Fries v Astrue

Filing 19

MEMORANDUM DECISION AND ORDER re: 1 Petition for Review filed by Andrea Lynn Fries. The decision of the Commissioner is affirmed and thisaction is dismissed in its entirety with prejudice. Signed by Judge Larry M. Boyle. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ANDREA LYNN FRIES,
Case No. 2:11-cv-00250-LMB
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration,
Defendant.

This action is before the Court on Petitioner Andrea L. Fries’s Petition for Review
(Dkt. 1), seeking reversal of the Social Security Administration’s final decision to deny
disability benefits. This action is brought pursuant to 42 U.S.C. § 405(g). After carefully
reviewing the record and otherwise being fully advised, the Court enters the following
Memorandum Decision and Order denying Fries’s Petition for Review.
ADMINISTRATIVE PROCEEDINGS
On July 9, 2007, Andrea L. Fries (“Petitioner” or “claimant”) protectively filed a
Title II application for Social Security Disability Insurance Benefits, and a Title XVI
application for supplemental security income, alleging a disability onset date of October
1, 2006. (AR 10). These claims were denied on October 18, 2007, and on appeal on
January 31, 2008. The claimant requested a hearing on February 14, 2008.
Administrative Law Judge (“ALJ”) R.S. Chester conducted a hearing in Spokane,
MEMORANDUM DECISION AND ORDER - 1

Washington, on May 5, 2009. At the hearing, Petitioner was represented by attorney
Mark B. Jones. An impartial vocational expert, Deborah N. Lapoint, and an impartial
medical expert, W. Scott Mabee, Ph.D., also appeared and testified.
At the time of the hearing, Petitioner was 36 years old. (AR 15). At the hearing,
Petitioner testified that she lives with her husband, four teenage children (15, 16, 17, and
19 years old), mother, and grandmother in a house. (Id.) She reported that she has a 9th
grade education, and that she last worked in 2006, as a telemarketer. (Id.) She also
reported past relevant work experience as certified medication aid, home attendant,
hazmat technician, and camera operator. (AR 21). Petitioner has a documented history
of methamphetamine abuse and drug seeking behavior, but claimed to have abstained
from using methamphetamine since 2000. (AR 15) Petitioner also stated that her husband
is on disability, but that she did not know what is wrong with him. (Id.)
Petitioner claims disability stemming from bipolar disorder, posttraumatic stress
disorder, borderline personality disorder, back pain, and asthma. (Petitioner’s Brief, Dkt.
16 at 1). At the hearing, Petitioner reported to being prescribed the following drugs:
Seroquel, Lithium, Estradiol, multi-vitamins, and over-the-counter NSAIDs for pain.
(AR 33).
On May 15, 2009, the ALJ issued his decision denying Petitioner’s claim for
disability. (AR 10-22). Petitioner requested review by the Appeals Council, which
ultimately upheld the determination of the ALJ on March 31, 2011, making that denial
the final determination of the Commissioner. (AR 1-3). In denying her claim, the

MEMORANDUM DECISION AND ORDER - 2

Commissioner determined that Petitioner was not disabled within the meaning of the
Social Security Act. (Id.)
DISCUSSION
A.

Standard of Review
To be upheld, the Commissioner’s decision must be supported by substantial

evidence and based on proper legal standards. 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. 42 U.S.C. § 405(g). In other words, if there is
substantial evidence to support the ALJ’s factual decisions, they must be upheld, even
when there is conflicting evidence. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d
1372, 1374 (9th Cir. 1979).
“Substantial evidence” is defined as such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. 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, 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).
With respect to questions of fact, the role of the Court is to review the record as a
whole to determine whether it contains evidence that would allow a reasonable mind to
MEMORANDUM DECISION AND ORDER - 3

accept the conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney,
981 F.2d at 1019. The ALJ is responsible for determining credibility and resolving
conflicts in medical testimony, Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984),
resolving 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, Sample v.
Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Where the evidence is susceptible to more
than one rational interpretation in a disability proceeding, the reviewing court may not
substitute its judgment or interpretation of the record for that of the ALJ. Flaten, 44 F.3d
at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Matney, 981 F.2d at 1019. 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 is inconsistent with the statutory mandate or that frustrates
the congressional purpose underlying the statute.” Smith v. Heckler, 820 F.2d 1093, 1094
(9th Cir. 1987).
The issue presented in this instant appeal is whether the Appeals Council’s finding
that Petitioner was not disabled is supported by substantial evidence and whether the
finding is based on an application of proper legal standards.
B.

Administrative Procedure
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
MEMORANDUM DECISION AND ORDER - 4

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.
1.

Five-Step Sequential Process

The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). 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. 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. 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. 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 had not engaged in SGA since October 1, 2006, the alleged onset date.
(AR 12). Petitioner does not dispute this finding.
The second step requires the ALJ to determine whether the claimant has a
medically determinable impairment, or combination of impairments, that is severe and
meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” within the meaning of the Social
Security Act 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
impairments is “not severe” when medical and other evidence establish only a slight
MEMORANDUM DECISION AND ORDER - 5

abnormality or a combination of slight abnormalities that would have no more than a
minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921. If the
claimant does not have a severe medically determinable impairment or combination of
impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c).
At this step, the ALJ found that Petitioner had the following severe impairments:
bipolar disorder, posttraumatic stress disorder, borderline personality disorder, disorders
of the back, and asthma. (AR 11). Petitioner does not dispute this finding by the ALJ.
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. 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. 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. Id.
Here, the ALJ concluded that “[t]he claimant does not have an impairment or
combination of impairments that meets or medically equals one of the listed
impairments….” (AR 13). Petitioner challenges this determination, arguing that she in
fact meets or equals the listing for disorder of the spine under Appendix 1, Section
1.04(A). (Petitioner’s Brief at 6). Petitioner argues that two separate MRIs of Petitioner’s
lower back, one in July 2006, and another in January 2008, “demonstrate that the
Petitioner has the necessary medical condition required to meet or equal the listing ….”
MEMORANDUM DECISION AND ORDER - 6

(Id.) Petitioner further argues that the reason the ALJ did not find that she equaled the
listing was because the ALJ “was so biased by what he generalized as drug seeking
[behavior].” (Id. at 10).
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. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An
individual’s RFC represents their ability to do physical and mental work activities on a
sustained basis despite limitations from her impairments. 20 C.F.R. §§ 404.1545,
416.945. Likewise, an individual’s past relevant work is work performed within the last
15 years or 15 years prior to the date that disability must be established; also, the work
must have lasted long enough for the claimant to learn to do the job and be engaged in
substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965.
The ALJ determined here that the Petitioner has the residual functional capacity to
perform light work. (AR 14). The ALJ further concluded that Petitioner is fully able to
perform past relevant work as a telephone solicitor (DOT 299.357-014), and a camera
operator (DOT 354.377-014). (AR 21). Accordingly, Petitioner’s claim was resolved at
step four, and the ALJ concluded that “[t]he claimant has not been under a disability, as
defined in the Social Security Act, from October 1, 2006 through the date of this
decision.” (Id.) The ALJ based this determination on the testimony of a VE, and went
further to find “[t]he vocational expert’s testimony consistent with the information
contained in the Dictionary of Occupational Titles. (Id.)

MEMORANDUM DECISION AND ORDER - 7

If the claim would have reached step five, the ALJ would consider if the claimant
is able to do any other work. 20 C.F.R. § 404.1520(f)(1). On the fifth step, the burden
shifts to the ALJ. Id. If the ALJ finds that claimant cannot work, then the claimant is
“disabled” and entitled to disability insurance benefits. Id. However, if the ALJ
determines that the claimant can work, the ALJ must also establish that there are a
significant number of jobs in the national economy that claimant can do in his or her
condition. Id. “If the Commissioner cannot meet this burden, then the claimant is
“disabled” and therefore entitled to disability benefits.” Lounsburry v. Barnhart, 468
F.3d 1111, 1114 (9th Cir. 2006).
B.

Analysis
Petitioner seeks judicial review of the denial of benefits, arguing that the ALJ

erred in two respects. First, she argues that the ALJ improperly rejected objective
medical evidence (two MRIs) that would establish that she meets or equals the listing for
disorder of the spine under Appendix 1, Section 1.04(A). (Petitions Brief, 3-10). She
claims that the ALJ failed to find she met or equaled the listing requirement because of
bias, noting that “it is obvious the ALJ felt that Petitioner was at the very minimum not
credible, and at worse, a drug seeking malingerer. (Id.) Petitioner argues that these are
reversible errors.
In response, the government argues that the ALJ’s determination is supported by
substantial evidence in the record. (Respondent’s Brief, Dkt. 17) Respondent argues that
Petitioner has failed to establish that she met her burden of showing that she was disabled
under the act. (Id.) Respondent contends that the ALJ properly reviewed and evaluated
MEMORANDUM DECISION AND ORDER - 8

all the evidence, finding that Petitioner did not meet or equal the listing “because even
though two MRIs supported a back disorder, there was no credible evidence that
Petitioner had motor loss accompanied by sensory or reflex loss or any motor loss that
was equivalent in severity or duration. (Id.) The government further responds that the
claimant’s subjective complaints or motor loss were not supported by the record and “not
credible given prior concerns with ‘drug seeking’ behavior and the fact that she did not
elect to see a specialist, as recommended by her doctors, for her back. (Id.) Thus,
Respondent concludes that this final determination should be upheld.
1.

Step Three: Benefits Under the Listing of Impairments

If the claimant has an impairment, or a combination of impairments, that matches
or is substantially equivalent to an impairment in the Listing of Impairments, the
applicant is disabled per se. The Commissioner has no option on this; if a claimant is not
engaged in substantial gainful activity and satisfies the criteria under a Listing, the
Commissioner must find the claimant disabled. 20 C.F.R. § 404.1520(d).
“Medical equivalence” is the measure employed to determine if a claimant’s
“impairment(s) is equivalent to a listed impairment.” 20 C.F.R. § 404.1526.
Equivalence is to be determined by “all evidence in [claimant’s]record about [their]
impairment(s) and its effect on [the claimant].” Id.
Petitioner claims that she meets or equals the listing for disorder of the spine under
Appendix 1, Section 1.04(A), which requires the following be present:
Disorders of the spine … resulting in compromised of a nerve root or spinal
cord. With:
MEMORANDUM DECISION AND ORDER - 9

[e]vidence of nerve root compression characterized by neuroanatomical
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, if there is involvement of the lower back,
positive straight-leg raising test …
Id. Petitioner argues that the MRI tests show that Petitioner has “two disc protrusion
which result in compromise of the nerve root, [which] can be seen in the MRI …
satisfy[ing] part A of section 1.04.” (Petitioner’s Brief at 6).
Respondent argues that while the MRIs tend to support the claimed back disorder,
“there was no credible evidence that Petitioner had motor loss accompanied by sensory or
reflex loss or any motor loss that was equivalent in severity or duration.” (Respondent’s
Brief at 8).
The regulations require the Secretary to “review the symptoms,” 20 C.F.R. §
404.1526 (1988), and make specific findings essential to the conclusion. See Vincent v.
Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam); Lewin v. Schweiker, 654
F.2d 631, 634 (9th Cir. 1981). “An [ALJ’s] findings should be as comprehensive and
analytical as feasible and, where appropriate, should include a statement of subordinate
factual foundations on which the ultimate factual conclusions are based, so that a
reviewing court may know the basis for the decision.’” See Lewin, 654 F.2d at 635
(quoting Dobrowolsky v. Califano, 606 F.2d 403, 409 (3rd Cir. 1979)). It is, however,
“unnecessary to require the Secretary, as a matter of law, to state why a claimant failed to
satisfy every different section of the listing of impairments.” Gonzalez v. Sullivan, 914
F.2d 1197, 1201 (9th Cir. 1990).

MEMORANDUM DECISION AND ORDER - 10

In this case, the ALJ provided a nine-page evaluation of the medical and
testimonial evidence. The ALJ noted the MRIs, but concluded that many of the medical
records, which included subjective symptoms, were unreliable because of Petitioner’s
history of “drug seeking” behavior. The ALJ was also suspect because of the many
inconsistencies in Petitioner’s medical records, and her failure to seek a back specialist.
The ALJ thus discussed and evaluated evidence supporting his conclusion that
Petitioner’s symptoms and medical records did not meet or equal the listing for disorder
of the spine under Appendix 1, Section 1.04(A). Finally, as discussed below, the ALJ
properly evaluated and supported his rejection of the claimant’s subjective pain
testimony. In sum, the ALJ’s finding includes adequate explanation and record support
that Petitioner did not meet or equal the listing requirements. Accordingly, the final
determination of the Commissioner will not be altered on this ground.
2.

ALJ Bias

Petitioner implies that the ALJ was bias against her because he found that she was
not entirely credible because of her history of malingering to obtain narcotics. Petitioner
argues that the ALJ’s bias is obvious because “he attributed nearly every inconsistency in
the record to it, even stating in the Decision that the Petitioner may have gone to Dirne
Clinic just to feed her narcotic habit.” (Petitioner’s Brief at 10).
The ALJ found Petitioner generally not credible based on her unwillingness to follow up
with specialists regarding her back pain, her criminal history, her drug-seeking history
that was well-documented by her treating providers, and her inconsistent responses to
questions, sometimes in the same interview. These are all clear and convincing reasons to
MEMORANDUM DECISION AND ORDER - 11

find Petitioner less than credible about her symptoms. See Thomas v. Barnhart, 278 F.3d
947, 959 (9th Cir. 2002) (lack of cooperation during an evaluation, efforts to impede
accurate testing of limitations, and making inconsistent statements are valid reasons to
find that a claimant lacks credibility); Edlund v. Massanari, 253 F.3d 1152, 1157–58 (9th
Cir. 2001) (suggesting exaggerating complaints of pain for prescription medication is a
credibility factor); Hardisty v. Astrue, 592 F.3d 1072, 1080 (9th Cir. 2010) (in EAJA
context, government was substantially justified in relying on convictions for adverse
credibility finding).
Finally, concerning Petitioner’s complains of bias, there is no evidence the ALJ
exhibited any favoritism toward the government. Rollins v. Massanari, 261 F.3d 853,
857–58 (9th Cir.2001) (ALJs presumed to be unbiased; claimant “required to show that
the ALJ's behavior, in the context of the whole case, was so extreme as to display clear
inability to render fair judgment”).
After carefully reviewing the record, the Court concludes that the ALJ properly
rejected Petitioner’s credibility regarding the severity of her pain. The Ninth Circuit has
recognized that “[c]redibility determinations are the province of the ALJ.” Fair v.
Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Where, as here, the ALJ has made specific
findings justifying a decision to discount and reject certain allegations made by Petitioner
regarding symptoms and their functional effect on daily activities, and those findings are
supported by substantial evidence in the record, as the Court concludes they are in this
action, the Court’s role is not to second-guess that decision. In the Court’s view, the
ALJ’s findings to reject Petitioner’s credibility are sufficiently specific to allow the Court
MEMORANDUM DECISION AND ORDER - 12

to conclude that the ALJ’s decision is based on permissible grounds and did not
arbitrarily discredit Petitioner’s testimony. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th
Cir. 1991). Accordingly, the Court concludes that the ALJ’s decision to reject certain
aspects of Petitioner’s subjective testimony concerning her symptoms/limitations is not
erroneous and should not be disturbed on appeal.
C.

Conclusion
The Court concludes that 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.
Accordingly, the Court will not substitute its interpretation or judgment for that of the
ALJ in reaching his decision and the Commissioner’s decision is upheld.
ORDER
Based on the foregoing, the decision of the Commissioner is affirmed and this
action is dismissed in its entirety with prejudice.

DATED: September 24, 2012

_______________________
Honorable Larry M. Boyle
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 13