McCreary v. Commissioner of Social Security

Filing 24

MEMORANDUM DECISION AND ORDER - Petitioners Petition for Review (Dkt. #1 ) is GRANTED IN PART. This action shall be REMANDED to the Commissioner for further proceedings consistent with this opinion. This Remand shall be considered a sentence four remand, consistent with 42 U.S.C. 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

EARL HOWARD McCREARY,
Petitioner,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,

Case No. 1:19-cv-00219-CWD
MEMORANDUM DECISION
AND ORDER

Respondent.

Petitioner brought this matter for judicial review of Respondent’s denial of his
application for a period of disability and disability insurance benefits. (Dkt. 1.) The Court
has reviewed the Petition for Review, the parties’ memoranda, and the administrative
record (AR). For the reasons set forth below, the Court will affirm in part and reverse in
part, and remand with instructions for a calculation and payment of benefits for the
period after Petitioner reached 55 years of age.

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BACKGROUND
On December 7, 2017, Petitioner protectively filed an application for a period of
disability and disability insurance benefits under Title II of the Social Security Act,
alleging a disability onset date of December 12, 2012. AR 15. Petitioner’s application
was denied upon initial review and on reconsideration. AR 16. A hearing was held before
Administrative Law Judge (ALJ) Christopher Inama on October 3, 2018. AR 37 - 63. The
ALJ heard testimony from Petitioner and a vocational expert. Id. On January 24, 2019,
the ALJ issued a written decision finding Petitioner was not under a disability from
December 12, 2012, through December 31, 2017, the date last insured, and found
Petitioner was not disabled. AR 15 – 31. The Petitioner timely requested review by the
Appeals Council, which denied his request for review on April 9, 2019. AR 1 – 3.
Petitioner timely appealed this final decision to the Court on June 17, 2019. (Dkt.
1.) The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. §
405(g). At the time of his alleged disability onset date of December 12, 2012, Petitioner
was fifty-two years of age. On the date last insured, Petitioner was fifty-seven years of
age. Petitioner has a bachelor’s degree in information technology management and
supply chain management, which he obtained from Boise State University (BSU) in May
of 2016. AR 42. Petitioner has past work in various skilled positions as a senior products
support engineer and a field service engineer, and also as a real estate agent. AR 29, 43.

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ISSUES FOR REVIEW
A. Whether the ALJ reasonably weighed Petitioner’s subjective symptom
testimony?
B. Whether the ALJ erred in finding Petitioner not disabled because he could
perform two occupations that existed in significant numbers in the economy?
STANDARD OF REVIEW
The Court will uphold an ALJ’s decision, unless: (1) the decision is based on legal
error, or (2) the decision is not supported by substantial evidence. Revels v. Berryhill, 874
F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Biestek v. Berryhill,
139 S. Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). This requires “more than a mere scintilla” of evidence. Id.
The Court must consider the administrative record as a whole. Garrison v. Colvin,
759 F.3d 995, 1009 (9th Cir. 2014). It must weigh both the evidence that supports, and
the evidence that does not support, the ALJ’s conclusion. Id.
If the ALJ’s decision is based on a rational interpretation of conflicting evidence,
the Court will uphold the ALJ’s finding. Carmickle v. Comm’r of Soc. Sec. Admin., 533
F.3d 1155, 1165 (9th Cir. 2008). It is unnecessary for the ALJ to “discuss all evidence
presented.” Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir.
1984) (citation omitted) (emphasis in original). The ALJ must, however, explain why
“significant probative evidence has been rejected.” Id.
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DISCUSSION
Here, the ALJ found Petitioner has the following medically determinable, severe
impairments: cervical degenerative disc disease, status post fusion x2; status post total
right hip arthroplasty; and post-traumatic stress disorder. AR 17. Based on the limitations
caused by these impairments, the ALJ assessed Petitioner as able to perform light work,
with some exertional and non-exertional limitations. AR 21. Relying on vocational expert
testimony, the ALJ found Petitioner could not perform his past relevant work, either as a
real estate agent or with respect to his work as an engineer, which the vocational expert
testified consisted of a composite job covered by the following jobs identified in the
Dictionary of Occupational Titles: Field Service Engineer, DOT 638.261-018, and
Standards/Practices Analyst, DOT 131.267-026. However, the ALJ found that Petitioner
had acquired work skills from his past relevant work such that he could perform the jobs
of Standards/Practices Analyst and Policy Writer. AR 29 – 30. Accordingly, the ALJ
determined at step five that Petitioner was not disabled under the framework of MedicalVocational Rule 202.15 and Rule 202.07. AR 30.
A.

Symptom Testimony
Petitioner contends that the ALJ erred by rejecting Petitioner’s subjective

symptom testimony concerning his disrupted sleep schedule, which Petitioner testified
would result in him missing an average of five to six days each month from a full-time
job. AR 52 – 53. If this testimony was credited, either in whole or in part, the vocational
expert testified absences in excess of one day each month would preclude work,
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mandating a finding of disabled. AR 61.
The ALJ engages in a two-step process for evaluating a claimant’s testimony
about the severity and limiting effect of the claimant’s symptoms. Trevizo v. Berryhill,
871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine whether the claimant
has presented objective medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms alleged. Trevizo, 871 F.3d
at 678 (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014); 20 C.F.R. §
404.1529 (Mar. 27, 2017)). When doing so, “the claimant need not show that [his or] her
impairment could reasonably be expected to cause the severity of the symptom [he or]
she has alleged; [he or] she need only show that it could reasonably have caused some
degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
If the claimant satisfies the first step of this analysis, and there is no evidence of
malingering, the ALJ may discredit the claimant’s testimony about the severity of his or
her symptoms only by offering specific, clear and convincing reasons for doing so.
Trevizo, 871 F.3d at 678; Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). It is “not
sufficient for the ALJ to make only general findings; he [or she] must state which pain
testimony is not credible and what evidence suggests the complaints are not credible.”
Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). These reasons must be “sufficiently
specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995)
(citing Bunnell v. Sullivan, 947 F.2d 345, at 345-46 (9th Cir. 1991)).
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When evaluating the intensity and persistence of symptoms, the ALJ must
consider all of the evidence in the record. See SSR 16-3p (March 16, 2016), 2016 WL
1119029 at *1-2. 1 The ALJ is directed to examine “the entire case record, including the
objective medical evidence; an individual’s statements about the intensity, persistence,
and limiting effects of symptoms; statements and other information provided by medical
sources and other persons; and any other relevant evidence in the individual’s case
record.” Id. at *4.
The Commissioner recommends assessing: (1) the claimant’s statements made to
the Commissioner, medical providers, and others regarding the location, frequency and
duration of symptoms, the impact of the symptoms on daily living activities, factors that
precipitate and aggravate symptoms, medications and treatments used, and other methods
used to alleviate symptoms; (2) medical source opinions, statements, and medical reports
regarding the claimant’s history, treatment, responses to treatment, prior work record,
efforts to work, daily activities, and other information concerning the intensity,
persistence, and limiting effects of an individual’s symptoms; and (3) non-medical source
statements, considering how consistent those statements are with the claimant’s
statements about his or her symptoms and other evidence in the record. See id. at *6-7.
The ALJ’s decision may be upheld even if not all of the ALJ’s reasons for

1

SSR 96-7p was superseded by SSR 16-3p, which eliminates the reference to
“credibility,” clarifies that “subjective symptom evaluation is not an examination of an
individual’s character,” and requires the ALJ to evaluate the record as a whole. Trevizo, 871 F.3d
at 679 n.5.
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discrediting the claimant’s testimony are upheld. See Batson v. Comm’r of Soc. Security
Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). The ALJ may not, however, make an
adverse finding “solely because” the claimant’s symptom testimony “is not substantiated
affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880,
883 (9th Cir. 2006). Rather, an ALJ may consider the lack of corroborating objective
medical evidence as one factor in “determining the severity of the claimant’s pain” or
other symptoms. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). But the ALJ
may not reject subjective pain or other symptom testimony merely because it was not
fully corroborated by objective medical evidence. Robbins, 466 F.3d at 883.
Petitioner testified that he had severe sleep disturbance, anxiety, nightmares and
irritability in the afternoons consistent with what he believed were symptoms of attention
deficit hyperactivity disorder. AR 26. At the hearing, Petitioner testified that poor sleep
interfered with his concentration and attention. AR 51. He testified also that interrupted
sleep caused him depression and anxiety to the point he was not functional. AR 52.
Petitioner estimated he would miss up to six days of work each month as a result. AR 52
– 53.
The ALJ found that Petitioner’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that Petitioner’s statements
concerning the intensity, persistence, and limiting effects of these symptoms were not
consistent with the evidence in the record. AR 23. The ALJ considered not only
Petitioner’s testimony concerning his disrupted sleep, but also his testimony about the
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limitations allegedly caused by his physical and mental impairments. 2 The ALJ rejected
Petitioner’s subjective symptom testimony for a number of reasons, relying upon benign
physical examination findings; reports of improvement in symptoms; objective medical
evidence (x-ray and MRI) showing no acute abnormalities; Petitioner’s self-reports
indicating he was in no pain and had no exercise intolerance; and his testimony that he
planned to resume his normal activities. AR 23 – 24.
With respect to Petitioner’s testimony, specifically concerning disrupted sleep, the
ALJ noted Petitioner’s treating physician made significant medication modifications in
May of 2017 to help with sleep difficulties. AR 27. The ALJ pointed out that later
treatment notes reflected Petitioner was exhibiting an euthymic mood, and that his
treating physician continued to note Petitioner’s mental status was within normal limits.
AR 27. The ALJ noted Petitioner reported that, as of March 13, 2018, his sleep remained
difficult but he reported that he was “otherwise doing well.” AR 26. The ALJ remarked
that, in April of 2018, Dr. Lewer’s mental status examination findings described
Petitioner as alert and oriented, with normal mood, judgment and insight. AR 27. Further,
the ALJ noted that numerous mental status examinations throughout the record described
Petitioner as alert, oriented, and exhibiting a congruent mood and affect as well as logical
thought content. AR 26. Based upon this evidence, the ALJ concluded that there was no
medical support for assessing limitations related to understanding, remembering, or
2

Petitioner did not challenge the ALJ’s other determinations regarding Petitioner’s
subjective symptom testimony, resulting in waiver. See Singh v. Ashcroft, 361 F.3d 1152, 1157
n. 3 (9th Cir. 2004) (issues not raised in opening brief are typically deemed waived).
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applying information, and no more than mild limitations with regard to concentrating,
persisting, or maintaining pace. AR 27.
The ALJ referenced also Petitioner’s testimony that he would have excessive
absences, observing that, while the record reflected sleep difficulties, Petitioner
nonetheless graduated from BSU with two majors. AR 28. The ALJ rejected the opinion
of Della Chipman, LCSW, dated September 21, 2018, in which she maintained that
Petitioner had difficulty getting out of bed on some days. AR 28.
The ALJ found that the overwhelming weight of the medical evidence supported a
determination that the degree of severity or limitation described by Ms. Chipman and by
Petitioner was unpersuasive and unsupported by objective medical evidence.
Contradiction with the medical record is a sufficient basis for rejecting a claimant’s
subjective symptom testimony. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155,
1161 (9th Cir. 2008). The ALJ considered the objective medical evidence as a whole,
which indicated Petitioner demonstrated no gross abnormalities and generally had normal
mental status examinations over the course of multiple years, which the ALJ considered
inconsistent with Petitioner’s reports of irritability, depression and anxiety as a result of
his sleep disturbance. Further, the ALJ found that Petitioner’s ability to attend university
and graduate with two majors was inconsistent with Petitioner’s claims that he would
miss, on average, five to six days of work each month.
The Court finds the ALJ provided clear and convincing reasons supported by
substantial evidence in the record as a whole for rejecting Petitioner’s subjective
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symptom testimony related to his allegations that his poor sleep interfere with
concentration and attention, and would cause excessive absences. The ALJ identified the
evidence that undermined the severity of Petitioner’s subjective symptom testimony, and
discussed the evidence that contradicted Petitioner’s testimony. “Where, as here, the ALJ
has made specific findings justifying a decision to disbelieve an allegation ... and those
findings are supported by substantial evidence in the record, [the Court’s] role is not to
second-guess that decision.” Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600
(9th Cir. 1999) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
The Court therefore finds that the ALJ’s evaluation of Petitioner’s subjective
symptom testimony and his rejection of Petitioner’s allegations is supported by
substantial evidence in the record. Consequently, the Court finds the ALJ’s determination
that Petitioner was not disabled under Medical-Vocational Rule 202.15 free from legal
error.
B.

Significant Work
Petitioner was fifty-two years of age on the alleged disability onset date of

December 12, 2012, and fifty-seven years of age on December 31, 2017, the date last
insured. An individual who has reached fifty-five years of age is considered a “person of
advanced age.” 20 C.F.R. § 404.1563(e). 3 Here, the ALJ determined Petitioner possessed
transferrable skills, and could perform other occupations with jobs existing in significant
3

The ALJ incorrectly stated that, on Petitioner’s date last insured, he was considered an
individual “closely approaching advanced age.” AR 29. Respondent concedes that once
Petitioner reached age fifty-five, he was considered to be of advanced age. Resp. Brief at 7 n. 3.
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numbers in the national economy. AR 30. The ALJ identified two jobs, and therefore
found Petitioner not disabled under Medical-Vocational Rule 202.15 and 202.07.
Petitioner argues the Commissioner did not meet his burden at step five to show
that Petitioner could perform other work that exists in significant numbers in the national
economy, because the ALJ identified only two jobs Petitioner could perform. Petitioner
asserts the ALJ’s identification of only two jobs is insufficient under Lounsburry v.
Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 4 In that case, the Court of Appeals for the
Ninth Circuit held that a claimant of advanced age with transferrable skills who can no
longer perform relevant past work is considered disabled if his skills are not readily
transferable to a “significant range of semi-skilled or skilled work” within the
individual’s RFC. The court held the identification of only one occupation that the
claimant could perform did not constitute a significant range of work, and therefore Rule
202.00(c) directed a finding of disability in that case. Id. at 1117.
Recently, the Ninth Circuit considered the question of whether the identification of
two occupations is sufficient to satisfy the “significant range of work” requirement to
find an individual with transferrable skills who had reached advanced age not disabled
under Medical-Vocational Rules 202.00(c) and 202.07. Maxwell v. Saul, 971 F.3d 1128

4

Petitioner challenges also the ALJ’s transferrable-skill determination. The Court does
not reach this alternative argument based upon the holding in Maxwell v. Saul, 971 F.3d 1128
(9th Cir. 2020), as explained below.
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(9th Cir. 2020). 5 The court held that the ALJ correctly determined that grid Rule 202.07
applied to an individual of advanced age limited to light work, who could no longer
perform past relevant work, but who had transferable skills. 971 F.3d at 1131. The court
expanded its holding in Lounsburry, holding that the identification of two occupations
does not constitute a significant range of work under Rule 202.00(c) to support a finding
of disability under Rule 202.07. Id. The court therefore remanded the matter with
instructions for the payment of benefits for the period after the claimant had reached
fifty-five years of age. Id. at 1132. 6
Consistent with Maxwell, the Court finds the ALJ’s conclusion that Petitioner was
not disabled under Rule 202.07 is erroneous as a matter of law. The identification of two
occupations does not satisfy the “significant range of work” requirement of Rule
202.00(c) for an individual of advanced age with transferrable skills who is limited to
light work.
CONCLUSION
Petitioner asks the Court to remand for an award of benefits on the basis of the
record. Consistent with the Court’s analysis regarding Petitioner’s subjective symptom
testimony and with Maxwell, the Court finds the ALJ correctly found Petitioner was not
5

Petitioner noted that Maxwell was pending at the time he submitted his opening brief,
and that the holding could be dispositive. Pet. Brief at 9 n.3. (Dkt. 21.) Maxwell was decided on
August 24, 2020.
6
The court noted counsel conceded at oral argument that the claimant was not disabled in
the period before she reached age 55, on the basis that Rule 202.15 directed a finding that a
clamant closely approaching advanced age with transferrable skills who was limited to light
work would not be disabled. Id. at 1132 n.
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disabled for the period prior to reaching age 55, pursuant to Rule 202.15. However, for
the period after Petitioner reached 55 years of age, remand for an award of benefits is
appropriate pursuant to Maxwell.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Petitioner’s Petition for Review (Dkt. 1) is GRANTED IN PART.

2)

This action shall be REMANDED to the Commissioner for further

proceedings consistent with this opinion.
3)

This Remand shall be considered a “sentence four remand,”

consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852,
854 (9th Cir. 2002).

DATED: November 16, 2020
_________________________
Honorable Candy W. Dale
United States Magistrate Judge

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