorder resulting in the inability to work was not supported by the medical evidence of record,
citing her 2009 EEG which revealed compatibility with a clinical seizure state, but was
contradicted by a February 2010 physical examination that was unremarkable. Further, at the
time of the hearing, Petitioner was still working part time and continued to drive a car. (AR 20).
Additionally, the ALJ noted that, although the Petitioner suffered from falls, she continued to be
able to grocery shop and perform housekeeping duties. (AR 16.)
Because the ALJ validly rejected the limitations described by Mr. Goodman in discussing
Petitioner’s testimony, the Court concludes the ALJ’s failure to give reasons specific to Mr.
Goodman for rejecting his testimony did not alter the ultimate nondisability determination. Thus,
the ALJ’s error was harmless.
CONCLUSION
The ALJ did not err in weighing the evidence as he did or in finding Petitioner’s
testimony regarding the severity of her impairments not credible. Although the ALJ erred in
failing to give germane reasons for rejecting the lay witness testimony, such error was harmless
given the lay testimony described the same limitations Petitioner did, and the ALJ’s reasons for
rejecting Petitioner’s testimony apply with equal force to the lay testimony. The ALJ’s decision
will be affirmed as supported by substantial evidence.

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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.
December 22, 2014

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