Noorigian v. Colvin
Filing
18
MEMORANDUM DECISION AND ORDER 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 (jp)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
SHEREEN N. NOORIGIAN,
Case No.: 1:16-CV-00507-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER
vs.
NANCY A. BERRYHILL, Acting Commissioner
of the United States Social Security Administration,
Respondent.
Pending before the Court is Petitioner Shereen N. Noorigian’s Petition for Review
(Docket No. 1), seeking review of the Social Security Administration’s decision denying her
application for child’s insurance benefits under Title II of the Social Security Act and for adult
Supplemental Security Income under Title XVI of the Social Security Act. See generally Pet. for
Review (Docket No. 1). This action is brought pursuant to 42 U.S.C. § 405(g). Having carefully
considered the record and otherwise being fully advised, the Court enters the following
Memorandum Decision and Order:
I. ADMINISTRATIVE PROCEEDINGS
In August 2013, Shereen N. Noorigian (“Petitioner”) filed an application for disability
benefits, including a childhood disability, alleging disability beginning May 30, 2011. These
claims were initially denied on September 24, 2013 and, again, on reconsideration on October
25, 2013. On October 30, 2013, Petitioner timely filed a Request for Hearing before an
Administrative Law Judge (“ALJ”). On June 22, 2015, ALJ Luke A. Brennan held a hearing in
Boise, Idaho, at which time Petitioner, represented by attorney Joseph F. Brown, appeared and
MEMORANDUM DECISION AND ORDER - 1
testified. Impartial vocational expert, Polly A. Peterson, also appeared and testified at the same
June 22, 2015 hearing.
On July 1, 2015, the ALJ issued a Decision denying Petitioner’s claim, finding that she
was not disabled within the meaning of the Social Security Act. Petitioner timely requested
review from the Appeals Council on August 12, 2015 and, on September 20, 2016, the Appeals
Council denied Petitioner’s Request for Review, making the ALJ’s decision the final decision of
the Commissioner of Social Security.
Having exhausted her administrative remedies, Petitioner timely filed the instant action,
arguing that “[t]he conclusions and findings of fact of the defendant are not supported by
substantial evidence and are contrary to law and regulation.” Pet. for Review, p. 2 (Docket No.
1). In particular, Petitioner identifies the “issues” here as:
1. Was the ALJ’s credibility determination in accordance with controlling legal
standards when he dismissed the testimony of the Petitioner and her
grandmother, Hester I. Riggs, concerning intensity, persistence, and limiting
effects of her severe impairments?
2. Did the AL mischaracterize and/or ignore medical evidence, testimony, and
third-party statements that were supportive of the Petitioner’s claim in
reaching his adverse decision?
Pet.’s Brief, p. 3 (Docket No. 12). Petitioner therefore requests that the Court either reverse the
ALJ’s decision and find that she is entitled to disability benefits or, alternatively, remand the
case for further proceedings and award attorneys’ fees. See id. at pp. 9-10; see also Pet. for
Review, p. 2 (Docket No. 1).
II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. See 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).
MEMORANDUM DECISION AND ORDER - 2
Findings as to any question of fact, if supported by substantial evidence, are conclusive. See 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. See 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. See Richardson v. Perales, 402 U.S. 389, 401
(1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec’y of Health &
Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla
but less than a preponderance (see Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir.
1975); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)), and “does not mean a large or
considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a whole
to determine whether it contains evidence that would allow a reasonable mind to accept the
conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019.
The ALJ is responsible for determining credibility and resolving conflicts in medical testimony
(see Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)), resolving ambiguities (see Vincent ex.
rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)), and drawing inferences
logically flowing from the evidence (see Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.
1982)). Where the evidence is susceptible to more than one rational interpretation, the reviewing
court may not substitute its judgment or interpretation of the record for that of the ALJ. See
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. See 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.
MEMORANDUM DECISION AND ORDER - 3
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.” See Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
III. DISCUSSION
A.
Sequential Process
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a
sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§
404.1520, 416.920) – or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) – within
the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). See 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. See 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. See 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. See 20 C.F.R.
§§ 404.1520(b), 416.920(b). If the claimant is not engaged in SGA, the analysis proceeds to the
second step. Here, the ALJ found that Petitioner “has not engaged in substantial gainful activity
since May 30, 2011, the alleged onset date.” (AR 14).
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. See 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
MEMORANDUM DECISION AND ORDER - 4
significantly limits an individual’s ability to perform basic work activities. 20 C.F.R.
§§ 404.1520(c), 416.920(c). An impairment or combination of impairments is “not severe”
when medical and other evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s ability to work.
See 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. See 20
C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner has the following severe
impairments: Asperger’s Syndrome, personality disorder, and general anxiety disorder. See (AR
14).
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. See 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. See 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. See id. Here, the ALJ concluded that Petitioner’s abovelisted impairments, while severe, do not meet or medically equal, either singly or in combination,
the criteria established for any of the qualifying impairments. See (AR 15-16).
The fourth step of the evaluation process requires the ALJ to determine whether the
claimant’s residual functional capacity (“RFC”) is sufficient for the claimant to perform past
relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s RFC is
her ability to do physical and mental work activities on a sustained basis despite limitations from
her impairments. See 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual’s past relevant
work is work performed within the last 15 years or 15 years prior to the date that disability must
MEMORANDUM DECISION AND ORDER - 5
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. See 20 C.F.R. §§ 404.1560(b), 404.1565,
416.960(b), 416.965. Here, the ALJ determined that Petitioner has the RFC “to perform a full
range of work at all exertional levels but with the following nonexertional limitations: “[S]he
can perform simple, routine work tasks. She can tolerate occasional interaction with supervisors,
coworkers, and the public.” (AR 16-18).
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of her impairments, the burden shifts to the Commissioner to show
that the claimant retains the ability to do alternate work and to demonstrate that such alternate
work exists in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th
Cir. 1993). If the claimant is able to do other work, she is not disabled; if the claimant is not able
to do other work and meets the duration requirement, she is disabled. Here, the ALJ found that
Petitioner has no past relevant work, but found that there are jobs that exist in significant
numbers in the national economy that Petitioner can perform, including hand packager, fruit
cutter, and building maintenance laborer. See (AR 18-19). Therefore, based on Petitioner’s age,
education, and RFC, the ALJ concluded that Petitioner “has not been under a disability, as
defined in the Social Security Act, from May 30, 2011, through the date of this decision.” (AR
19) (internal citation omitted).
B.
Analysis
1.
Petitioner’s Credibility
As the trier-of-fact, the ALJ is in the best position to make credibility determinations and,
for this reason, his determinations are entitled to great weight. See Anderson v. Sullivan, 914
F.2d 1121, 1124 (9th Cir. 1990); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)
MEMORANDUM DECISION AND ORDER - 6
(ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for
resolving ambiguities). In evaluating a claimant’s 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 concerning the nature, severity, and effect of the symptoms of which
claimant complains. See 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 and side effects of medications; and treatment measures
taken by claimant to alleviate those symptoms. See SSR 96-7p. In short, “[c]redibility decisions
are the province of the ALJ.” Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). However, to
reject a claimant’s testimony, the ALJ must make specific findings stating clear and convincing
reasons for doing so. See Holohan, 246 F.3d at 1208 (citing Reddick, 157 F.3d at 722).
Here, Petitioner alleges an inability to engage in any work activity, owing to her social
anxiety and an inability to work with or be near others. For example, within her August 30, 2013
“Function Report – Adult,” Petitioner states:
•
“It’s difficult to communicate and I get overwhelmed easily.”
•
She does not go anywhere on a regular basis, rarely attends social events,
and needs someone to accompany her.
•
“I have trouble talking to guests in our house and my family and I do not
get along.”
•
“I go out less and have more trouble communicating with others.”
•
“I have trouble understanding when people try to communicate with me,
and I am easily uncomfortable when dealing with someone I don’t know
very well.”
•
“I get confused and overwhelmed when given spoken instructions.”
MEMORANDUM DECISION AND ORDER - 7
•
“I do not handle stress well.”
•
“It is difficult to adjust to significant changes.”
•
“I get nervous when people stand too close to me. I pace my room to calm
down. I hat talking about myself to anyone.”
(AR 303, 307-09). She confirmed as much during the June 22, 2015 hearing, testifying that she
did not have any friends; did not go to social events because they caused anxiety and made her
“really nervous or fearful”; and did not go to the grocery store because there are “[t]oo many
people there.” (AR 56-57).
The ALJ, however, concluded that, while Petitioner’s medically-determinable
impairments could reasonably be expected to cause her alleged symptoms, her “statements
concerning the intensity, persistence, and limiting effects of these symptoms are not entirely
credible . . . .” (AR 16). The ALJ reached this conclusion because the record was inconsistent
with the limitations she described; her treatment was limited; and her alleged limitations were
contradicted by her daily activities. See (AR 16-18). For the reasons that following, the ALJ’s
justification in this regard amounts to clear and convincing reasons for questioning Petitioner’s
credibility.
First, there is no dispute that Petitioner has problems with her social functioning skills,
and that such problems are severe. To be sure, the ALJ concluded as much when making his
disability determination. See supra (citing (AR 14) (ALJ stating that Petitioner’s Asperger’s
Syndrome, personality disorder, and general anxiety disorder “produce limitations which meet
the definition of ‘severe’ in that they significantly limit (have more than a minimal effect on) her
ability to perform basic work activities.”). Even so, the ALJ specifically accounted for
Petitioner’s limitations during the fourth step of the sequential process (RFC analysis). See, e.g.,
(AR 17, 18) (“In any event, the residual functional capacity accommodates these difficulties . . . .
MEMORANDUM DECISION AND ORDER - 8
In any event, the limitations on social interaction in the residual functional capacity would
accommodate her symptoms and relieve stress.”). Therefore, to the extent Petitioner’s
arguments insist on the existence of certain limiting impairments, they miss the point. See Pet.’s
Brief, pp. 3-6 (Docket No. 12). The question at this stage is not whether such limitations exist
but, rather, whether Petitioner is able to work even with such limitations. See, e.g., (AR 57-58)
(ALJ asking Petitioner: “If you were able to find a job that wasn’t around other people, maybe
cleaning a building like this at night when nobody’s here, would you be able to do that?”; with
Petitioner responding: “I don’t know. Maybe.”).
Second, as to the objective medical evidence, the ALJ properly noted the absence of
treatment leading up to her alleged May 30, 2011 onset date, commenting: “That date has no
clinical significance as she received no medical care near that time” and that she was first
examined over one year later, on August 16, 2012. (AR 16) (emphasis added). “Objective
medical evidence [(including the amount of treatment)] . . . is a useful indicator to assist us in
making reasonable conclusions about the intensity and persistence of [a claimant’s] symptoms.”
20 C.F.R. §§ 404.1529(c)(2-3), 416.929(c)(2-3) (emphasis added).
Third, concerning the available post-onset date medical evidence, the ALJ considered the
findings from Petitioner’s medical providers. See (AR 16-18). Again, each of these records
unquestionably support the existence of medical conditions impacting Petitioner’s social
functioning; however, from this review, the ALJ was able to identify discrepancies between
Petitioner’s allegations and the medical evidence, while simultaneously triangulating a “common
denominator” among the medical providers’ opinions concerning Petitioner’s limitations that
ultimately was reflected within the ALJ’s RFC assessment. See (AR 17-18) (comparing notes
from Ryan Hulbert, Ph.D., Michael Dennis, Ph.D., RaeAnn Calhoun (licensed clinical social
worker), Brad Levitt, Ph.D., Mack Stephenson, Ph.D., and Barney Greenspan, Ph.D.); see also
MEMORANDUM DECISION AND ORDER - 9
infra (discussing ALJ’s handling of provider notes). On the whole, these opinions – tested
against one another for consistency and supportability – reveal a disconnect between Petitioner’s
claimed inability to work and the medical record.
Finally, despite Petitioner’s alleged disabling symptoms, the ALJ pointed out that her
daily activities suggest otherwise:
Further, the record as a whole shows that the claimant is more capable at social
functioning than alleged, as demonstrated by her ability to get along with her
grandparents, attend college, attend and graduate high school, attend
appointments, interact with others via the internet, and leave her home as needed.
(AR 18); see also (AR 51-52) (Petitioner testifying that she was in “mainstream classes” in high
school, did not receive any extra help, and does not have “problems” with her grandparents);
(AR 307) (Petitioner stating that she watches television with her family and chats with friends
online); (AR 278-86) (Petitioner’s high school teacher, Tina Meyers, acknowledging Petitioner’s
anxiety in social situations and aversion to physical contact, but explaining: “Talking to others is
difficult for Sherry. She is very bright in many areas and she gets frustrated when others behave,
act, or speak unintelligently. . . . . I was not sure how to deal with Sherry in the beginning, but
by the time she had me her Senior Year, we connected very well. Students learned to ignore her
outbursts and strange social behaviors and she fit quite well into the mainstream classroom
setting. She even signed up to be my teacher’s aide her last year of high school.”).
Together, these reasons offer clear and convincing explanations as to why the ALJ did
not find Petitioner’s testimony entirely credible. This is not to say that the Court conclusively
finds Petitioner not to be disabled under the applicable rules and regulations, or that Petitioner
does not suffer from chronic pain; indeed, as expected, Petitioner identifies (or at least suggests
the existence of) conflicting evidence in support of her position. While such conflicting
evidence may not have been given the weight Petitioner would have preferred, the ALJ’s
MEMORANDUM DECISION AND ORDER - 10
decision to doubt Petitioner’s credibility in denying disability benefits contains clear and
convincing reasons for doing so. As required by controlling law, the ALJ will not be secondguessed as to such conclusions, on the record here and the justifications provided. See Batson v.
Comm’r of Soc. Sec. Admin., 359 F.3d 1190 (9th Cir. 2004) (“[T]he Commissioner’s findings are
upheld if supported by inferences reasonably drawn from the record, and if evidence exists to
support more than one rational interpretation, we must defer to the Commissioner’s decision.”)
(internal citations omitted). Therefore, the Court will not substitute its judgment when the
evidence in the record can support the ALJ’s findings.
2.
Third-Party Statements
At the June 22, 2015 hearing, Petitioner’s grandmother, Hester Riggs testified that
Petitioner:
•
Needed modified assignments in high school;
•
Could only work during high school with certain accommodations;
•
Had trouble with roommates during her first year of college;
•
Comes across as being very rude with “cross expressions”;
•
Does not have any friends (but “might have some on the computer”);
•
Doesn’t like crowds;
•
Would not “be able to listen to somebody else give her orders”;
•
Cannot accept constructive criticism.
(AR 60-64). Similarly, in her August 31, 2013 “Function Report Adult – Third Party,” Ms.
Riggs indicated Petitioner’s preference to be alone, alongside a general inability to function “in
any group of people.” (AR 316-17). Petitioner contends that the ALJ failed to give proper
consideration to this testimony when making his disability determination . See Pet.’s Brief, pp.
4-5 (Docket No. 12).
MEMORANDUM DECISION AND ORDER - 11
To begin, lay witness testimony as to a claimant’s symptoms or how an impairment
affects the claimant’s ability to work is competent evidence that the ALJ must consider. See
Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). Competent lay witness testimony
“cannot be disregarded without comment.” To discount competent lay witness testimony, the
ALJ “must give reasons that are germane to each witness.” Id.; Dodrill v. Shalala, 12 F.3d 915,
919 (9th Cir. 1993). But the ALJ is not required to discuss every witness’s testimony on an
individualized, witness-by-witness basis. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.
2012). Rather, if the ALJ gives germane reasons for rejecting testimony by one witness, the ALJ
need only point to those reasons when rejecting similar testimony by a different witness. See id.
(citing Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (holding that,
because “the ALJ provided clear and convincing reasons for rejecting [the claimant’s] own
subjective complaints, and because [the lay witness’s] testimony was similar to such complaints,
it follows that the ALJ also gave germane reasons for rejecting [the lay witness’s] testimony”)).
The applicable regulations are in accord; they require the ALJ to consider testimony from family
and friends submitted on behalf of the claimant, but do not require the ALJ to provide express
reasons for rejecting testimony from each lay witness. See 20 C.F.R. §§ 404.1529(c)(3),
404.1545(a)(3); see also SSR 06-03p (recognizing that “there is a distinction between what an
adjudicator must consider and what the adjudicator must explain in the disability determination
or decision”).
Here, the ALJ considered Ms. Riggs’s testimony/statement and gave it “some weight as
the [Petitioner’s] social functioning deficits were noted.” (AR 18). At the same time, the ALJ
recognized that Petitioner “was able to leave her home, shop in public, and was not really limited
MEMORANDUM DECISION AND ORDER - 12
at all in her activities of daily living or concentration/pace/persistence.” Id. More importantly,
as with the ALJ’s consideration of Petitioner’s own credibility, the deficits noted by Ms. Riggs
were incorporated into Petitioner’s RFC with accompanying nonexertional limitations – namely,
that Petitioner can perform simple, routine work tasks; and can tolerate occasional interaction
with supervisors, coworkers, and the public. See (AR 16).1 Therefore, consistent with the
credibility determination as to Petitioner, the ALJ’s handling of Ms. Riggs’s statements was
appropriate when considering the balance of evidence contained in the record. See, e.g., Molina,
674 F.3d at 1122 (“[A]n ALJ’s failure to comment upon lay witness testimony is harmless where
‘the same evidence that the ALJ referred to in discrediting [the claimant’s] claims also discredits
[the lay witness’s] claims.’”) (quoting Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 2011)).
3.
Petitioner’s Physicians’ Conflicting Opinions2
Petitioner claims that the ALJ improperly considered the medical evidence – specifically,
the various examining physicians’ opinions speaking to her functional limitations. See Pet.’s
Brief, p. 6 (Docket no. 12) (“This is a frustrating situation where the evidence on hand clearly
demonstrates severe mental impairments causing extreme social limitations, and where such
evidence is ignored or twisted to support the judge’s predisposition to deny this woman benefits
simply because she was able to graduate high school.”). The ALJ is responsible for resolving
ambiguities and conflicts in the medical testimony. See Magallanes, 881 F.2d at 750. The ALJ
1
It should be mentioned that, while Ms. Riggs expressed concern about Petitioner’s
ability to take direction from others, Petitioner herself stated that she “get[s] along fine with
authority figures,” and has no difficulty doing what her grandparents ask her to do. See (AR 5657, 309).
Although the regulations governing the evaluation of medical evidence were recently
amended, the version effective March 27, 2017 does not apply to the present claim. See 20
C.F.R. §§ 404.1527, 404.1520c.
MEMORANDUM DECISION AND ORDER - 13
2
must provide clear and convincing reasons for rejecting the uncontradicted medical opinion of a
treating or examining physician, or specific and legitimate reasons for rejecting contradicted
opinions, so long as they are supported by substantial evidence. See Bayliss v. Barnhart, 427
F.3d 1211, 1216 (9th Cir. 2005). However, “[t]he ALJ need not accept the opinion of any
physician, including a treating physician, if that opinion is brief, conclusory, and inadequately
supported by clinical findings.” Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012).
Additionally, the ALJ may discount physicians’ opinions based on internal inconsistencies,
inconsistencies between their opinions and other evidence in the record, or other factors the ALJ
deems material to resolving ambiguities. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d
595, 601-02 (9th Cir. 1999).
Here, Petitioner argues that the ALJ did not give the appropriate level of deference to (1)
Dr. Hulbert’s August 16, 2012 opinions, (2) Dr. Dennis’s June 24, 2013 opinions, (3) Ms.
Calhoun’s November 2013 and October 2014 opinions; and (4) Dr. Levitt’s October 7, 2014
opinions. See Pet.’s Brief, pp. 6-9 (Docket No. 12). None is a treating physician, and the
opinions are contradicted. See, e.g., (AR 87-97, 111-21) (Drs. Stephenson’s and Greenspan’s
opinions that Petitioner retains capacity to perform certain work). As such, the ALJ needs only
specific and legitimate reasons for challenging the opinions, and the ALJ met this standard.
a.
Dr. Hulbert
Dr. Hulbert saw Petitioner one time – on referral by the State of Idaho Disability
Determination Services to conduct a mental health examination. Consistent with Petitioner’s
Asperger’s Syndrome diagnosis, Dr. Hulbert found that her “prognosis for successful full-time
employment, from a mental health standpoint, is seen as poor to fair.” (AR 385). However, the
MEMORANDUM DECISION AND ORDER - 14
ALJ gave Dr. Hulbert’s opinions only “partial weight,” reasoning that, while “the social
functioning difficulties were consistent with the record as a whole,” Dr. Hulbert “did not fully
explain the meaning of ‘poor’.” (AR 17). The ALJ’s criticism of Dr. Hulbert’s opinion is based
upon the ALJ’s conclusion that there is no basis from which to assess whether Petitioner is able
to work, if certain accommodations (which address Petitioner’s understood limitations) are taken
into account. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (“The more a medical source
presents relevant evidence to support a medical opinion, particularly medical signs and
laboratory findings, the more weight we will give that medical opinion. The better an
explanation a source provides for a medical opinion, the more weight we will give that medical
opinion.”); see also Hoge v. Berryhill, 2017 WL 4881586, at *9 (D. Or. 2017) (“[T]he ALJ’s
conclusion that Dr. Freed’s report was generally conclusory and inadequately explained was a
rational interpretation of this evidence; as such, it should be upheld as a specific and legitimate
reasons, supported by the record, to disregard Dr. Freed’s opinion.”) (citing Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005)). Regardless, the ALJ folded Dr. Hulbert’s more detailed
opinions on Petitioner’s functional limitations into the RFC assessment. See (AR 17) (“In any
event, the residual functional capacity accommodates these difficulties, and Dr. Hulbert’s
objective exam notes showed the claimant was more capable socially than alleged.”).
b.
Dr. Dennis
Dr. Dennis saw Petitioner once, on a referral from the vocational rehabilitation counselor
“for an evaluation to determine appropriateness for VR sponsored mental health counseling.”
(AR 386). At the outset, Dr. Dennis described Petitioner as:
This young woman initially presented as quite anxious and nervous, with odd and
somewhat constricted/mildly blunted affect. She was quite fidgety. She was
MEMORANDUM DECISION AND ORDER - 15
vague with information. She was socially awkward. She wore sunglasses
throughout the interview, and when I asked if these were necessary because of the
light sensitivity or feeling nervous, she replied “Both.” Although initially rapport
was difficult to establish, she eventually appeared to relax a little bit once we got
into more conversational interactions about her interests such as art and an
Internet comic she is interested in developing, and she was able to go on at length
about this topic. Once she became more relaxed and conversational it was
apparent that she is of at least average if not above average overall intelligence,
and no specific learning problems were directly observable.
Id.
After discussing Petitioner’s background, her daily functioning, and mood, Dr. Dennis
addressed Petitioner’s “social deficits.” On this last point, Petitioner complains that the ALJ
understated Dr. Dennis’s findings, arguing that “the ALJ essentially rewrote Dr. Dennis’s
opinion to state that the doctor ‘noted that she had exhibited only some of the social deficits
expected’” and that “[t]his is quite the opposite of what the doctor actually said – which is that
she exhibited severe social deficits which supported her diagnosis.” Pet.’s Brief, p. 7 (Docket
No. 12) (quoting (AR 17)). The record indicates that Dr. Dennis characterized Petitioner’s
“social deficits” variously – including as “at least some of the social deficits one would see with
a pervasive developmental disorder”; “some significant social deficits”; and “some severe social
deficits.” (AR 387-88) (emphasis added). Regardless of whether quantifiable differences might
exist between these descriptions, there was no connecting of the dots made by Dr. Dennis as to
how Petitioner’s social deficits (whatever Dr. Dennis believed them to be) translate to her ability,
or inability, to sustain work – the ALJ’s exact concern when addressing Dr. Dennis’s opinions.
See (AR 17) (“Nonetheless, [Dr. Dennis] never opined that [Petitioner] was unable to perform
work activity within the confines of the residual functional capacity.”).
MEMORANDUM DECISION AND ORDER - 16
Even so, the ALJ incorporated the discernable substance of Dr. Dennis’s opinions vis à
vis Petitioner’s functional limitations into the RFC finding. See Turner v. Comm’r of Soc. Sec.,
613 F.3d 1217, 1222-23 (9th Cir. 2010) (holding that limitation to “no public contact” and “no
significant background activity” sufficiently accommodated marked limitations in social
functioning, including opinion that claimant needed social isolation due to PTSD).
c.
Ms. Calhoun
Ms. Calhoun is a licensed clinical social worker. Ms. Calhoun indicated in two separate
mental residual functional capacity assessments that Petitioner had marked limitations in her
ability to work in coordination with others, and had extreme difficulty interacting with, asking
simple questions of, or getting along with others. See (AR 403-04, 411-14). Ms. Calhoun
ultimately opined that Petitioner “would have extreme difficulty dealing in any or majority of
environments due to having extreme difficulty tolerating other individuals.” (AR 414).
The ALJ gave these opinions “little weight” because they lacked explanation (or
substantiation within Ms. Calhoun’s treatment notes) and are at odds with the examination notes
and accepted opinions from Drs. Hulbert and Dennis. (AR 17). The Court concludes that the
ALJ’s findings in this regard are supported by his record. See supra; see also Young v. Heckler,
803 F.2d 963, 967-68 (9th Cir. 1986) (affirming ALJ’s rejection of treating physician’s opinion
because it was brief and contradicted by other opinions in record).3
3
Additionally, SSR 06-03p provides that licensed clinical social workers are not
“acceptable medical sources under applicable social security regulations.” In other words, as a
licensed clinical social worker, Ms. Calhoun’s credentials are not of the same degree as other
medical providers in the record. While this alone is no reason to reject her opinion outright, it
can justify affording her opinion less weight. See SSR 06-03p (“The fact that a medical opinion
is from an ‘acceptable medical source’ is a factor that may justify giving that opinion greater
weight than an opinion from a medical source who is not an ‘acceptable medical source . . . .’”).
MEMORANDUM DECISION AND ORDER - 17
d.
Dr. Levitt
Dr. Levitt also saw Petitioner once and issued a mental residual functional capacity
assessment that more-or-less mirrored Ms. Calhoun’s assessment, although with no “extreme”
impairment ratings. Compare, (AR 403-04, 411-14), with (AR 415-18). However, Dr. Levitt
explained his assessment in the context of an earlier psychological examination (one that does
not appear to be acknowledged or addressed by the ALJ). See (AR 416-17) (citing (AR 40510)). Still, in regard to the lynchpin issue of Petitioner’s ability to work, Dr. Levitt stated only:
“Probably not capable of consistently sustaining work efforts on a full-time basis anywhere
social interactions are needed.” (AR 418); see also (AR 410). This opinion also is not
inconsistent with the ALJ’s analysis of Petitioner’s RFC, particularly when considering the
corresponding nonexertional limitations listed. See supra. The ALJ had before him a broader
task, and because Dr. Levitt never considered (like Dr. Dennis) whether Petitioner was able to
work with these nonexertional limitations in place, the ALJ properly could decide to give only
“partial weight” to his opinions (also like Dr. Dennis). See supra.
There is no question that Petitioner suffers from several impairments (acknowledged as
“severe” by the ALJ) that impact her ability to work; however, the ALJ provided specific
legitimate reasons for rejecting/questioning certain opinions contained in the medical record.
These opinions were not given the weight Petitioner argues that they deserved; however, such
opinions clearly were considered in the context of the surrounding medical record.
At the same time, the Commissioner has directed that the opinions of such providers are
nonetheless “important and should be evaluated on key issues such as impairment severity and
functional effects, along with the other relevant evidence in the file.” Id.
MEMORANDUM DECISION AND ORDER - 18
The Court’s duty here is not to resolve the conflicting opinions and ultimately decide
whether Petitioner is once-and-for-all disabled as that term is used within the Social Security
regulations. Rather, this Court must decide whether the ALJ’s decision that Petitioner is not
disabled is supported by the record. In this record, there are conflicting medical opinions,
testimony, and accounts that inform the ALJ’s decisions on how to consider the various opinions.
His decision to discount certain opinions while crediting others is supported by clear and
convincing, specific, and legitimate reasons Hence, because the evidence can reasonably support
the ALJ’s conclusions in these respects, this Court will not substitute its judgment for that of the
ALJ’s even if this Court were to have a different view. See Richardson, 402 U.S. at 401;
Matney, 981 F.2d at 1019.
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 the ALJ’s
well-formed conclusions, despite the fact that such evidence may be susceptible to a different
interpretation. Accordingly, the ALJ’s decisions as to Petitioner’s disability claim were 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
standards.
The Commissioner’s decision is affirmed.
MEMORANDUM DECISION AND ORDER - 19
V. ORDER
Based on the foregoing, the decision of the Commissioner is AFFIRMED and this action
is DISMISSED in its entirety with prejudice.
DATED: January 31, 2018
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 20
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