Hokel v. Astrue

Filing 18

MEMORANDUM DECISION AND ORDER The Commissioner's decision finding that the Petitioner is not disabled within the meaning of the Social Security Act is AFFIRMED. Plaintiff's Petition for Review (Dkt. 1 ) is DISMISSED. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DEBRA L. HOKEL,
Petitioner,

Case No. 2:10-CV-00160-CWD

v.

MEMORANDUM DECISION AND
ORDER

MICHAEL J. ASTRUE,
Commissioner of Social Security
Administration,
Respondent.

INTRODUCTION
Currently pending before the Court for its consideration is Petitioner Debra L.
Hokel’s (“Petitioner”) Petition for Review (Dkt. 1) of the Respondent’s denial of social
security benefits, filed July 22, 2010. The Court has reviewed the Petition for Review and
the Answer, the parties’ memoranda, and the administrative record (“AR”), and for the
reasons that follow, will affirm the decision of the Commissioner.
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental

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Security Income under Title II1 on June 28, 2005, alleging disability commencing on July
7, 2001, as a result of chronic low back pain. Petitioner’s application was denied initially
and on reconsideration. A hearing was held on July 19, 2007, before Administrative Law
Judge (“ALJ”) Hayward Reed, who heard testimony from Petitioner and Vocational
Expert Sharon Welter. ALJ Reed issued a decision finding Petitioner not disabled on
February 11, 2008, and Petitioner timely requested review by the Appeals Council, which
denied her request for review on January 27, 2010.
Petitioner appealed this final decision to the Court. The Court has jurisdiction to
review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). At the time of the hearing,
Petitioner was fifty years of age. Petitioner completed a high school education, and her
prior work experience includes work as a construction laborer and postal carrier, and also
in a plant nursery.
SEQUENTIAL PROCESS
The Commissioner follows a five-step sequential evaluation for determining
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must
be determined whether the claimant is engaged in substantially gainful activity. The ALJ
found Petitioner had not engaged in substantial gainful activity since her alleged onset
date. At step two, it must be determined whether the claimant suffers from a severe

1

Petitioner alleged a disability onset date of July 7, 2001, and was last insured through
December of 2003. Accordingly, she must establish she was subject to a disability expected to
last for a continuous twelve month period either on or before December of 2003.
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impairment. The ALJ found Petitioner’s chronic low back pain after having three back
fusions severe within the meaning of the Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed
impairment. The ALJ found that Petitioner’s impairments did not meet or equal the
criteria for a listing level impairment. If a claimant’s impairments do not meet or equal a
listing, the Commissioner must assess the claimant’s residual functional capacity (“RFC”)
and determine at step four whether the claimant has demonstrated an inability to perform
past relevant work.
The ALJ found Petitioner was not able to perform her past relevant work as either
a construction laborer, plant nursery worker, postal carrier, or physical therapy trainee. If
a claimant demonstrates an inability to perform past relevant work, the burden shifts to
the Commissioner to demonstrate at step five that the claimant retains the capacity to
make an adjustment to other work that exists in significant levels in the national economy,
after considering the claimant’s residual functional capacity, age, education and work
experience. The ALJ found that, based upon Petitioner’s RFC, she could perform
sedentary occupations such as cashier II, telemarketer, and sewing machine operator.
STANDARD OF REVIEW
Petitioner bears the burden of showing that disability benefits are proper because
of the inability “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . has lasted or can be expected to

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last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see
also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Fitch, 438 F.2d 920, 921 (9th Cir. 1971).
An individual will be determined to be disabled only if her physical or mental
impairments are of such severity that she not only cannot do her previous work but is
unable, considering her age, education, and work experience, to engage in any other kind
of substantial gainful work which exists in the national economy. 42 U.S.C. §
423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Commissioner if
the decision is supported by substantial evidence and is not the product of legal error. 42
U.S.C. § 405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474
(1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v.
Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than
a preponderance, Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and “does not
mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552,
565 (1988).
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist that supports the petitioner’s
claims. 42 U.S.C. § 405(g); Flatten v. Secy. of Health and Human Serve., 44 F.3d 1453,

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1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by
substantial evidence, will be conclusive. Flatted, 44 F.3d at 1457. It is well-settled that,
if there is substantial evidence to support the decision of the Commissioner, the decision
must be upheld even when the evidence can reasonably support either affirming or
reversing the Commissioner’s decision, because the Court “may not substitute [its]
judgment for that of the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th
Cir. 1999).
When reviewing a case under the substantial evidence standard, the Court may
question an ALJ’s credibility assessment of a witness’s testimony; however, an ALJ’s
credibility assessment is entitled to great weight, and the ALJ may disregard self-serving
statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ
makes a careful consideration of subjective complaints but provides adequate reasons for
rejecting them, the ALJ’s well-settled role as the judge of credibility will be upheld as
based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993).
DISCUSSION
Petitioner believes the ALJ erred in assessing Petitioner’s RFC. Specifically,
Petitioner contends that the ALJ failed to properly evaluate the opinions of treating
physicians Bret Dirks, M.D. and Scott Magnuson, M.D., because the ALJ rejected the
treating physicians’ opinions that Petitioner was disabled in favor of the opinions of
examining physicians and state agency reviewing physicians. Petitioner alleges also that

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the ALJ failed to properly assess her credibility in rejecting her testimony about the
severity, duration, and limiting effects of her pain, and if her testimony was credited she
would be precluded from all work. Respondent contends that the ALJ presented sufficient
reasons for rejecting the opinions of Petitioner’s treating physicians, and that there was
substantial evidence in the record supporting the ALJ’s finding that Petitioner was not
entirely credible.
1.

Physician Testimony
Ninth Circuit cases distinguish 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). If the 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 so doing. Murray v. Heckler,
722 F.2d 499, 502 (9th Cir.1983). 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

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502, 506 (9th Cir.1990); Gallant v. Heckler, 753 F.2d 1450 (9th Cir.1984).
An ALJ is not required to accept an opinion of a treating physician if it is
conclusory and 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. 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 not support 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 1211 (9th Cir. 2005); 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).
Several physicians, including orthopedist Dr. Dirks and pain management
specialist Dr. Magnuson, treated Petitioner after her third back surgery on October 17,
2001, performed to correct problems related to two prior back surgeries. (See AR 223.)
Dr. Dirks preformed the surgery and managed Petitioner’s post surgical orthopedic care,
while Dr. Magnuson treated her chronic pain symptoms with a panoply of prescription
medication. After the surgery, Petitioner was placed in a back brace and given a bone
stimulator as well as a walker to assist with ambulation. (AR 284--85; 194; 197; 196.) Dr.
Dirks was of the opinion that the fusion from L3 to S1 was successful, and Petitioner was

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making “excellent progress,” ambulating well, and had adequate strength as of February
7, 2002. (AR 189.) By March 8, 2002, Dr. Dirks believed Petitioner was doing
“reasonably well,” that she still reported back pain, but her leg pain was “pretty much
gone.” (AR 187.)
On July 18, 2002, Dr. Dirks wrote in his progress note that Petitioner’s pain had
reached a plateau, and that her pain had gone down significantly compared with prior to
surgery. (AR 177.) However, Dr. Dirks believed Petitioner would continue to have pain
“which would inhibit her ability to proceed with any sort of work. I continue to believe
that she is in a rehabilitation situation, where she needs to continue doing her exercises
and physical therapy. . . .” (AR 177.) On June 30, 2003, Dr. Dirks’s progress note
indicated Petitioner could begin working light duty three to four hours per day, including
drive time. (AR 238.) On December 24, 2005, Dr. Dirks drafted a letter indicating, in his
opinion, that Petitioner was “disabled on or before December 31, 2003,” but without
further detail. (AR 156.) On March 24, 2006, Dr. Dirks signed a letter drafted by
Petitioner’s attorney in which Dr. Dirks acknowledged that Petitioner would be limited to
work days consisting of less than two hours in duration and would be expected to miss a
number of days of work each month due to pain. (AR 165; see also AR 238.) Dr. Neal,
Petitioner’s primary care physician, was also of the opinion on January 6, 2006, that
Petitioner was “completely disabled,” and had been for some time, most likely after her
back surgeries. (AR 155.)

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The Court finds that the ALJ gave clear and convincing reasons for rejecting Dr.
Dirks’s opinions regarding Petitioner’s disabled status and ability to work. The ALJ noted
that, at no time during the period at issue between January 2001 and December 2003, did
any treating physician indicate Petitioner was disabled and unable to work. Dr. Dirks, on
June 30, 2003, indicated that Petitioner could start back to work, albeit on a reduced part
time schedule. Although the ALJ considered the 2005 and 2006 opinions of Drs. Dirks
and Neal, the opinions were given little weight considering the conflicting evidence in the
record presented by two independent medical examinations, an independent functional
capacity assessment, and inconsistencies in the physicians’ own records.
Specifically, the ALJ relied on three independent medical examinations performed
on May 4, 2001, September 9, 2003, and December 18, 2003. In all three independent
medical examination reports, the physicians both before and after Petitioner’s third
surgery, performed on October 2001, reported that Petitioner could perform sedentary
work with sufficient postural accommodations. On September 9, 2003, neurologist Dr.
Stump was of the opinion that Petitioner could sit for two hours, stand for three hours,
and tolerate three hours of walking during an eight hour work day, occasionally lift ten
pounds, was restricted from bending, and could not squat, kneel, crawl or climb. (AR 517,
533.) Dr. Brunjes, an orthopedist, concurred with Dr. Stump’s assessment. (AR 534) Dr.
Brunjes’s findings further indicated Petitioner could walk on her heels and toes without
limitation with a normal gait, and while she experienced discomfort with range of motion,

MEMORANDUM DECISION AND ORDER - 9

she had no radicular symptoms in her lower extremities. (AR 536–537.)
In addition, the ALJ’s RFC analysis considered the conclusions of the Functional
Capacity Evaluation performed by Kootenai Medical Center over two consecutive days
on April 28 and, 2003. (AR 262, 64, 66.) During the testing, the examiner indicated
Petitioner gave maximal and consistent effort, and her performance was consistent
between day one and two. (AR 262.) Further, although Petitioner reported pain, she had
her symptoms under control and exhibited “no overt pain behaviors,” demonstrated
“smooth and coordinated movement,” “good functional recovery,” and her level of
functioning appeared consistent with the demands for jobs such as cashier II and
salesperson. (AR 263.)
The ALJ relied additionally on Dr. Magnuson’s progress notes. On December 11,
2002, Dr. Magnuson examined Petitioner and noted Petitioner reported her pain at an
average of 3, had a fairly good activity level, and although found it difficult, she was able
to drive from Post Falls to her appointment in Coeur d’Alene. (AR 173.) Dr. Magnuson
reported also that Petitioner’s pain was fairly well controlled with methadone. (AR 173.)
On January 12, 2004, Dr. Magnuson again reported Petitioner’s pain was reasonably
controlled with methadone, and her gait was normal. (AR 448.)
Finally, the ALJ noted that the state agency physician opined that there was no
twelve month period during Petitioner’s dates of eligibility in which she was unable to
perform at least sedentary work. (AR 157--164). Dr. Coolidge noted that Petitioner could

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lift ten pounds, stand or walk at least two hours, and sit for six hours during an eight hour
work day.
An ALJ is not bound to accept the opinions of treating physicians where, as here,
the ALJ gave clear and convincing reasons for rejecting their opinions. These reasons
included findings from independent medical examinations and functional examinations,
as well as conflicts between Dr. Magnuson’s reports that Petitioner’s pain was well
controlled and Dr. Dirks’s and Dr. Neal’s assessments, both of which were rendered long
after the period of disability at issue. Accordingly, the Court finds that the ALJ did not
commit error in rejecting the opinions of Petitioner’s treating physicians.
2.

Credibility
The ALJ is responsible for determining credibility, resolving conflicts in medical

testimony, and resolving ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998). The ALJ’s findings must be supported by specific, cogent reasons. Reddick, 157
F.3d at 722. If a claimant produces objective medical evidence of an underlying
impairment, an ALJ may not reject a claimant’s subjective complaints of pain based
solely on lack of medical evidence. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir.
2005). See also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (holding that
an ALJ may not discredit a claimant’s subjective testimony on the basis that there is no
objective medical evidence that supports the testimony). Unless there is affirmative
evidence showing that the claimant is malingering, the ALJ must provide clear and

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convincing reasons for rejecting pain testimony. Burch, 400 F.3d at 680. General
findings are insufficient; the ALJ must identify what testimony is not credible and what
evidence undermines the claimant’s complaints. Reddick, 157 F.3d at 722.
The reasons an ALJ gives for rejecting a claimant’s testimony must be supported
by substantial evidence in the record. Regennitter v. Comm’r of Soc. Sec. Admin., 166
F.3d 1294, 1296 (9th Cir. 1999). If there is substantial evidence in the record to support
the ALJ’s credibility finding, the Court will not engage in second-guessing. Thomas v.
Barnhart, 278 F.3d 957, 959 (9th Cir. 2002). When the evidence can support either
outcome, the court may not substitute its judgment for that of the ALJ. Tackett v. Apfel,
180 F.3d 1094, 1098 (9th Cir. 1999).
In evaluating credibility, the ALJ may engage in ordinary techniques of credibility
evaluation, including considering claimant’s reputation for truthfulness and
inconsistencies in claimant’s testimony, or between claimant’s testimony and conduct,
claimant’s daily activities, claimant’s work record, and testimony from physicians and
third parties concerning the nature, severity and effect of the symptoms of which claimant
complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Also, the ALJ
may consider the location, duration and frequency of symptoms; factors that precipitate
and aggravate those symptoms; the amount and side effects of medications; and treatment
measures taken by the claimant to alleviate those symptoms. See Soc. Sec. Ruling 96-7p.
Petitioner reported that she was in constant pain, inhibiting her ability to perform

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routine activities of daily living, requiring her to take a nap once or twice a day, and
mandating that she shift position while seated every ten minutes. Petitioner reported also
that she had difficulty sleeping, which was secondary to pain experienced during the
night, could not stand for any length of time, nor walk long distances. The vocational
expert was of the opinion that, if Petitioner’s testimony were true, she would be precluded
from all work.
The ALJ properly rejected Petitioner’s subjective reports of her pain’s limiting
effects. Specifically, the ALJ cited conflicting evidence in the record in support of his
adverse credibility finding. For example, despite reporting a high level of pain on October
23, 2001, a short time after surgery, Petitioner during the same consultation reported her
pain was at level two on the pain scale. (AR 284--85.) On October 31, 2001, Petitioner
denied she had trouble sleeping. (AR 194.) And, despite reporting radicular pain in her
lower extremities, Petitioner reported on March 8, 2002, that her leg pain was “pretty
much gone.” (AR 187.) On June 6, 2002, Petitioner presented to the emergency room
with a headache seeking pain medication, and was observed “ambulating with ease,” with
“no evidence of [sic] hint of back pain at the time.” (AR 270.)
On December 11, 2002, Petitioner reported her pain at level three on the pain
scale, with no radiating pain, and Petitioner confirmed at the hearing that she agreed with
that assessment. (AR 173, 568.) On June 9, 2003, Petitioner presented to her primary care
physician complaining of acute pain, but was reportedly observed as not being in acute

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pain and walking freely. (AR 395.) Petitioner was able to travel on a 4,000 mile road trip
in or about September of 2003, although she reported a corresponding increase in pain.
(AR 230). Yet her exam on that date was physically unremarkable. (AR 230, 66.) On
December 15, 2003, Petitioner reported her pain at three on the pain scale, and that her
activity was fairly high with her two sons home. (AR 228.)
Other medical records indicated Petitioner was exercising, including a note on July
11, 2005, that a recent flare up was due to her bicycle riding. (AR 381.) Her physical
therapist noted on May 7, 2008, that physical therapy was helping, she was making
significant progress, and she had the potential to make more progress. (AR 29.) By July
11, 2008, Dr. Neal, her primary care physician, noted that Petitioner looked like she was
feeling better and had lost fifteen pounds by increasing her activity and controlling her
diet. (AR 37.)
Dr. Magnuson consistently reported that Petitioner’s pain was well controlled on
her medication regimen, specifically methadone therapy. (AR 66, 194, 173, 292, 324,
448.)
The ALJ considered the contrary reports of Petitioner’s activity level,
discrepancies between Petitioner’s self-reports and the reports and observations of her
treating physicians, as well as Dr. Magnuson’s opinion that Petitioner’s pain was well
controlled on drug therapy. The reasons the ALJ gave for finding Petitioner not credible
are clear and convincing, and supported by substantial evidence in the record as recounted

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herein. The Court will not substitute its opinion for that of the ALJ.
CONCLUSION
Because the ALJ found Petitioner’s testimony not credible and accepted the
opinions in the record assessing Petitioner capable of a limited range of sedentary work,
the ALJ found Petitioner not disabled. The ALJ’s decision was not the product of legal
error, and will be upheld, as discussed above.

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

The Commissioner’s decision finding that the Petitioner is not disabled
within the meaning of the Social Security Act is AFFIRMED

2)

Plaintiff’s Petition for Review (Dkt. 1) is DISMISSED.

DATED: September 19, 2011

Honorable Candy W. Dale
Chief United States Magistrate Judge

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