Kuhn v. Astrue

Filing 18

MEMORANDUM DECISION AND ORDER re: 1 Petition for Review filed by Owen Kuhn. This matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum Decision and Order. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

OWEN KUHN,

Case No.: 4:11-cv-00141-REB

Petitioner,

MEMORANDUM DECISION AND
ORDER

vs.
MICHAEL J. ASTRUE, Commissioner of Social
Security,
Respondent.

Now pending before the Court is Owen Kuhn’s Petition for Review (Docket No. 1),
seeking review of the Social Security Administration’s final decision to deny his claim for
Supplemental Security Income benefits. 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 December 21, 2006, Owen Kuhn (“Petitioner”) filed an application for Supplemental
Security Income. (AR 145-151). Petitioner’s claim was initially denied on August 27, 2007
and, again, on reconsideration on July 10, 2008. (AR 93-101). On August 6, 2008, Petitioner
timely filed a Request for Hearing before an Administrative Law Judge (“ALJ”). (AR 102). On
August 31, 2009, ALJ Robin L. Henrie held a hearing in Salt Lake City, Utah, at which time
Petitioner, represented by attorney Nicholas Huntsman, appeared and testified. (AR 30). A

MEMORANDUM DECISION AND ORDER - 1

vocational expert, John F. Hurst, M.S., CRC, also appeared and testified during the same August
31, 2009 hearing. Id.
On December 1, 2009, the ALJ issued a decision, denying Petitioner’s claims, finding
that Petitioner was not disabled within the meaning of the Social Security Act. (AR 8-21).
Petitioner requested review from the Appeals Council on December 18, 2009. (AR 5-7). On
February 4, 2011, the Appeals Council denied Petitioner’s request for review (AR 2-4), 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 the decisions of the ALJ and Appeals Council “are not supported by substantial
evidence, and they did not consider crucial evidence submitted in a timely fashion with regard to
[Petitioner’s] impairments.” See Pet. for Review, p. 3 (Docket No. 1). Specifically, Petitioner
asserts that the ALJ (1) failed to properly evaluate whether Petitioner’s impairments met or
equaled listed impairment; (2) failed to properly evaluate medical opinion evidence, and (3)
failed to properly evaluate Petitioner’s credibility. See Pet.’s Brief, p. 2 (Docket No. 13).
Petitioner requests that the Court reverse the ALJ’s decision and order the immediate payment of
benefits or, alternatively, remand the case for further proceedings before a different ALJ. See id.
at p. 18; see also Pet. for Review, p. 4 (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. 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

MEMORANDUM DECISION AND ORDER - 2

U.S.C. § 405(g). That is, if there is substantial evidence to support the ALJ’s factual decisions,
they must be upheld, even when there is conflicting evidence. Hall v. Sec’y of Health, Educ. &
Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
“Substantial evidence” is defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec’y of Health & Human
Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less
than a preponderance of evidence, 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,
Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984), resolving ambiguities, see Vincent ex. rel.
Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984), and drawing inferences logically
flowing from the evidence, Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Where the
evidence is susceptible to more than one rational interpretation in a disability proceeding, the
reviewing court may not substitute its judgment or interpretation of the record for that of the
ALJ. Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s

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.” Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
III. DISCUSSION
A.

Sequential Processes
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 September 20, 2006,
the application 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
MEMORANDUM DECISION AND ORDER - 4

requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination
of impairments is “severe” within the meaning of the Social Security Act if it significantly limits
an individual’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c).
An impairment or combination of impairments is “not severe” when medical and other evidence
establish only a slight abnormality or a combination of slight abnormalities that would have no
more than a minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921.
If the 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: cerebral palsy, loss of vision in
his left eye, and a dysthymic disorder. (AR 13).
The third step requires the ALJ to determine the medical severity of any impairments;
that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
answer is yes, the claimant is considered disabled under the Social Security Act and benefits are
awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor
equal one of the listed impairments, the claimant’s case cannot be resolved at step three and the
evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner does not have an
impairment (or combination of impairments) that meets or medically equals a listed impairment
(AR 14).
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

MEMORANDUM DECISION AND ORDER - 5

capacity 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. 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 that Petitioner has the residual
functional capacity to perform sedentary work, except that such work could not require: (1)
standing or walking more than five to ten minutes at one time, nor more than two total hours in
an eight-hour workday; (2) sitting more than twenty to thirty minutes at a time, nor more than six
total hours in an eight-hour workday; (3) bending, stooping, twisting or squatting on more than a
“less than occasional” basis; (4) work on the floor (i.e., kneeling, crawling, or crouching) on
more than a “less than occasional” basis; (5) stair climbing on more than a “less than occasional”
basis (a few steps up or down not precluded, but essentially no flights of stairs); (6) overhead
lifting and reaching on more than a “less than occasional” basis; (7) more than frequent reaching,
handling and fingering with the left upper extremity; (8) working in other than a clean, climate
controlled environment with minimal allergens (i.e., indoor work only); (9) working around
dangerous, unprotected heights, machinery, or chemicals; (10) work at more than a low stress
level (where low stress means: (a) low production work (where substantial gainful activity jobs
are classified as low, average, and high production); (b) essentially no working with the general
public; and (c) only minimal contact with supervisors and co-workers on the job, but still having
the ability to respond appropriately to supervision, co-workers, and work situation); (11) work at
more than a low concentration level, which means the ability to be alert and attentive to (and

MEMORANDUM DECISION AND ORDER - 6

adequately perform) only unskilled work tasks; (12) work at more than a low memory level,
which means the ability to understand, remember, and carry out only simple work instructions
(where simple means Petitioner would be functioning at GED levels of: reasoning = 3, math = 2,
and language = 3); (13) work requiring binocular vision, and normal depth perception, due to
being legally blind in the left eye and having 20/25 vision in the right eye causing him mild
visual deficits (only minimal reading on the job); and (14) work requiring foot controls with the
left lower extremity). (AR 14-19).
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of his/her 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 has no past relevant work. (AR 19). 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” – for example, office addressor, touch-up screener, and semi-conductor
bonder. (AR 19-20).
B.

Analysis
Petitioner challenges the ALJ’s denial of disability benefits in three separate respects.

First, Petitioner argues that the ALJ improperly found that he did not meet Listing 12.04,

MEMORANDUM DECISION AND ORDER - 7

Affective Disorders. See Pet.’s Brief, pp. 8-10 (Docket No. 13). Second, Petitioner argues that
the ALJ’s residual functional capacity assessment failed to accurately incorporate the medical
opinion evidence. See id. at pp. 11-16. Third, Petitioner argues that the ALJ did not provide
clear and convincing evidence for rejecting his own testimony. See id. at pp. 16-18.
1.

Whether Petitioner’s Impairments Met or Equaled a Listed Impairment

Petitioner argues that, since the ALJ found that he suffered from a dysthymic disorder,
the ALJ erred in not including an analysis of Listing 12.04 – Affective Disorders – within the
ALJ’s December 1, 2009 decision. See id. at p. 8. As discussed above, an ALJ must evaluate
the claimant’s impairments to see if they meet or equal any of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). See 20 C.F.R. § 404.1520(d); see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If any of the impairments meet or equal a
listed impairment, he is deemed disabled. See id; see also supra at p. 5.
An impairment meets a listed impairment “only when it manifests the specific findings
described in the set of medical criteria for that listed impairment.” See SSR 83-19; see also 20
C.F.R. § 404.1525. An impairment equals a listed impairment only if the medical findings
(defined as a set of symptoms, signs, and laboratory findings) are at least equivalent in severity
to the set of medical findings for the listed impairment. See Tackett, 190 F.3d at 1099.
“An ALJ must evaluate the relevant evidence before concluding that a claimant’s
impairments do not meet or equal a listed impairment. A boilerplate finding is insufficient to
support a conclusion that a claimant’s impairment” does not meet or equal a listed impairment.
See Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). However, the ALJ is not required to state
why a claimant fails to satisfy every criteria of the listing if they adequately summarize and
MEMORANDUM DECISION AND ORDER - 8

evaluate the evidence. See Gonzalez v. Sullivan, 914 F.2d 1197, 1200-01 (9th Cir. 1990); Lewis,
236 F.3d at 512.
Here, the ALJ recognized Petitioner’s dysthymic disorder as constituting a severe
impairment, but ultimately concluded that it was not severe enough, either singly or in
combination, to meet or medically equal the requirements set forth in the Listings. (AR 14).
That was, more or less, the extent of the ALJ’s analysis with specific respect to Petitioner’s
dysthymic disorder. That is, after stating matter-of-factly that Petitioner’s severe impairments do
not constitute listed impairments, the ALJ immediately went on to discuss how the medical
evidence did not satisfy Listing 11.07 – Cerebral Palsy – without also specifically contrasting
Petitioner’s dysthymic disorder within the parameters of Listing 12.04 – Affective Disorders.1
A claimant suffering from an affective disorder meets the listed severity level for a
depressive syndrome if enough listed factors (the “A criteria”) are present. See 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.04(A). In particular, four of the following “A criteria” symptoms
must exist: (1) anhedonia or pervasive loss of interest in almost all activities; (2) appetite
disturbance with change in weight; (3) sleep disturbance; (4) psychomotor agitation or

1

Indeed, in opposing the Petition for Review, Respondent states that “[s]pecial review
was given to Listing 12.04 (Affective Disorders) of the Listing of impairments,” specifically
highlighting that:
[T]he ALJ correctly noted the credible medical evidence of record did not document
evidence of an intelligence quotient score of 70 or less; abnormal behavior patterns,
such as destructiveness or emotional instability; significant interference in
communication due to speech, hearing or visual defect; or sustained disturbance of
gross and dexterous movements or gait and station (such as paresis, paralysis, tremor,
ataxia, and sensory disturbances) . . . .
See Resp’t’s Brief, p. 16 (Docket No. 14). Except these criteria relate to cerebral palsy, not
affective disorders. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.07.
MEMORANDUM DECISION AND ORDER - 9

retardation; (5) decreased energy; (6) feelings of guilt or worthlessness; (7) difficulty
concentrating or thinking; (8) thoughts of suicide; or (9) hallucinations, delusions, or paranoid
thinking. See id. But the “A criteria” alone are not enough; in order to be considered per se
disabled, at least two of the following “B criteria” must also be present: (1) marked restriction of
activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked
difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of
decompensation, each of extended duration. See id at § 12.04(B).
Although the ALJ extensively recounts the medical evidence making up the record – and,
in doing so, renders Petitioner’s other arguments unpersuasive (see infra) – there is no actual
“special review” (as the ALJ puts it and says he has done) of Petitioner’s mental condition,
balanced against the A and B criteria of Listing 12.04. Instead, the ALJ’s decision introduces
Listing 12.04 only to then dispatch its pertinence with vague, conclusory, and, at times,
inapplicable reasons for doing so (see supra). While it may be the case that Petitioner does not
have an impairment or combination of impairments that meet or medially equal Listing 12.04,
the ALJ’s analysis on this point does not establish as much. In this discrete respect, therefore,
the action will be remanded to allow the ALJ the opportunity to address this aspect of his
decision.
2.

The Opinions of Petitioner’s Treating Physician, Dr. Robert Hodson

The Ninth Circuit has held that a treating physician’s medical opinion is entitled to
special consideration and weight. See Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989).
The treating physician’s opinion is given that deference because “he is employed to cure and has
a greater opportunity to know and observe the individual.” Id. Where the treating physician’s
MEMORANDUM DECISION AND ORDER - 10

opinions are not contradicted by another doctor, it may be rejected only for clear and convincing
reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Even if the treating physician’s
opinions are contradicted by another doctor, they can only be rejected if the ALJ provides
specific and legitimate reasons, supported by substantial evidence in the record for doing so. Id.
Regardless, a treating physician’s opinion on the ultimate issue of disability is not conclusive.
Rodriguez, 876 F.2d at 762 (citations omitted); see also SSR 96-5P, 1996 WL 374183, *2 (“The
regulations provide that the final responsibility for deciding [whether an individual is ‘disabled’
under the Act] . . . is reserved to the Commissioner.”); 20 C.F.R. §§ 404.1527(e)(1),
416.927(e)(1) (“We are responsible for making the determination or decision about whether you
meet the statutory definition of disability.”).
Therefore, merely concluding that a particular physician is a treating physician does not
mandate the adoption of that physician’s opinions. In addition to the standard outlined above,
treating physicians’ opinions are given less weight if they are inconsistent with the record as a
whole or if the conclusions consist of vague, conclusory statements unsupported by medically
acceptable data. Stormo v. Barnhart, 377 F.3d 801, 805-06 (8th Cir. 2004); see also Tonapetyan
v. halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (lack of objective medical findings, treatment
notes, and rationale to support treating physician’s opinion is sufficient reason for rejecting that
opinion).
At Exhibit 14F, Dr. Hodson’s July 24, 2009 response to Petitioner’s counsel’s Residual
Functional Capacity Questionnaire indicates that Petitioner suffers from cerebral palsy, lower
back pain, and agoraphobia with panic disorder. (AR 382). Likewise, Dr. Hodson concluded
that Petitioner (1) could only walk less than one block without rest or significant pain; (2) can sit
MEMORANDUM DECISION AND ORDER - 11

for 30 minutes at a time for three hours a day; (3) can stand or walk 10 minutes at a time for one
hour a day; (4) would need a job which permits him to shift positions at will; (5) would need to
take several unscheduled breaks throughout the day every 15-30 minutes, lasting 30-60 minutes
apiece; (6) could occasionally lift and carry 10 pounds or less, but never 20 pounds or more; (7)
has limitations in doing repetitive reaching, handling, or fingering; (8) could grasp, turn, and
twist objects, perform fine manipulations, and reach about 50% of the time; and (9) would need
to be absent from work more than four days a month. (AR 382-383).
Also within Exhibit 14F, Dr. Hodson’s July 24, 2009 Mental Capacity Assessment
indicates that Petitioner has marked limitations with respect to being able to (1) maintain
attention and concentration for extended periods; (2) perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances; (3) work in
coordination with or in proximity to others without being distracted by them; (4) complete a
normal workweek without interruptions from psychologically based symptoms; (5) perform at a
consistent pace with a standard number and length of rest periods; (6) respond appropriately to
changes in the work setting; (7) be aware of normal hazards and take appropriate precautions;
and (8) travel in unfamiliar places or use public transportation. (AR 385-387). Additionally, Dr.
Hodson found that Petitioner has extreme limitations with respect to being able to (1) interact
appropriately with the general public; (2) accept instructions and respond appropriately to
criticism from supervisors; and (3) get along with coworkers or peers without distracting them or
exhibiting behavior extremes. (AR 386). As a result, Dr. Hodson concluded that Petitioner
would likely miss more than four days of work each month. (AR 386).
The ALJ disputed these findings. (AR 17) (“The [ALJ] has given every consideration to
Dr. Hodson’s assessment of claimant’s weaknesses, both physical and mental, but cannot agree
MEMORANDUM DECISION AND ORDER - 12

that claimant is so limited as portrayed by Dr. Hodson’s assessment because there is very little
objective evidence that would indicate claimant to be so incapable of performing satisfactorily in
the work place.”). The undersigned agrees.
According to a separate Onset Date Questionnaire, Dr. Hodson apparently began treating
Petitioner in September 2007. (AR 384). However, noticeably absent from Dr. Hodson’s own
progress notes during this time period (consisting of three visits between September 20, 2007
and December 10, 2007)2 are correspondingly equivalent references to Petitioner’s alleged
physical limitations. See, e.g., (AR 309-314) (noting Petitioner’s lower extremity strength as 3-4
out of 5 and Petitioner’s upper extremity strength at 4 out of 5). Similarly, while these progress
notes indicate that Petitioner suffers from depression and anxiety, they contain no details of the
extent of such impairments or their effect upon Petitioner’s daily living activities. See id.
Indeed, when repeatedly given the opportunity to disclose the medical/clinical findings that
support the opinions rendered in the Mental Capacity Assessment, Dr. Hodson did not. (AR
385-387). The Court is mindful that a treating physician may have a “fuller” sense, so to speak,
of a patient’s circumstances and overall limitations than that which is specifically delineated in
the ongoing notes of an office chart. However, the record here evidences only a handful of office
visits over a several year period, each of an attenuated nature, and with overlapping details from
one visit to the next. Simply put, it is reasonable that the ALJ could conclude that Dr. Hodson
simply did not know the Petitioner well enough to make credible statements about Petitioner’s

2

Dr. Hodson also saw Petitioner on November 7, 2008, November 14, 2008, April 7,
2009, May 1, 2009, and July 15, 2009. (AR 364-376). Though at times referencing back pain
(and without any mention of Petitioner’s alleged mental impairments), these visits focused
primarily upon complaints attendant to ear pain, sinus congestion, pneumonia, and jaw pain
(TMJ). See id.
MEMORANDUM DECISION AND ORDER - 13

limitations in all of the areas described in the Mental Capacity Assessment and that without
supporting medical evidence in the record that substantiates Dr. Hodson’s assessment of
Petitioner’s condition, Dr. Hodson’s opinions in that regard could not be validated. See Stormo,
377 F.3d at 805-06 (treating physician’s opinions given less weight if conclusions consist of
vague, conclusory statements unsupported by medically acceptable data).3 Contrasting the lack
of treatment notes supporting Dr. Hodson’s 2009 opinions, other evidence in the record exists to
question the severity of Petitioner’s alleged physical and mental impairments. For example:
1.

On August 7, 2007, Dr. Kevin Hill, while recognizing Petitioner’s cerebral palsy,

depression, and chronic cervical pain, concluded only that he:
[W]ould need to change positions from sitting to standing to walking as needed for
pain management. He would be able to walk short distances using a cane. He would
have difficulty with lifting and carrying objects while using his cane. Hearing,
speaking, and traveling would not be affected. He was able to walk short distances
with his cane.
(AR 303-304). Dr. Hill reiterated his findings on June 2, 2008, rhetorically wondering whether
Petitioner’s claimed inability to work was a function of something other than his alleged
“physical defects”:
Based upon medical findings, Mr. Kuhn would need to change positions as needed
for pain management. He should not be operating a car or dangerous machinery. He
should not be working at heights. He would be able to walk short distances using a

3

The Court observes that persons such as the Petitioner who have extremely limited
financial resources, are uninsured, and who live in rural areas already under served by the
medical community face an unmistakable Catch-22 in these circumstances. Their circumstances
make it difficult for them to obtain regular, ongoing medical care, and when they do see
physicians there are practical and financial pressures upon the provider to limit the time spent
with the patient to the bare minimum. That is not to say that the care provided is then
necessarily inadequate or substandard. However, when credibility decisions turn in part upon
some purported failure by the claimant to seek medical care more often, or where a physician’s
records of that care are cryptic or attenuated in form, persons in Petitioner’s shoes may feel
helpless as to how they might put forward some different record.
MEMORANDUM DECISION AND ORDER - 14

cane and perform some sedentary work. He would have difficulty with lifting and
carrying objects while using his hand for more than negligible weight. Speaking and
traveling would not be affected. I wonder if his psychological problems are not more
the cause of his inability to work than his physical defects and in the future,
consideration should be given to a psychological evaluation.
(AR 330-331).
2.

Dr. Thomas T. Coolidge’s August 27, 2007 Physical Residual Functional

Capacity Assessment concluded that Petitioner (1) could occasionally lift or carry 20 pounds and
could frequently lift or carry 10 pounds; (2) could stand and/or walk (with normal breaks) about
six hours in an eight-hour workday; (3) could sit (with normal breaks) about six hours in an
eight-hour workday; (4) had no pushing and/or pulling limitations; (5) could occasionally climb
ramps or stairs (but never ladders, ropes, or scaffolds), balance, stoop, kneel, crouch, and crawl;
(6) had reaching limitations, but no handling, fingering, or feeling limitations; (7) had depth
perception limitations, but no near acuity, far acuity, accommodation, color vision, or field of
vision limitations; (8) had no communicative limitations; and (9) needed to avoid all exposure to
vibration and hazards, needed to avoid concentrated exposure to fumes, odors, dusts, gases, and
poor ventilation, and had no limitations to extreme cold, extreme heat, wetness, humidity, and
noise. (AR 250-255). Dr. Coolidge therefore concluded that Petitioner was capable of
performing light work. (AR 256).
3.

Dr. Ward E. Dickey’s July 10, 2008 Physical Residual Functional Capacity

Assessment concluded that Petitioner (1) could occasionally lift or carry 10 pounds and could
frequently lift or carry less than 10 pounds; (2) could stand and/or walk (with normal breaks) at
least two hours in an eight-hour workday; (3) could sit (with normal breaks) about six hours in
an eight-hour workday; (4) had no pushing and/or pulling limitations; (5) could occasionally
climb ramps or stairs (but never ladders, ropes, or scaffolds), balance, stoop, kneel, crouch, and
MEMORANDUM DECISION AND ORDER - 15

crawl; (6) had handling limitations, but no reaching, fingering, or feeling limitations; (7) had
depth perception limitations, but no near acuity, far acuity, accommodation, color vision, or field
of vision limitations; (8) had no communicative limitations; and (9) needed to avoid moderate
exposure to vibration and hazards, needed to avoid concentrated exposure to extreme cold, and
had no limitations to extreme heat, wetness, humidity, noise, and fumes, odors, dusts, gases, and
poor ventilation. (AR 276-283).
4.

On June 26, 2008, Dr. Donald M. Whitley, a licensed psychologist, examined

Petitioner and provisionally diagnosed him with dysthymic disorder and panic disorder with
agoraphobia. (AR 339). Additionally, Dr. Whitley assigned Petitioner a Global Assessment of
Functioning (“GAF”) score of 50, while noting that (1) “[t]here was certainly some grandiosity
noted in some of the statements that [Petitioner] made”; (2) Petitioner has the cognitive ability to
manage his own finances; (3) Petitioner “does not do things well”; (4) Petitioner “is not
necessarily impulsive, but he does a lot of other things that are not real clear”; (5) Petitioner’s
adaptability to different situations and relationships with people are strained; (6) Petitioner’s
concentration was hard to determine; (7) Petitioner’s immediate memory recall was fair, while
others tended to be poor; (8) Petitioner generally understood questions, but would go off on
tangents; and (9) Petitioner did not appear to be extremely anxious.4 (AR 334-340).5 Nowhere

4

Even though Petitioner did not appear overly anxious during this one-time visit, Dr.
Whitley nonetheless provided the diagnosis of anxiety with agoraphobia, presumably based upon
Petitioner’s subjective statements. See, e.g., Blair-Bain v. Astrue, 356 Fed. Appx. 85, 87 (9th Cir.
2009) (“Likewise, the ALJ appropriately rejected Dr. Deodhar’s diagnoses as to ailments other
than fibromyalgia, as they were based on [claimant’s] discredited subjective complaints and were
not based on objective medical findings.”).
5

During this time, Dr. William Hazle was also treating Petitioner. Dr. Hazle’s treatment
notes “bookending” Petitioner’s examination with Dr. Whitley reveals that Petitioner was not
regularly taking his medication during this period. (AR 350-351) (June 12, 2008 treatment note
MEMORANDUM DECISION AND ORDER - 16

did Dr. Whitley opine on Petitioner’s limitations owing to his mental disorder and, therefore,
never endorsed Dr. Hodson’s findings in these respects.
5.

From approximately January 16, 2008 to May 13, 2009, Petitioner saw Dr.

William Hazle. (AR 342-361). During this time, Dr. Hazle noted Petitioner’s depression and
anxiety, but, over time, found that Petitioner’s consistent use of prescribed medication improves
his mood and anxiety levels. (AR 342-343) (May 13, 2009 treatment note indicating Petitioner’s
GAF score of 55 and that mood was improving while anxiety was decreasing, stating that
“Lexapro [increase] has improved [Petitioner’s] mood and anxiety.”); see also (AR 55) (as to his
anger outbursts, Petitioner testifying: “I’m doing pretty good right now. Dr. Hazle has me on
medication for them to keep me relaxed and stabled out. Without them, it was pretty frequent.”);
(AR 70-71) (as to his mood, Petitioner testifying: “I don’t think I [experience] high[s] and low[s]
as much or at least not as easily, as fast.”).
6.

On August 27, 2007, Dr. Maximo J. Callao’s Psychiatric Review Technique

indicated that Petitioner suffered from only “mild” restrictions of activities of daily living and
difficulties in maintaining social functioning; and no difficulties in maintaining concentration,
persistence, or pace and no episodes of decompensation. (AR 246). Dr. Callao concluded
Petitioner’s mental condition as “non-severe.” (AR 248).
7.

On July 10, 2008, Dr. Michael J. Dennis performed a Mental Residual Functional

Capacity Assessment for Petitioner, finding that his ability to (1) remember locations and worklike procedures was not significantly limited; (2) understand and remember very short and

stating: “Has not been consistent with taking his meds = makes him moody [and] depressed;
easily agitated.” and “non-compliance with meds = [increase in] symptoms.”); (AR 349) (July
31, 2008 treatment note stating: “non-compliance again complicates his recovery.”).
MEMORANDUM DECISION AND ORDER - 17

simple instructions was not significantly limited; (3) understand and remember detailed
instructions was only moderately limited; (4) carry out very short and simple instructions was
not significantly limited; (5) carry out detailed instructions was only moderately limited; (6)
maintain attention and concentration for extended periods was only moderately limited; (7)
perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances was not significantly limited; (8) sustain an ordinary routine without
special supervision was not significantly limited; (9) work in coordination with or proximity to
others without being distracted by them was not significantly limited; (10) make simple workrelated decisions was not significantly limited; (11) complete a normal work-day and workweek
without interruptions from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods was only moderately limited; (12)
interact appropriately with the general public was only moderately limited; (13) ask simple
questions or request assistance was not significantly limited; (14) accept instructions and
respond appropriately to criticism from supervisors was not significantly limited; (15) get along
with coworkers or peers without distracting them or exhibiting behavioral extremes was only
moderately limited; (16) maintain socially appropriate behavior and to adhere to basic standards
of neatness and cleanliness was only moderately limited; (17) respond appropriately to changes
in the work setting was not significantly limited; (18) be aware of normal hazards and take
appropriate precautions was only moderately limited; and (19) travel in unfamiliar places or use
public transportation was not significantly limited; and (20) set realistic goals or make plans
independently of others was not significantly limited. (AR 258-259). Ultimately, after studying
the medical evidence, Dr. Dennis concluded:
MEMORANDUM DECISION AND ORDER - 18

Claimant has inconsistent results concerning his ability to understand and retain
information in two exams less than a year apart. While Claimant has a diagnosis of
anxiety with agoraphobia, he does not describe panic attacks and does go out of his
home. Claimant is able to understand, recall, and carry out instructions. Claimant
would do best in jobs which limit his interaction with the public. He is found
capable of simple, repetitive work activity from [Alleged Onset of Disability] to
present.
(AR 260).
8.

Also on July 10, 2008, Dr. Dennis performed a second Psychiatric Review

Technique and indicated that Petitioner suffered from “moderate” difficulties in maintaining
concentration, persistence, or pace; only “mild” restrictions of activities of daily living and
difficulties in maintaining social functioning; and no episodes of decompensation. (AR 272).
Dr. Dennis then reiterated his findings within the Mental Residual Functional Capacity
Assessment of that same date. (AR 274).
From such a record, there is no question that Petitioner suffers from several severe
impairments (acknowledged by the ALJ (see supra)) that inescapably impact his ability to do
somes types of work; however, it cannot be said, as Petitioner’s counsel does, that the “ALJ
failed to offer sufficient reasons for rejecting the treating physician opinion.” See Pet.’s Brief, p.
16 (Docket No. 13). While Dr. Hodson’s assessment as to Petitioner’s physical abilities may not
have been given the weight Petitioner would have preferred, it was not given independent of the
surrounding medical record. That is, in addition to Dr. Hodson’s opinions not being supported
by his own chart progress notes during the relevant time frame, such opinions are also arguably
at odds with other evidence in the record.
This Court’s responsibility is not to independently resolve the conflicting opinions and
ultimately decide whether Petitioner is once-and-for-all disabled as that term is used within the

MEMORANDUM DECISION AND ORDER - 19

Social Security regulations. Rather, this Court is tasked with determining whether the ALJ’s
decision is supported by the record. With this in mind, given the conflicting medical opinions
vis à vis Petitioner’s alleged physical impairments, the ALJ need only offer specific and
legitimate reasons, supported by substantial evidence in the record, for rejecting Dr. Hodson’s
medical opinion. See supra. Because the evidence can reasonably support the ALJ’s conclusion
in these respects, this Court will not substitute its judgment for that of the ALJ’s. See
Richardson, 402 U.S. at 401; Matney, 981 F.2d at 1019.
3.

Petitioner’s Credibility

Petitioner also takes issue with the ALJ’s conclusion that Petitioner’s statements
concerning the intensity, persistence, and limiting effects of his symptoms are not credible. See
Pet.’s Brief, pp. 16-17 (Docket No. 13). 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. Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990). In evaluating a claimant’s
credibility, the ALJ may consider claimant’s reputation, inconsistencies either in testimony or
between testimony and conduct, daily activities, past work record, and testimony from
physicians and third parties concerning the nature, severity, and effect of the alleged symptoms.
Light v. Social Security Admin., 119 F.3d 789, 791 (9th Cir. 1997). In short, “[c]redibility
decisions are the province of the ALJ.” Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). It
should be noted, however, that 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) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). Here,
the ALJ provided sufficient reasons for calling into question Petitioner’s credibility.

MEMORANDUM DECISION AND ORDER - 20

First, in support of his attack on the ALJ’s credibility analysis, Petitioner argues that
“[h]e has been diagnosed with cerebral palsy, particularly affecting his left side”; “[h]is leg is
shorter on the left, he has evidence of muscle atrophy and decreased strength”; [h]e has to use a
cane to walk.” See Pet.’s Brief, p. 17 (Docket No. 13). These conditions, however, existed well
before Petitioner’s alleged onset date and, therefore, offer little evidence of a recognized
disability under the law. See, e.g., Alexander v. Commissioner of Social Sec., 373 Fed. Appx.
741, 744 (9th Cir. 2010) (“The ALJ did not err in disregarding Alexander’s alleged fibromyalgia
as disabling. While the ALJ overlooked the fact that Dr. Emori had diagnosed fibromyalgia by
assessing tenderness in at least eleven of eighteen locations, Dr. Emori diagnosed fibromyalgia
in 1989, seven years before Alexander’s alleged onset date.”) (internal citations omitted); see
also (AR 287) (March 17, 2006 treatment note stating: “The patient has a long history of
neurologic evaluations, particularly due to recurrent headaches. This is not a new event.”).
Second, notwithstanding Petitioner’s testimony, the ALJ highlighted evidence suggesting
that Petitioner may not have been entirely objective when describing his alleged inability to
work. (AR 16). For example, despite Petitioner’s alleged inability to be gainfully employed, he
apparently has no issue spending significant amounts of time on his computer. See (AR 287)
(Dr. Fabiano’s March 17, 2006 treatment note stating: “He denies having any trauma that can
cause his condition, however he spends an ample amount, perhaps almost the whole day, in front
of a computer.”); (AR 313) (Dr. Hodson’s December 10, 2007 treatment note stating: “Overall,
his anxiety level is down, but has become rather involved in gaming.”); (AR 360) (Dr. Hazle’s
January 16, 2008 treatment note stating that Petitioner “likes computer groups”); (AR 336 &
339) (Dr. Whitley’s June 26, 2008 treatment note stating: “He is constantly on the computer. . . .
MEMORANDUM DECISION AND ORDER - 21

. For fun, he likes working with computers on the Internet”). This reality indicates that
Petitioner is not disabled to the extent he claims or, simply, not motivated or interested in
working,6 thus compromising the persuasiveness of his efforts to obtain disability benefits. The
ALJ properly incorporated this finding in questioning Petitioner’s credibility.
These reasons, together with the balance of potentially conflicting medical evidence (see
supra), offer clear and convincing explanations as to why the ALJ did not find Petitioner entirely
credible. 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. Commissioner 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).
IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences
from facts and determining credibility. See 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, the court may not substitute its own interpretation for
that of the ALJ. Key, 754 F.2d at 1549.

6

Petitioner and his attorney repeatedly point out that, at least with respect to one
instance, he was fired from his job because he failed a drug screening test due to over-thecounter cold medication. See Pet.’s Brief, p. 13 (Docket No. 13); see also (AR 68-69 & 211). If
true, this would suggest that, as of that time, Petitioner was indeed capable of working but for his
failed drug test.
MEMORANDUM DECISION AND ORDER - 22

As to the ALJ’s determination regarding Dr. Hodson and Petitioner’s credibility, the
evidence upon which the ALJ relied can reasonably and rationally support his well-formed
conclusions, despite the fact that such evidence may be susceptible to a different interpretation
by others.
However, the reasons given by the ALJ for concluding that Petitioner’s severe dysthymic
disorder does not meet or equal Listing 12.04 are improperly incomplete. Therefore, the Court
remands this action for further proceedings to correct the error.
V. ORDER
Based on the foregoing, Petitioner’s request for review is GRANTED. The
Commissioner’s conclusion that Petitioner’s dysthymic disorder does not meet or equal Listing
12.04 is reversed and this matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for
further proceedings consistent with this Memorandum Decision and Order. See Melkonyan v.
Sullivan, 501 U.S. 89, 99-100 (1991).
DATED: September 10, 2012

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 23