Bucy v. Colvin

Filing 17

MEMORANDUM DECISION AND ORDER. Based on the foregoing, Petitioner's Petitioner for Review 1 is DENIED, 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

KRISTI BUCY,
Case No. CV 14-00220-S-REB
Petitioner,

MEMORANDUM DECISION AND
ORDER

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

Now pending before the Court is Petitioner Kristi Bucy’s Petition for Review (Dkt. 1),
filed June 3, 2014, seeking review of the Social Security Administration’s final decision to deny
her disability benefits. This action is brought pursuant to 42 U.S.C. § 405(g). Having carefully
reviewed the record and otherwise being fully advised, the Court enters the following
Memorandum Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
On September 5, 2012, Kristi Bucy (“Petitioner”) applied for Social Security Disability
Insurance, alleging a disability onset date of June 28, 2012, when she was 37 years old. She also
protectively applied for Social Security Supplemental Income on August 28, 2012. (AR 191198.) Petitioner’s claim was initially denied and, again, denied on reconsideration. (AR 113130, 133-152.) Petitioner filed a Request for Hearing before an Administrative Law Judge
(“ALJ”). On December 5, 2013, ALJ John T. Molleur held a hearing at which time Petitioner,
represented by attorney Jessica Bublitz, appeared and testified. (AR 32-56.) Vocational expert

MEMORANDUM DECISION AND ORDER - 1

Cassie Mills also appeared and testified. (Id.) At the time of the hearing, Petitioner had past
relevant work as a caregiver, waitress/bar, cashier/checker, and secretary. (AR 24.)
On February 14, 2014, the ALJ issued a decision, denying Petitioner’s claims, finding
that Petitioner was not disabled within the meaning of the Social Security Act. (AR 10-25.)
Petitioner timely requested review from the Appeals Council on February 25, 2014. (AR 5-6.)
The Appeals Council then denied review on April 1, 2014 (AR 1-4) rendering the ALJ’s decision
the Commissioner’s final decision. Plaintiff now seeks judicial review of the Commissioner’s
decision to deny benefits. Petitioner contends the ALJ erred by: (1) disregarding Petitioner’s
ophthalmologic migraines and failing to address the effects on her ability to perform workrelated activity; (2) failing to order a consultative exam; and (3) failing to give proper weight to
the opinion of Dr. River.
II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. 42 U.S.C. § 405(g); Matney ex. rel. Matney v. Sullivan, 981
F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990).
Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42
U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ’s factual
decisions, they must be upheld, even when there is conflicting evidence. Hall v. Sec'y of Health,
Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
“Substantial evidence” is defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec’y of Health & Human

MEMORANDUM DECISION AND ORDER - 2

Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less
than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir.1975);
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), and “does not mean a large or
considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a whole
to determine whether it contains evidence that would allow a reasonable mind to accept the
conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019.
The ALJ is responsible for determining credibility and resolving conflicts in medical testimony,
Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984), resolving ambiguities, see Vincent ex. rel.
Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984), and drawing inferences logically
flowing from the evidence, Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Where the
evidence is susceptible to more than one rational interpretation in a disability proceeding, the
reviewing court may not substitute its judgment or interpretation of the record for that of the
ALJ. Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s
construction of the Social Security Act is entitled to deference if it has a reasonable basis in law.
See id. However, reviewing federal courts “will not rubber-stamp an administrative decision that
is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying
the statute.” Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).

MEMORANDUM DECISION AND ORDER - 3

III. DISCUSSION
A.

Sequential Process
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a

sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§
404.1520, 416.920) - or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) - within
the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). SGA is
defined as work activity that is both substantial and gainful. “Substantial work activity” is work
activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a),
416.972(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not
a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA,
disability benefits are denied, regardless of how severe her physical/mental impairments are and
regardless of her age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If
the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ
found that Petitioner had not engaged in SGA after June 28, 2012, the alleged onset date. (AR
12.)
The second step requires the ALJ to determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is severe and meets the duration
requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination
of impairments is “severe” within the meaning of the Social Security Act if it significantly limits
an individual’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c).

MEMORANDUM DECISION AND ORDER - 4

An impairment or combination of impairments is “not severe” when medical and other evidence
establish only a slight abnormality or a combination of slight abnormalities that would have no
more than a minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921.
If the claimant does not have a severe medically determinable impairment or combination of
impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the
ALJ found that Petitioner had the following severe impairments: ocular migraines, degenerative
disc disease cervical spine, substance abuse, schwannoma, and depression. (AR 12.)
The third step requires the ALJ to determine the medical severity of any impairments;
that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
answer is yes, the claimant is considered disabled under the Social Security Act and benefits are
awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor
equal one of the listed impairments, the claimant’s case cannot be resolved at step three and the
evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner does not have an
impairment (or combination of impairments) that meets or medically equals a listed impairment
(AR 14.)
The fourth step of the evaluation process requires the ALJ to determine whether the
claimant’s residual functional capacity is sufficient for the claimant to perform past relevant
work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s residual functional
capacity is her ability to do physical and mental work activities on a sustained basis despite
limitations from her impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual’s
past relevant work is work performed within the last 15 years or 15 years prior to the date that

MEMORANDUM DECISION AND ORDER - 5

disability must be established; also, the work must have lasted long enough for the claimant to
learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b),
404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner has the residual
functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) and
§ 416.967(b) except as follows: unable to climb ladders, ropes and scaffolds, can climb ramps
and stairs only occasionally, and can perform all other postural activities only frequently. She
should have no exposure to dust, fumes, gases, poor ventilation, noxious odors or other lung
irritants. She should have no work at unprotected heights and no work at close proximity to
mobile machinery. Work is also restricted to uninvolved 3 and 4 step tasks. She is further
limited to only frequent use of fine binocular vision, and while she can also tolerate typical
ambient room lighting, there should be no work that requires her to be exposed directly to
excessive lighting over and above normal ambient room lighting. (AR 17.) The ALJ also
determined that Petitioner was not capable of performing past relevant work. (AR 24.)
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of his impairments, the burden shifts to the Commissioner to show
that the claimant retains the ability to do alternate work and to demonstrate that such alternate
work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th
Cir. 1993). If the claimant is able to do other work, she is not disabled; if the claimant is not able
to do other work and meets the duration requirement, she is disabled. The ALJ found, at step
five, that Petitioner is capable of making a successful adjustment to other work that exists in
significant numbers in the national economy. (AR 24.)

MEMORANDUM DECISION AND ORDER - 6

B.

Analysis
1.

Petitioner’s Ocular Migraines and Effects on Ability to Work; Petitioner
Credibility

Petitioner contends that the ALJ did not include all of the limitations caused by her
ocular migraines. Petitioner argues that the ALJ disregarded limitations such as the pain from
the headaches and double vision and focused only on limited light exposure and use of glasses.
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. It is proper for an ALJ to limit the analysis to “those impairments that are
supported by substantial evidence in the record.” Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th
Cir.2001). Unsupported limitations may be excluded. Bayliss v. Barnhart, 427 F.3d 1211, 1218
(9th Cir.2005). In his overall assessment, the ALJ need not consider those limitations which
depend on the petitioner’s subjective complaints if petitioner’s complaints are not credible. Id. at
1217.
The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and for resolving ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
However, the ALJ’s findings must be supported by specific, cogent reasons and where a
claimant’s testimony is rejected, the ALJ must support that decision by substantial evidence in
the record. Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1296 (9th Cir. 1999).
In evaluating credibility, the ALJ may engage in ordinary techniques of credibility
evaluation, including consideration of claimant’s reputation for truthfulness and inconsistencies
in claimant’s testimony, or between claimant’s testimony and conduct, as well as claimant’s
daily activities, claimant’s work record, and testimony from physicians and third parties
MEMORANDUM DECISION AND ORDER - 7

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:
location, duration and frequency of symptoms; factors that precipitate and aggravate those
symptoms; amount of and side effects of medications; and treatment measures taken by claimant
to alleviate those symptoms. See Soc. Sec. Ruling (SSR) 96-7p.
In pertinent part for this case, the ALJ found Petitioner’s testimony not entirely credible
with regard to limitations alleged to stem from “markedly incapacitating pain due to the tumor
behind her left eye.” (AR 19.) First, the ALJ noted that Petitioner successfully engaged in work
activity as a caregiver with the same, or similar, allegedly disabling impairments years before the
alleged onset date. (Id.) The ALJ noted that although Petitioner stated that her conditions had
worsened since the onset date, “[her statement] is simply not supported by the medical records
given doctor statements after reviewing clinical studies that the schwannoma is stable,
unchanged going back to December 31, 2008, which was bolstered by subsequent examining
neurology specialists who did not believe her left-sided ocular pain had really anything to do
with the schwannoma.” (Id.) The ALJ pointed to the lack of “objective clinical findings
substantiating these disabling impairments. . .” (Id.) The ALJ emphasized that although
Petitioner claims her left eye is worsening, an examining doctor in November 2012 found stable
ophthalmologic findings and only mildly decreased visual acuity on the left side. (Id. at 20.) An
examining neurosurgeon agreed with Petitioner’s treating physician, Dr. River, that the left-sided
ocular pain was not related to the schwannoma and the neurosurgeon (Dr. Anderson) found that
the schwannoma is “unchanged in size, shape or appearance” since 2008. (Id.) Additionally,
Petitioner reported she is busy, takes her daughter to cheerleading practice, and goes on walks

MEMORANDUM DECISION AND ORDER - 8

which is not consistent with her allegations of vision loss and being bedridden due to pain. (Id.)
Additionally, the ALJ concluded that the Petitioner’s description of inactivity in daily
living was difficult to attribute to her impairments, given that no physician had suggested any
need for excessive rest or inactivity. (Id.) The ALJ found inconsistencies between statements
she had made to physicians and statements made at the hearing. For example, Petitioner reported
to Dr. Bailey on December 11, 2012, that only Norco would help her headaches. The ALJ said
this undercuts her insistence that nothing helps her pain. (Id.) She also did not tell Dr. Bailey
that she spends most days in bed due to pain, but she testified to that at the hearing. (Id.)
Additionally, the ALJ discussed that University of Utah specialists have noted that narcotics are
causing analgesic overuse headaches and are not recommended for ocular headaches. (Id.) The
ALJ also found inconsistencies between different statements made by the Petitioner herself, such
as her statement that she stopped working on June 28, 2012 due to thoracic strain but made a
later statement that depression kept her from working. (Id.)
The ALJ made a proper credibility assessment. He noted inconsistencies between
Petitioner’s testimony and her activities of daily living, inconsistencies between statements to
various physicians, inconsistencies between her testimony at the hearing and her statements to
physicians, as well her past work record. The ALJ also found that the objective medical
evidence did not support Petitioner’s allegations of debilitating pain due to her headaches or that
the condition has worsened. These are all valid considerations in making an adverse credibility
determination and substantial evidence supports the ALJ’s determination.1

1

The ALJ’s discussion also comports with the Ninth Circuit’s requirement that the ALJ
must identify which testimony he found not credible and why. See Brown-Hunter v. Colvin, No.
13-15213, 2015 WL 4620123, at *1 (9th Cir. Aug. 4, 2015).
MEMORANDUM DECISION AND ORDER - 9

Additionally, the Petitioner is not precisely correct in what limitations were assessed by
the ALJ related to her vision and migraines. Petitioner states that the ALJ only included the use
of glasses and limited light exposure. She is mistaken. As discussed above, the ALJ included
limitations of only frequent use of binocular vision, no exposure to excessive lighting, and
limited tasks to only three and four steps. (AR 17.)
Lastly, Petitioner appears to take issue with the ALJ’s decision because of his treatment
of the etiology of Petitioner’s ocular migraines.2 Petitioner argues: “The pain from the
headaches themselves, double vision, and the resulting limitations, were all completely
disregarded by the ALJ, presumably because examining physicians felt they had an ocular
migraine etiology as opposed to resulting from her tumor [schwannoma].” Pet.’s Brief, p. 3 (Dkt
13). Petitioner is correct that the ALJ does discuss the source of Petitioner’s headaches and eye
pain. (See AR 14 (“a neuro-ophthalmology specialist thought the [migraine headaches with left
eye pain] are purely ophthalmologic migraines rather than nerve tumor and are rarely associated
with schwannoma”); AR 19-20 (“neither the University of Utah specialists nor her doctors seem
to believe this [the schwannoma] is the source of headaches”); AR 20 (at least three specialists
concur that she has ocular migraines, and that the schwannoma is stable, unchanged and not the
source of her headaches”)). However, nowhere does the ALJ discount Petitioner’s pain
testimony or vision problems because of the etiology of her migraines. Instead, he discounts her
limitations for reasons discussed above: inconsistent statements, work record, daily activities,

2

Petitioner also contends that because the ALJ finds the evidence does not support that
the optic nerve tumor (schwannoma) is the source of the headaches, “he seems to therefore
believe the migraine diagnosis to be irrelevant.” Pet’s Brief, p. 3. Again, this is incorrect. The
ALJ included both ocular migraines and schwannoma in his finding of severe impairments. (AR
12.)
MEMORANDUM DECISION AND ORDER - 10

and lack of objective medical evidence.
Unsupported limitations may be excluded by the ALJ if there is substantial evidence to
support such exclusion. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). The ALJ
need not consider those limitations which depend on the petitioner’s subjective complaints if
petitioner’s complaints have not been deemed credible. Id. at 1217. The Court concludes there
is substantial evidence to support the ALJ’s residual functional capacity determination and the
limitations assessed therein.
2.

Dr. River’s Opinion
Petitioner contends that the ALJ improperly discounted the opinion of Dr. River by

erroneously disregarding every single part of her opinion. From the Court’s review of the
record, it appears Dr. River saw Petitioner twice – in February 2012 and on May 7, 2013. (See
AR 636.)3 She completed the Medical Source Statement on January 3, 2014. (AR 810-814.)
Ninth Circuit case law distinguishes among the opinions of three types of physicians: (1)
those who treat the claimant (treating physicians); (2) those who examine but do not treat the
claimant (examining physicians); and (3) those who neither examine nor treat the claimant
(nonexamining physicians). Lester v. Chatter, 81 F.3d 821, 830 (9th Cir. 1995). Generally,
more weight is accorded to the opinion of a treating source than to nontreating physicians.
Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987). In turn, an examining physician’s opinion
is entitled to greater weight than the opinion of a nonexamining physician. Pitzer v. Sullivan,
908 F.2d 502, 506 (9th Cir.1990); Gallant v. Heckler, 753 F.2d 1450 (9th Cir.1984). If the

3

The record of the February 2012 visit is not in the administrative record based on the
Court’s review.
MEMORANDUM DECISION AND ORDER - 11

treating physician’s opinion is not contradicted by another doctor, it may be rejected only for
“clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.1991). If the
treating doctor’s opinion is contradicted by another doctor, the Commissioner may not reject the
treating physician’s opinion without providing “specific and legitimate reasons” supported by
substantial evidence in the record for doing so. Murray v. Heckler, 722 F.2d 499, 502 (9th
Cir.1983).
A treating source is a claimant’s own physician who provides, or has provided, medical
treatment or evaluation and has, or has had, an ongoing treatment relationship with the claimant.
20 C.F.R. § 404.1502. An ongoing treatment relationship is shown by medical evidence
establishing that the claimant sees, or has seen, the source with a frequency consistent with
accepted medical practice for the type of treatment and/or evaluation required for claimant’s
medical condition(s). Id.
The ALJ must consider factors set out in 20 C.F.R. § 404.1527(c)(2)-(6) in weighing the
treating physician’s medical opinion. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). These
factors include the length of the treatment relationship and the frequency of examination by the
treating physician, the nature and extent of the treatment relationship between the patient and
treating physician, the support of medical evidence for the opinion, and the consistency of the
physician’s opinion with the record as a whole. 20 C.F.R. § 404.1527(c)(2)-(6).
An ALJ is not required to accept a conclusory opinion of a treating physician not
supported by clinical findings. Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.
1992). Additionally, an ALJ is not bound to a physician’s opinion of a petitioner’s physical
condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.

MEMORANDUM DECISION AND ORDER - 12

1989). If the record as a whole does not support the physician’s opinion, the ALJ may reject that
opinion. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Items in
the record that may undermine the physician’s opinion include clinical findings from
examinations, conflicting medical opinions, conflicting physician’s treatment notes, and the
claimant’s daily activities. Id.; Bayliss v. Barnhart, 427 F.3d at 1216; Connett v. Barnhart, 340
F.3d 871 (9th Cir. 2003); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595 (9th Cir. 1999).
Both parties acknowledge the uncertainty of Dr. River’s status – i.e., was she a treating
physician? See Pet.’s Brief, p. 6 (“Even if the ALJ’s finding that the Doctor had not seen her
enough to be regarded as a treating physician . . .”); Resp.’s Brief, p. 13 (“It is unclear whether
Dr. River was a treating physician.”). For purposes of this analysis, the Court will consider her
to be a treating physician.
Dr. River completed a Physical Medical Source Statement on January 3, 2014. (AR 810814.) In his decision, the ALJ stated he gave Dr. River’s opinion “little weight” because she saw
the claimant only twice, 15 months apart, and had not seen the claimant in eight months at the
time she completed the report. (AR 21.) The ALJ also stated that Dr. River’s medical source
statement was “based on [the claimant’s] self-report.” (Id.)
A contradicted4 treating physician’s opinion can be rejected for “clear and legitimate
reasons.” Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). In assigning little weight to Dr.
River’s opinion, the ALJ cited two of the factors set forth in 20 C.F.R. § 404.1527(c): first, the
length of the treatment relationship and, second, the frequency of the treatment relationship.
These are legitimate and proper factors in giving weight (or discounting the weight to be given)

4

Dr. River’s opinion is contradicted by the state agency physicians.

MEMORANDUM DECISION AND ORDER - 13

to a treating physician’s opinion.
Moreover, and importantly in this case, Dr. River’s medical source statement relied upon
Petitioner’s self-reports. The ALJ found, for proper reasons, that Petitioner was not entirely
credible. An ALJ may reject a treating physician’s opinion if it is based “to a large extent” on a
claimant’s self-reports that have been properly discounted as not credible. Tommasetti v. Astrue,
533 F.3d 1035, 1041 (9th Cir. 2008).
The ALJ has given reasons specific to Dr. River in rejecting her opinion, including (1)
the length of the treatment relationship, (2) frequency of examination, and (3) the fact that her
opinion was based in large part on Petitioner’s self reports which the ALJ has found not credible.
These are legitimate reasons under the applicable Social Security regulations and law.
Accordingly, there was no error in the consideration of Dr. River’s opinion.
3.

Consultative Exam

Petitioner contends that the ALJ erred by failing to order a consultative exam. There was
a request made by Petitioner’s attorney prior to the hearing, asking for a “mental impairment and
cognitive CE.” (AR 298.) The ALJ denied the request. (AR 299.)
At the hearing, Petitioner’s attorney said that some records from St. Alphonsus Medical
Center, including from Petitioner’s neurologist, had been requested but had not come in. She
requested that the record be left open for 30 days to allow for those records to be submitted to
the ALJ. The ALJ agreed to do so, and said that “given the nature of the impairments in this
case, I think neurology records especially would be germane.” (AR 36.)
Also at the hearing, Petitioner’s attorney noted that she had requested a CE for “some
kind of neurological testing.” This testimony followed:

MEMORANDUM DECISION AND ORDER - 14

ALJ:

I think the neurological clinical notes will --

ATTY:

Will be the best.

ALJ:

- - be especially helpful and I thought you had requested a psychological
one and, outside of the two inpatient hospitalizations she had at
Intermountain, I didn’t see a whole lot in the way of mental health
treatment so I wanted to get at what was going on there.

ATTY:

Uh-huh.

ALJ:

You noticed whenever - -

ATTY:

Yeah.

ALJ:

- - by deny, I said deny pre-hearing.

ATTY:

Right.

ALJ:

I said it specifically.

ATTY:

Right, right. And - -

ALJ:

And I have granted them post-hearing on occasion where, you know, after
hearing the evidence, I felt that one was warranted so that’s kind of the
stance I was taking here.

ATTY:

And I don’t see that we ever tried to get one, an opinioned evidence from
Mary Rivers and, since she’s still seeing her and has seen her recently,
we’re going to try to get an opinion from her as well.

ALJ:

Okay. That’s something that would - - you’re more than welcome to
pursue that.

(AR 39-40.)
Following the hearing, the record was left open for 30 days. Petitioner submitted an
additional five exhibits, which consisted of medical records from St. Alphonsus Neurosurgery
(Dr. Anderson), Idaho Neurology (Dr. River), St. Alphonsus Regional Medical Center (Dr.
Weathers) regarding mental health, a St. Alphonsus Emergency Room visit in September 2013,
MEMORANDUM DECISION AND ORDER - 15

and a medical source statement completed by Dr. River in January 2014. (AR 727-813.)
The ALJ’s obligation to fully develop the record in a social security disability case
requires that he or she seek additional evidence or clarification 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). An ALJ should order a consultative exam when the record is incomplete, the evidence is
ambiguous, or where it is necessary to “fully and fairly develop” and to “‘assure that the
claimant’s interests are considered.’” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005)
(quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (per curiam); Tonapetyan v.
Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); Reed v. Massanari, 270 F.3d 838, 841 (9th Cir.
2001). Consistent with that discretion, the ALJ also has the discretion to reject a claimant’s
request for a consultative exam. 20 C.F.R. §§ 404.1519a(a)(1), 404.1519m.
The duty to develop the record may be discharged in several ways including:
subpoenaing the claimant’s physicians, submitting questions to the claimant’s physicians
continuing the hearing, or keeping the record open after the hearing to allow supplementation of
the record. Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998). Here, the ALJ left the record
open for 30 days for additional evidence after the hearing, an acceptable method of further
developing the record. Petitioner submitted additional documents in support of her neurological
and mental impairments.5 The ALJ discussed these exhibits in his decision. (See AR 20-22.)
5

In Petitioner’s brief she references treatments notes from a Dr. Meadows at Exhibit 20F
page 48 confirming the diagnosis of major depressive disorder. Exhibit 20F is only 5 pages in
length (AR 727-731). It does not contain any treatment notes from a Dr. Meadows, but rather
neurosurgeon Dr. Anderson. Exhibit 21F (AR 732-736) contains treatment notes from Dr.
Weathers that contains a diagnosis of major depressive disorder. The latter of these treatment
notes, dated June 9, 2013, indicates Petitioner is doing much better, her mood and anxiety have
improved, and the new antidepressant is working. (AR 734.) The Court notes these treatment
notes were already in the record at Exhibit 17F (AR 680-686.)
MEMORANDUM DECISION AND ORDER - 16

The evidence is not ambiguous. There is evidence of a mental impairment (depression) and the
ALJ concluded Petitioner’s depression was a severe impairment. (AR 12.) However, the ALJ
did not commit error in not ordering a consultative exam because he had sufficient information
to support his disability determination regarding Petitioner’s neurological and mental
impairments.
The Commissioner has broad latitude whether to order consultative examinations. Reed
v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001). When the record is clear on a determinative
issue, the ALJ is not required to consult an expert. See Armstrong v. Comm. of Soc. Sec., 160
F.3d 587, 589 (9th Cir. 1998). The ALJ did not abuse his discretion in not ordering a
consultative exam.
IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences
from facts and determining credibility. Allen, 749 F.2d at 579; Vincent ex. Rel. Vincent, 739
F.2d at 1394; Sample, 694 F.2d at 642. If the evidence is susceptible to more than one rational
interpretation, one of which is the ALJ’s, a reviewing court may not substitute its interpretation
for that of the ALJ. Key, 754 F.2d at 1549.
The evidence relied upon by the ALJ 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, 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

MEMORANDUM DECISION AND ORDER - 17

standards.
Accordingly, the Commissioner’s decision is affirmed.
V. ORDER
Based on the foregoing, Petitioner’s Petitioner for Review (Dkt. 1) is DENIED, the
decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety, with
prejudice.

DATED: September 29, 2015

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 18