White v. Colvin

Filing 23

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. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

MICHELE WHITE, surviving spouse of TONY
WHITE,

Case No.:3:16-cv-00071-REB
MEMORANDUM DECISION AND
ORDER

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

Pending before this Court is Petitioner Michele White’s (the surviving spouse of Tony
White) Petition for Review, seeking review of the Social Security Administration’s final
decision to deny Mr. White’s claim for Title II Social Security disability benefits and Title XVI
Supplemental Security Income benefits. See generally Pet. for Review (Docket No. 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 27, 2012, Tony White filed his application for Disability Income Benefits;
and, on February 14, 2012, protectively filed for Supplemental Security Income – in both
applications, Mr. White alleged disability beginning January 15, 2012. The claims were initially
denied on March 13, 2012 and, again, on reconsideration on July 17, 2012. On July 27, 2012,
Mr. White timely filed a Request for Hearing before an Administrative Law Judge (“ALJ”). On
August 6, 2013, ALJ Doug Gabbard, II held a video hearing (from McAlester, Oklahoma), at
which time Mr. White, represented by attorney Jonathan Heeps, appeared and testified from
MEMORANDUM DECISION AND ORDER - 1

Paris, Texas. Impartial vocational expert, Bonnie M. Ward, also appeared and testified during
the same August 6, 2013 hearing.
On October 30, 2013, the ALJ issued a Decision denying Mr. White’s claim, finding that
he was not disabled within the meaning of the Social Security Act. Mr. White timely requested
review from the Appeals Council on December 23, 2013. Mr. White passed away on April 23,
2014. On January 20, 2015, the Appeals Council denied Mr. White’s Request for Review,
making the ALJ’s Decision the final decision of the Commissioner of Social Security.
Having exhausted her administrative remedies, Petitioner (Mr. White’s surviving spouse)
timely filed the instant action, arguing that “[t]he final Agency decision is not supported by
substantial competent evidence and/or contains legal error.” Pet. for Review, p. 1 (Docket No.
1). In particular, Petitioner contends that (1) the ALJ did not give legally sufficient reasons for
rejecting the treating cardiologist’s opinion about Mr. White’s ability to sustain work activity;
(2) the ALJ did not provide clear and convincing reasons for finding Mr. White not credible; and
(3) the ALJ failed to evaluate the relevant medical evidence before concluding that Mr. White’s
impairments did not meet or equal a listed impairment. See generally Pet.’s Brief (Docket No.
15). Petitioner therefore requests that the Court either reverse the ALJ’s Decision and find that
Mr. White had been entitled to disability benefits, or, alternatively, remand the case for further
proceedings and award attorneys’ fees. See Pet. for Review, p. 2 (Docket No. 1).
II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. See 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. See 42
MEMORANDUM DECISION AND ORDER - 2

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 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. See Richardson v. Perales, 402 U.S. 389, 401
(1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec’y of Health &
Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla
but less than a preponderance (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, the reviewing
court may not substitute its judgment or interpretation of the record for that of the ALJ. See
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. See Matney, 981 F.2d at 1019. The ALJ’s

MEMORANDUM DECISION AND ORDER - 3

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.” See Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
II. 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”). See 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. See 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. See 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. See 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 Mr. White had not engaged in substantial gainful activity
since January 15, 2012, the alleged onset date. See (AR 24).
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

MEMORANDUM DECISION AND ORDER - 4

requirement. See 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or
combination of impairments is “severe” within the meaning of the Social Security Act if it
significantly limits an individual’s ability to perform basic work activities. 20 C.F.R.
§§ 404.1520(c), 416.920(c). An impairment or combination of impairments is “not severe”
when medical and other evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s ability to work.
See 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. See 20
C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Mr. White had the following
severe impairments: “atherosclerotic heart disease, hypertension, status post coronary artery
bypass graft with pacemaker implantation, major depressive disorder, generalized anxiety
disorder, relational problems NOS, [and] personality disorder NOS.” See (AR 24-26).
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. See 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. See 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. See id. Here, the ALJ concluded that Mr. White’s abovelisted impairments, while severe, did not meet or medically equal, either singly or in
combination, the criteria established for any of the qualifying impairments. See (AR 28-30).
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

MEMORANDUM DECISION AND ORDER - 5

relevant work. See 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. See 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. See 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, I find that the claimant has the
residual functional capacity to lift and/or carry 20 pounds occasionally, and 10
pounds frequently; to stand and/or walk about six hours total during an eight hour
work day; and to sit for about six hours total during an eight hour work day. He must
be allowed to alternately sit and stand every 60 minutes throughout the workday in
order to change positions but without leaving the workstation. He can perform semiskilled work (work which requires some detailed skills, but does not require doing
more complex work duties) where interpersonal contact with supervisors and
coworkers is on a superficial work basis, and he will have only occasional contact
with the general public. In other words, he can perform less than the full range of
“light” work.
See (AR 27-39) (citing 20 C.F.R. 404.1567(b), 416.967(b)).
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. See 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
Mr. White was unable to perform any past relevant work. See (AR 39). However, the ALJ

MEMORANDUM DECISION AND ORDER - 6

further found that there are jobs that exist in significant numbers in the national economy that
Mr. White could perform, including small product assembler and electric assembler. See (AR
39-40). Therefore, based on his age, education, work experience, and RFC, the ALJ concluded
that Mr. White “ha[d] not been under a disability, as defined in the Social Security Act, from
January 15, 2012, through the date of this decision.” (AR 40).
B.

Analysis
1.

The ALJ Properly Considered Dr. Hashmi’s Opinions

The medical opinion of a treating physician is entitled to special consideration and
weight. See Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989). Such deference is warranted
because the treating physician “is employed to cure and has a greater opportunity to know and
observe the individual.” Id. Even so, a treating physician’s opinion is not necessarily conclusive.
See id. at 762. But, if the treating physician’s opinions are not contradicted by another doctor,
they may be rejected only for clear and convincing reasons. See Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995). Further, even if the treating physician’s opinions are contradicted by another
doctor, they can be rejected only if the ALJ provides specific and legitimate reasons supported
by substantial evidence in the record. See id. A lack of objective medical findings, treatment
notes, and rationale to support a treating physician’s opinions is a sufficient reason for rejecting
that opinion. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
Here, Petitioner contends that the ALJ failed to give proper weight to Dr. Hashmi’s
“sustainability opinion,” as reflected within his July 2, 2012 responses to “Interrogatories to
Treating Physician.” See Pet.’s Brief, pp. 12-16 (Docket No. 15) (citing (AR 403-07)). Therein,
Dr. Hashmi stated that:

MEMORANDUM DECISION AND ORDER - 7

•

Mr. White had congestive heart failure, Type II diabetes mellitus, coronary
artery disease, cardiomyopathy, hypertension, hyperlipidemia, and prior
coronary artery bypass grafting;

•

Mr. White’s ischemic cardiomyopathy and congestive heart failure could
cause fatigue;

•

Mr. White would often need to rest for extended periods of time during an
eight-hour day;

•

Given Mr. White’s medical conditions, Mr. White was unable to perform
work activities at a sedentary level on a sustained basis without special
consideration or accommodation by an employer;

•

Mr. White’s condition lasted or was expected to last for at least 12 months;
and

•

Mr. White could not work.

(AR 404-07). The ALJ acknowledged these opinions, but ultimately gave them “little weight”
which, by virtue of this action, Petitioner now disputes. (AR 36). According to Petitioner:
The ALJ gave one reason for rejecting [Dr. Hashmi’s] opinion: “the medical
evidence does not support the degree of limitation [Mr. White] alleges, and his report
of [Mr. White’s] limitations is inconsistent with what [Mr. White] reported he can
do despite his impairments.” That one reason is not legally sufficient: it is not a clear
and convincing reason, a specific and legitimate reason, or a good reason.
Pet.’s Brief, p. 14 (Docket No. 15) (quoting (AR 36)). For the reasons stated below, the
undersigned disagrees.
To begin, it is not altogether accurate to characterize – as Petitioner attempts to do here –
the ALJ’s rejection of Dr. Hashmi’s opinions as being supported by a conclusory, single reason.
The ALJ dedicated a significant portion of the Decision to Dr. Hashmi’s opinions and, relatedly,
provided his reasons (drawn from the medical evidence) for not adopting them in toto when
discussing Mr. White’s RFC. See, e.g., (AR 36) (“For all of these reasons, I give Dr. Hashmi’s
opinion little weight. Though he is a specialist who has a treating relationship with [Mr. White],

MEMORANDUM DECISION AND ORDER - 8

the medical evidence does not support the degree of limitation he alleges, and his report of [Mr.
White’s] limitations is inconsistent with what [Mr. White] reported he can do despite his
impairments.”).
Next, addressing the ALJ’s proffered reasons, the Court notes that they were presented in
response to Mr. White’s post-hearing/pre-Decision argument that the opinions of State Agency
reviewing physician, Randal Reid, M.D., (secured after the August 6, 2013 hearing via
interrogatories) should be given no weight, while Dr. Hashmi’s opinions should be given
controlling weight. See (AR 33-34) (“However, in this instance, the representative has had
ample opportunity to ‘discuss the matter in more detail’ in his correspondence, and has cogently
stated his reasoning why Dr. Reid’s opinion should be given no weight, and Dr. Hashmi’s
opinion should be given controlling weight.”). In largely rejecting these arguments, the ALJ
observed:
•

Dr. Hashmi’s treatment notes often contained “predominantly-normal-limits
findings” and repeatedly noted that Mr. White is on “stable dosages of
medications.” See (AR 29-31, 35) (citing (AR 369, 372-73, 394-99, 436-39,
685-87)).

•

Despite Dr. Hashmi stating in his July 2, 2012 interrogatory responses that
Mr. White could not work at all, his treatment notes “reflect that he imposed
no activity limitations or restrictions on [Mr. White].” (AR 35). In fact,
throughout the record, Dr. Hashmi not only recommended that Mr. White
exercise, Mr. White indicated that he had been compliant with the
recommended exercise. See (AR 356, 372, 394, 397, 436, 439). Similarly,
Dr. Hashmi’s statement concerning Mr. White’s (in)ability to work contrast
with certain of Mr. White’s activities of daily living – in particular, working
on old cars and cleaning the house. See (AR 35-36); see also infra.

•

Though Dr. Hashmi indicated that Mr. White could not work and was unable
to perform work activities at a sedentary level, he had earlier stated only that
it was reasonable that Mr. White’s conditions could produce the alleged
symptoms – not that Mr. White actually had such symptoms. See (AR 35)

MEMORANDUM DECISION AND ORDER - 9

(citing (AR 404) (“The ischemic cardiomyopathy and [congestive heart
failure] can cause fatigue.”) (emphasis added)). However, Mr. White
frequently denied having fatigue when he saw Dr. Hashmi. See (AR 35)
(citing (AR 395, 398, 437, 440, 686)). Moreover, in July 2013, Dr. Hashmi
found that Mr. White had no active congestive heart failure (but still had
cardiomyopathy and an ejection fraction of about 40%). See (AR 31, 35)
(citing (AR 686)).
Finally, Dr. Hashmi’s opinions (at least the ones drawn from his July 2, 2012 responses
to “Interrogatories to Treating Physician”) do not exist in isolation. For example, on March 12,
2012, the reviewing physician, Dr. Reid, opined in a “Physical Residual Functional Capacity
Assessment” (“Assessment”) that Mr. White could perform a range of light work with standing
and/or walking no more than two to three hours in an eight-hour workday. See (AR 345-51). Dr.
Reid’s opinions were then echoed at the reconsideration level by Tina Ward, M.D., on July 16,
2012. See (AR 410-12). Though only giving Dr. Reid’s ultimate opinions “some weight,” the
ALJ nonetheless pointed out that his Assessment was based on Mr. White’s findings at baseline
after inpatient hospitalization, stating: “. . . this is predominately consistent with what the
medical evidence shows – that [Mr. White] has required some treatment, after which he is
stabilized and is within normal limits following treatment.” (AR 36).1 Hence, the ALJ
concluded:
Both the diagnostic studies and the reports of his treatment providers show that [Mr.
White] was consistently stabilized and improved, if not completely resolved, at the
time of discharge. Not only did he then report feeling fairly well overall, but he was
also within normal limits on examination. It is true that [Mr. White] has severe
heart-related impairments. However, there is no indication that such impairments at
baseline render him incapable of working, and no indication that his medical
condition on admission for any of the [five, earlier-discussed hospitalizations] would
be expected to last for at least 12 months. No treating or examining physician has
explicitly stated that [Mr. White’s] condition at baseline is such that he would
reasonably be expected to periodically deteriorate, only to stabilize with inpatient

1

The ALJ agreed with Dr. Reid’s opinion that Mr. White could perform light work, but
disagreed with the additional limitation regarding standing and/or walking. See (AR 37).
MEMORANDUM DECISION AND ORDER - 10

intervention. Rather, as noted above, differing causes and diagnoses were given for
the reported symptoms, including, on at least one occasion, medication
noncompliance on the report of [Mr. White]. Due to [a] lack of such treating or
examining physician statement, no reasonable inference may be drawn that such
would be the case, and it is instead appropriate to look to his follow-up treating
notes to assess the claimant’s condition at baseline.
(AR 37) (emphasis added). In short, according to the ALJ, Dr. Hashmi’s view that Mr. White
could not work does not align with the balance of the medical record, including Dr. Hashmi’s
own historical treatment notes.
This summary is not intended to challenge the fact that Mr. White had a multitude of
issues surrounding his heart-related impairments; rather, the focus is upon the lack of
corroboration in the medical record (including Dr. Hashmi’s treatment notes themselves) to the
substantial limitations provided in Dr. Hashmi’s July 2, 2012 responses to “Interrogatories to
Treating Physician.” This is what the ALJ meant when stating that “the medical evidence does
not support the degree of limitation [Dr. Hashmi] alleges . . . .” (AR 36). The undersigned
agrees, finding that the ALJ provided clear and convincing reasons for rejecting Dr. Hashmi’s
opinions.2 This is not to say that this Court concludes that Mr. White was not disabled under the
applicable rules and regulations; to be sure, Petitioner appropriately identifies conflicting
evidence in support of the position that he was so disabled.3 While such conflicting evidence

2

Petitioner misses the point when arguing that (1) “there is no evidence that the ALJ had
any medical understanding of chronic heart failure,” and (2) “[t]he ALJ cited no medical
evidence or authority that an individual with baseline chronic heart failure is capable of work on
a sustained basis.” Pet.’s Brief, p. 15 (Docket No. 15). To be clear, it is Petitioner’s burden of
showing disability and presenting medical evidence in support of this claim. See 20 C.F.R.
§§ 404.1512(a), 416.912(a). Additionally, the ALJ need only point to clear and convincing
and/or specific and legitimate reasons for questioning Dr. Hashmi’s opinions.
3

On this point, the ALJ stated: “This picking and choosing of evidence to advance [Mr.
White’s] argument does not reflect well on the credibility of the representative and could
MEMORANDUM DECISION AND ORDER - 11

may not have been as favorably received as Petitioner naturally hoped, the ALJ’s decision to
question Dr. Hashmi’s disability opinion contains appropriate reasons for doing so. As required
by controlling law, the ALJ will not be second-guessed in this respect. See Batson v. Comm’r of
Social Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (“[T]he 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.”)
(internal citations omitted); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)
(“Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s
conclusion that must be upheld.”).
2.

Mr. White’s Credibility

The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and for resolving ambiguities. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998). Where, as here, Mr. White presented evidence of an underlying impairment and the
government does not argue that there is evidence of malingering, the Court reviews the ALJ’s
rejection of his testimony for specific, clear and convincing reasons. See Burrell v. Colvin, 775
F.3d 1133, 1136 (9th Cir. 2014); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).
As the Ninth Circuit has recognized, this is not an easy requirement to meet because “the clear
and convincing standard is the most demanding required in Social Security cases.” Garrison v.

reasonably be seen as suggestive of lack of candor before the tribunal.” (AR 35); see also id.
(further noting Mr. White’s representative’s “questionable credibility” vis à vis Dr. Reid’s
hospital privileges and home address as primary practice address: “Given that the representative
is an attorney at law, with roughly analogous requirements to complete yearly continuing
education courses as that of an M.D., and that the Texas Medical Board website shows Dr. Reid
is currently licensed, I find this wholly unnecessary and unwarranted character assault on Dr.
Reid gravely disingenuous at best.”).
MEMORANDUM DECISION AND ORDER - 12

Colvin, 759 F.3d 995, 1015 (9th Cir. 2014). However, “the ALJ is not required to believe every
allegation of disabling pain,” otherwise disability benefits “would be available for the asking, a
result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina, 674 F.3d at 1112.
In evaluating credibility, the ALJ may engage in “ordinary techniques of credibility
evaluation.” Id. An ALJ may consider: (1) inconsistencies either in the claimant’s testimony or
between the testimony and the claimant’s conduct; (2) unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of treatment; (3) whether the claimant
engages in daily activities inconsistent with the alleged symptoms; (4) the observations of
treating and examining physicians and other third parties regarding the claimant’s symptoms;
and (5) functional restrictions caused by the symptoms. See id.
A finding that testimony is not credible “must be sufficiently specific to allow a
reviewing court to conclude the adjudicator rejected the claimant’s testimony on permissible
grounds and did not arbitrarily discredit a claimant’s testimony regarding pain.’” Brown-Hunter
v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46
(9th Cir. 1991)). “General findings are insufficient; rather, the ALJ must identify what testimony
is not credible and what evidence undermines the claimant’s complaints.” Brown-Hunter, 806
F.3d at 493. Although it need not be extensive, the ALJ must provide some reasoning” that will
allow a reviewing court “to meaningfully determine whether the ALJ’s conclusions were
supported by substantial evidence.” Id. at 495.
Petitioner claims that, at all relevant times, Mr. White was disabled, largely owing to his
heart-related impairments. See generally Pet. for Review (Docket No. 1); Pet.’s Brief (Docket

MEMORANDUM DECISION AND ORDER - 13

No. 15). As to that subject, Mr. White answered questions from both the ALJ and his attorney at
the August 6, 2013 hearing:
Q:

Okay. Tell me why you believe you can’t work at a full-time job anymore.

A:

I get short of breath real easy. I get tired easy. I have problem with angina
with pain, you know, in my arms and stuff when I do a lot.

Q:

Okay. Now, you had – didn’t you have three heart attacks at one point or –

A:

Yes, sir. I’ve had three heart attacks, triple bypass. I got a pace maker and
defibrillator, too.

Q:

Okay. You had those back in 2009?

A:

I think that was the last one. Yes, sir.

Q:

Okay. And since that time, what kind of problems, if any, have you had?

A:

Just tired all the time.

Q:

Okay. Okay. As far as lifting stuff, what do you feel like you’re comfortable
lifting?

A:

I’m not really weak like that. I mean, I just don’t have any –

Q:

They – one of the doctors –

A:

I [just] can’t do anything very long.

Q:

One of the doctors that looked over your file, the doctor that Mr. Heeps has
objected to [(Dr. Reid)], has rated you for light work, which is not very much
lifting. It’s basically, like, two gallons of milk.

A:

Yeah.

Q:

Up to two gallons of milk. Can you lift two gallons of milk?

A:

Yeah, I can do that.

Q:

Could you lift one gallon fairly frequently?

A:

I couldn’t do it very long. I would run out of –

MEMORANDUM DECISION AND ORDER - 14

Q:

Well, I don’t mean holding it for a long time. I just mean lifting it for a long
time – or lifting it.

A:

No, sir. I don’t think I could.

Q:

Okay. Not even one gallon?

A:

No, sir.

Q:

Okay. Why not?

A:

I just get fatigued real easy.

Q:

What do you feel – what kind of pounds do you feel like you could lift
frequently?

A:

I really don’t know about that. I mean, I would be – I mean, four or five, I
guess.

Q:

Four or five pounds? And occasionally, what do you think you could lift?

A:

Thirty to 40.

Q:

Okay. How do you spend a day? I mean, what do you do during the day to
take up your time?

A:

Read.

Q:

Okay. And what kind of novels do you like?

A:

Anything. I’m not particular.

Q:

So, do you spend most of the day sitting down or standing up or –

A:

Sitting down.

Q:

– I guess you sit down, don’t you –

A:

Yes, sir.

Q:

– to read? Do you feel like you have to keep seated all day long, or do you
try to get up and exercise some?

MEMORANDUM DECISION AND ORDER - 15

A:

I mean, I do some. I mean, I do a little bit.

Q:

Do you feel like your standing is limited in any way, or that your sitting’s
limited?

A:

My standing, yes, sir.

Q:

Your standing is? How much do you – how much of a day do you feel like
you could stand? These aren’t trick questions. I mean –

A:

I knew that. I mean, I’m just –

Q:

I just want to know. But a lot of times, probably, you haven’t – probably
hadn’t thought about it.

A:

No, sir.

Q:

And a lot of people don’t think about it.

A:

Not a whole lot. I mean, like I say, I get tired real easy. And two or three
hours a day, probably.

Q:

Two to three hours? And then, the rest of the time you’re sitting down?

A:

Yes, sir.

Q:

So, I get the impression if you’re standing that little, you’re probably in a
situation where you’re, kind of, alternating positions quite a bit during the
day.

A:

Yes, sir.

Q:

And so, how often do you alternate between sitting and standing during the
day?

A:

Five or six times a day.

Q:

About every what, hour or so?

A:

Yeah. Little more than that.

Q:

Now, the rest time, when you’re not sitting or standing, do you walk? Do
you lay down? Do you recline? Do you – any of those things?

MEMORANDUM DECISION AND ORDER - 16

A:

I lay down.

Q:

Okay. How much of the day do you lay down, on average?

A:

Most of the day, to be honest.

Q:

Okay. And do you lay down because you have to or because it’s just more
comfortable that way?

A:

Because I get tired.

Q:

You get tired.

A:

I take several naps a day.

Q:

Okay. How much of the day do you think you take a nap?

A:

Probably three or four hours a day.
....

Q:

You talked earlier about walking two to three – or standing two to three
hours per day. When you said that, were you thinking about the whole day
from when you wake up until when you go to sleep? Or were you thinking
about just between 9:00 to 5:00?

A:

The whole day.

Q:

The whole day?

A:

Yes, sir.

Q:

Well, let’s confine it to between, you know, the hours of 9:00 to 5:00. How
much time do you actually spend – could you spend two to three hours
standing in that eight hour period?

A:

I don’t think I can, sir.

Q:

Why could you not do that?

A:

I just get real fatigued. I mean, I just get wore out.

Q:

Okay. And from 9:00 to 5:00, how much of that time do you – are you
typically spending napping?

MEMORANDUM DECISION AND ORDER - 17

A:

Probably four hours or so. Three to four.

Q:

Okay. So, most of your naps are in the middle of the day?

A:

Yes, sir.

Q:

Is that what – okay. Has that been the case since January of 2012? Has it
gotten worse? About the –

A:

It’s gotten worse.

Q:

It’s gotten worse?

A:

Yes, sir.

Q:

So, in January of 2012, about how much of that time would you actually
spend napping?

A:

About an hour or so.

Q:

An hour or so? Okay. When did it get worse?

A:

It’s been, kind of, a gradual thing.

Q:

A gradual thing? There’s not a set day or anything. Is that right?

A:

No sir.

Q:

You mentioned shortness of breath. Do you get shortness of breath just
sitting down like you are today?

A:

Sometimes but most of the time –

Q:

Most of the time –

A:

Most of the time when I do – when I try to do something.

Q:

When you try to do something. Okay. About how far can you walk before
you have to stop and rest?

A:

About a block.

MEMORANDUM DECISION AND ORDER - 18

Q:

About a block? And how long of a rest period would you need in order to
walk another block?

A:

About 10 or 15 minutes.

Q:

Ten or 15 minutes? Could you remain standing that entire time or would you
have to sit down?

A:

I’d rather sit down.

Q:

Rather sit down?

A:

Get my breath.

Q:

And catch your breath?

A:

Yes, sir.

Q:

Okay. Now, you also mentioned that you have chest pain. How often do you
get the chest pain?

A:

Any time I do anything really strenuous.

Q:

Really strenuous?

A:

Yes, sir.

Q:

Well, what do you consider really strenuous?

A:

Mopping and that kind of stuff.

Q:

Okay. What about, like doing dishes or sweeping? Does that cause you
chest pain?

A:

Sometimes.

Q:

Okay. And where – what part of your chest does it hurt?

A:

Mainly, hurts in my arms.

Q:

It hurts in your arms?

A:

Yes. Yes, sir.

MEMORANDUM DECISION AND ORDER - 19

Q:

Okay. And why does it hurt in your arms?

A:

Just – that’s the way the [INAUDIBLE] fixed me.

Q:

Okay.

A:

And in my back.

Q:

All right. Have you talked to your doctor about that?

A:

Yes, sir.

Q:

And what did he tell you?

A:

Just be part of it.
....

Q:

Okay. So, your main problem right now is that the fatigue that you
experience?

A:

Yes, sir.

Q:

Okay. And that’s related to your heart. Is that correct?

A:

Yes, sir.

(AR 54-58, 60-63, 65).
Ultimately, the ALJ ruled that Mr. White’s medically determinable impairments could
reasonably be expected to cause some of his alleged symptoms, but that his statements
concerning the intensity, persistence, and limiting effects of these symptoms were not entirely
credible. See (AR 29). He did so, in part, because, as discussed above, the objective medical
evidence did not parallel Mr. White’s subjective complaints. See id. (“The medical evidence
does not support the claimant’s allegations to the extent alleged.”); see also (AR 38) (“[Mr.
White’s testimony regarding his impairments was out of proportion with the objective medical
findings.”). That is, the treatment notes from Mr. White’s cardiologist, Dr. Hashmi, were never
accompanied by a causal connection between Mr. White’s more-or-less understood diagnoses
MEMORANDUM DECISION AND ORDER - 20

and alleged inability to perform any work-related activities. See supra. Here, the ALJ
appropriately did not reject Mr. White’s complaints that he suffers from heart-related
impairments; rather, his focus was on Mr. White’s claim that he cannot work in part because
those impairments allegedly limit his ability to work. See, e.g., Madrid v. Colvin, 2016 WL
1161978, *10, n.8 (N.D. Cal. 2016) (“The Ninth Circuit has held that ‘the adjudicator may not
discredit a claimant’s testimony of pain and deny disability benefits solely because the degree of
pain alleged by the claimant is not supported by objective medical evidence.’ As discussed
herein, the ALJ did not reject Plaintiff’s allegations that she suffers hand pain, but rather
evaluated record evidence regarding Plaintiff’s alleged diminished dexterity.”) (quoting Bunnell,
947 F.2d at 346-47). Simply put, there needs to be some “connecting of the dots” via medical
evidence in the record on this point; otherwise, as Dr. Reid highlighted (and which the ALJ
relied upon in his Decision), the record indicates that, at baseline (after inpatient hospitalization),
Mr. White was stabilized and within normal limits. See supra.
The ALJ also focused on Mr. White’s daily activities, stating in relevant part:
On January 26, 2012, [Mr. White] told his treating nurse practitioner that he was
filing for disability because he was unable to hold down a full-time job. He stated
when he tried, he ended up sick or “run down.” However, he has reported to much
fuller activities of daily living than that to which he testified at the hearing. He
reported being able to do laundry, dishes, and light housework. He also reported he
goes out every day, drives, shops weekly for 45 minutes, talks with friends, and goes
to the store three times a week. He told his therapist on March 29, 2012 that he liked
to be “productive” and was working on his house and liked working on old cars. On
April 9, 2012, he reported he was staying “really busy” and “getting things done”
around the house. I note that not only are such activities as working on old cars
inconsistent with the degree of limitation to which the claimant testified, but also that
he reported doing such activities prior to his May 15, 2012 catheterization.
(AR 31) (internal citations omitted); see also (AR 35) (“The representative further omits what I
have discussed throughout this Decision – that [Mr. White] has reported activities of daily living

MEMORANDUM DECISION AND ORDER - 21

which are inconsistent with that to which he testified at the hearing. As I discussed above, he
reported that one of his hobbies was working on cars and that he was staying busy cleaning the
house. He claimed at the hearing that he has chest pain when doing some strenuous activities,
but often, at baseline, denied either shortness of breath or chest pain.”); (AR 37-38) (same).
Finally, the ALJ called into question Mr. White’s above-stated testimony concerning his
need for (and frequency of) naps, noting in no uncertain terms:
I note further, that though he told me at the hearing that he naps three to four hours
daily, he told Dr. Crittenden less than one month prior to the date Dr. Hashmi
completed his interrogatories that he does not take naps. He had reported on April
9, 2012, over one month prior to the cardiac catheterization, that he was “staying
really busy and getting things done around the house.”
....
[Mr. White’s allegations cannot be accepted as fully credible. Were [Mr. White’s]
testimony that he lies down half the day credible, Dr. Hashmi’s opinion would be
entitled to great, if not controlling weight, and a finding of disability would be
appropriate. However, [Mr. White] told Dr. Crittenden that he does not take naps,
and made other prior inconsistent statements that contradict what he told me under
oath at the hearing.
(AR 35-36, 38) (internal citations omitted).
Together, these reasons offer clear and convincing explanations as to why the ALJ did
not find Mr. White’s testimony entirely credible. Here again, this is not to say that this Court
conclusively finds that Mr. White was not disabled under the applicable rules and regulations, or
that Mr. White did not suffer from chronic pain. Indeed, Petitioner identifies conflicting
evidence in support of her position. While such conflicting evidence may not have been given
the weight Petitioner would have preferred, the ALJ’s decision to doubt Mr. White’s credibility
in denying disability benefits contains clear and convincing reasons for doing so. As required by
controlling law, the ALJ will not be second-guessed as to such conclusions, on the record here

MEMORANDUM DECISION AND ORDER - 22

and the justifications provided. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193
(9th Cir. 2004) (“[T]he 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.”) (internal citations omitted). Therefore, the
Court will not substitute its judgment when the evidence in the record can support the ALJ’s
findings.
3.

The ALJ Reasonably Found That Mr. White’s Impairments Did Not Meet or
Equal a Listing

At the third step of the sequential process, the ALJ determined that Mr. White did not
have an impairment or combination of impairments that meet or medically equal the severity of a
listed impairment. See (AR 26-27). In reaching this conclusion, the ALJ found, in part, that
“[t]here is no sign, symptom, or finding relating to [Mr. White’s] heart condition sufficient meet
any of the requirements of Listing 4.04(A), (B), or (C).” (AR 26). Petitioner argues that the
ALJ erred in this regard, arguing that, while he discussed Listing 4.04 (ischemic heart disease) at
step three of the sequential process, he failed to also consider Listing 4.02 (chronic heart failure).
See Pet.’s Brief, p. 20 (Docket No. 15) (“White argues the evidence supported a finding he met
the requirements of Listing 4.02 for chronic heart failure and the ALJ erred in failing to evaluate
the evidence in light of that Listing.”).
Listing 4.02 requires that a claimant suffer the severe symptoms listed therein “while on
a regimen of prescribed treatment.” 20 C.F.R. pt. 404, subpt. P, app. 1 § 4.02; see also Warre v.
Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be
controlled effectively with medication are not disabling for the purpose of determining eligibility
for . . . benefits.”). Petitioner identifies instances in the record that she claims support a finding

MEMORANDUM DECISION AND ORDER - 23

that Mr. White met the (A) and (B) criteria for Listing 4.02. Respondent counters that the record
likewise reflects instances where Mr. White had stopped taking his medications during the
relevant time period. Compare Pet.’s Brief, p. 21 (Docket No. 15), with Resp.’s Brief, p. 15
(Docket No. 20). Specifically, Respondent points out that, in two of the five different episodes
of congestive heart failure4 that Petitioner references, Mr. White was not taking his prescribed
medications. See Resp.’s Brief, p. 15 (Docket No. 20) (citing (AR 512) (emergency room visit
on January 20, 2013: “For some reason, [patient] stopped taking his furosemide [(Lasix)] 40 mg
pill daily, will restart.”); (AR 465) (March 18, 2013 treatment note: “The patient has been on
medications from Dr. Hashmi and the patient has not taken his medications regularly.”).
It is true that the ALJ did not consider Listing 4.02. However, any oversight in this
regard is harmless in light of the fact that the record confirms that Mr. White had not been
diligently taking his prescribed medication during the 12-month period in which Petitioner
claims Mr. White experienced the requisite three or more separate episodes of “acute”
congestive heart failure. See Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1040, 1054-55 (9th Cir.
2006) (applying harmless error analysis when ALJ’s error “was inconsequential to the ultimate
nondisability determination”). Taking such evidence into account, substantial evidence supports
a finding that Mr. White does not meet or equal a listing – including Listing 4.02 – because he
did not suffer the necessary symptoms “while on a regime of prescribed treatment.”

4

Listing 4.02's (B) criteria includes “[t]hree or more separate episodes of acute
congestive heart failure within a consecutive 12-month period . . . .” 20 C.F.R. pt. 404, subpt. P,
app. 1 § 4.02(B)(2). Respondent does not appear to dispute that these references represent
instances of acute congestive heart failure, however, the Court’s review of the same calls this
finding somewhat into question. See (AR 556, 579) (noting only “mild” congestive heart
failure). Separately, Respondent does not appear to dispute Petitioner’s contemporaneous
argument that Listing 4.02's (A) criterion is met. Compare Pet.’s Brief, p. 21 (Docket No. 15),
with Resp.’s Brief, pp. 15-16 (Docket No. 20).
MEMORANDUM DECISION AND ORDER - 24

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.
The evidence relied upon by the ALJ 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 rulings upon Mr. White’s disability claim drew upon
proper legal standards supported by substantial evidence. Therefore, the Commissioner’s
decision that Mr. White is not disabled under the Social Security Act is supported by substantial
evidence in the record and is based upon an application of proper legal standards.
The Commissioner’s decision is affirmed.
V. ORDER
Based on the foregoing, the decision of the Commissioner is AFFIRMED and this action
is DISMISSED in its entirety with prejudice.
DATED: May 10, 2017

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

MEMORANDUM DECISION AND ORDER - 25