Eby v. Social Security Administration Commissioner

Filing 19

MEMORANDUM DECISION AND ORDER. Based on the foregoing, the decision of the Commissioner is AFFIRMED and this action is DISMISSED in its entirety with prejudice. 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 (st)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

Case No.: 2:14-cv-00117-REB

KEVIN EBY,
Petitioner,

MEMORANDUM DECISION AND
ORDER

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

Pending before this Court is Kevin Eby’s Petition for Review (Docket No. 1), seeking
review of the Social Security Administration’s (“SSA”) final decision to deny his claim for
Social Security Disability Benefits for lack of disability. The 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 January 24, 2011 Kevin Eby (“Petitioner”) protectively filed a Title II application for
a period of disability and disability insurance benefits. Petitioner alleged disability beginning
August 1, 2009. The claim was initially denied on May 23, 2011 and, again, on reconsideration
on July 18, 2011. On August 11, 2011, Petitioner timely filed a Request for Hearing before an
Administrative Law Judge (“ALJ”). On September 6, 2012, ALJ R.J. Payne held a hearing in
Spokane, Washington, at which time, Petitioner, represented by attorney Mark B. Jones,
appeared and testified. Impartial medical expert , Minh D. Vu, M.D., also appeared and testified
during the same September 6, 2012 hearing.
MEMORANDUM DECISION AND ORDER - 1

On September 20 2012, the ALJ issued a Decision denying Petitioner’s claim, finding
that Petitioner was not disabled within the meaning of the Social Security Act. Petitioner timely
requested review from the Appeals Council on or around October 9, 2012. On January 30, 2014,
the Appeals Council denied Petitioner’s Request for Review, making the ALJ’s decision the final
decision of the Commissioner of Social Security.
Having exhausted his administrative remedies, Petitioner timely files the instant action,
arguing that “[t]he conclusions and findings of fact of the defendant are not supported by
substantial evidence and are contrary to law and regulation.” Compl., p. 2 (Docket No. 1).
Specifically, Petitioner argues that new and material evidence exists to support his disability and
that such evidence was unavailable to the ALJ at the time of the September 6, 2012 hearing. See
generally Pet.’s Brief (Docket No. 14). Petitioner therefore requests that “the matter should be
remanded to the ALJ for further proceedings.” Id. at p. 5
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);

MEMORANDUM DECISION AND ORDER - 2

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 (see 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 conflicts in medical testimony
(see 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 (see 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).

MEMORANDUM DECISION AND ORDER - 3

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.
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 has not engaged in substantial gainful activity since August 1, 2009, the
alleged disability onset date. (AR 13).
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).

MEMORANDUM DECISION AND ORDER - 4

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 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: (1) degenerative disc disease
lumbar and thoracic spine; (2) bilateral shoulder problems; (3) degenerative joint disease left
shoulder, status post fracture; (4) right hip bursitis status post surgery in 2000; and (5) history of
right ankle fracture status post surgery. (AR 13-15).
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’s above-listed
impairments, while severe, do not meet or medically equal, either singly or in combination, the
criteria established for any of the qualifying impairments. (AR 15-16).
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

MEMORANDUM DECISION AND ORDER - 5

limitations from his 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. Here, the ALJ determined:
After careful consideration of the entire record, the undersigned finds that the
[Petitioner] has the residual functional capacity to perform light work as defined in
20 C.F.R. [§ ]404.1567(b) except occasionally bend, balance, stoop, crouch, crawl,
kneel, climb ramps and stairs, but never, climb ladders, robes o[r] scaffolds; he can
occasionally reach overhead with his right dominant upper extremity, but never reach
overhead with his left, non-dominant upper extremity; he can push or pull with upper
and lower extremities . . . within the limitations for light work lifting or carrying.
(AR 16-19).
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 found that
Petitioner is unable to perform any past relevant work as a press operator, green chain puller, and
dry chain puller. (AR 19-20). However, considering Petitioner’s age, education, work
experience, and residual functional capacity, the ALJ concluded that “there are jobs that exist in
significant numbers in the national economy that [Petitioner] can perform.” (AR 20).

MEMORANDUM DECISION AND ORDER - 6

B.

Analysis
1.

Factual Background

Although recognizing Petitioner’s “degenerative disc disease lumbar and thoracic spine”
to be a “severe impairment” under the Social Security Act, applicable regulations, and pertinent
case law, the ALJ determined that Petitioner’s “statements concerning the intensity, persistence,
and limiting effects” of the corresponding symptoms to not be credible. (AR 13-14, 17-19).
According to Petitioner:
[t]hese conclusions so infuriated [him] that after receiving the Decision of September
20, 2012, he was somehow able to obtain an MRI of his Lumbar and Thoracic spine.
These MRIs were performed on the 9th day of November 2012 . . . .
Pet.’s Brief, p. 3 (Docket No. 14). On November 19, 2012, Petitioner included the November 9,
2012 MRI reports as part of his Request for Review to the Appeals Council. (AR 329-334). On
January 20, 2014, the Appeals Council “considered” this additional evidence1 but nonetheless
found that it did not provide a basis for changing the ALJ’s decision. (AR 1-2).
Through this action, Petitioner “seeks remand [because] new and material evidence was
obtained which was unavailable to the petitioner at the time the only administrative hearing was
held.” Pet.’s Brief, p. 4 (Docket No. 14); see also id. at p. 5.

1

On December 10, 2012, Petitioner also included the following records as part of his
Request for Review to the Appeals Council: (1) a November 27, 2012 treatment note from
Jennifer Eickstadt, PA-C; and (2) a September 28, 2012 “Upper Respiratory Infection Exam”
form. (AR 324-328). Interestingly, the November 27, 2012 treatment note indicates a “follow
up MRI” and that the “MRI [was] reviewed with patient.” (AR 326). It is unclear if the
reference here to “MRI” relates to the November 9, 2012 MRI (see supra) or a separate MRI.
There is no record of a post-hearing MRI other than the November 9, 2012 MRIs of Petitioner’s
lumbar and thoracic spine.
MEMORANDUM DECISION AND ORDER - 7

2.

Newly-Submitted Evidence: Applicable Law

“Social security claimants usually have one opportunity to prove their disability. If this
were not the case, the administrative proceedings would become an unending merry-go-round.”
Coulbourn v. Astrue, 2008 WL 2413169, *8 (E.D. Cal. 2008) (internal quotation marks omitted).
However, SSA regulations “permit claimants to submit new and material evidence to the
Appeals Council and require the Council to consider that evidence in determining whether to
review the ALJ’s decision, so long as the evidence relates to the period on or before the ALJ’s
decision.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012); see also
20 C.F.R. §§ 404.970(b), 404.976(b)(1). New evidence is material if it bears “directly and
substantially on the matter in dispute.” Luna v. Astrue, 623 F.3d 1032, 1034 (9th Cir. 1984).
Review of the case is warranted only if the Appeals Council finds “that the administrative law
judge’s action, findings, or conclusion is contrary to the weight of the evidence currently of
record.” 20 C.F.R. § 404.970(b).
Where, as here, the Appeals Council considered additional evidence but denied review,
the additional evidence becomes part of the record for purposes of the Court’s analysis. See
Brewes, 682 F.3d at 1163 (“[W]hen the Appeals Council considers new evidence in deciding
whether to review a decision of the ALJ, that evidence becomes part of the administrative
record, which the district court must consider when reviewing the Commissioner’s final decision
for substantial evidence.”); accord Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1232
(9th Cir. 2011) (courts may consider evidence presented for first time to Appeals Council “to
determine whether, in light of the record as a whole, the ALJ’s decision was supported by
substantial evidence and was free of legal error”). Remand is necessary where the material

MEMORANDUM DECISION AND ORDER - 8

evidence gives rise to a “reasonable possibility” that the new evidence might change the outcome
of the administrative hearing. See Borrelli v. Comm’r of Soc. Sec., 570 Fed. Appx. 651, 652 (9th
Cir. 2014) (citing Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380-81 (9th Cir.
1984)).2
3.

The November 9, 2012 MRI Reports Do Not Render the ALJ’s Decision as
Lacking in Substantial Evidence

Quoting directly from the November 9, 2012 MRI report relating to his lumbar spine,
Petitioner states that it “demonstrates moderate left foraminal stenosis at two levels, and mild
right foraminal stenosis at one level and moderate at a second level” in addition to “severe left
and mild right facet arth[r]opathy.” Pet.’s Brief, p. 4 (quoting (AR 334)). In turn, Petitioner
argues that “[t]he new evidence demonstrates that [he] has significant lumbar disc disease” and
also “supports [his] testimony about ‘the intensity, persistence, and limiting effects of’ the
symptoms which the ALJ found ‘not credible.’” Id. (quoting (AR 17)). But Petitioner’s
arguments in these respects miss the point.
First, there is no question that Petitioner has lumbar disc disease and that this impairment
is severe. Indeed, the ALJ concluded as much when making his disability determination. See
supra (citing (AR 13-14) (stating “above-referenced conditions” (including degenerative joint
disease and degenerative disc disease) “are found to constitute ‘severe’ impairments for the

2

Claimants need not show good cause before submitting new evidence to the Appeals
Council. See Brewes, 682 F.3d at 1162; see also Brent v. Astrue, 2010 WL 3521788, *5 (C.D.
Cal. 2010) (“While Section 404.970(b) dictates the proper procedure for the Appeals Council to
follow in deciding whether to review a case in light of the submission of new evidence, Section
405(g) – which, unlike the aforementioned regulation, requires a showing of ‘good cause’ for the
belated submission of new evidence – governs ‘judicial review’ of new evidence submitted for
the first time to the district court. This Court will not superimpose the ‘good cause’ requirement
of Section 405(g) onto the Appeals Council’s review of new evidence pursuant to Section
404.970(b).”) (emphasis in original, internal citations omitted)).
MEMORANDUM DECISION AND ORDER - 9

purposes of this adjudication.”). Therefore, to the extent the at-issue November 9, 2012 MRI
report can be read to “demonstrate” Petitioner’s lumbar disc disease, it necessarily would not
have altered the ALJ’s Decision – it supports, not detracts from, the ALJ’s conclusions on this
issue.
Second, the March 9, 2012 MRI report speaks to the second step of the sequential
process in that it helps identify a “medically determinable impairment or combination of
impairments.” See supra. Importantly, the March 9, 2012 MRI report does not inform the fourth
step of the sequential process – Petitioner’s residual functional capacity to do physical work
despite his degenerative disc disease. See id. It is on this discrete point that the ALJ questioned
Petitioner’s credibility, not whether, in fact, Petitioner had degenerative disc disease. (AR 1619). Simply put, the March 9, 2012 MRI report neither buttresses nor diminishes the ALJ’s
credibility analysis.
As the trier of fact, the ALJ is in the best position to make credibility determinations and,
for this reason, his determinations are entitled to great weight. See 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. See Light v. Social Sec. Admin., 119 F.3d
789, 791 (9th Cir. 1997). The ALJ may also consider location, duration, and frequency
symptoms; factors that precipitate and aggravate those symptoms; amount and side effects of
medications; and treatment measures taken by claimant to alleviate those symptoms. See Soc.
Sec. Ruling (SSR) 96-7p. In short, “[c]redibility decisions are the province of the ALJ.” Fair v.

MEMORANDUM DECISION AND ORDER - 10

Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Still, to reject a claimant’s testimony, the ALJ must
make specific findings stating clear and convincing reasons for doing so. See Holohan v.
Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). Here, even when considering the March 9, 2012
MRI report post hoc, the ALJ provided sufficient reasons for calling into question Petitioner’s
credibility.
Within his March 15, 2011 “Function Report,” Petitioner alleged that “[his] back hurts
very bad most the day” and “[he] ha[s] to take pain medicine.” (AR 165). Therein, Petitioner
further alleged that he was “[n]ot sure what [he] can lift or walk”; “standing [his] right hip and
leg goes numb and back hurts after 15 or 20 min[utes]”; “sitting causes [his] back to hurt”; and
he could only walk 100 yards before having to stop and rest for two minutes. (AR 170). At the
September 6, 2012 hearing, Petitioner expounded upon these limitations, testifying that he is
“not able to perform any work” largely because of his back:
ATTY:

Okay, so what is it – when you apply for social security, you say
you’re not able to perform any work that’s available. What is it that’s
keeping you from being able to work?

PET:

My back and anymore, if I try to do anything that overexerts me, the
next day, I really have a hard time. And I have to take pain
medication now, and a lot of places won’t hire me, because I’m
taking pain medication.

ATTY:

When you say you overexert yourself, what type of activity would be
an example of overexerting yourself?

PET:

Painting for four hours or whatever. I’ve been helping my sister and
brother-in-law, doing some odds and ends.

ATTY:

Okay. And, if you work for four hours?

PET:

I would go home hurting. And then, the next day, a lot of times, you
know, sometimes I couldn’t perform.
....

MEMORANDUM DECISION AND ORDER - 11

ALJ:

All right. And, do you have pain all the time, or does the pain come
and goes?

PET:

Well, some days, it’s all the time. And some days, it comes and goes.

ALJ:

Mm-hmm. And what does it feel like?

PET:

Right now, it’s a dull ache in my lower back.

ALJ:

Normally, what does it feel like?

PET:

Well, it varies. There’s always the aches, it seems like.
....

ALJ:

And, I’m going to see if I can get a little better feel for the severity of
your pain. I’m going to give you a pain scale from zero to 10. Zero
is no pain. Go up to 10, and that’s the kind of the equivalent of the
pain that would send you immediately to the emergency room. You
wouldn’t think twice about it. The kind of pain that you stick your
hand on your burner.

PET:

Yeah.

ALJ:

Hot burner. That’s 10 level pain.

PET:

Ten.

ALJ:

How would you rate the pain you have to deal with day in and day
out? Not at its worst, generally.

PET:

At its worst?

ALJ:

Not at its worst.

PET:

Not at its worst.

ALJ:

Generally, where would it fall on that scale?

PET:

I would say five, you know. Six.

ALJ:

Okay. All right, and at its worst, where does it get?

PET:

I would say seven or eight.

MEMORANDUM DECISION AND ORDER - 12

ALJ:

How often do you get seven or eight level pain?

PET:

It depends on what I’m doing really. I mean, if I was working on,
when I was working on a dry chain, it would probably happen, you
know, three or four times a day. It would just, it’d start.

ALJ:

But you were able to work with that pain?

PET:

Yeah, I had to.

ALJ:

Okay. All right. And are you having any pain today?

PET:

Yes.

ALJ:

What level are you having today?

PET:

Probably five.

ALJ:

Okay. Did you take any pain medication today?

PET:

I took Tramadol earlier.

ALJ:

What time?

PET:

10:00

(AR 46-47, 59-62).
The ALJ acknowledged these allegations in his Decision, but then went on to provide
clear and convincing reasons for tempering their import vis à vis Petitioner’s residual functional
capacity. (AR 17-19). For instance:
•

Within the same “Function Report,” Petitioner admitted that he goes outside
as much as three times a day, depending on the weather; could drive a car
and shop for groceries each week; could pay bills and manage a checkbook;
enjoys archery, hunting, fishing, hiking, and woodcrafts (though he could no
longer shoot his bow or perform activities for as long as he used to); has no
problem with personal care tasks; prepares simple meals daily; can do house
work and yard work, including mowing the lawn with a riding mower; cares
for his cat; has no problems paying attention, following spoken instructions,

MEMORANDUM DECISION AND ORDER - 13

or getting along with authority figures; and has no problems with handling
stress or changes in routine. (AR 17) (citing AR 166-171)).3
•

During the September 6, 2012 hearing, Petitioner testified that he did odd
jobs every now and then, including painting his sister’s/brother-in-law’s
house (though, if he worked 4-6 hours, he experienced severe pain); reads
books on an average of 3-4 hours each day; does chores around the house,
including dishes, laundry, and meal preparation; does woodworking; visits
family; and goes fishing. (AR 17) (citing (AR 50-58)).4

•

Rob Fuller, M.D.’s May 16, 2011 consultative examination report indicated
that his “exam showed an almost completely normal exam with the small
exception of slightly reduced lumbar spine flexion with tenderness” and that
he “would expect [Petitioner] to have no difficulty with any employment
with the possible exception of heavy labor” and that “[Petitioner] is able to
walk, stand, sit, carry light to moderate loads, hear and speak well, travel,
and handle small objects.” (AR 18 (citing (AR 270-272)). Ultimately, the
ALJ assigned only “some weight” to Dr. Fuller’s evaluation, finding that
Petitioner actually had greater limitations than those opined by Dr. Fuller.
(AR 18).

•

Jennifer Eickstadt, PA-C’s November 30, 2011 “Office Visit Form” stated
that Petitioner demonstrated “neg[ative] s[traight] l[eg] r[aise] [test]”; normal
strength bilateral; and was “able to heel/toe walk” with some tenderness on
palpation at the mid-thoracic spine and lumbar spine. (AR 18) (citing AR
292-293)).

•

Petitioner’s January 13, 2012 spinal x-rays revealed only mild lumbar spine
degeneration and mild thoracic degeneration with mild scoliosis. (AR 18)
(citing AR 279-280)).

•

Dr. Vu testified at the September 6, 2012 hearing that objective support for
Petitioner’s stated exertional limitations was lacking. (AR 18) (citing (AR
40-41)).

•

John Crites, M.D.’s July 18, 2011 medical evaluation opined that Petitioner
could lift/carry 20 pounds occasionally, 10 pounds frequently, stand/walk six
hours, and sit six hours in an eight-hour workday, without any other

3

Petitioner did not respond to the question asking: “What were you able to do before
your illnesses, injuries, or conditions that you can’t do now?” (AR 166).
4

Moreover, in response to the ALJ’s question about whether he would be able to do a
“no-brainer job,” “sitting in a kiosk,” Petitioner commented two separate times that he’d “like to
try,” and wasn’t sure he couldn’t do it. (AR 50).
MEMORANDUM DECISION AND ORDER - 14

limitations. (AR 18) (citing (AR 79-81)); see also (AR 83) (“Your
conditions do not qualify you for disability benefits under our rules. Your
condition results in some limitations in your ability to perform work related
activities. While you are not capable of performing work you have done in
the past, you are able to perform work that is less demanding. We have
determined that your condition is not severe enough to keep you from
working. We considered the medical and other information, your age,
education, training, and work experience in determining how your condition
affects your ability to work.”).
These reasons provide a clear and convincing explanation as to why the ALJ did not find
Petitioner entirely credible. Whether the undersigned agrees with this conclusion is immaterial;
the ALJ’s conclusion, while potentially at odds with another’s interpretation of that same
evidence is nonetheless supported by substantial evidence in the record. As required by
controlling law, the ALJ will not be second-guessed here. See Batson v. Comm’r of Social Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (“The Commissioner’s findings are upheld if
supported by inferences reasonably drawn from the record, and if evidence exists to support
more than one rational interpretation, we must defer to the Commissioner’s decision.”).
Again, the March 9, 2012 MRI report does not discuss Petitioner’s limitations, only his
already-understood back issues. See supra. Petitioner’s and/or his counsel’s subjective belief
otherwise does not make it so. See Pet.’s Brief, pp. 4-5 (Docket No. 14) (“The new evidence,
and specifically the two (2) MRI’s therefore support the [Petitioner’s] testimony, which was
found to be not credible, and the opinion of the primary treating doctor, which was found to be
unsupported by the record.”). “In the absence of any substantive or meaningful analysis,
Petitioner’s assertions are undeveloped and wholly inadequate.” Gump v. Colvin, 2015 WL
5123708, *3 (W.D. Pa. 2015) (citing Pennsylvania v. U.S. Dept. of Health & Human Servs., 101
F.3d 939, 945 (3rd Cir. 1996) (conclusory assertions, unaccompanied by substantial argument,
will not suffice to bring issue before court)). As a result, Petitioner’s arguments concerning the

MEMORANDUM DECISION AND ORDER - 15

March 9, 2012 MRI report do nothing to change either the ALJ’s credibility analysis generally,
or the ALJ’s disability determination in particular. With all this in mind, the Court finds, after
considering the expanded record as a whole, there is not a reasonable probability that the
additional evidence would have made a difference to the ALJ’s finding that Petitioner did not
have a severe impairment.
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.
I conclude that the evidence relied upon by the ALJ – coupled with the additional
evidence submitted post-hearing – can reasonably and rationally support the ALJ’s well-formed
conclusions, despite the fact that such evidence may be susceptible to a different interpretation.
Accordingly, the ALJ’s decisions as to Petitioner’s disability claim were based on proper legal
standards and supported by substantial evidence. Therefore, 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 Commissioner’s decision is affirmed.
///
///
///
///

MEMORANDUM DECISION AND ORDER - 16

V. ORDER
Based on the foregoing, the decision of the Commissioner is AFFIRMED and this action
is DISMISSED in its entirety with prejudice.
DATED: September 14, 2015

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 17