Kimball v. Astrue

Filing 19

MEMORANDUM DECISION AND ORDER. Based on the foregoing, Petitioners request for review 1 is GRANTED. The Commissioners decision that Petitioners subjective complaints are not credible is not sufficiently clear and convincing; therefore, this matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum Decision and Order. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

GLENN KIMBALL,
Case No. 2:12-CV-00222-REB
Petitioner,
MEMORANDUM DECISION
AND ORDER

vs.
CAROLYN COLVIN, Commissioner of Social
Security,
Respondent.

Pending before the Court is Petitioner Glenn Kimball’s Petition for Review (Dkt.
1), filed May 9, 2012, seeking review of the Social Security Administration’s final
decision to deny his disability benefits. This action is brought pursuant to 42 U.S.C.
§ 405(g). Having carefully reviewed the record and otherwise being fully advised, the
Court enters the following Memorandum Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
On July 1, 2009, Glenn Kimball (“Petitioner”) applied for disability insurance
benefits, alleging a disability onset date of October 12, 2006, when he was 44 years old.
Petitioner’s claim was initially denied on September 29, 2009 and, again, denied on
reconsideration on January 14, 2010. (AR 19). On February 8, 2010, Petitioner timely
filed a Request for Hearing before an Administrative Law Judge (“ALJ”). (AR 19). On
September 9, 2010, ALJ Marie Palachuk held a hearing in Spokane, Washington, at
MEMORANDUM DECISION AND ORDER - 1

which time Petitioner, represented by attorney Louis Garbrecht, appeared and testified.
(AR 19). A medical expert, Richard A. Hutson, M.D., and an impartial vocational expert,
Thomas A. Polsin, also appeared and testified.
At the time of the hearing, Petitioner had past relevant work as a construction
supervisor, carpenter, siding applicator, and construction superintendent. (AR32).
Petitioner last attended school in the twelfth grade. (AR 32).
On October 1, 2010, the ALJ issued a decision, denying Petitioner’s claims,
finding that Petitioner was not disabled within the meaning of the Social Security Act.
(AR 33). Petitioner timely requested review from the Appeals Council on November 22,
2010 (see Petitioner’s Brief, p. 2, Dkt. 16) rendering the ALJ’s decision the
Commissioner’s final decision. Petitioner now seeks judicial review of the
Commissioner’s decision to deny benefits.
Petitioner contends the ALJ erred by: (1) failing to properly evaluate the
Petitioner’s fractures in combination with his allegations of a weak right arm, weak right
grip, limitation on reaching at shoulder level, as well as the inability to move his neck, (2)
giving significant weight to a non-examining medical advisor and an independent medical
opinion and not enough weight to the opinions of treating physician Roger Dunteman,
M.D., (3) discounting Petitioner’s testimony, and (4) giving undue weight to the
vocational expert’s testimony.

MEMORANDUM DECISION AND ORDER - 2

II. 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
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
MEMORANDUM DECISION AND ORDER - 3

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).
III. DISCUSSION
A.

Sequential Process
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
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.

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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 his physical/mental impairments are and regardless of his 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 12, 2006, the alleged onset date. (AR
21).
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
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
MEMORANDUM DECISION AND ORDER - 5

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). Here,
the ALJ found that Petitioner had the following severe impairments: lumbar
spondylolisthesis status post fusion L5-S1; degenerative disk disease cervical spine status
post fusion; and status post two surgeries right shoulder. (AR 21).
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 Petitioner does not have an
impairment (or combination of impairments) that meets or medically equals a listed
impairment (AR 22).
The fourth step of the evaluation process requires the ALJ to determine whether
the claimant’s residual functional capacity 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
residual functional capacity is his 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
MEMORANDUM DECISION AND ORDER - 6

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.
Here, the ALJ determined that Petitioner is able to perform sedentary work as defined in
20 C.F.R. 404.1567(a), except he would need a stand/sit option and, although he could
occasionally reach above the shoulder with his left upper extremity, he can never lift
above the shoulder with his right upper extremity. (AR 22).
In the fifth and final step, if it has been established that a claimant can no longer
perform past relevant work because of his impairments, the burden shifts to the
Commissioner to show that the claimant retains the ability to do alternate work and to
demonstrate that such alternate work exists in significant numbers in the national
economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see
also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do
other work, he is not disabled; if the claimant is not able to do other work and meets the
duration requirement, he is disabled. Here, the ALJ considered Petitioner’s age,
education, work experience, and residual functional capacity and determined that jobs
exist in significant numbers in the national economy that Petitioner can perform. (AR
32).

MEMORANDUM DECISION AND ORDER - 7

B.

Analysis
1.

Credibility

Petitioner takes issue with the ALJ’s conclusion that Petitioner’s testimony
concerning the intensity, persistence, and limiting effects of his symptoms is not credible
“to the extent they are inconsistent with the . . . residual functional capacity assessment.”
AR 23; see also Pet.’s Brief, p. 9-10 (Dkt. 16). It is well established that the ALJ is in the
best position to make credibility determinations and, for this reason, her determinations
are entitled to great weight. Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990).
In evaluating a claimant’s credibility, the ALJ may consider a claimant’s reputation,
inconsistencies either in testimony or between testimony and conduct, daily activities,
past work record, and testimony from physicians and third parties concerning the nature,
severity, and effect of the alleged symptoms. Light v. Social Security Admin., 119 F.3d
789, 791 (9th Cir. 1997). In short, “[c]redibility decisions are the province of the ALJ.”
Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Nonetheless, that discretion is not
without limits. In pertinent part here, before rejecting a claimant’s testimony the ALJ
must make specific findings stating clear and convincing reasons for doing so. Holohan
v. Massanari, 246 F.3d 1195, 1208 (9th Cir, 2001) (citing Reddick v. Chater, 157 F.3d
715, 722 (9th Cir. 1998)). Here, the ALJ provided some reasons for calling into question
Petitioner’s credibility that can be upheld, but other reasons do not pass muster and must
be re-evaluated on remand, for the reasons explained below.

MEMORANDUM DECISION AND ORDER - 8

The ALJ appropriately relied on Petitioner’s own report of his daily functions, in
which he said he is able to lift 15 pounds and participate in activities that the ALJ found
demonstrated he can perform “a full complement of activities of daily living.” AR 23, 30;
see also AR 210-15. Petitioner’s function report from July of 2009 states that he
sometimes cooks, does small household repairs, and waters the lawn. AR 210-15. He
estimates these tasks take up to one and one-half hours per day. He also shops for
groceries about two times a week for a half hour each time. AR 213. He likes to hunt,
fish, engage in some sports, and barbeque, but only occasionally does so. AR 214. He
also takes care of two grandchildren until 6 p.m. each day, Monday through Friday, and
“play[s] games,” although his wife helps watch the grandchildren. AR 210-11. The ALJ
mentioned these activities in making her credibility determination. AR 30-31.
Petitioner takes issue particularly with the ALJ’s reliance on Petitioner watching
his grandchildren when she did not state their age or Petitioner’s care activities. Reply, p.
2 (Dkt. 18). Petitioner’s function report noted, however, that he “play[s] games”,
providing some indication of the type of care involved in watching his grandchildren.
Moreover, there were a host of other daily activities that the ALJ relied on in making her
assessment. Even where an individual’s “activities suggest some difficulty functioning,
they may be grounds for discrediting the claimant’s testimony to the extent that they
contradict claims of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d 1104,
1113 (9th Cir. 2012).

MEMORANDUM DECISION AND ORDER - 9

Also, as the ALJ recognized, during the alleged disability period various of the
examining and treating physicians determined that Petitioner could perform some types of
work. See AR 355 (April 2007 released “for light-duty” to lift up to 25 pounds); AR 638
(“strength loss and poor range of motion . . . probably preclude him to undergoing further
heavy labor positions”) (emphasis added); AR 789 (Petitioner is “fixed and stable with
permanent restrictions of no repetitive activity at or above shoulder level and no lifting
greater than 10 lbs.”).
Although the ALJ appropriately considered Petitioner’s daily activities and
function report when assessing his credibility, she also relied on the medical record and
stated that no treating doctor had given permanent limitations more restrictive than those
in her residual functional capacity (“RFC”). AR 23. However, as discussed in detail
below, the Court is remanding for the ALJ to reconsider the medical evidence,
particularly with regard to treating physician Roger Dunteman’s opinion that Petitioner is
restricted in his ability to reach at shoulder level – a permanent limitation more restricted
than the ALJ’s RFC, which restricted Petitioner to occasionally reaching above shoulder
level.
Additionally, the ALJ based her credibility determination, in part, on her finding
that “no treating or examining doctor has given any sit, stand, or walking limitations.”
AR 23. That finding appears to be based upon a faulty premise, as both David Bauer, an
orthopedic surgeon, and David Rutberg, a neurosurgeon, opined that Petitioner is unable
to stand or sit for greater than 30 minutes. AR 784. Although they limited this
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observation to his status as of March 19, 2010 (a time when Petitioner’s treating
physician found his condition fixed and permanent), they also said that “it appears that
those restrictions will be permanent”. AR 784; see also AR 789 (Dr. Roger Dunteman
opines on February 26, 2010 that Petitioner’s condition is fixed and permanent). For
these reasons, and because the Court is remanding for reconsideration of the medical
opinion testimony and resulting residual functional capacity assessment, the ALJ on
remand should reevaluate her credibility determination as well.
2.

Evaluation of Medical Opinions & RFC Assessment

Petitioner argues that the ALJ erred by giving significant weight to a nonexamining medical advisor (presumably Dr. Richard Hutson) and “an IME opinion dated
three years before [Petitioner] was medically stable” (presumably Dr. Sears’ December
7, 2007 report). Pet.’s Br., p. 8 (Dkt. 16) (emphasis added); see also AR 31 (ALJ’s
discussion). However, there is record support for finding that Petitioner’s condition was
fixed and stable before March of 2010. See, e.g., AR 367 (as of December 2007, Dr.
Sears opines that Petitioner is “fixed and stable . . . at maximum medical improvement”);
AR 778 (Petitioner “is fixed and stable with a date of impairment of November 19,
2009”); AR 785 (October 12, 2006 letter from the State Insurance Fund explaining that
panel doctors found Petitioner “to be at maximum medical improvement relative to his
industrial injury claim of October 12, 2006. They feel no further treatment is reasonable
or necessary. They have imposed on him permanent restrictions of no lifting greater than

MEMORANDUM DECISION AND ORDER - 11

10 pounds with the right upper extremity as well as the inability to sit or stand for longer
than a 30-minute time period.”).
Moreover, these opinions as to Petitioner’s “fixed and stable” status were from a
time during the claimed disability period (which began on October 12, 2006) and,
therefore, are relevant to the ALJ’s decision. An opinion from the early part of the
disability period is not, simply by virtue of an earlier date, presumptively less reliable or
useful for the disability determination. Significantly, the ALJ also relied on a lengthy
independent medical exam performed by Drs. Bauer and Rutberg in March of 2010, at a
time Petitioner submits he was medically stable. AR 31.
Petitioner next argues that the ALJ improperly rejected the opinion of Dr. Roger
Dunteman, Petitioner’s shoulder surgeon, who found that Petitioner was not able to
perform work at or above shoulder level. Respondent asserts that “no treating or
examining doctor has given permanent limitations that were more restrictive than those
found by the ALJ in the residual functional capacity assessment.” Resp.’s Br., p. 5 (Dkt.
17). However, the ALJ found that Petitioner can never lift above the shoulder with the
right upper extremity, while Dr. Dunteman (a treating physician) opined on February 26,
2010 that Petitioner was “fixed and stable with permanent restrictions of no repetitive
activity at or above shoulder level and no lifting greater than 10 lbs.” AR 789 (emphasis
added).
Opinions of treating physicians are entitled to greater weight than the opinion of a
non-examining physician. See Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990);
MEMORANDUM DECISION AND ORDER - 12

Gallant v. Heckler, 753 F.2d 1450 (9th Cir. 1984). Such deference comes from the fact
that the treating physician is “employed to cure and has a greater opportunity to know and
observe the individual.” Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989). Even
so, a treating physician’s opinion is not necessarily conclusive. See id. at 762. However,
the ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted
opinion of an examining physician. See Pitzer, 908 F.2d at 506. If the opinion of an
examining doctor is contradicted by another doctor, it can only be rejected for specific
and legitimate reasons that are supported by substantial evidence in the record. See
Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995).
Here, the ALJ did not reject Dr. Dunteman’s opinion that Petitioner could not
engage in repetitive activity at or above shoulder level, but she appears to have
overlooked it or improperly left it behind, as well as other testimony supporting that
limitation, when she made her RFC assessment. For instance, the ALJ favorably
considered testimony from Dr. Richard Huston, an orthopedic surgeon who testified at the
hearing, and relied upon his initial opinion that Petitioner would not be able to do any
overhead lifting with the elbow “above shoulder level on the right side.” However, Dr.
Huston, upon questioning by Petitioner’s counsel, agreed that Petitioner should have no
repetitive activity with his right dominant arm at or above shoulder level. Compare AR
48 &50. The ALJ mistakenly summarized Dr. Huston’s opinion as limiting Petitioner to
“sedentary work with no overhead lifting with the elbow over the shoulder level on the
right side and no repetitive arm movements at or above shoulder level” (AR 31), and then
MEMORANDUM DECISION AND ORDER - 13

incorporated “most” of Dr. Huston’s limitations in her RFC, ultimately finding that Dr.
Huston’s “limitations are consistent with the evidence”. AR 31. Her RFC thus
incorporated only the limitation on over the shoulder reaching. AR 22. Accordingly, the
ALJ’s statement that no treating doctor had given permanent limitations more restrictive
than those in her RFC is not entirely accurate. AR 23.
Although one might contend that such a distinction is not significant, its import is
more significant than might first meet the eye. “An RFC for less than a full range of
sedentary work reflects very serious limitations resulting from an individual’s medical
impairment(s)[,] is expected to be relatively rare,” and “[u]nskilled sedentary work also
involves other activities, classified as ‘nonexertional,’ such as capacities for . . .
manipulation . . . .” Social Security Ruling 96-9p, 1996 WL 374185, *1-3. Thus, the
ALJ limiting Petitioner to unskilled sedentary work with several restrictions involves a
significant limitation and Petitioner’s capacity for manipulation and use of his arms at
shoulder level could have a significant impact on the jobs available to him in the
economy. Had the ALJ discussed why she did not include a limitation at the shoulder
reaching, as assessed by treating physician Roger Dunteman and agreed to by consulting
physician Richard Hutson, there may have been sufficient support for her treatment of
that limitation in the record.1 Instead, even though she acknowledged the limitation, it
1

For example, on September 29, 2009, reviewing physician Thomas Coolidge
determined that Petitioner could not reach over 90 degrees “due to shoulder and cervical spine”.
AR 743. Lloyd Schneiderman, DO, another reviewing physician, reviewed Dr. Coolidge's
residual functional capacity assessment on January 14, 2010, and “affirmed” it “as written”. AR
761. Examining physician Stephen Sears, on February 19, 2008, found Petitioner was
MEMORANDUM DECISION AND ORDER - 14

was omitted from her RFC. Further, even though Dr. Stephen Sears, an examining
physician, only limited Petitioner in his ability to use his right hand “overhead” (AR 372),
that opinion does not contradict Dr. Dunteman’s further conclusion that Petitioner cannot
engage in repetitive reaching at shoulder level, an opinion with which Dr. Hutson agreed.
The ALJ gave significant weight to the opinions of both Dr. Hutson and Dr. Sears.
Accordingly, the Court determines remand is appropriate to allow the ALJ to
resolve which physician opinion, or opinions, she credited in determining the limitations
on the sedentary work that Petitioner has the residual functional capacity to do, and why
she rejected a limitation of at the shoulder repetitive movement in assessing an RFC. At
the same time, the ALJ can address whether Petitioner’s right grip and any inability to
move his neck might further impact his manipulative limitations for unskilled sedentary
work.

permanently restricted to “only occasional use of right hand overhead.” AR 372.
MEMORANDUM DECISION AND ORDER - 15

IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing
inferences from facts and determining credibility. Allen, 749 F.2d at 579; Vincent ex. rel.
Vincent, 739 F.2d at 1394; Sample, 694 F.2d at 642. If the evidence is susceptible to
more than one rational interpretation, one of which is the ALJ’s, a reviewing court may
not substitute its interpretation for that of the ALJ. Key, 754 F.2d at 1549.
In this record, however, the ALJ did not provide sufficient support for her
determination that Petitioner’s only limitation on use of his right shoulder relates to
overhead movement, which disregards the testimony of physicians who found that he is
limited in repetitive movements at shoulder level, a potentially significant manipulative
limitation for unskilled sedentary work. This treatment of the medical evidence, in turn,
impacted the ALJ’s credibility assessment. For these reasons, this matter is remanded for
further consideration by the ALJ. Because the Court is remanding for reconsideration of
the medical opinion and residual functional capacity assessment, it is unnecessary to
address Petitioner’s argument as to the propriety of the ALJ’s reliance on the vocational
expert at this time.

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V. ORDER
Based on the foregoing, Petitioner’s request for review is GRANTED. The
Commissioner’s decision that Petitioner’s subjective complaints are not credible is not
sufficiently clear and convincing; therefore, this matter is remanded pursuant to sentence
four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum
Decision and Order. See Melkonyan v. Sullivan, 501 U.S. 89, 99-100 (1991).

DATED: September 30, 2013.

Honorable Ronald E. Bush
U. S. Magistrate Judge

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