Skeen v. Astrue

Filing 23

MEMORANDUM DECISION AND ORDER it is hereby ORDERED that the Commissioner's decision finding that the Petitioner is not disabled within the meaning of the Social Security Act be AFFIRMED and that the petition for review be DISMISSED. Signed by Judge Mikel H. Williams. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ja)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SEAN SKEEN,
Case No. 2:11-cv-00125-MHW
Petitioner,
MEMORANDUM DECISION AND
ORDER

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

INTRODUCTION
Currently pending before the Court for its consideration is Petitioner Sean Skeen’s
(“Petitioner”) Petition for Review of the Respondent’s denial of social security benefits,
filed March 28, 2011. Petition, Dkt. 1. The Court has reviewed the Petition for Review
and the Answer, the parties’ memorandums, and the administrative record (“AR”). For
the reasons that follow, the Court will affirm the decision of the Commissioner.

MEMORANDUM DECISION AND ORDER - 1

I.
Procedural and Factual History
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on October 26, 2006, alleging disability due to Cyclical Vomiting
Syndrome (“CVS”). Petitioner’s application was denied initially and on reconsideration,
and a request for a hearing was timely filed.
Administrative Law Judge (“ALJ”) R.S. Chester held a hearing on June 5, 2008,
taking testimony from Petitioner and a vocational expert. (AR 19-53.) ALJ Chester
issued a decision finding Petitioner not disabled on July 8, 2008. (AR 12-18.) Petitioner
filed a timely appeal to the Appeals Council which denied his request for review, making
the ALJ’s decision the final decision of the Commissioner. (AR 1-4.) Petitioner appealed
this final decision to this Court in Case No. 2:09-cv-00197-LMB. Before filing of the
administrative record or briefing occurred, and based on the stipulation of the parties,
Magistrate Judge Larry M. Boyle entered an order remanding for further proceedings and
directing the ALJ to find at step two of the sequential evaluation process that cyclical
vomiting syndrome was a medically determinable impairment and to continue with the
sequential evaluation process. (AR 308-310.)
The ALJ again held a hearing on January 26, 2010, taking testimony from Sergio
Bello, M.D., an impartial medical expert, and Diane Kramer, an impartial vocational
expert, and another hearing on March 5, 2010, taking testimony from Petitioner. (AR
266-286 and 287-307.) ALJ Chester issued a decision finding Petitioner not disabled on
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March 12, 2010. (AR 237-244.)
Petitioner filed a timely appeal to the Appeals Council which denied his request
for review, making the ALJ’s decision the final decision of the Commissioner. (AR 1-3.)
Petitioner appealed this final decision to this 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 38 years old. He has a twelfth grade
education, has completed a CNA program, and his past relevant work includes cashier,
certified nurse’s assistant, press operator, industrial cleaner, customer service
representative, roll tender, and cable installer.
II.
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. The claimant has
the burden of proving a disability in the first four steps of the sequential evaluation after
which the burden moves to the Commissioner at the fifth step. Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005).
At step one, it must be determined whether the claimant is engaged in substantial
gainful activity. The ALJ found Petitioner had not engaged in substantial gainful activity
since his alleged onset date of September 23, 2006. (AR 239.)
At step two, it must be determined whether claimant suffers from a severe
impairment. The ALJ found that Petitioner’s cyclic vomiting and degenerative disc
MEMORANDUM DECISION AND ORDER - 3

disease impairments are “severe” within the meaning of the Regulations. (AR 240.)
Step three asks whether a claimant’s impairments meet or equal a listed
impairment. The ALJ found that Petitioner did not have an impairment or combination of
impairments that meets or equals the criteria for the listed impairments. (AR 240.) If a
claimant’s impairments or combination of impairments do not meet or equal a listing, the
Commissioner must assess the residual functional capacity (“RFC”) and determine at step
four whether the claimant has demonstrated an inability to perform past relevant work.
At step four, the ALJ found Petitioner was able to perform the full range of
medium work and his past relevant work as a CNA, press operator, industrial cleaner,
customer service representative, cashier, cable installer as performed by the claimant, and
roll tender. (AR 241-44.)
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. Here, having found Petitioner not disabled at step four,
the ALJ did not proceed to step five.

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III.
Standard of Review
The 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 last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). An individual will be determined to be disabled only if his physical or
mental impairments are of such severity that he not only cannot do his previous work but
is unable, considering his 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 Social Security
Commissioner if the decision is supported by substantial evidence and is not the product
of legal error. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). Substantial evidence
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations and
internal quotations omitted). It is more than a scintilla but less than a preponderance. Id.
It is well-settled that if there is substantial evidence to support the decision of the
ALJ, the decision must be upheld “if supported by inferences reasonably drawn from the
record . . .” even “where the evidence is susceptible to more than one rational
interpretation.” Id. The Court may not substitute its judgment for that of the ALJ.
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Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006).
IV.
Discussion
Petitioner raises three issues on appeal: (1) whether the ALJ’s conclusion that
Petitioner’s impairments do not preclude sustained employment is supported by
substantial evidence; (2) whether the ALJ provided legally sufficient reasons to reject
Petitioner’s testimony; and (3) whether the claim should be remanded based upon new
evidence. He requests either an award of benefits or remand for consideration of new
evidence. The Court will consider the issue of rejection of Petitioner’s testimony first.
A.

Rejection of Petitioner’s Testimony
“The ALJ is responsible for determining credibility, resolving conflicts in medical

testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th
Cir. 2001). To reject a claimant’s testimony regarding impairments, “the ALJ [is]
required to make ‘a credibility determination with findings sufficiently specific to permit
the court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.’”
Tommasetti, 533 F.3d at 1039 (quoting Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.
2002)). The ALJ must identify what testimony is not credible and what evidence
undermines the claimant’s complaints. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998). If a claimant produces objective medical evidence of an underlying impairment,
an ALJ may not reject a claimant’s subjective complaints based solely on lack of medical
evidence. Tommasetti, 533 F.3d at 1039. Unless there is affirmative evidence showing
MEMORANDUM DECISION AND ORDER - 6

that the claimant is malingering, the ALJ must provide clear and convincing reasons for
rejecting a claimant’s testimony. Id. Stated another way, “[t]he ALJ must support his
credibility finding ‘with specific, clear and convincing reasons.’” Chaudhry v. Astrue,
688 F.3d 661, 672 (9th Cir. 2012) (quoting Taylor v. Comm’r of Soc. Sec. Admin., 659
F.3d 1228, 1234 (9th Cir. 2011)).
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). In
addition to those factors, the ALJ may consider prior inconsistent statements regarding
the symptoms, “other testimony by the claimant that appears less than candid,” and
“unexplained or inadequately explained failure to seek treatment or to follow a prescribed
course of treatment.” Chaudhry, 688 F.3d at 672 (citing Tommasetti v. Astrue, 533 F.3d
1035, 1039 (9th Cir. 2008)). If there is substantial evidence in the record to support the
ALJ’s credibility finding, the Court will not engage in second-guessing. Id.
Here, the ALJ found that Petitioner’s allegation of total disability due to his CVS
was not credible. (AR 242.) Therefore, given that there is no evidence of malingering,
his finding must be based on clear and convincing reasons. The ALJ based his finding on
the following factors: (1) lack of accepted medical source diagnosis of CVS (AR 242MEMORANDUM DECISION AND ORDER - 7

243); (2) lack of weight loss or signs of malnutrition (AR 242); (3) claimant was
“essentially undeterred in any activity when not experiencing a vomiting episode” (AR
242); (4) vomiting episodes appeared to be less frequent than alleged (AR 242); (5)
inconsistent reports regarding hospital visits (AR 243); and (6) continued full-time
employment from the alleged onset date of 1999 which was originally alleged through
2006 (AR 243).1
In discussing these factors, the ALJ noted that Dr. Michael Carraher stated that
Petitioner’s impairment was “primarily self-reported” and that Petitioner did not follow
up on Nurse Practitioner Dahlen’s suggestion that he be seen by a gastroenterologist.
(AR 242.) He cited the records of Dr. Arnold, a state agency medical evaluator, that
contained a notation that there was “no evidence of malnutrition or weight loss, surgical
diversion of the intestinal tract, or a disorder of the digestive system” that would be
expected with frequent vomiting. (AR 242.) He also cited the records of Dr. Coolidge,
another state agency medical evaluator, noting not only Petitioner’s weight gain from
2007 to 2008 of 12 pounds “in less than a month after reportedly vomiting for five
consecutive days while only able to keep down water,” but also his overweight status by
May of 2008. (AR 242.)
In support of his finding that vomiting episodes were less frequent than alleged,
1

Petitioner contends in his Reply that the Commissioner waived his argument that his “ability to
work when he was able and his claim of his impairment since 1999 are waived because the ALJ did not
cite these as reasons in disbelieving Mr. Skeen’s testimony.” Reply at 1 (citing Pinto v. Massanari, 249
F.3d 840, 847 (9th Cir. 2001). However, a review of the record indicates that the Commissioner did cite
those reasons. See AR 243.
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the ALJ noted that “despite his reports of regular illness, the claimant’s visits to the
doctor or hospital for vomiting episodes occurred at most once every two months.” (AR
242 (citing four visits in 2007 and two each in 2008, 2009, and 2010)). He noted an
inconsistency between his testimony that of “multiple visits to the emergency
department” with his representative’s statement that Petitioner “never went to the hospital
or doctor because they were attempting to collect past due fees.” (AR 243.)
The Court finds that the ALJ made sufficiently clear findings to permit the Court
to find that he “did not arbitrarily discredit claimant’s testimony.” See Tommasetti, 533
F.3d at 1039.
B.

Substantial Evidence Regarding Sustained Employment
As stated above, if there is substantial evidence supporting an ALJ’s decision, the

decision must be upheld even if the evidence is susceptible to different interpretations.
Tommasetti, 533 F.3d at 1038. This is so even if there is evidence supporting a finding of
disability or where the evidence could reasonably support either affirming or reversing
the ALJ’s decision. See Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999); Flaten v.
Sec’y of Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).
Social Security Ruling (“SSR”) 96-8p provides that a claimant must be assessed
for the ability “to do sustained work activities on a regular and continuing basis, and the
RFC must (emphasis added) include a discussion of the individual’s abilities on that
basis. A ‘regular and continuing basis’ means 8 hours a day, 5 days a week, . . . .” SSR

MEMORANDUM DECISION AND ORDER - 9

96-8p, ¶ 1.
Petitioner cites the testimony of the vocation expert at the first hearing on June of
2008 who testified that absences from work two days per month would not be tolerated
by an employer. (AR 51-52.) He also cites the testimony of the vocational expert at the
second hearing in January of 2010 that absences from work two to four times per month
would preclude all employment. (AR 306.) He then alleges that the ALJ relied on the
Medical Vocational Guidelines in finding that a person with his vocational profile and an
exertional restriction to medium is not disabled. He contends that a significant nonexertional impairment such as his would make reliance on the guidelines inappropriate.
Pet’r.’s Brief at 8.
Although the vocational experts testified that the stated absences would preclude
employment, the ALJ did not find Petitioner’s testimony regarding the number of
absences per month was credible. Rather, he found that “the claimant’s statements
concerning the intensity, persistence and limiting effects of [his] symptoms are not
credible to the extent they are inconsistent with the above residual functional capacity
assessment.” (AR 241.) The ALJ found that Petitioner “is essentially undeterred in any
activity when not experiencing a vomiting episode, and his vomiting episodes appear to
be much less often than alleged.” (AR 242.)
The Court found above that the ALJ’s credibility finding was supported by
substantial evidence. Therefore, the ALJ was not required to include Petitioner’s

MEMORANDUM DECISION AND ORDER - 10

discounted subjective symptoms in his residual functional capacity finding. See Bayliss v.
Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Batson v. Comm’r of Soc. Sec. Admin.,
359 F3d. 1190, 1197 (9th Cir. 2004).
In reaching his residual function capacity determination, the ALJ was left with –
and gave great weight to – the opinions of Dr. Carraher, a treating physician; Drs. Arnold
and Coolidge, examining physicians; and Dr. Bello, the medical expert at the hearing.
(AR 242-43.) Dr. Carraher determined that Petitioner could do light to medium work.
Dr. Arnold assessed Petitioner as capable of a full range of medium work, and Dr.
Coolidge agreed. Finally, Dr. Bello testified at the hearing that Petitioner could perform
work at a medium level.
The AJL did not rely on the Medical Vocational Guidelines, otherwise known as
“the grids,” to find that Petitioner was not disabled. He did not do so because he had
found at Step Four that Petitioner was not disabled. An ALJ utilizes the grids in certain
circumstances in meeting the burden under step five. The very case cited by Petitioner in
his argument indicates that the ALJ uses the grids in certain circumstances in meeting his
step five burden of proving that a “claimant can perform ‘other jobs that exist in
substantial numbers in the national economy.’” See Bruton v. Massanari, 268 F.3d 824,
827-28 and n.1 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir.
1999)). The ALJ here did not proceed to step five having found Petitioner not disabled at
step four.

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Based on the above, the Court finds that the ALJ’s RFC finding that Petitioner is
capable of sustained employment is supported by substantial evidence and not the product
of legal error.
C.

Remand Based on New Evidence
Petitioner attached to his brief medical records from a gastroenterology specialist,

Gavin Young, M.D, reflecting two visits in February of 2011, a diagnosis of CVS, and
test results ruling out other causes of Petitioner’s vomiting. Pet’r’s Aff., Dkt. 18-3 at 210. There is no indication that Petitioner submitted the records to the Appeals Council.
He requests a remand based upon this new evidence if the Court does not reverse the
Commissioner’s decision.
A remand based on new evidence may only be granted where Petitioner shows that
(1) the new evidence is material, and (2) good cause existed for failing to produce it
earlier. 42 U.S.C. § 405(g); Mayes v. Massinari, 276 F.3d 453, 462 (9th Cir. 2001).
“To be material under section 405(g), the new evidence must bear directly and
substantially on the matter in dispute . . . and [the petitioner] must additionally
demonstrate that there is a reasonable possibility that the new evidence would have
changed the outcome of the administrative hearing.” Id. (internal quotations and citations
omitted). See also Booz v. Sec’y of Health and Human Servs., 734 F.2d 1378, 1380 (9th
Cir. 1984).
Petitioner here claims that good cause exists for not submitting the evidence

MEMORANDUM DECISION AND ORDER - 12

sooner because the final report and testing results were not received until after the
Appeals Council’s denial of his disability claim. He does not address the materiality
requirement other than to state that the evidence is relevant because the ALJ claimed that
Petitioner’s testimony was inconsistent with the medical evidence. Reply at 2.
The Court finds that Petitioner has neither established good cause nor materiality.
“A claimant does not meet the good cause requirement simply by obtaining a more
favorable report from an expert witness once his claim is denied. Clem v. Sullivan, 894
F.2d 328, 332 (9th Cir. 1990) (citing Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir.
1985)). Rather, he “must establish good cause for not seeking the expert’s opinion prior
to the denial of his claim.” Id.
The ALJ’s decision was issued on March 12, 2010, yet Petitioner did not see Dr.
Young until February 1, 2011 and February 22, 2011. The Appeals Council denied
review on February 16, 2011. (AR 231-233.)
Petitioner states in his Reply that he did not see Dr. Young earlier because he had
no substantial income in the almost five years before he filed his application and had no
medical insurance. Reply at 3. However, the fact that he did not seek a specialist’s
opinion until after the ALJ cited the lack of one and while he was still unemployed
suggests that his explanation is less than credible. However, even if the Court were to
find that Petitioner has established good cause, he still must establish materiality.
The ALJ concluded at step two that Petitioner suffers from CVS and that the CVS

MEMORANDUM DECISION AND ORDER - 13

is a severe impairment. The new evidence would add nothing to the record other than a
diagnosis already accepted by the ALJ and a history of the onset and duration of the
condition still based only on Petitioner’s own report. It is unlikely that the new evidence
would have changed the outcome of the ALJ’s decision. The lack of a specialist’s
diagnosis was but one of several factors cited by the ALJ for finding Petitioner not
creditable. Therefore, the evidence is not material.
Because Petitioner has not demonstrated both the requisite good cause and
materiality required under § 405(g), the Court will deny the request for a remand.
V.
Conclusion
Based on its review of the entire record, the Court finds that the Commissioner’s
decision is supported by substantial evidence and is not the product of legal error.
Therefore, the Commissioner’s decision finding that the Petitioner is not disabled within
the meaning of the Social Security Act will be affirmed.

MEMORANDUM DECISION AND ORDER - 14

ORDER
Based upon the foregoing, the Court being otherwise fully advised in the premises,
it is hereby ORDERED that the Commissioner’s decision finding that the Petitioner is
not disabled within the meaning of the Social Security Act be AFFIRMED and that the
petition for review be DISMISSED.
DATED: September 19, 2012

Honorable Mikel H. Williams
United States Magistrate Judge

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