Murray v. Commissioner of Social Security

Filing 24

MEMORANDUM DECISION AND ORDER. Based on the foregoing, Petitioner's Petition for Review (Dkt. 1) is DENIED, 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

KEVIN W. MURRAY,

Case No.: 1:16-cv-00355-REB

Petitioner,
MEMORANDUM DECISION AND
ORDER

vs.
NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Respondent.

Pending is Petitioner Kevin W. Murray’s Petition for Review1 (Dkt. 1), appealing the
Social Security Administration’s final decision finding him not disabled and denying his claim
for disability insurance benefits.2 See generally Pet. for Review (Dkt. 1). This action is brought
pursuant to 42 U.S.C. §§ 405(g). Having carefully considered the record and otherwise being
fully advised, the Court enters the following Memorandum Decision and Order:
I. ADMINISTRATIVE PROCEEDINGS
On January 22, 2013, Kevin W. Murray (“Petitioner”) protectively applied for Title II
disability and disability insurance benefits. (AR 8.) Petitioner alleged disability beginning May
17, 2010. (Id.) His claims were denied initially on April 30, 2013 and then again on
reconsideration on May 31, 2013. (Id.) On June 12, 2013, Petitioner timely filed a Request for
Hearing before an Administrative Law Judge (“ALJ”). (Id.) On December 5, 2014, ALJ Jesse K.

1

The pleading was titled and framed as a complaint, but is more properly treated as a
petition for review, as it seeks review of a final agency action. It will be referred to herein as a
petition for review.
2
Nancy A. Berryhill became the acting Commissioner of the Social Security
Administration on January 23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill is substituted in as the Respondent in this suit. No further action
need be taken to continue this suit by reason of the last sentence of 42 U.S.C. § 405(g).
MEMORANDUM DECISION AND ORDER – 1

Shumway held a hearing in Spokane, Washington where Petitioner appeared and testified by
video. (Id.; AR 24.) Medical expert Dr. Malcolm Brahms, M.D., testified by telephone, and
impartial vocational expert K. Diane Kramer also appeared and testified. (AR 24.)
On February 11, 2015, the ALJ issued a Decision denying Petitioner’s claim, finding that
Petitioner was not disabled within the meaning of the Social Security Act. (AR 17.) Petitioner
timely requested review from the Appeals Council on or about March 3, 2015. (AR 4.) On June
9, 2016, the Appeals Council denied Petitioner’s Request for Review, making the ALJ’s decision
the final decision of the Commissioner of Social Security. (AR 1.)
Having exhausted his administrative remedies, Petitioner timely filed the instant action,
arguing that “[t]he conclusions and findings of fact of the [respondent] are not supported by
substantial evidence and are contrary to law and regulation.” Pet. for Review 1 (Dkt. 1).
Petitioner challenges the sufficiency of the evidence on which the ALJ relied as well as the legal
correctness of the ALJ’s treatment of a consulting psychologist’s reports. See generally Pet’r’s
Br. (Dkt. 17). Petitioner asks for reversal or remand for a supplemental hearing. Id.
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); Trevizo v. Berryhill, 871 F.3d 664 (9th
Cir. 2017). 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. See
Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
“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); Ludwig v.

MEMORANDUM DECISION AND ORDER – 2

Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The standard requires more than a scintilla but less
than a preponderance (Trevizo, 871 F.3d at 674), 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. Richardson, 402 U.S. at 401; see also Ludwig, 681 F.3d at 1051. The
ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and
resolving ambiguities. Treichler, 775 F.3d at 1098. Where the evidence is susceptible to more
than one rational interpretation, the reviewing court must uphold the ALJ’s findings if they are
supported by inferences reasonably drawn from the record. Ludwig, 681 F.3d at 1051. In such
cases, the reviewing court may not substitute its judgment or interpretation of the record for that
of the ALJ. Batson v. Comm’r of Social Sec., 359 F.3d 1190, 1196 (9th Cir. 2004).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir.
2015); Treichler, 775 F.3d at 1098. Considerable weight must be given to the ALJ’s construction
of the Social Security Act. See Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 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 (20 C.F.R. §§

MEMORANDUM DECISION AND ORDER – 3

404.1520, 416.920) – or continues to be disabled (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
work activity that is both substantial and gainful. 20 C.F.R. §§ 404.1572, 416.972. “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 is engaged in SGA, disability benefits are denied regardless of his medical condition,
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 May 17, 2010, the alleged onset
date. (AR 10.)
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 physical or mental 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 establishes only a slight abnormality or a combination of slight
abnormalities that cause no more than minimal limitation on an individual’s ability to work. SSR
96-3p, 1996 WL 374181 (July 2, 1996); see also 20 C.F.R. §§ 404.1521, 416.921. If the claimant
does not have a severe medically determinable impairment or combination of impairments,

MEMORANDUM DECISION AND ORDER – 4

disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that
Petitioner has the following severe impairments: “degenerative disc disease of the cervical and
lumbar spine, osteoarthrosis of the right wrist and hand, and posttraumatic stress disorder
(PTSD).” (AR 10.)
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 a listed impairment, his claim cannot be resolved at step three and the evaluation proceeds
to step four. 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the ALJ found that Petitioner does not
have an impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments. (AR 10–12.)
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 is his
ability to do physical and mental work activities on a sustained basis despite limitations from his
impairments. 20 C.F.R. §§ 404.1545, 416.945. An individual’s past relevant work is work he
performed within the last 15 years or 15 years prior to the date that disability must be
established, as long as the work was substantial gainful activity and lasted long enough for the
claimant to learn to do the job. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here,
the ALJ determined that Petitioner has the RFC:
to perform light work as defined in 20 CFR 404.1567(b) subject to the following.
He is able to lift up to 20 lbs occasionally and 10 lbs frequently, but not above the

MEMORANDUM DECISION AND ORDER – 5

shoulder or below the waist; he can stand up to 2 hours, and walk up to 2 hours in
a normal workday; he can push and pull within the weight limits described for
lifting and carrying; he can reach overhead occasionally with the left upper
extremity, and frequently with the right upper extremity; he can occasionally finger
with the bilateral upper extremities; he can frequently climb ramps or stairs, but
should avoid climbing ladders, ropes, or scaffolds; he can occasionally stoop, kneel,
crouch, and crawl; he can occasionally operate motor vehicles, but should not
perform occupational driving requiring a commercial driver’s license (CDL); and
he is able to perform the mental requirements of semi-skilled work..
(AR 12–13.) The ALJ further found that Petitioner is able to perform his past relevant work as a
“teacher’s aide II.” (AR 16.)
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 Garrison v. Colvin, 759 F.3d 995, 1011 (9th
Cir. 2014). If the claimant is able to do such 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, because the ALJ
found that Petitioner is able to perform his past relevant work as a “teacher’s aide II,” the ALJ
did not need to consider whether there are other jobs that exist in significant numbers in the
national economy that Petitioner can perform.
Based on the finding that Petitioner could engage in past relevant work, the ALJ
ultimately concluded that Petitioner “has not been under a disability, as defined in the Social
Security Act, from May 17, 2010, through the date of this decision.” (AR 17.)
B.

Analysis
Petitioner argues the ALJ’s decision denying benefits is not supported by substantial

evidence and is contrary to law and regulation. Pet. for Review 1 (Dkt. 1). First, he argues that

MEMORANDUM DECISION AND ORDER – 6

the ALJ erred by failing to obtain updated medical expert testimony regarding Petitioner’s
mental impairments. Pet’r’s Br. 3–5 (Dkt. 17). Second, he argues the ALJ erred in
misunderstanding and assigning little weight to the report of consulting psychologist Dr. Haugen.
Id. at 5–11. Third, he argues the ALJ erred by failing to resolve the conflict between Dr.
Haugen’s MMPI-2 results and the ALJ’s RFC mental limitations findings. Id. at 11–12. Fourth,
he argues the ALJ’s mental RFC is not supported by the record. Id. at 12–13. Fifth, he argues the
ALJ erred in finding the Petitioner could perform “light work.” Id. at 13–14. Sixth, he argues the
ALJ erred in making an RFC finding given the record’s lack of RFC assessments from any
physicians. Id. at 14–17. Seventh, he argues the ALJ erred in failing to consider all of
Petitioner’s severe conditions in combination. Id. at 17–18.
Several of Petitioner’s arguments relate to evidence regarding his mental impairments. As
noted above, the ALJ found that Petitioner suffers from PTSD. The record indicates that his
PTSD is a consequence of a 2008 head-on motor vehicle collision in which the drunk driver who
caused the accident died and Petitioner was injured. (AR 13.) The collision and resultant injuries
ultimately caused Petitioner to cease working as a commercial truck driver. (AR 42.)
1. The ALJ Was Not Obligated to Obtain Updated Medical Expert Testimony
Regarding Petitioner’s Mental Impairments.
Petitioner asserts that SSR 96-6p3 required the ALJ to call a medical expert at the hearing
because Dr. Haugen’s second report and the results of the MMPI-2 test4 indicated Petitioner was

3

SSR 96-6p was rescinded and replaced by SSR 17-2p effective March 27, 2017. 82 F.R.
15,263. SSR 96-6p is applied here because it was in effect when the ALJ drafted the decision
appealed here.
4

As generally understood, and as identified by Respondent, MMPI-2 refers to the
“Minnesota Multiphasic Personality Inventory-2,” a “psychological test that assesses personality
traits and psychopathology.” Resp’t’s. Br. 7 (Dkt. 22).

MEMORANDUM DECISION AND ORDER – 7

profoundly disabled by PTSD. Pet’r’s Br. 3–4 (Dkt. 17); see also SSR 96-6p, 1996 WL 374180
(July 2, 1996). SSR 96-6p is a policy interpretation clarifying how ALJs are to consider
administrative findings of fact by medical and psychological consultants. In relevant part, it
provides that an ALJ
must obtain an updated medical opinion from a medical expert in the following
circumstances:




When no additional medical evidence is received, but in the opinion of the
administrative law judge … the symptoms, signs, and laboratory findings
reported in the case record suggest that a judgment of equivalence may be
reasonable; or
When additional medical evidence is received that in the opinion of the
administrative law judge … may change the State agency medical or
psychological consultant’s finding that the impairment(s) is not equivalent in
severity to any impairment in the Listing of Impairments.

When an updated medical judgment as to medical equivalence is required at the
administrative law judge level in either of the circumstances above, the
administrative law judge must call on a medical expert.
SSR 96-6p at *3–*4. The prefatory sentence uses mandatory language in that it provides an ALJ
“must” obtain an updated medical opinion in certain circumstances. But both of the
circumstances that trigger that obligation are contingent upon the ALJ’s own opinion. The first
circumstance applies when the ALJ’s opinion is that the case record suggests a judgment of
equivalence may be reasonable. The second circumstance applies when the ALJ’s opinion is that
additional evidence might change a consultant’s finding that a claimant’s impairment is not
equivalent in severity to a listed impairment. In both instances, the obligation to obtain an
updated medical opinion only applies if the ALJ holds the requisite opinion.
To the extent Petitioner asserts the ALJ held either of the two opinions that would trigger
a duty to obtain an updated opinion, the Court disagrees. Nothing in the ALJ’s decision suggests
the ALJ held the opinion that a judgment of equivalence might be reasonable or that additional

MEMORANDUM DECISION AND ORDER – 8

medical evidence might change a consultant’s finding regarding the severity of Petitioner’s
impairments. Lacking such an opinion, SSR 96-6p imposed no duty to obtain an updated
opinion. To the extent Petitioner is instead asserting that the ALJ’s Decision was not supported
by substantial evidence in that “the MMPI-2 test results indicated the Petitioner was profoundly
disabled by PTSD,” that assertion is addressed infra in another section.
2. The ALJ Did Not Err in Assigning Little Weight to Dr. Haugen’s Reports.
Dr. Haugen, Ph.D., P.A., is a licensed psychologist who conducted a consultative Mental
Status Examination of Petitioner on April 15, 2013 and prepared a report. (AR 439–445.) At the
request of Petitioner’s counsel, Dr. Haugen subsequently administered the MMPI-2 test on
August 20, 2013 and prepared a report. (AR 446.)5
Dr. Haugen’s first report documents his opinion that Petitioner could not function in a
work environment. (AR 444.) His second report documents his conclusion that Petitioner’s
inability to integrate a fatal automobile collision into his worldview undermines Petitioner’s
ability to function in a work setting. (AR 446.) However, the second report also states that
Petitioner’s MMPI-2 profile “was elevated on the F scale, indicating the possibility of faking
bad, exacerbating his symptoms or that he feels he is in an ongoing, never ending crisis.” (Id.)
The report further documents Dr. Haugen’s conclusion that “[i]t is more probable that the last is
true about him.” (Id.) Thus, Dr. Haugen acknowledged, but rejected as less likely, the possibility
that Petitioner was faking bad or exacerbating his symptoms.
The ALJ gave little weight to Dr. Haugen’s reports. (AR 16.) The ALJ did not weigh Dr.
Haugen’s statements that Petitioner is unable to work, as that ultimate conclusion is reserved to

5

The record discloses Dr. Haugen’s one-page summary of the test results but not the
MMPI-2 test results themselves.

MEMORANDUM DECISION AND ORDER – 9

the Commissioner of Social Security per SSR 96-5p. (Id.) The ALJ further found that Dr.
Haugen’s acknowledgment that Petitioner could have been “‘faking bad’ raises substantial
questions as to symptom exaggeration during the claimant’s clinical evaluations by Dr. Haugen.”
(Id.) The ALJ went on to state that “[t]he dubiousness of Dr. Haugen’s assessment is further
compounded by the compelling fact that the claimant’s primary care records show him with
minimal or mild anxiety-related complaints, and a good therapeutic response to counseling
sessions, without the need for psychotropic medications.” (Id.) Finally, the ALJ represented that
the opinions of all consultants had been considered, as required by SSR 96-6p. (Id.)
Petitioner challenges the ALJ’s assignment of “little weight” to Dr. Haugen’s reports.
Pet’r’s Br. 5–11 (Dkt. 17). He contends the ALJ was required to provide an explanation for
rejecting Dr. Haugen’s medical opinion and to support the explanation with substantial evidence
from the record. (Id. at 6.) He also suggests that the ALJ improperly picked out isolated instances
of improvement over a period of months or years to use as a basis for finding Petitioner is
capable of working. (Id.) Finally, he argues that the line in Dr. Haugen’s report indicating
Petitioner “produced a valid MMPI profile” precludes the possibility that he could have been
“faking bad” because doing so would have resulted in an invalid MMPI profile.6 (Id. at 7.) More
to the point, Petitioner argues that the ALJ erred in not addressing Dr. Haugen’s conclusion that
it is more probable that Petitioner “feels he is in an ongoing, never ending crisis” than that he is
“faking bad, [or] exacerbating his symptoms.” (Id. at 8–11.)
6

The Court declines to accept this argument because there is nothing in the record
suggesting that “faking bad” is inconsistent with a “valid MMPI profile.” Indeed, Dr. Haugen’s
report states, in back-to-back sentences, that Petitioner “produced a valid MMPI profile. He was
elevated on the F scale, indicating the possibility of faking bad, exacerbating his symptoms or
that he feels he is in an ongoing, never ending crisis.” (AR 446.) If “faking bad” were
incompatible with a valid MMPI profile, Dr. Haugen would not have needed to make both
statements. Regardless, Petitioner’s argument is not supported by record evidence.

MEMORANDUM DECISION AND ORDER – 10

The ALJ is “responsible for resolving conflicts in the medical record.” Carmickle v.
Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008). Further, when a physician’s opinion is
contradicted, an ALJ may reject the opinion for “specific and legitimate reasons that are
supported by substantial evidence in the record.” Id. “Although the contrary opinion of a nonexamining medical expert does not alone constitute a specific, legitimate reason for rejecting a
treating or examining physician’s opinion, it may constitute substantial evidence when it is
consistent with other independent evidence in the record.” Tonapetyan v. Halter, 242 F.3d 1144,
1149 (9th Cir. 2001). Additionally, SSA regulations provide that “[g]enerally, the more
consistent a medical opinion is with the record as a whole, the more weight … will [be] give[n]
to that medical opinion.” 20 C.F.R. § 404.1527(c)(4).
Here, the ALJ gave significant weight to almost all of the medical opinions of record,
including those of Petitioner’s primary treating physician Theresa Lipsky, M.D., (AR 15),
testifying medical expert Malcolm A. Brahms, M.D., (AR 14–15), State agency psychological
consultants Dave Sanford, Ph.D., and Barney Greenspan, Ph.D., (AR 16), and State agency
medical consultants Myung A. Song, D.O., and Robert E. Vestal, M.D. (AR 15–16). The ALJ
found that these reports were consistent with each other and with the record evidence. (AR 16.)
With respect to Petitioner’s mental limitations in particular, the State agency psychological
consultants opined that Petitioner “would have moderate difficulties in the domain of
concentration, persistence, or pace, but that he would [be] capable of greater than simple or
repetitive work, particularly in performing tasks with which he is already familiar.” (AR 16, 74,
90.) The ALJ found “these assessments to be supported by the evidence of record, particularly
the primary care records consistently describing the claimant’s mental status examinations as
minimal or mild.” (AR 16.) The ALJ cites to the March 14, 2011 medical source statement from

MEMORANDUM DECISION AND ORDER – 11

Petitioner’s primary care physician, Dr. Lipsky. (AR 15, 388–389.) Although that record
documents “increased anxiety … [c]rying easily, feelings of panic,” it also indicates that
Petitioner “previously did well with counseling and no medications…. At this time [Petitioner]
prefers to resume counseling, will reconsider medications and a psychiatry consult if he does not
improve.” (AR 388.) The ALJ also cites to a prior record of Dr. Lipsky from January 5, 2009 in
which she documented that “[s]ymptoms of anxiety have currently subsided.” (AR 15, 384.)
Both State agency psychological consultants opined that in his report, Dr. Haugen
overestimated “the severity of the individual’s restrictions/limitations” and his opinion was
“based only on a snapshot of the individual’s functioning.” (AR 81, 97.) Both also concluded
that his “opinion is not fully supported by the objective clinical findings.” 7 (AR 77, 92.)
The ALJ found that Dr. Haugen’s assessment of Petitioner’s mental health was
inconsistent with his primary care records documenting him with minimal or mild anxietyrelated complaints and a good therapeutic response to counseling sessions, without the need for
psychotropic medications. (AR 16.) The ALJ also noted Dr. Haugen’s statement that Petitioner’s
MMPI-2 test suggested the possibility of “faking bad.” Thus, the ALJ offered specific reasons
for assigning little weight to Dr. Haugen’s opinions: They were inconsistent with the evidence
from multiple other medical providers, and they were tinged with the possibility that Petitioner
was exaggerating his symptoms. These are specific and legitimate reasons for the ALJ to assign
the weight given, and the ALJ did not err in reaching this result.

7

The Court notes that the State agency consultants reviewed Dr. Haugen’s first report,
dated April 15, 2013 but did not review his second report, dated August 20, 2013. The second
report had not been prepared when the State agency consultants examined Petitioner’s file. The
ALJ, however, had both of Dr. Haugen’s reports. (AR 16.)

MEMORANDUM DECISION AND ORDER – 12

Because it is the ALJ’s responsibility to weigh and resolve evidence, the fact that the
evidence could be interpreted differently is irrelevant.8 Substantial evidence supports the ALJ’s
decision to assign little weight to Dr. Haugen’s reports and so that decision will stand.
3. There Is No Conflict Between Dr. Haugen’s MMPI-2 Results and the ALJ’s RFC
Mental Limitations Findings.
The ALJ found that the Petitioner has moderate limitations in concentration, persistence,
and pace. (AR 11.) Petitioner frames this finding as inconsistent with Dr. Haugen’s reports and
with the record as a whole. Pet’r’s Br. 11–12 (Dkt. 17). Petitioner argues that Dr. Haugen
performed the only psychological testing in the record and that he twice found Petitioner
unemployable. Id. at 12.
The Court upholds the ALJ’s decision to assign Dr. Haugen’s reports little weight. See
supra. In light of that holding, there is no conflict between Dr. Haugen’s test results and the RFC
assigned by the ALJ. Further, even if Dr. Haugen’s reports were given great weight, Petitioner
has not articulated how the MMPI-2 test results are inconsistent or incompatible with the
assigned RFC. And as the ALJ held, Dr. Haugen’s opinion on whether Petitioner is employable
or not is an issue reserved to the Commissioner. SSR 96-5p, 1996 WL 374183 (July 2, 1996); 20
C.F.R. § 404.1527(d); AR 16.
Petitioner contends that “[t]he ALJ was under a duty to identify and discuss specifically
why the findings of Dr. Haugen, based on the MMPI-2 and second examination, were wrong,

8

Petitioner alludes to the possibility that his mental health is continuing to deteriorate. It
is Petitioner’s burden in the first instance to put forth sufficient evidence that he was disabled
during the relevant period. The Court expresses no opinion on whether Petitioner may have
become disabled at some point after the dates relevant to Petitioner’s instant application for
disability insurance benefits. This matter addresses only Petitioner’s claim that he was disabled
during the period from his alleged onset date of May 17, 2010 through his date last insured on
December 31, 2015.

MEMORANDUM DECISION AND ORDER – 13

citing evidence in the record to support his position.” Pet’r’s Br. 12 (Dkt. 17). This is a misfitted
description of the ALJ’s duty. The ALJ is charged with “resolving conflicts in the medical
record.” Carmickle, 533 F.3d at 1164. Thus, it is not the ALJ’s duty to show why any particular
findings are wrong, but rather to cite substantial evidence supporting those findings the ALJ
makes from the medical record. Because the next issue Petitioner raises challenges the mental
RFC the ALJ found, this will be discussed in greater detail infra.
4. The ALJ’s Mental RFC Finding Is Supported by the Record.
Petitioner argues the ALJ’s mental RFC finding is not supported by substantial evidence
because the ALJ failed to recognize the severity of Petitioner’s PTSD. Pet’r’s Br. 12–13 (Dkt.
17). Petitioner contends the ALJ improperly evaluated the severity of Petitioner’s mental
limitations by finding only mild limitations in activities of daily living and only moderate
impairment in concentration, persistence, or pace. Id. Petitioner cites evidence showing that he
remains at home most of the time and is severely socially withdrawn, even around his family; he
avoids going into public; and he cannot use or balance a checkbook. Id. (citing AR 199–204).
With respect to Petitioner’s activities of daily living, the ALJ found that Petitioner
reported having occasional physical discomfort with performing his dress, grooming, and
personal hygiene activities, but that he is able to do them without assistance. (AR 11, 199.) The
ALJ further found that Petitioner reports that he is able to perform household chores such as
laundry, dishes, vacuuming, and caring for the family pet, driving an automobile, and shopping
for groceries with his wife. (AR 11, 200.) Petitioner does not challenge these particular findings,
which are supported by Petitioner’s own report in the record. These findings are consistent with
the record and with mild limitations to activities of daily life. Thus, substantial evidence supports

MEMORANDUM DECISION AND ORDER – 14

the ALJ’s finding that Petitioner suffers only mild limitations to activities of daily life and the
ALJ’s decision will not be disturbed on that basis.
With respect to Petitioner’s concentration, persistence, or pace, the ALJ found that
Petitioner suffers moderate difficulties. (AR 11–12.) The ALJ stated that notes from the
consultative psychological examination with Dr. Haugen indicate Petitioner tended to give short
answers throughout the interview, and appeared to have difficulty concentrating on cognitive
tests of memory, abstract thinking, and judgment. Id. (citing AR 444). However, the ALJ also
stated Petitioner’s thought process was noted as logical and goal directed, he was oriented in all
spheres, he was able to recall 6 digits forward and 4 digits backwards, and he could perform
serial threes from 20. (AR 12, 80.) The ALJ also found that Petitioner’s difficulties appeared to
be primarily related to discussing his PTSD-inducing motor vehicle accident. (AR 12.) In this
context, the ALJ also noted that Petitioner’s F-scale score on the MMPI-2 is consistent with the
possibility of faking bad, exacerbating his symptoms, or that he feels he is in an ongoing, never
ending crisis. (AR 12, 446.) Separately, the Court notes that both consultative psychologists
opined that Petitioner suffers from “moderate” difficulties in maintaining concentration,
persistence, or pace. (AR 75, 91.)
Once again, it is the ALJ’s responsibility to resolve conflicting evidence. In finding that
Petitioner suffers from moderate limitation of concentration, persistence, or pace, the ALJ relied
on substantial evidence showing Petitioner’s thought process was logical and goal directed, he
was oriented in all spheres, and he could perform simple tests of recall and calculation. The ALJ
also appropriately cited record evidence suggesting that Petitioner may have been faking bad or
exacerbating his symptoms, further weighing against evidence that he is more than moderately
limited in concentration, persistence, or pace. Moreover, the ALJ’s finding is consistent with the

MEMORANDUM DECISION AND ORDER – 15

opinions of the consultative psychologists, both of whom indicated Petitioner has moderate
difficulties in maintaining concentration, persistence, or pace.9
5. The ALJ Did Not Err in Finding Petitioner Could Perform Light Work Subject to
Certain Limitations.
Petitioner finds fault in the ALJ’s finding that Petitioner could perform “light work,” as
defined by statute, while also finding that Petitioner could stand or walk no more than 2 hours
each per day. Petitioner says these standing and walking limitations are incompatible with “light
work.” Pet’r’s Br. 13–14 (Dkt. 17). The argument is based on the fact that SSR 83-10, which
clarifies the definition of “light work,”10 provides in part that “the full range of light work
requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour
workday” – exceeding the 4 total hours of standing and walking in the ALJ’s RFC finding. Id.
The ALJ did not find that Petitioner has the RFC to perform “the full range of light work”
– or even just “light work.” Rather, the ALJ found that Petitioner has the RFC “to perform light
work as defined in 20 CFR 404.1567(b) subject to the following.” (AR 12 (emphasis added).)
The ALJ then listed several specific limitations or constraints on Petitioner’s capacity to perform
light work. (Id.) Elsewhere, the ALJ stated that Petitioner “has retained the residual functional

9

The ALJ did not specifically address Petitioner’s self-reported and subjective evidence
relating to concentration, persistence, or pace appearing in the record at AR 200–202. However,
the decision contains instances in which the ALJ found that Petitioner’s statements concerning
the intensity, persistence, and limiting effects of his symptoms are not entirely credible. (AR 13.)
In particular, the ALJ found that “the record does not show that the claimant’s impairments have
limited him to the extent he has alleged.” (AR 14.) The ALJ also found that Petitioner’s MMPI-2
test results indicated a possibility of faking bad or exacerbating symptoms. (AR 14.) Thus, in
light of the ALJ’s statements on Petitioner’s credibility as well as the substantial evidence
supporting the ALJ’s finding, it was unnecessary for the ALJ to address each of Petitioner’s selfreported statements relating to this issue.
10

“Light work” is defined in 20 C.F.R. § 404.1567(b), but that definition is interpreted
and expanded upon in SSR 83-10.

MEMORANDUM DECISION AND ORDER – 16

capacity to engage in ongoing, light work activity, subject to the above-listed restrictions and
limitations.” (AR 16 (emphasis added).) Because the ALJ expressly modified the statutory
definition of “light work” to apply in Petitioner’s case, the fact that the modifications render the
RFC finding inconsistent with the clarified definition is of no legal significance.
Petitioner also asserts a failure to comply with SSR 96-8p, which requires that “in order
for an individual to do a full range of work at any given exertional level, such as sedentary, the
individual must be able to perform substantially all of the exertional and nonexertional functions
required to work at that level.” Pet’r’s Br. 14 (Dkt. 17). Petitioner argues that the ALJ found that
the Petitioner could stand and walk only 4 hours, meaning he cannot “perform substantially all of
the exertional and nonexertional functions required” for light work. Id. However, the ALJ did not
find that Petitioner is capable of “a full range of work” at any particular exertional level. Again,
the ALJ found that Petitioner can perform light work subject to specific limitations. (AR 12–13.)
Petitioner has shown no legal error in the ALJ’s assessment or finding of his RFC.
6. The ALJ’s Physical RFC Finding Is Supported by Substantial Evidence.
Petitioner argues there is no support for the ALJ’s physical RFC finding because no
physician offered a proper RFC assessment. Pet’r’s Br. 14–17 (Dkt. 17). In particular, Petitioner
refers to the report by consultative physical examiner Dr. Craig Stevens, M.D., which concludes:
Based on my medical findings, this individual has intact ability to perform
work-related activities that involve sitting, standing, walking, lifting, carrying,
handling objects, hearing, speaking and traveling. A reasonable accommodation of
his left shoulder condition would be that he not lift greater than 25 lbs above
shoulder level on the left. That is based primarily upon a subjective presentation
that he presents to me.
(AR 436.) Petitioner takes issue with Dr. Stevens’s report. First, he suggests it was improper for
Dr. Stevens to issue a report without reviewing or commenting on the x-rays taken
contemporaneously with his examination. Second, he contends Dr. Stevens did not comply with

MEMORANDUM DECISION AND ORDER – 17

SSA regulations because he failed to assess Petitioner’s RFC as required by 20 C.F.R.
§ 416.946(a). Petitioner concludes that Dr. Stevens’s report fails to specify “the most [Petitioner]
can still do despite [his] limitations,” as required by 20 C.F.R. § 416.945(a)(1), because Dr.
Stevens did not quantify any time or weight limits in his report. Pet’r’s Br. 16–17 (Dkt. 17).
Neither of these arguments demonstrates reversible error. In a consultative examination
for purposes of evaluating whether Petitioner is disabled for SSA purposes, Dr. Stevens was not
required to document the results or significance of any tests performed, including Petitioner’s xray examinations. It is Petitioner’s burden to prove his disability. 20 C.F.R. § 416.912(a)(1).
Petitioner cites no medical evidence indicating that the x-rays demonstrate a disability, either
alone or in combination with other symptoms. Absent such evidence, the fact that Dr. Stevens’s
report does not discuss the x-rays is not legally significant.
Further, Dr. Stevens issued his “Disability Determination Evaluation” report on March
28, 2013. (AR 433.) Petitioner’s claim for disability insurance benefits was initially denied on
April 30, 2013, approximately one month later. (AR 8.) Following the typical process, the initial
determination that Petitioner is not disabled was made by “[a] State agency medical or
psychological consultant and a State agency disability examiner” under 20 C.F.R.
§ 416.1015(c)(1). Importantly, that initial determination was not made by an ALJ. This matters
because 20 C.F.R. § 416.946 – on which Petitioner relies to make his argument – places
responsibility for assessing a claimant’s RFC differently depending on where in the disability
determination and appeal process the claimant is. Subsection (a) provides that the State agency
consultant is responsible for assessing RFC when the disability determination is to be made by
the State agency. Subsection (c) provides that the ALJ is responsible for assessing RFC when the
ALJ is also responsible for making the ultimate disability determination. Here, Petitioner appeals

MEMORANDUM DECISION AND ORDER – 18

from the ALJ’s decision and not from the State agency’s initial denial. In issuing the decision,
per 20 C.F.R. § 416.946(c), it was the ALJ – not Dr. Stevens – who was responsible for assessing
Petitioner’s RFC.11 Thus, even if Dr. Stevens failed to assess a valid RFC,12 such failure is not a
sufficient reason to reverse or vacate the ALJ’s decision.
Substantial evidence supports the ALJ’s assessment of Petitioner’s physical RFC. The
ALJ’s decision extensively discusses Petitioner’s RFC. (AR 13–16.) The ALJ “considered the
opinions of all DDS consultative sources.” (AR 16.) The ALJ describes Petitioner’s testimony,
cites to numerous medical records, and assigns weight to medical source statements by
Petitioner’s primary care physician, two state DDS medical consultants, a medical expert who
testified at the hearing, and others. (AR 13–16.) Having rejected Petitioner’s arguments that the
ALJ’s RFC assessment is invalid or unsupported, there is no other basis to overturn that
assessment and it will stand.
7. The ALJ Properly Considered All of Petitioner’s Severe Conditions in Combination.
Finally, Petitioner contends the ALJ “failed to recognize the severity of the Petitioner’s
emotional issues and PTSD,” resulting in an “RFC which did not reflect the Petitioner’s true
severe conditions.” Pet’r’s Br. 17 (Dkt. 17). Petitioner asserts this is reversible error. He further
argues that “[i]f even part of Dr. Haugen’s assessment was accurate, the RFC propounded by the
ALJ would change significantly in the Petitioner’s favor.” Id. at 17–18. Petitioner contends that

11

Petitioner could have challenged the sufficiency of Dr. Stevens’s RFC assessment
under 20 C.F.R. § 416.946(a) when requesting reconsideration of the initial denial; at that point
subsection (a) of the regulation still applied. But after Petitioner appealed to an ALJ, subsection
(c) instead of (a) applied and it became the ALJ’s responsibility to assess Petitioner’s RFC. At
issue here is whether the ALJ’s decision was correct, not whether the State agency’s initial
determination was correct.
12

The Court does not opine on whether Dr. Stevens’s report assessed a valid RFC, as that
issue is not material to this decision.

MEMORANDUM DECISION AND ORDER – 19

Dr. Haugen’s reports should have been weighted more significantly, and if the ALJ had done so,
then the ALJ would have found that Petitioner suffered from marked or extreme (rather than
moderate) limitations to concentration, persistence, or pace – which would completely change
Petitioner’s RFC. Id. at 18.
This Court understands the argument that Petitioner is attempting to make; however,
there is neither argument nor evidence supporting Petitioner’s contention that the ALJ failed to
consider all of Petitioner’s severe conditions in combination. In the decision, the ALJ
acknowledged that “I must determine whether the claimant has a medically determinable
impairment that is ‘severe’ or a combination of impairments that is ‘severe’ (20 CFR
404.1520(c)).” (AR 9 (emphasis added).) Although the fact of such a description of the
responsibility is arguably boilerplate, the ALJ went on to identify Petitioner’s severe
impairments as “degenerative disc disease of the cervical and lumbar spine, osteoarthrosis of the
right wrist and hand, and posttraumatic stress disorder (PTSD).” (AR 10.) Next, the ALJ found
that Petitioner “does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments.” (AR 10 (emphasis added).) Each
assertion was supported by references to the record. The ALJ’s consideration of the same may or
may not have been spare, even though his description is spare. But, notwithstanding the amount
of discussion on the topic, nothing in the decision or in the Petitioner’s arguments compels a
conclusion that the ALJ failed to consider Petitioner’s severe impairments in combination.
To the extent Petitioner argues that the ALJ’s RFC assessment would change if Dr.
Haugen’s reports were given more weight, such argument merely reiterates Petitioner’s position
that the ALJ erred in the treatment of those reports. The issue has been addressed supra, and it
will not be further discussed here.

MEMORANDUM DECISION AND ORDER – 20

IV. CONCLUSION
Petitioner has not shown that the ALJ’s decision is unsupported by substantial evidence
or otherwise contains reversible legal error. To the contrary, the ALJ’s decision was supported
by substantial evidence and Petitioner’s arguments do not call into question the sufficiency of
that evidence. Accordingly, the ALJ’s decision is affirmed.
V. ORDER
Based on the foregoing, Petitioner’s Petition for Review (Dkt. 1) is DENIED, the
decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety,
with prejudice.
DATED: March 30, 2018

________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER – 21