Umbarger v. Commissioner of Social Security

Filing 16

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 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

MELISSA SUE UMBARGER,
Petitioner,

Case No. 1:14-cv-00003-CWD

v.

MEMORANDUM DECISION
AND ORDER

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

Before the Court is Melissa Umbarger’s Petition for Review of the Respondent’s
denial of social security benefits, filed January 6, 2014. (Dkt. 2.) 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 a period of disability and disability insurance
benefits on June 8, 2011. Petitioner also filed an application for supplemental security
income on June 27, 2011. The applications allege disability beginning September 20,

MEMORANDUM DECISION AND ORDER - 1

2010, due to cognitive, neurological, mental health, and physical impairments. Both
applications were denied initially and on reconsideration, and a hearing was held on
October 3, 2012, before Administrative Law Judge (ALJ) John T. Molleur. After hearing
testimony from Petitioner and vocational expert, Beth Cunningham, ALJ Molleur issued
a decision finding Petitioner not disabled on October 26, 2012. Petitioner timely
requested review by the Appeals Council, which denied her request for review on
December 12, 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 32 years of age. Petitioner’s education is
disputed. According to a report from psychologist Glena D. Andrews, Petitioner finished
high school and received her diploma. But, according to Petitioner’s testimony at the
hearing before the ALJ, she has completed only through the ninth grade and did not
obtain a GED. Petitioner’s prior work experience includes convenience store clerk, motel
housekeeper, and fruit packer.
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, September 20, 2010. At step two, it must be determined whether the claimant
suffers from a severe impairment. The ALJ found Petitioner had the following severe
MEMORANDUM DECISION AND ORDER - 2

limitations: sacroiliac dysfunction, headaches, history of a seizure disorder, learning
disorder, bipolar disorder, depression, and substance abuse in remission. However, the
ALJ found Petitioner’s cognitive disorder not otherwise specified, history of anorexia and
bulimia, anxiety, post-traumatic stress disorder, borderline personality disorder, vision
issues, and insomnia not 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. The ALJ found Petitioner’s: (1) sacroiliac dysfunction
does not meet the requirements of Listing 1.04; (2) headaches are not specifically
included in the Regulations and therefore neither meet nor equal a listing; (3) seizures do
not meet a listing because there is no medical evidence to document Petitioner’s history
of seizures after the alleged onset date; (4) bipolar disorder and depression do not meet
the requirements of Listing 12.04; (5) learning disorder does not meet the requirements of
Listing 12.05; (6) substance abuse in remission does not meet the requirements of Listing
12.09; and (7) mental impairments, considered singly and in combination, do not meet or
equal the criteria of Listings 12.04, 12.05, and 12.09. If a claimant’s impairments do not
meet or equal a listing, the Commissioner must assess the claimant’s residual functional
capacity and determine, at step four, whether the claimant has demonstrated an inability
to perform past relevant work.

At step four, the ALJ found Petitioner able to perform light work as defined in 20
MEMORANDUM DECISION AND ORDER - 3

C.F.R. 404.156(b) and 416.967(b), “except she is unable to climb ropes, ladders, and
scaffolds; she must avoid work at unprotected heights; she is limited to work involving
simple, routine, repetitive tasks; she cannot have production quotas such as with
piecework; and she is limited to brief and incidental contact with members of the general
public.” (AR 25.) Considering these limitations, the ALJ found Petitioner capable of
performing past relevant work as a motel housekeeper. Accordingly, the ALJ did not
proceed to step five, 1 because Petitioner did not demonstrate an inability to perform past
relevant work.
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).
1

At step five, if the claimant demonstrates an inability to perform past relevant work, the
burden shifts to the Commissioner to demonstrate 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.
MEMORANDUM DECISION AND ORDER - 4

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. Id. 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
MEMORANDUM DECISION AND ORDER - 5

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 takes issue with two aspects of the ALJ’s decision. First, Petitioner
contends the ALJ’s lacked clear and convincing evidence to find that Petitioner’s
allegations of impairment were not fully credible. Second, Petitioner argues the ALJ
failed to fully develop the record because he did not order a consultative examination or
fully address Petitioner’s physical impairments. The Court addresses each of these issues,
in turn, below.
1.

Credibility Assessment
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. Id. 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
MEMORANDUM DECISION AND ORDER - 6

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. 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).
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
MEMORANDUM DECISION AND ORDER - 7

taken by the claimant to alleviate those symptoms. See SSR 96-7p.
Here, Petitioner argues that ALJ Molleur did not provide a clear and convincing
reason for finding her testimony regarding the intensity, persistence, and limiting effects
of her symptoms not fully credible. Petitioner contends that, because ALJ Molleur did not
indicate evidence of malingering and because ALJ Molleur made only general findings
regarding Petitioner’s credibility, his findings should be rejected.
Contrary to this argument, the record reflects, and ALJ Molleur noted, several
specific reasons for his credibility determination: (A) Petitioner made inconsistent
statements; (B) Petitioner’s hobbies and activities of daily living were inconsistent with
her subjective complaints of pain and inability to focus; (C) Petitioner’s subjective
complaints were inconsistent with the medical evidence of record, because her
impairments responded favorably to medication; (D) Petitioner’s psychologist noted that
Petitioner may have exaggerated her symptoms on a personality test; and (E) Petitioner
failed to act on the referral to a psychiatric specialist from her treating physician. (AR
28–29.) ALJ Molleur concluded that all of these reasons indicated that Petitioner’s
allegations lack sufficient credibility to support a finding of disability. (Id. at 29.)
A.

Inconsistent Statements

The ALJ found Petitioner lacked credibility in part because she made inconsistent
statements regarding her education and her ability to perform her daily chores. A report
prepared by psychologist Glena L. Andrews, Ph.D., on April 20, 2009, 2 before
2

The report is dated April 20, 2009, but Dr. Andrews evaluated Petitioner on September

MEMORANDUM DECISION AND ORDER - 8

Petitioner’s alleged onset date, states that Petitioner reported she finished high school and
received her diploma. But, at the hearing on October 3, 2012, Petitioner testified that she
had completed only the ninth grade and had not received a GED. 3 Also at the hearing
before the ALJ, Petitioner testified she needed a white board to remind her to perform her
chores and regular daily activities. (AR 57.) However, in her Function Report, she did not
mention the need for a white board, rather she stated she needed only “encouragement”
and “task focusing” for her to perform her chores and daily activities. 4 (AR 254.) The
ALJ found these inconsistencies sufficient to discredit Petitioner’s testimony about the
severity and limiting effects of her impairments.
Although the Court acknowledges it does not have the same advantage of
evaluating Petitioner’s testimony first-hand as the ALJ had, these two minor
inconsistencies cited by the ALJ do not, in isolation, provide clear or convincing reasons
for discrediting Petitioner. As discussed below, however, the ALJ provided other specific
reasons that are sufficient to support his credibility assessment.

B.

Hobbies and Activities of Daily Living

ALJ Molleur also found that Petitioner’s subjective complaints of pain and
13, October 16, December 8, and December 9 of 2008. (AR 290.)
3

Petitioner argues “[i]t is more plausible that Dr. Andrews misunderstood [Petitioner’s]
level of education than that [Petitioner] lied about this fact.” (Dkt. 12 at 5.)
4

At the October 3, 2012 hearing, Petitioner testified she had been using the white board
for “about four months” and had started using it only after her boyfriend suggested it. (AR 58.)
The Function Report is dated July 10, 2011, more than one year before the hearing. (AR 259.)
MEMORANDUM DECISION AND ORDER - 9

inability to focus were inconsistent with her hobbies and activities of daily living. In her
Function report, Petitioner listed her hobbies as sewing, reading, gardening, and playing
sports. Petitioner’s report also states that she follows written instructions “fairly well.”
(AR 257.) Additionally, Petitioner’s fiancé, James Lubacky, stated Petitioner is able to
pay attention to puzzles “until they get hard,” she helps his son with college work, and
she works on the computer. (Id. at 248, 250.) Therefore, ALJ Molleur’s finding that this
testimony diminished Petitioner’s credibility is substantially supported by the record.
C.

Inconsistencies with the Medical Evidence

ALJ Molleur also found Petitioner’s complaints of pain and mental disorders
inconsistent with the medical evidence because her headaches, depression, insomnia, and
bipolar disorder all responded favorably to medication. The record contains several
reports from Charles M. Davis, a general practitioner who treated Petitioner several times
after her alleged onset date. On June 16, 2011, Dr. Davis reported Petitioner’s depression
was being treated with Celexa 20 and that Petitioner felt “great” and was “doing well” on
this medication. (AR 408.) On August 9, 2011, Dr. Davis reported Petitioner had “[n]o
depression” and was “[s]leeping much better.” (AR 473.) On February 27, 2012, Dr.
Davis reported Petitioner was using naproxen 500 to treat her headaches and was doing
“better than before.” (AR 443.) Also on this date, Dr. Davis reported Petitioner was using
trazodone to treat her insomnia and that she was “[s]leeping ok most nights” and
“[w]akes up refreshed.” (Id.) On April 6, 2012, Dr. Davis reported Petitioner was using
Effexor to treat her mood disorder, and was “sleeping better” and had “[b]etter energy.”
MEMORANDUM DECISION AND ORDER - 10

(AR 454.) These records provide clear and convincing reasons to discredit Petitioner’s
claims of disabling migraines, depression, and bipolar disorder.
D.

Symptom Exaggeration

ALJ Molleur also questioned Petitioner’s credibility based on her MMPI-2 results.
An MMPI-2 “is an objective personality inventory used to evaluate a person’s emotional
strengths and weakness.” (AR 292.) According to Dr. Andrews, Petitioner’s MMPI-2
results indicated that she “may have responded in a random manner” and “may have
exaggerated her situations.” (AR 293.) This led Dr. Andrews to conclude that the MMPI2 was not a valid measure of Petitioner’s personality profile. ALJ Molleur could
reasonably conclude these results undermine Petitioner’s credibility.
E.

Failure to Act on a Referral to a Psychiatric Specialist

The ALJ also noted that Petitioner failed to act on Dr. Davis’s referral to a
psychiatry specialist when she “no-showed” for three appointments with Cornerstone
Psychological Associates. (AR 392, 443–459.) ALJ Molleur’s finding that this behavior
undermines Petitioner’s credibility may not be the only reasonable interpretation, but it is
a reasonable one supported by substantial evidence. Therefore the Court will not engage
in second-guess the ALJ.
Aside from the two minor inconsistent statements discussed above, the Court
concludes the ALJ identified clear and convincing reasons for discrediting Petitioner.
Because substantial evidence supports the ALJ’s adverse credibility determination, the
Court finds no legal error in this portion of the ALJ’s decision.
MEMORANDUM DECISION AND ORDER - 11

2.

Duty to Develop the Record
The ALJ has an independent duty to hear and evaluate all relevant evidence and

“fully and fairly develop the record and to assure that the claimant’s interests are
considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983); See 20 C.F.R. §
405.370. This duty extends to the represented as well as to the unrepresented claimant. Id.
However, the ALJ’s obligation to fully develop the record in a social security disability
benefits case requires that he or she seek additional evidence or clarification “only when
there is ambiguous evidence or when the record is inadequate to allow for proper
evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001).
If the record is adequate and void of ambiguity, it is the claimant’s duty to prove that she
is disabled. See 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be
under a disability unless he furnishes such medical and other evidence of the existence
thereof as the Secretary may require.”). Here, Petitioner, through her counsel, argues that
the ALJ failed to fully develop the record by failing to order a psychological consultative
examination and failing to fully address Petitioner’s physical impairments.
A.

Consultative Examination

An ALJ should order a consultative examination (“CE”) when the results of the
CE reasonably could be expected to be of material assistance in resolving the issue of
disability. Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997). The Social Security
regulations contains detailed guidelines on the use of CEs, which are physical or mental
examinations requested and purchased by state agencies after determining that additional
MEMORANDUM DECISION AND ORDER - 12

medical evidence is necessary. 20 C.F.R. §§ 404.1519a, 404.1519b. The regulations
require that “[a] consultative examination may be purchased when the evidence as a
whole, both medical and nonmedical, is not sufficient to support a decision on [the]
claim.” Id. § 404.1519a (emphasis added). Otherwise, the ALJ has the discretion to reject
a claimant’s request for a CE. Id. §§ 404.1519a(a)(1), 404.1519m.
On August 27, 2012, approximately one month prior to the hearing before the
ALJ, Petitioner’s attorney requested a psychological CE “to include neurological and IQ
testing” because of Petitioner’s “history of extensive psychological impairments and
treatment.” (AR 287.) This initial request was denied. Petitioner’s attorney renewed this
request at the hearing on October 3, 2012. The request was renewed because, among
other things, Petitioner’s attorney wanted Petitioner’s IQ scores to determine if she would
qualify for the intellectual disability listing. The ALJ also denied this additional request.
Petitioner asserts that these denials were in error for several reasons.
Petitioner contends that a psychological CE was needed to further clarify the
psychological evaluation report of Dr. Andrews dated April 20, 2009. This report did not
include results from an IQ test, but did include results of both the WAIS-III and the
WMS-III. The WAIS-III is a “grouping of subtests designed to evaluate an adult’s
general level of intellectual functioning.” (AR 291.) Overall, Petitioner’s WAIS-III
scores indicated “low average” intellectual functioning. (Id.) Petitioner’s working
memory was within the average range, her processing speed was in the borderline range,
and her ability to prioritize items with non-verbal information fell within the low average
MEMORANDUM DECISION AND ORDER - 13

range. Dr. Andrews also noted that Petitioner’s “ability to compare and contrast verbal
information falls in the deficit range.” (Id.) “The WMS-III is a battery of subtests
measuring learning, memory and working memory” and “is believed to be correlated
with a person’s level of intelligence.” (Id. at 292.) The WMS-III results indicated, among
other things, that Petitioner’s “memory for information presented auditorially is much
stronger than for information presented visually,” her “working memory falls in the
deficit range,” and she “struggled significantly with visual working memory.”
Petitioner requested a CE because Dr. Andrews’s report indicated “[Petitioner’s]
intellectual functioning is in the low average range with some areas of deficit” but did not
provide an IQ score. (Id. 293–94.) In essence, Petitioner claims that, absent the requested
IQ scores, the ALJ’s findings with regard to her intellectual functioning were
unsupported. This argument is particularly relevant to the ALJ’s findings on Listing
12.05, which directs a finding of disability when claimant meets certain criteria,
including a specific IQ score of 70 or less. Listing 12.05 reads:
12.05 Intellectual disability: intellectual disability refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
A. Mental incapacity evidenced by dependence upon others for personal
needs (e.g., toileting, eating, dressing, or bathing) and inability to follow
directions, such that the use of standardized measures of intellectual
functioning is precluded;

MEMORANDUM DECISION AND ORDER - 14

OR
B. A valid verbal, performance, or full scale IQ of 59 or less;
OR
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and
significant work-related limitation of function;
OR
D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting
in at least two of the following:
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.
20 C.F.R. part 404, subpart P, appendix 1, Listing 12.05.
During the hearing, ALJ Molleur explained: “even if [the WAIS-III scores] were
in the borderline range, . . . that doesn’t get you a listing” and “if the scores were
somewhere in the 60s, where you need to be for a listing, . . . the report would have said
that.” (AR 50–51.) Even without a specific numerical score, the ALJ considered
Petitioner’s impairments under each subparagraph of Listing 12.05.
The ALJ concluded that Petitioner did not meet the requirement of paragraph A of
the Listing, because she “indicated she has no problems with her personal care.” (AR 25.)
This substantial evidence supports this finding, as the record reflects that Petitioner
performs chores daily, including cleaning the house, doing laundry, mowing the lawn,

MEMORANDUM DECISION AND ORDER - 15

gardening, preparing meals, and caring for her pets. The record also indicates that
Petitioner is able to drive a car and enjoys playing sports often. Petitioner testified that
she had previously required the assistance of a psychosocial rehabilitation worker to help
with daily activities, but there is no evidence in the record that she needed or utilized
such a worker after her alleged onset date.
ALJ Molleur concluded that Petitioner did not meet the requirements of paragraph
B or C of the listing because she did not have a valid verbal, performance, or full scale IQ
score in the appropriate range. ALJ Molleur acknowledged that Petitioner’s actual scores
were not provided by Dr. Andrews, but indicated that Dr. Andrews’s finding of
Petitioner’s overall intellectual functioning in the low average range was not consistent
with the score required to meet Listing 12.05. See Schneider v. Commissioner, 223 F.3d
968, 971 (9th Cir. 2000) (noting a performance IQ score of 80 falls within the “low
average” range).
ALJ Molleur also concluded that Petitioner did not meet the marked limitation
requirements of paragraph D. To qualify as a “marked limitation,” an impairment must be
“more than moderate but less than extreme.” (AR 23.) The ALJ found that Petitioner has
mild restriction in her activities of daily living, moderate difficulties in social functioning,
moderate difficulties with regard to concentration, persistence or pace, and no episodes of
decompensation of extended duration. Accordingly, the ALJ concluded that Petitioner’s
mental impairments do not meet the requirements of any of the subparagraphs of Listing
12.05.
MEMORANDUM DECISION AND ORDER - 16

Petitioner further argues that ALJ Molleur erred when he denied the request for a
CE without explaining how an individual with a working memory in the “deficit range”
would be able to retain the ability to follow simple instructions. Respondent counters by
arguing that ALJ Molleur was not required to order a CE, because the record was not
ambiguous and the ALJ had sufficient information to assess Petitioner’s intellectual
abilities based on the record—in particular, Dr. Andrews’s report.
In denying Petitioner’s request for a psychological CE, the ALJ considered
Petitioner’s work history and Dr. Andrews’s report. The ALJ found that Dr. Andrews’s
report rendered a CE unnecessary, “as the claimant’s overall intellectual functioning was
found to be in the low average range with only some areas of deficit.” (Id. at 29.) Even
so, the ALJ conducted an analysis to see if Petitioner met the other requirements of
Listing 12.05 and reasonably concluded that Dr. Andrews’s findings were inconsistent
with the listing criteria. Accordingly, the ALJ did not fail in his duty to fully develop the
record when he denied Petitioner’s request for a CE because he had sufficient
information to support his disability determination without ordering a CE regarding
Petitioner’s alleged learning disability. The record before the ALJ was neither ambiguous
nor inadequate to allow for proper evaluation of evidence. Because substantial evidence
supports the ALJ’s decision that Petitioner was not disabled, the ALJ did not err when he
denied the request for a CE.

MEMORANDUM DECISION AND ORDER - 17

Petitioner also claims an evaluation conducted by Dr. Waters and Dr. Rice 5 dated
January 9, 2013—after the hearing before the ALJ and after the appeals council denial of
rehearing—confirmed that Petitioner’s diagnoses “impact[ed] her daily functioning, led
to unhealthy coping skills, and interfered with gaining appropriate support.” (Dkt. 12 at
3.) Indeed, this evaluation states that Petitioner “does appear to have disabling mood
symptoms.” (AR 479.) However, as Respondent correctly notes, the evaluation conducted
by Dr. Waters and Dr. Rice validated ALJ Molleur’s finding that Petitioner’s low average
intellectual function determination did not meet the requirements of Listing 12.05;
therefore, even if the ALJ erred by not ordering the CE, the error was harmless.
The intelligence testing conducted by Dr. Waters and Dr. Rice found Petitioner’s
full scale IQ score to be 91, which is well above the requirement of 70 or less to meet
Listing 12.05. The Ninth Circuit has oft-stated that “[a]n error is harmless if it is
‘inconsequential to the ultimate nondisability determination.’” Treichler v. Comm’r of
Soc. Sec. Admin., No. 12-35944, 2014 WL 7332774 at *6 (9th. Cir. Dec. 24, 2014) (citing
Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)). Therefore, even if the ALJ had
erred by not ordering the psychological CE, the intelligence tests conducted by Dr.
Waters and Dr. Rice confirm that the failure to order the CE was inconsequential to the
disability determination, any error is harmless.
B.

Physical Impairments

Petitioner also argues that ALJ Molleur failed to develop the record because he
5

Dr. Waters and Dr. Rice are both licensed psychologists who were employed at Living
Hope Clinic at the time of this evaluation.
MEMORANDUM DECISION AND ORDER - 18

failed to fully address Petitioner’s physical impairments. Petitioner contends that the ALJ
“never addressed” the issue of pain throughout her hips and her inability to sit
comfortably. (Dkt. 12 at 3–4.) Specifically, Petitioner contends that the ALJ’s conclusion
that Petitioner could perform the full range of light work “without any examination or
development of the evidence” was a failure to fully develop the record. (Id.) She also
argues this “blanket assessment” of work activity “without a function by function
analysis” is in error. (Id.)
Petitioner cites “Payne v. Commissioner, No. 12-04909” 6 as her only support for
this contention. Payne supports the proposition that an ALJ must consider each function
(e.g. sitting, standing, walking, lifting, carrying, pushing, and pulling) separately before
the ALJ can determine “which exertional level is appropriate and whether the individual
is capable of doing the full range of work contemplated by that exertional level.” 2013
WL 6623347, at *4 (quoting SSR 96-8p). But Payne is neither binding nor factually on
point.
In Payne, the record established that the claimant suffered from severe “bilateral
osteoarthritis of the knees.” Id. at *3. Consequently, a function-by-function analysis was
necessary to determine how the knee impairment limited the claimant’s work-related
function. The court held that neither the ALJ nor any physician conducted a proper

6

Petitioner cites the Payne decision without indicating a database or reporter where it can
be found, the court that issued it, or the year it was decided—charging this Court with the
inconvenient task hunting for the case based on the limited information provided. A more useful
citation would be: Payne v. Commissioner, No. C 12-04909 WHA, 2013 WL 6623347 (N.D.
Cal. 2013).
MEMORANDUM DECISION AND ORDER - 19

function-by-function analysis of the claimant, because neither “approximate[d] how long
plaintiff could stand or ambulate and did not indicate her lifting, carrying, or postural
limitations.” Id. Rather, the ALJ based his decision on one doctor’s statement that his
patient’s knee “showed good motion, no deformity, no instability, no effusion . . . . [and
Claimant] should be limited from doing any work that requires prolonged standing or
ambulation on a semi-permanent basis.” Id. at *2 (alterations in original) (internal
quotation marks omitted).
Here, by contrast, there was no medical or testimonial evidence that hip pain or an
inability to sit limited Petitioner’s work-related function. During the hearing, ALJ
Molleur asked Petitioner if she had any issues with pain or other limitations that would
restrict her movement or prevent her from engaging in certain physical actions, and
Petitioner answered in the negative. (AR 62.) But when ALJ Molleur next asked
Petitioner if it was her mental issues and headaches that were “holding [her] back from
being able to work,” to which Petitioner responded in the affirmative. (Id.) Although
Petitioner described what she called “TV legs,” which allegedly causes pain in her hips
and legs, she stated that she “[does not] let it stop [her] from working.” (Id. at 63.) Based
on this testimony and the lack of medical evidence concerning Petitioner’s hip pain or
inability to sit, ALJ Molleur found that Petitioner “can reasonably be limited to light
work because [of] her assortment of physical complaints.” (Id. at 30.)
The Ninth Circuit has held that an ALJ need not prepare a function-by-function
analysis for alleged impairments the ALJ finds “neither credible nor supported by the
MEMORANDUM DECISION AND ORDER - 20

record.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (citing SSR 96-8p).
The Court will not reverse when the ALJ takes “into account those limitations for which
there was record support that [do] not depend on [the claimant’s properly discredited]
subjective complaints.” Id.
In light of the ALJ’s credibility determination and because Petitioner’s allegations
of hip pain and an inability to sit comfortably were not supported by her testimony or by
any other medical evidence in the record, it was not necessary for the ALJ to conduct a
function-by-function analysis before making his residual functional capacity
determination. The evidence presented on these alleged impairments did not trigger the
ALJ’s duty to develop the record any further, and the Court finds no legal error was
committed by the ALJ.
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 Petitioner is
not disabled within the meaning of the Social Security Act is AFFIRMED and that the
petition for review is DISMISSED.
March 16, 2015

MEMORANDUM DECISION AND ORDER - 21