Whitworth v Astrue

Filing 23

MEMORANDUM DECISION AND ORDER that the Commissioners 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. ((dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SILVANNA D. WHITWORTH,
Case No. 2:11-cv-00216-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 Silvanna D.
Whitworth’s (“Petitioner”) Petition for Review of the Respondent’s denial of social
security benefits, filed May 12, 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.

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Procedural and Factual History
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on February 15, 2009, alleging disability due to lumbrosacral
degenerative disk disease, depressive disorder, and anxiety disorder. Petitioner’s
application was denied initially and on reconsideration, and a request for a hearing was
timely filed.
Administrative Law Judge (“ALJ”) Moira Ausems held a hearing on January 27,
2010, taking testimony from Petitioner and a vocational expert. (AR 28-52.) ALJ
Ausems issued a decision finding Petitioner not disabled on March 31, 2010. (AR 1524.) Petitioner filed a timely appeal to the Appeals Council which denied her 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. 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 44 years old. She has a twelfth grade
education and has taken some college classes. Her past relevant work includes
telemarketer (sales) and internet marketer (advertising). (AR 23, 45-47, 112, 122.)
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
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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 her alleged onset date of February 2, 2008. (AR 15.)
At step two, it must be determined whether the claimant suffers from a severe
impairment. The ALJ found that Petitioner’s lumbrosacral degenerative disk disease,
depressive disorder, and anxiety disorder are “severe” within the meaning of the
Regulations. (AR 17.)
Step three asks whether the 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 18.) If the
claimant’s impairments or combination of 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.
At step four, the ALJ found Petitioner was able to perform a wide range of light
work (limited to the performance of semi-skilled SVP-4 level tasks due to the effects of
mental symptomatology, pain, and medication side effects) and her past relevant work as
a telephone solicitor. (AR 19-23.)
If the claimant demonstrates an inability to perform past relevant work, the burden
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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 was not required to proceed to step five. However, the ALJ alternatively found
that even if Petitioner could not perform her past relevant work, she retained the capacity
to perform a wide range of sedentary jobs existing in the economy such as surveillance
system monitor and charge account clerk. (AR 23-24.) Accordingly, the ALJ found that
Petitioner was not disabled even if she were limited to the greater degree described in a
hypothetical to the vocational expert. (AR 23-24.)
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 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).
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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.
Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006).
IV.
Discussion
Petitioner raises a single issue on appeal: Whether her spinal injuries meet or equal
the severity requirements set out in Listing 1.04(A), Appendix 1. She requests either a
reversal of the ALJ’s decision or a remand for consideration of new evidence.
A portion of Petitioner’s argument rests on a magnetic resonance imaging (“MRI”)
study done in September of 2002 that was not part of the record before the ALJ. The
other portion of her argument is based on the Residual Functional Capacity (“RFC”)
Questionnaire submitted by Dr. Robert Rust, the Petitioner’s primary treating doctor.
(AR 263-67.) In other words, she contends that the MRI and the RFC together establish
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the requisite characteristics of the spinal listing. Therefore, Petitioner’s listing argument
fails if either the 2002 MRI or the Rust RFC is not considered.
The Court may consider the 2002 MRI because the Appeals Council addressed it
in denying Petitioner’s request for review. See Harman v. Apfel, 211 F.3d 1172, 1180
(9th Cir. 2000). However, it can only be considered “in determining whether the
Commissioner’s denial of benefits is supported by substantial evidence.” Id. It cannot be
the basis for finding Petitioner disabled because “the ALJ has had no opportunity to
evaluate that [Petitioner] is entitled to benefits as a matter of law.” Id. Rather, the Court
must remand to the ALJ to consider the new evidence. Id.
A.

Requirements of Listing 1.04(A), Appendix 1
To meet a listing, a claimant has the burden of establishing that she “meets each

characteristic” of the listing relevant to her claim.” Tackett v. Apfel, 180 F.3d 1094, 1099
(9th Cir. 1999) (emphasis added). As relevant here, Petitioner must establish (1) that her
degenerative disc disease resulted “in compromise of a nerve root,” and (2) that there is
“evidence of nerve root compression characterized by neuro-anatomic distribution of
pain, limitation of motion of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex loss” and “positive
straight-leg raising test (sitting and supine).” 20 C.F.R. § 404, Subpart P, App.1, 1.04
(emphasis added).
The findings of the 2002 MRI revealed that there were degenerative changes in the
L5-S1 disc “with apparent posterior displacement and impingement of the left S1 nerve
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root and compromise of the left nerve root canal with possible impingement of the left L5
spinal nerve.” (AR 277.) Petitioner contends that the MRI establishes nerve root
compromise and the RFC establishes the remaining characteristics. Alternatively,
Petitioner argues that the MRI and RFC together demonstrate that she equals a listing
because her impairment “is at least equal in severity and duration to the criteria” of the
spinal listing. See 20 C.F.R. 404.1526.
B.

New Evidence Submitted to the Appeals Council
Possibly because it predated the alleged onset date by several years, the 2002 MRI

was not submitted in response to the records request and did not become available until
after the hearing. Because of its unavailability, Petitioner argues the ALJ erroneously
concluded that “there is no evidence of nerve root compression accompanied by sensory
or reflex loss, and there have been no positive sitting and supine straight-leg raising tests”
and thus the listing requirements were not met. (AR 18.)
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
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Cir. 1984). Petitioner has not demonstrated either factor.
1.

Good Cause

It was apparent at the start of the hearing on January 27, 2010, that the 2002 MRI
was not in the record although it had been referenced in Dr. Rust’s treatment notes on
September 29, 2008. (AR 31-32; 263.) In discussing its absence from the record, the
ALJ stated, “You know, I went over twice looking for it and I just didn’t see it, but you
know, obviously, it occurred. We have references of record to it.” (AR 32.) Counsel for
Petitioner did not ask the ALJ to keep the record open for a short period while he
obtained a copy of the MRI. The ALJ issued her decision on March 31, 2010. (AR 1524.) Counsel submitted the MRI to the Appeals Council on May 3, 2010. (AR 10.)
Petitioner has not explained the reason for the delay in acquiring the 2002 MRI.
Therefore, she has not demonstrated good cause for failing to timely submit the MRI after
it became apparent at the hearing that it was missing from the medical records before the
ALJ.
2.

Materiality

Although the 2002 MRI “bear[s] directly and substantially on the matter in
dispute,” there is not “a reasonable possibility that the new evidence would have changed
the outcome of the administrative hearing.” See Booz, id. The Appeals Council
considered the MRI but determined that it “[did] not provide a basis for changing the
Administrative Law Judge’s decision.” (AR 1-2.) The Court agrees. The ALJ did not
doubt that the MRI existed, and she relied on Dr. Rust’s treatment notes that reference the
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MRI in finding that Petitioner was not disabled. The MRI was remote in time and lost its
relevance and materiality in the face of more current evidence. For example, Petitioner
had worked for six years following that MRI for 9 hours a day 7 days a week. (AR 122.)
Contemporaneous treatment notes were inconsistent with the RFC questionnaire. See,
e.g., AR 274 (“chronic pain is stable. Doing well.); AR 273 (“pain med is stable.
Remains functional”); AR 272 (“doing well w/ her chronic pain. No other complaints”);
and AR 268 (“Doing well on her meds”). Furthermore, as shown below, the ALJ found
that both Petitioner and the Rust RFC lacked credibility. There simply is not a reasonable
possibility that the 2002 MRI would have changed the ALJ’s decision in light of the
countervailing evidence.
Because Petitioner has not demonstrated either the good cause or the materiality
required under § 405(g), the Court will deny the request for a remand. Without the 2002
MRI, Petitioner cannot prevail in her listing argument.
C.

Dr. Rust’s RFC Questionnaire
“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). Specifically with respect to medical opinion,
The ALJ must consider all medical opinion evidence. 20
C.F.R. § 404.1527(b). Although the ALJ is not bound by an
expert medical opinion on the ultimate question of disability,
she must provide “specific and legitimate” reasons for
rejecting the opinion of a treating physician. Lester, 81 F.3d at
830-31. “The ALJ can meet this burden by setting out a

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detailed and thorough summary of the facts and conflicting
clinical evidence, stating [her] interpretation thereof, and
making findings.” Magallanes v. Bowen, 881 F.2d 747, 751
(9th Cir.1989) (citation omitted).
Tommasetti, 533 F.3d at 1041.
In Tommasetti, the Ninth Circuit found that the ALJ had provided “specific and
legitimate reasons” that were supported by the entire record where the physician’s
responses to the RFC questionnaire were essentially a “rehashing of claimant’s own
statements” which the ALJ had found not credible. Id. Further, most of the physician’s
records “largely reflect[ed] Tommasetti’s reports of pain with little independent analysis
or diagnosis.” Id. Finally, the physician’s responses to the questionnaire were not
consistent with the medical records. Id. The court concluded, “The incongruity between
Dr. Nachenberg’s Questionnaire responses and her medical records provides an additional
specific and legitimate reason for rejecting Dr. Nachenberg’s opinion of Tommasetti’s
limitations.” Id.
Here, similarly, the ALJ found that Dr. Rust’s opinion that Petitioner is unable to
perform even sedentary work was “inconsistent with the results reported in his own
medical records based upon his contemporaneous examinations of [Petitioner] . . . in
which he repeatedly described her as stable, moving freely, having a good quality of life,
doing well, and functional.” (AR 22.) See, e.g., AR 208-10, 212, 214, 215, 218, 252-53,
254-55, 268, and 272-74. She further found that “Dr. Rust’s opinion is also significantly
contradicted by results of physical examinations and diagnostic tests which have

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demonstrated the claimant to be normal neurologically, to have normal strength and
sensation, and to have only mild L5-S1 degenerative disk (sic) disease.” (AR 23.) See,
e.g., AR 190, 195, 199, and 200. Finally, she concluded that “[p]erhaps Dr. Rust assessed
[Petitioner] as being significantly limited because he was trying to be as supportive as
possible and comply with his patient’s wishes.” (AR 23.)
The Court finds that the ALJ provided the requisite “specific and legitimate
reasons” for rejecting Dr. Rust’s opinion. Accordingly, the second prong of Petitioner’s
argument that she meets or equals the spinal listing fails. Therefore, even if the 2002
MRI were considered, Petitioner could not prevail on her listing argument.
D.

Petitioner’s Credibility
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 that the
claimant is malingering, the ALJ must provide clear and convincing reasons for rejecting

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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 spinal
impairment was not credible. (AR 20.) Petitioner did not challenge that finding.
However, a review of the basis for the finding bolsters the Court’s determination that
availability of the 2002 MRI would not have changed the ALJ’s decision.

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Given that there is no evidence of malingering, the ALJ’s credibility finding must
be based on clear and convincing reasons. She based her credibility finding on the
following factors: (1) there was a “marked degree of inconsistency between the
claimant’s admissions to treatment and examining medical providers and the much more
extreme assertions regarding symptoms and limitations she alleged in testimony,” (2) the
inconsistencies “support[] a conclusion that she was attempting to embellish the severity
of her impairments at the hearing in order to enhance her disability claim,” and (3) her
allegations of her chronic back pain to various medical sources were “suggestive of
narcotic drug-seeking behavior in view of the rather minimal nature of her objective
lumbar findings.” (AR 20-21.)
The Court finds that the ALJ’s exhaustive list of reasons supported by numerous
citations to the record for finding Petitioner not credible were more than sufficiently clear
and convincing and therefore permit the Court to find that she “did not arbitrarily
discredit claimant’s testimony.” See Tommasetti, 533 F.3d at 1039.
V.
Conclusion
Based on its review of the entire record, the Court finds that Petitioner is not
entitled to a remand and 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

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will be affirmed.
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 24, 2012

Honorable Mikel H. Williams
United States Magistrate Judge

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