Hiibel v. Colvin

Filing 18

MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED that the Commissioners decision finding that the Petitioner is not disabled within the meaning of the Social Security Act is AFFIRMED and that the 1 Petition for Review is DISMISSED with prejudice. 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 (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

NATHAN DALE HIIBEL
Petitioner,

Case No. 1:13-cv-172-CWD

v.

MEMORANDUM DECISION
AND ORDER

CAROLYN W. COLVIN, acting
Commissioner of the Social Security
Administration,
Respondent.

INTRODUCTION
Before the Court is Petitioner Nathan Dale Hiibel’s Petition for Review, filed
April 8, 2013, challenging the Respondent’s denial of social security benefits. (Dkt. 1.)
The Court has reviewed the Petition, Respondent’s Answer, the parties’ memoranda, and
the administrative record (AR)1, and for the reasons that follow, will affirm the decision
of the Commissioner.

1

The record in this matter appears at Docket No. 10. Although Docket No. 10 includes 9
subparts, the parts are collectively organized and paginated as a single document. Citations to the
AR in this decision utilize the page numbers for the entire record, not the numbers generated by
CM/ECF or the numbers used in individual documents.
MEMORANDUM DECISION AND ORDER - 1

PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits on June 29, 2010,
and an application for Supplemental Security Income on June 30, 2010. In both
applications, Petitioner claimed total disability due to a bulging disc, asthma, and thyroid
problems. The applications were denied initially and on reconsideration, and a hearing
was held on November 4, 2011, before Administrative Law Judge (ALJ) Douglas S.
Stults. After hearing testimony from Petitioner and a vocational expert, the ALJ issued a
decision on March 8, 2012, finding Petitioner not disabled. Petitioner timely requested
review by the Appeals Council, which denied his request for review on February 6, 2013.
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 forty-two years of age. Petitioner has an
eighth grade education and prior work experience as a truck driver.
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 substantial gainful activity. The ALJ
found Petitioner had not engaged in substantial gainful activity since his alleged onset
date of December 1, 2009. At step two, it must be determined whether the claimant
suffers from a severe impairment. The ALJ found Petitioner’s disorders of the lumbar
spine (discogenic and degenerative), asthma, hypothyroidism, and obesity severe within
MEMORANDUM DECISION AND ORDER - 2

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 the listed impairments, specifically listings 1.00 (musculoskeletal system),
1.04 (disorders of the spine), 3.00 (respiratory system), 3.03 (asthma), and 9.00
(endocrine disorders). 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 his past relevant
work as a truck driver.
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.
At this step, the ALJ determined that Petitioner retained the RFC to perform
sedentary work subject to a variety of functional limitations. For example, the ALJ found
Petitioner can occasionally climb ramps and stairs, balance, and stoop; but he can never
kneel, crouch, crawl, and climb ropes, ladders, or scaffolds. In addition, the ALJ found
Petitioner must avoid exposure to vibration; irritants, such as dusts, fumes, smoke, gases,
and poor ventilation; high humidity and wetness; and temperatures of 80 degrees or more
MEMORANDUM DECISION AND ORDER - 3

and 60 degrees or less. The ALJ also noted that Petitioner’s pain and symptomology
limited him to sitting for about 30 minutes before having to stand at a workstation for less
than 5 minutes, possibly resulting in a 10% reduction in pace and production from that of
an average employee.
The ALJ initially relied on the Medical-Vocational Guidelines and found that
Petitioner’s ability to perform all or substantially all of the requirements of sedentary
work was impeded by the limitations noted above. To determine the extent to which
Petitioner’s additional limitations erode the sedentary occupational base, the ALJ relied
on a vocational expert. The vocational expert testified that, even with his limitations,
Petitioner could perform the following occupations: call out operator, microfilm
document preparer, and tube operator. Based on the guidelines and opinion testimony, the
ALJ found Petitioner not disabled.
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
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. Finch, 438 F.2d 920, 921 (9th Cir. 1971).
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
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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. N.L.R.B., 340 U.S. 474 (1951); Meanel v.
Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended). 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); Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,
1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by
substantial evidence, will be conclusive. Id. 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). Nor will the
Court reverse an ALJ’s decision for harmless error—that is, an error “inconsequential to
MEMORANDUM DECISION AND ORDER - 5

the ultimate nondisability determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d
1050, 1055 (9th Cir. 2006).
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 a claimant’s
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 contends the ALJ erred at step five for two reasons. First, Petitioner
argues the ALJ improperly evaluated Petitioner’s credibility. Second, Petitioner claims
the ALJ failed to properly explain the weight given, or give appropriate weight to, the
opinion of Petitioner’s treating physician, Dr. Richard Chadek. The Court addresses each
of these issues below.
1.

Petitioner’s Credibility
Petitioner asserts the ALJ erred by failing to properly evaluate Petitioner’s

credibility. The ALJ found Petitioner’s allegations of disability “not fully credible”
because they were inconsistent with evidence in the record. Specifically, the ALJ noted
Petitioner’s allegations of disability were “internally inconsistent” with his daily activities
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and “externally inconsistent” with the medical evidence. (AR at 28-29.) To the extent the
ALJ found Petitioner’s subjective pain testimony unsupported by the medical evidence of
record, that is not a proper basis for discrediting Petitioner. Where, as here, a claimant
produces 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). However, the ALJ provided alternative,
adequately supported reasons for discrediting Petitioner.
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). In evaluating credibility, the ALJ may utilize ordinary techniques of credibility
evaluation, including considering the claimant’s reputation for truthfulness,
inconsistencies in the claimant’s testimony or between the 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).
The ALJ also 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. However, the ALJ’s credibility findings must be supported
by “specific, cogent reasons.” Reddick, 157 F.3d at 722.
Where, as here, there is no affirmative evidence of malingering, the ALJ may find
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a claimant’s subjective complaints not credible only if the ALJ provides “clear and
convincing” reasons. 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. But, if there is substantial evidence in
the record to support the ALJ’s credibility finding, the Court will not second-guess the
ALJ. Thomas, 278 F.3d at 959.
Here, objective medical evidence demonstrates that Petitioner suffers from a
bulging disc in his lumbar spine, which results in pain, numbness, and weakness in his
lower back and left leg.2 Petitioner testified that he could not maintain regular
employment because pain in his left leg kept him from sitting or standing for prolonged
periods of time and because medication for the pain made him drowsy. (AR at 48.)
Petitioner further stated that his pain varied but would become more intense after walking
more than 20 minutes or sitting for more than 30 minutes. (AR at 53-54.) However, the
ALJ could properly find that Petitioner’s description of the severity and effect of his
disabilities was inconsistent with Petitioner’s self-reported daily activities and his failure
to follow medical advice regarding his pain.
Daily activities may be grounds for an adverse credibility finding if they contradict
a claimant’s other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Petitioner
reported a variety of day-to-day activities that undermine his claims of disabling pain. In
a July 2010 Function Report, Petitioner stated that he performed household chores—such
2

Petitioner also has diagnosed with asthma and hypothyroidism, but the record indicates
these conditions can be controlled by medication. (AR at 29.)

MEMORANDUM DECISION AND ORDER - 8

as cooking, cleaning, yard maintenance, and gardening—without assistance. (AR at 199.)
In addition, Petitioner reported that he went outside his home four to six times a day,
periodically shopped for food and clothing, attended church regularly, and occasionally
went fishing. (Id. at 200-01.) At the November 2011 hearing before the ALJ, Petitioner
testified that he engaged in some combination of these activities for about four hours in
an average day. (Id. at 55-56.) Considering these activities, the ALJ concluded
Petitioner’s symptoms were not as severe as Petitioner claimed.
Substantial evidence supports the ALJ’s conclusion that Petitioner’s pain
testimony was not fully credible. Although the ALJ’s findings are not fully detailed, they
specify daily activities that contradict Petitioner’s claim that pain renders him unable to
stand or sit for long enough to sustain employment. For example, Petitioner reported that
his “left leg gives out when walking approximately 1 block,” (Id. at 202), but the ALJ
noted that he could mow his small lawn in 20 minutes without taking a break. (Id. at 50.)
Petitioner also admitted that he engaged in various activities in and outside his home for a
substantial amount of time each day.
In addition, the ALJ noted Petitioner did not follow prescribed medical treatment.
An ALJ may rely on “an unexplained . . . failure to . . . follow a prescribed course of
treatment” as a basis for discrediting an allegation of disabling pain. Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989). For example, treating physician Dr. Sameh Hanna advised
Petitioner to stop chewing tobacco to better control his pain. (AR at 293.) But, as of
September 1, 2010, Petitioner had not done so. (Id. at 294.) The record contains no
MEMORANDUM DECISION AND ORDER - 9

explanation why Petitioner continued to use tobacco despite Hanna’s advice. Because
the ALJ gave multiple, specific reasons, each supported with substantial evidence, for
finding Petitioner’s activities inconsistent with his alleged disability, the Court will not
second-guess the ALJ.
2.

Physician Opinion
Petitioner challenges the ALJ’s decision giving “minimal weight” to a June 23,

2010 assessment of Petitioner by treating physician Dr. Richard Chadek. (Id. at 30.) As
an initial matter, the parties agree that the ALJ’s written decision mischaracterizes
Chadek’s assessment as the statement of a “nonmedical person.”3 (Id.) However, this
mischaracterization constitutes harmless error because the ALJ properly rejected
Chadek’s unsupported opinion concerning Petitioner’s absenteeism and the ALJ’s
findings are otherwise consistent with Chadek’s supported opinions on Petitioner’s
physical limitations. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th
Cir. 2006) (explaining that an error is harmless when it does not affect the ultimate
nondisability determination).
Only one aspect of Chadek’s assessment could have changed the ALJ’s
nondisability determination—Chadek’s opinion that Petitioner was likely to miss about
four days of work per month. (See AR at 187.) During the hearing, a Vocational Expert
3

The record indicates that the ALJ recognized the assessment, which is marked as Exhibit
1E in the record, was prepared by a physician. At the hearing, Petitioner’s representative
explained to the ALJ that Exhibit 1E was actually a medical source statement. (AR at 41-42.) In
response, the ALJ stated “I have no idea why it [the June 23 assessment] was there [with
Petitioner’s non-medical records], but I read it and I saw it, don’t worry.” (Id. at 42.)
Nevertheless, the ALJ’s written decision misidentifies Chadek as a nonmedical person.

MEMORANDUM DECISION AND ORDER - 10

testified that a hypothetical person who missed one day of work per week would be
unable to maintain competitive employment. Thus, if fully credited, Chadek’s opinion
would tend to support a finding that Petitioner’s absenteeism precludes him from
competitive employment.
The Ninth Circuit recognizes three categories 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. Chater, 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). “The treating
physician’s opinion is not, however, necessarily conclusive as to either a physical
condition or the ultimate issue of disability.” Magallanes v. Bowen, 881 F.2d 747, 751
(9th Cir. 1989).
The ALJ may reject a treating physician’s opinion whether it is contradicted or
not. Id. While a treating physician’s uncontradicted opinion may be rejected only for
“clear and convincing” reasons supported by substantial evidence, Baxter v. Sullivan, 923
F.2d 1391, 1396 (9th Cir.1991), the ALJ need only provide “specific and legitimate”
reasons for rejecting an opinion contradicted by another physician’s opinion. Lester, 81
F.3d at 830. Further, the 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). An ALJ also may reject a treating
MEMORANDUM DECISION AND ORDER - 11

physician’s opinion if it is based “to a large extent” on a claimant’s self-reports that have
been property discounted as not credible. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th
Cir. 2008).
Although the ALJ professed to give Chadek’s entire assessment minimal weight,
the ALJ also noted that the assessment was consistent with sedentary work. In fact,
Chadek’s assessment is largely consistent with the opinions of two nonexamining
physicians whose opinions were given great weight. Compare (AR at 185-87) (Chadek’s
opinion) with (id. at 282-90) (nonexamining physician opinions). In areas where
Chadek’s assessment differed from the nonexamining physicians’ opinions—for instance,
Chadek opined that Petitioner could rarely twist, stoop, or crouch whereas the
nonexamining physicians found no such limitations—the ALJ’s RFC includes limitations
at least as restrictive as those in Chadek’s assessment. See (AR at 28) (“claimant can . . .
never kneel, crouch, crawl, and climb ropes, ladders, or scaffolds”). While the ALJ
erroneously mischaracterized Chadek as a “nonmedical person,” this error was harmless
because the ALJ’s RFC demonstrates that the ALJ gave controlling weight to most of
Chadek’s findings.
Further, the ALJ gave sufficient reasons for rejecting Chadek’s unsupported
conclusion that Petitioner would miss four days of work per month. First, the ALJ
accurately noted that Chadek’s opinion on this point is not supported by evidence or a
rationale. Chadek’s opinion concerning Petitioner’s absenteeism is puzzling given that
Chadek also opined that Petitioner would not need unscheduled breaks during the work
MEMORANDUM DECISION AND ORDER - 12

day. To the extent Chadek’s opinion concerning Petitioner’s absenteeism derived from
Petitioner’s reports about his pain, that too is a clear and convincing reason for giving the
opinion minimal weight. As discussed above, Petitioner’s subjective complaints are not
fully credible; thus, any opinions derived from Petitioner’s complaints are not entitled to
controlling weight.
In addition, the ALJ explained that such a high level of absenteeism was
inconsistent with the record. While the ALJ did not repeat the medical record in his
discussion of Chadek’s assessment, he provided a thorough summary of Petitioner’s
medical record immediately before addressing the assessment. No other medical source
opined that Petitioner would miss work as a result of his disabilities. Moreover, the ALJ
again listed Petitioner’s daily activities, indicating they are inconsistent with the notion
that Petitioner would regularly miss work. On the whole, clear and convincing reasons
supported by substantial evidence underpin the ALJ’s decision to give minimal weight to
Chadek’s opinion regarding Petitioner’s absenteeism.
CONCLUSION
The Court will affirm the ALJ’s decision that Petitioner is not disabled. The ALJ’s
decision was supported by substantial evidence in the record as a whole, and was not the
product of legal error.

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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 is AFFIRMED
and that the petition for review is DISMISSED with prejudice.

June 03, 2014

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