Wright v. Commissioner of Social Security

Filing 20

MEMORANDUM DECISION AND ORDER re 1 Petition for Review filed by Loretta Kay Wright. The Commissioner's decision is affirmed. 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 (ckh)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

LORETTA WRIGHT,

Case No.: 1:18-cv-00271-REB

Petitioner,

MEMORANDUM DECISION AND
ORDER

vs.
NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Respondent,
Pending before the Court is Petitioner Loretta Wright’s Complaint/Petition for Review
(Dkt. 1), seeking review of the Social Security Administration’s decision denying her application
for Social Security Disability Insurance benefits and Supplemental Security Income benefits for
lack of disability. See generally Compl./Pet. for Review (Dkt. 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
On December 20, 2016, Petitioner Loretta Wright (“Petitioner”) filed a Title II
application for a period of disability and disability insurance benefits; also on December 20,
2016, Petitioner protectively filed a Title XVI application for supplemental security income. In
both applications, Petitioner alleged disability beginning May 1, 2016. These claims were
denied on March 22, 2017 and, again, on reconsideration on June 8, 2017. On July 10, 2017,
Petitioner timely filed a Request for Hearing. On December 21, 2017, Administrative Law
Judge (“ALJ”) David Willis held a hearing in Boise, Idaho, at which time Petitioner, represented

MEMORANDUM DECISION AND ORDER - 1

by attorneys Bradford D. Myler and Liberty Straney, appeared and testified. Impartial vocational
expert Sara Statz also appeared and testified.
On February 28, 2018, the ALJ issued a Decision denying Petitioner’s claims, finding
that she was not disabled within the meaning of the Social Security Act. Petitioner timely
requested review from the Appeals Council and, on April 17, 2018, the Appeals Council denied
Petitioner’s Request for Review, making final the ALJ’s Decision.
Having exhausted her administrative remedies, Petitioner timely filed the instant action,
arguing generally that “[t]he agency committed error of law by denying Appeals Council review
of the decision by the Administrative Law Judge, or otherwise to deny relief that was within the
authority of the Appeals Council”; “[she] is disabled”; and “[t]he conclusions and findings of
fact of the Defendant are not supported by substantial evidence and are contrary to law and
regulation.” Compl./Pet. for Review, p. 2 (Dkt. 1). Specifically, Petitioner claims that the
“[residual functional capacity assessment] is unsupported by substantial evidence because the
ALJ failed to afford adequate weight to the opinion of PT Berg.” Pet.’s Brief, pp. 1, 9 (Dkt. 17).
Petitioner therefore requests that the Court either reverse the ALJ’s Decision and find that she is
entitled to disability insurance benefits and supplemental security income or, alternatively,
remand the case for further proceedings and award attorneys’ fees. See id. at p. 14; see also
Compl./Pet. for Review, p. 2 (Dkt. 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).
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
MEMORANDUM DECISION AND ORDER - 2

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 understood to be such relevant evidence as a reasonable mind
might accept as adequate to support an ALJ’s finding/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).
As to questions of fact, the Court’s role is to review the record as a whole to determine
whether it contains evidence allowing a reasonable mind to accept the conclusions reached by
the ALJ. See Richardson, 402 U.S. at 401. The ALJ is responsible for determining credibility
and resolving conflicts within the medical testimony (see Allen v. Heckler, 749 F.2d 577, 579
(9th Cir. 1984)), resolving any 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
contained in the record (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).
As 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. At the same time, 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
MEMORANDUM DECISION AND ORDER - 3

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. REPORT
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 1, 2016, the alleged onset date.” (AR 16).
The second step requires a determination of 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” if it significantly limits an individual’s ability to perform
basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of
MEMORANDUM DECISION AND ORDER - 4

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 there is no severe
medically determinable impairment or combination of impairments, 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: “obesity, degenerative disc disease, left hip degenerative joint disease, migraines,
gastritis, and duodenitis.” (AR 16).
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 16-17).
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. On this point, the ALJ concluded:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except she can lift/carry/push/pull 20 pounds
occasionally and less than 10 pounds frequently. She can sit up to 6 hours per 8hour workday. After sitting 45 minutes, she must alternate to standing/walking 15
minutes before resuming sitting. She can stand and/or walk 6 hours per 8-hour
MEMORANDUM DECISION AND ORDER - 5

workday. After standing/walking 45 minutes, she must alternate to sitting 15
minutes before resuming standing/walking. She can occasionally balance, stoop,
kneel, and climb ramps/stairs. She can never crouch, crawl, or climb
ladders/ropes/scaffolds. She can tolerate occasional exposure to extreme cold and
vibration. In addition to normal breaks, she will be off task 10% of time in an 8hour workday, and she will be absent from work one day per month.
(AR 17-18).
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). Here, the ALJ found that Petitioner is unable to perform any past relevant work but
that, considering her age, education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that she can perform, including marker, routing
clerk, and ticket seller. See (AR 20-21). Therefore, the ALJ concluded that Petitioner “has not
been under a disability, as defined by the Social Security Act, from May 1, 2016, through the
date of this Decision.” (AR 21).
B.

Analysis
On October 2, 2017, physical therapist, Darangee Berg, completed a “Medical Source

Statement of Ability to Do Work-Related Activities (Physical)” (“Statement”) on Petitioner’s
behalf, indicating that she was limited to less than a full range of sedentary work activity. (AR
717-722). In this respect, PT Berg opined that Petitioner was limited to (1) sitting five hours per
eight-hour day, not to exceed two hours at one time; (2) standing only one hour per eight-hour
day, not to exceed five minutes at one time; and (3) walking only two hours per eight-hour day,
not to exceed one hour at one time. See (AR 718). These limitations represent the pertinent

MEMORANDUM DECISION AND ORDER - 6

differences between PT Berg’s opinions and the ALJ’s RFC assessment, with a side-by-side
comparison of each’s interpretation of Petitioner’s limitations revealing (differences in italics):
LIMITATION

ALJ

PT BERG

Lifting, Carrying, Pushing,
Pulling

20 pounds occasionally
10 pounds frequently

20 pounds occasionally

Sitting in Eight-Hour Day

Up to six hours (after sitting
for 45 minutes, Petitioner must
alternate to standing/walking
for 15 minutes before resuming
sitting)

Up to five hours (two hours at
a time)

Standing/Walking in EightHour Day

Up to six hours (after
standing/walking 45 minutes,
must alternate to sitting for 15
minutes before resuming
standing/walking)

Up to one hour standing (five
minutes at a time); up to two
hours walking (one hour at a
time)

Balancing

Occasionally

Occasionally

Stooping

Occasionally

Occasionally

Kneeling

Occasionally

Occasionally

Climbing Ramps/Stairs

Occasionally

Occasionally

Crouching

Never

Never

Crawling

Never

Never

Climbing Ladders/Scaffolds

Never

Never

Exposure to Extreme Cold and
Vibration

Occasionally

Never

Compare (AR 17-18), with (AR 717-721). However, the ALJ only accorded “limited weight” to
PT Berg’s opinions, noting (1) her limited treatment relationship with Petitioner prior to drafting
the Statement; (2) the inconsistency between the Statement and “unremarkable imaging scans”;
and (3) the inconsistency between the Statement and Petitioner’s daily activities. See (AR 19).
Petitioner disagrees, arguing that the ALJ’s RFC analysis at step four of the sequential process is
compromised because the ALJ failed to fully incorporate PT Berg’s opinions therein and,
therefore, is unsupported by requisite substantial evidence. See Pet.’s Brief, pp. 9-14 (Dkt. 17).
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An ALJ may only reject the uncontradicted opinion of a treating or examining doctor by
giving “clear and convincing” reasons. See Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir.
2017). Even if a treating or examining doctor’s opinion is contradicted by another doctor’s
opinion, an ALJ may only reject it by stating “specific and legitimate” reasons. See id. The ALJ
can meet this standard by providing “a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation thereof, and making findings.” Id.
(citation omitted). “The ALJ must do more than offer his conclusions. He must set forth his
own interpretations and explain why they, rather than the doctors’, are correct.” Reddick v.
Chater, 157 F.3d 715, 721 (9th Cir. 1998).
However, “only physicians and certain other qualified specialists are considered
‘[a]ccepted medical sources.’” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (alteration
in original). Other providers, including physical therapists like PT Berg, are not acceptable
medical sources. See 20 C.F.R. § 404.1513(a). The ALJ may evaluate opinions of non-accepted
medical sources using the same factors applied to evaluate medical opinions of accepted medical
sources; still, the ALJ may give less weight to the opinions of non-accepted medical sources than
to those of accepted medical sources. See SSR 06-03p, available at 2006 WL 2329939, at *5.
Accordingly, the ALJ may reject the opinion of a non-acceptable medical source by giving
reasons germane to the opinion. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); see
also Loop v. Colvin, 651 F. App’x 694, 696 (9th Cir. 2016). Here, the ALJ’s reasons for
discounting PT Berg’s opinions and giving them only “limited weight” are sufficiently specific
and germane.
First, PT Berg prepared the Statement in the middle of treating Petitioner. So, while it is
not completely accurate to imply that PT Berg had not established a relationship with Petitioner
by the time PT Berg authored the Statement on October 2, 2017 (she had treated Petitioner 12
MEMORANDUM DECISION AND ORDER - 8

times up to this point), the Statement – even if accurate – reflects only a snapshot of Petitioner’s
condition at that time. In other words, owing to PT Berg’s continued treatment of Petitioner
beyond October 2, 2017, the opinions contained within the Statement are necessarily incomplete
in that they do not incorporate the dynamic of any progress Petitioner experienced via physical
therapy over time. See, e.g., (AR 740) (10/13/17 treatment note indicating that Petitioner “is able
to walk 3 laps at the Rec Center”); (AR 744) (10/20/17 treatment note indicating that Petitioner’s
original 2-week goal of performing daily exercises had been achieved); (AR 746) (10/24/17
treatment note indicating “[i]improvement in gait noted today and able to comfortably place right
foot on step”); (AR 775) (10/27/17 treatment note indicating “[i]mproved ability to raise left and
place foot on step forward and laterally”); (AR 777) (10/30/17 treatment note indicating that
“Lortetta has made many improvements in therapy including being able to fully extend the left
hip while supine, lifting the left lower extremity onto the table without assistance and clearing
the left foot when stepping up on a stair”); (AR 784) (11/14/17 treatment note indicating that
“Loretta has improved movement patterns [and] is talking about vocational rehab”); (AR 789)
(11/21/17 treatment note indicating that Petitioner is “able to ambulate with improved cadence
today” and “is walking 1 mile at the Rec Center and doing aquatic exercise class”); (AR 791)
(11/28/17 treatment note indicating that Petitioner is “[a]ble to advance exercises gradual”).1 In
this sense, then, the Statement’s import is indeed limited.
Second, the objective medical evidence available at the time PT Berg drafted the
Statement neither supports nor provides a basis for her opinions. For example, as the ALJ
pointed out, (1) an April 17, 2017 left hip x-ray was “unremarkable”; (2) a May 12, 2017 lumbar
1

To be clear, the point of these references to the record is not to show that Petitioner is
not disabled but, rather, to indicate that PT Berg’s October 2, 2017 Statement is a static
representation of her opinions as to Petitioner’s limitations as of that date only and, thus, is
incapable of speaking to Petitioner’s progression in the days and months thereafter.
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x-ray indicated only “mild disc disease”; and (3) a June 1, 2017 MRI of Petitioner’s left hip
“revealed only mild edema and mild trochanteric bursitis”. (AR 19) (citing (AR 626, 635-636)).
According to the ALJ, in this setting, the Statement “is not consistent with the aforementioned
unremarkable imaging scans.” (AR 19); see also id. (“The imaging scans of her allegedly
painful joints do not fully support her allegations concerning severe and constant pain with
prolonged walking or standing.”). This separate critique represents a sufficiently specific and
germane reason to discount PT Berg’s opinions. See Bayliss v. Barnhart, 427 F.3d 1211, 1218
(9th Cir. 2005) (finding that ALJ provided germane reason when he stated that “other source”
opinion testimony was inconsistent with objective medical evidence).2
Finally, Petitioner’s daily activities themselves conflict with the restrictive standing and
walking limitations opined by PT Berg. Specifically, despite PT Berg’s opinion that Petitioner
could stand for only five minutes at a time (for a total of one hour a day), walk for only one hour
at a time (for a total of two hours a day), and sit for two hours at a time (for a total of five hours a
day), Petitioner testified that she essentially walks much of the day. See (AR 43-45, 53-55)
(testifying that she walks to bus stop, takes bus to Rec Center, and “basically just walk(s)
around” when not participating in water therapy and exercises therapist gave her); see also (AR
730) (9/25/17 treatment note indicating Petitioner “walks a lot during the day due to being
2

Petitioner points to later-in-time “MRIs” which she argues “revealed much more severe
findings.” Pet.’s Brief, p. 11 (Dkt. 17). In doing so, however, she does describe how the clinical
findings (e.g., “diffuse disk bulging at L3-L4, disc desiccation with broad-based disc bulging,
and canal stenosis at L4-5” (Id.)) are connected to her ability, or inability, to sustain work – the
ALJ’s exact concern when addressing Petitioner’s disability claim and PT Berg’s opinions.
Regardless, these December 2017 results were also addressed by the ALJ – just not with respect
to his handling of PT Berg (because they did not exist on October 2, 2017 when PT Berg
prepared the Statement). See (AR 19). And, in that respect, the ALJ highlighted the same points
raised by Petitioner above, before concluding (as did the report) that it “revealed degenerative
disc and facet disease, but no acute abnormality.” Id. (citing (AR 817-819)). There is no dispute
that Petitioner suffers from degenerative disc disease and left hip degenerative joint disease – the
ALJ concluded as much at step two of the sequential process. See supra.
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homeless”). The Ninth Circuit has agreed that an ALJ may discount the medical opinion where
the prescribed restrictions were inconsistent with the level of activity maintained by a claimant.
See, e.g., Lee v. Berryhill, 2017 WL 6629018, *1 (9th Cir. 2017) (finding that ALJ provided
specific and legitimate reasons to reject examining physician’s opinions where claimant’s “daily
activities [were] inconsistent with [the physician’s] conclusion that [the claimant] cannot work”);
Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (where claimant “indicated that she was
able to take care of her personal needs, prepare easy meals, do light housework, and shop for
some groceries,” court found that “[a]n ability to perform such activities may be seen as
inconsistent with the presence of a condition which would preclude all work activity”).
At bottom, there is no question that Petitioner suffers from several impairments
(acknowledged as “severe” by the ALJ (see (AR 16)) that impact her ability to work; however,
the ALJ provided specific and germane reasons for rejecting/questioning certain opinions
contained in the medical record – namely, those of PT Berg’s. These opinions were not given
the weight Petitioner argues that they deserved, but such opinions clearly were considered in the
context of the surrounding medical record.
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 record supports the ALJ’s decision that
Petitioner is not disabled. This record contains conflicting medical opinions, testimony, and
accounts that inform the ALJ’s consideration of the various medical viewpoints. His decision to
discount certain opinions while crediting others is supported by clear and convincing, specific,
legitimate, and germane reasons. Hence, because the evidence can reasonably support the ALJ’s
conclusions, this Court will not substitute its judgment for that of the ALJ even if this Court were
to have a different view. See Richardson, 402 U.S. at 401; Matney, 981 F.2d at 1019.
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IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences
from facts and determining credibility. See Allen, 749 F.2d at 579; see also 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.

DATED: September 24, 2019
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

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