Bryson v. Berryhill

Filing 19

MEMORANDUM DECISION AND ORDER - Petitioners Petition for Review (Dkt. 1 ) is GRANTED, the decision of the Commissioner is REVERSED, and this action is REMANDED to the Commissioner of Social Security under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. 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 (cjs)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

ANITA J. BRYSON,

Case No.: 4:17-cv-00144-REB

Petitioner,
MEMORANDUM DECISION AND
ORDER

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

Pending is Petitioner Anita J. Bryson’s Petition for Review1 (Dkt. 1), appealing the Social
Security Administration’s final decision finding her not disabled and denying her claim for
disability insurance benefits. See 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 August 3, 2013, Petitioner Anita J. Bryson (“Petitioner”) protectively applied for Title
II disability and disability insurance benefits. (AR 22.) Petitioner alleged disability beginning
October 1, 2012. (Id.) Her claim was denied initially on January 9, 2014 and then again on
reconsideration on March 4, 2014. (Id.) On March 19, 2014, Petitioner timely filed a Request
for Hearing before an Administrative Law Judge (“ALJ”). (Id.) Petitioner appeared and testified
at a hearing held on January 13, 2016 in Pocatello, Idaho. (Id.) Impartial vocational expert Kent
Granat also appeared and testified at the hearing. (Id.)

1

The pleading was titled and framed as a complaint, but it is more properly treated as a
petition for review, as it seeks review of a final agency action.
MEMORANDUM DECISION AND ORDER – 1

On January 28, 2016, ALJ Lloyd E. Hartford issued a Decision denying Petitioner’s
claim, finding that Petitioner was not disabled within the meaning of the Social Security Act
during the period from her alleged onset date through the date of the decision. (AR 28.)
Petitioner timely requested review from the Appeals Council on or about February 10, 2016.
(AR 14, 18.) On January 31, 2017, the Appeals Council denied Petitioner’s Request for Review,
making the ALJ decision the final decision of the Commissioner of Social Security. (AR 1.)
Having exhausted her administrative remedies, Petitioner filed this case. She contends
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 2 (Dkt. 1). Petitioner argues
that the ALJ’s residual functional capacity assessment is unsupported by substantial evidence
and that the ALJ’s reasons for discounting Petitioner’s credibility were inadequate. See
generally Pet’r’s Mem. ISO Pet. for Review (Dkt. 16). Petitioner asks for reversal and a holding
that she is disabled, or, in the alternative, that the case be remanded for a further hearing. Pet. for
Review 2 (Dkt. 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); 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 her 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 did not engage in substantial gainful activity during the period from her alleged onset
date of October 1, 2012 through the date of the ALJ’s decision. (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
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

MEMORANDUM DECISION AND ORDER – 4

impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the
ALJ found that, through the date last insured, Petitioner had the following severe impairments:
“degenerative disk disease of the lumbar spine and generalized osteoarthritis.” (AR 24.)
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, her 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 did not
have an impairment or combination of impairments that met or medically equaled the severity of
one of the listed impairments. (AR 24–25.)
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 her
ability to do physical and mental work activities on a sustained basis despite limitations from her
impairments. 20 C.F.R. §§ 404.1545, 416.945. An individual’s past relevant work is work she
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 had the RFC:
to perform sedentary work as defined in 20 CFR 40.1567(a) except she can lift,
carry, push, and pull 10 pounds occasionally and less than 10 pounds frequently;
can stand and walk 4 hours and sit 8 hours of an 8-hour workday (with normal
breaks); can occasionally climb ramps and stairs, stoop, and crawl; can frequently

MEMORANDUM DECISION AND ORDER – 5

kneel and crouch; and can never climb ladders, ropes, or scaffolds. The claimant
must avoid concentrated exposure to vibration.
(AR 25.) Based on Petitioner’s RFC, the ALJ further found that Petitioner was capable of
performing her past relevant work as a Police Dispatcher. (AR 28.) Accordingly, he concluded
that Petitioner “has not been under a disability, as defined in the Social Security Act, from
October 1, 2012, through the date of this decision.” (AR 28.) The ALJ did not reach the fifth
step of the sequential analysis.
B.

Analysis
Petitioner raises two issues with the ALJ’s decision. First, she argues the RFC the ALJ

assigned is unsupported by substantial evidence because the ALJ failed to follow the treating
physician rule. Second, she argues the ALJ’s credibility determination with respect to Petitioner
is unsupported by substantial evidence. See generally Pet’r’s Mem. ISO Pet. for Review (Dkt.
16). Each argument will be addressed in turn.
1. The RFC Was Not Supported By Substantial Evidence.
Petitioner contends the ALJ’s RFC assessment is unsupported by substantial evidence
because he improperly discounted the medical opinions of treating provider Dr. Brad C. Erikson,
D.O., and because he failed to incorporate into the RFC a portion of the medical opinion of
consultative examiner Dr. Charles Boge, M.D., despite giving his opinion significant weight.
Pet’r’s Mem. ISO Pet. for Review 11–18 (Dkt. 16).
An ALJ must state “clear and convincing reasons that are supported by substantial
evidence” to reject an uncontradicted opinion of a treating physician. Trevizo v. Berryhill, 871
F.3d 664, 675 (9th Cir. 2017). To reject a contradicted opinion of a treating physician, an ALJ
must provide “specific and legitimate reasons that are supported by substantial evidence.” Id.

MEMORANDUM DECISION AND ORDER – 6

A. The ALJ Erred in Rejecting Dr. Erikson’s Medical Opinion.
Dr. Erikson is a treating provider who rendered three separate medical opinions in this
case. (AR 382, 409–411, 412.) In March 2014, he opined that Petitioner “is not able to be
gainfully employed. This mainly stems from not being able to stand for very long periods of
time or sit for very long periods of time without discomfort in her back, feet or ankles. It is of
my belief that she is not a candidate to be rehabilitated for work, unless there is something
extremely light duty, but even desk work would probably be problematic.” (AR 382.) In
January 2016, he further opined that Petitioner “still lives in significant pain with a constant dull
ache in her legs and back that does not allow her to work.” (AR 412.) Finally, Dr. Erikson
completed a physical assessment form in January 2016 in which he gave his opinion as to several
work-related limitations: Petitioner could sit only three hours and stand or walk only one hour in
an 8-hour workday, Petitioner would need to take unscheduled breaks multiple times per hour
during a workday, and Petitioner would likely be absent from work more than four times a
month as a result of her impairments. (AR 409–410.) Dr. Erikson also indicated on the form
that Petitioner’s impairments are reasonably consistent with the symptoms and functional
limitations described on the form. (AR 410.)
In evaluating Dr. Erikson’s medical opinions, the ALJ stated as follows:
The claimant’s treating physician, Brad Erikson, DO, provided several statements
regarding the claimant’s disability. Doctor Erikson provided a letter dated March
of 2014 indicating the claimant had multiple areas of degenerative joint disease
(supported by treatment records addressing degenerative disk disease of the lumbar
spine and generalized osteoarthritis). She responded well to prednisone medication
which allowed her to do some light housework, but he opined the claimant was “not
able to be gainfully employed” except for “something extremely light duty, but
even desk work would probably be problematic” (7F/l). This opinion by its own
conclusions does not rule out all work, was based on a very short treatment
relationship (6 months at that time), and relies too much on subjective reporting of
symptoms. In another letter from January 2016, he described that he had treated
the claimant for about two years for “a constant dull ache in her legs and back that

MEMORANDUM DECISION AND ORDER – 7

does not allow her to work” (13F). He opined, “It is my professional opinion that
she does have a significant disability unfortunately, mostly related to degenerative
joint disease with multiple joints involved. In the neck, low back, legs, hips, feet
and ankles.” The issue of disability is reserved to the Commissioner pursuant to
SSR 96-5p. His description of her limitation and difficulty with past work again
appeared to be based mostly on the claimant’s subjective reports. Doctor Erikson
also completed a physical Medical Source Statement (12F). He indicated the
claimant could sit 3 hours and stand or walk 1 hour of an 8-hour workday, would
need multiple breaks per hour and more than 4 days off per month, and could lift
only 10 pounds or less (12F/l-2). Although Dr. Erikson is a treating source, his
opinion is not well supported by objective findings or the claimant’s activities of
daily living. He labels the claimant as disabled, but also equivocates about what
activities she can do. For these reasons, the undersigned gives these opinions little
weight.
(AR 27–28.) Thus, the reasons the ALJ gave for rejecting Dr. Erikson’s opinions were that (1)
his treatment relationship with Petitioner was short; (2) he relied too much on Petitioner’s
subjective reporting of symptoms; (3) his opinions are not well-supported by objective findings
or the claimant’s activities of daily living; and (4) he equivocates about what activities she can
do. (Id.) Each of these reasons will be considered in turn. Because two State Disability
Determination Services doctors, Ward E. Dickey, M.D., and P. Michael O’Brien, M.D.,
contradicted Dr. Erikson’s opinions (AR 28), the ALJ was required to provide specific and
legitimate reasons for rejecting such opinions.
Social Security regulations provide that “[g]enerally, the longer a treating source has
treated you and the more times you have been seen by a treating source, the more weight we will
give to the source’s medical opinion. When the treating source has seen you a number of times
and long enough to have obtained a longitudinal picture of your impairment, we will give the
medical source’s medical opinion more weight than we would give it if it were from a
nontreating source.” 20 C.F.R. § 404.1527(c)(2)(i). In this case, the record reflects that Dr.
Erikson first treated Petitioner on or before September 5, 2013. (AR 337.) Thus, the ALJ was
correct in stating that Dr. Erikson’s March 2014 letter was based on a treatment relationship of

MEMORANDUM DECISION AND ORDER – 8

six months. However, the ALJ did not discuss whether the six-month period from October 2013
to March 2014 was long enough for Dr. Erikson “to have obtained a longitudinal picture of
[Petitioner’s] impairment.” Nor did the ALJ address the fact that Dr. Erikson’s March 2014
opinion was broadly consistent with his subsequent opinions rendered in January 2016. Each of
Dr. Erikson’s medical opinions of record documents his conclusion that Petitioner is disabled.
Because the ALJ mentioned this consistency, without remarking that Dr. Erikson’s opinions
were in any way inconsistent with each other, it was improper for the ALJ to discount the earlier
opinion based on a short treatment relationship.
The ALJ faulted Dr. Erikson for relying too much on Petitioner’s subjective reporting of
symptoms. However, the ALJ did not discuss or acknowledge objective medical findings in the
record that tend to support Dr. Erikson’s opinions. At Petitioner’s first appointment with Dr.
Erikson, she reported “chronic back pain and foot pain.” (AR 328.) Dr. Erikson diagnosed her
with degenerative joint disease (osteoarthrosis), foot pain, lumbago, and fatigue. (AR 329.)
Independently, Dr. Michael C. Biddulph, M.D., interpreted Petitioner’s lumbar spine x-ray by
recording the following findings: “There is severe degenerative disc disease at L4-L5 and L5-S1.
There is left lateral subluxation of L4 on L5. The other lumbar interspaces are normal in height.
No fractures are seen. Degenerative arthritis is noted in the lower lumbar facet joints. There is
mild leftward lumbar scoliosis.” (AR 381.) These findings were made in January 2014, just two
months before the first of Dr. Erikson’s opinions was rendered. Consultative examiner Dr.
Charles Boge, M.D., opined, also in January 2014, that Petitioner was “moderately limited” with
respect to sitting, standing, walking, lifting, and carrying “based on medical findings expressing
this examiner’s opinion of the claimant’s ability to do work-related physical activities.” (AR
377.) Moreover, the ALJ also indicated that Dr. Erikson’s March 2014 opinion was “supported

MEMORANDUM DECISION AND ORDER – 9

by treatment records addressing degenerative disk disease of the lumbar spine and generalized
osteoarthritis.” (AR 27.)
Dr. Erikson’s medical opinions do not expressly refer to other medical records in the case
file, whether his own or those of another source. But the opinions likewise do not expressly state
that they are based on Petitioner’s subjective reporting of symptoms. Although the ALJ found
the opinions were overly reliant on such subjective reporting, he did not identify any evidence or
otherwise explain why he believed this to be the case. In such a setting, where there is other
evidence in the record (both from Dr. Erikson and from other sources) to support Dr. Erikson’s
opinions, and where the ALJ himself acknowledged that some treatment records supported the
March 2014 opinion, the ALJ needed to support his finding with substantial evidence for it to
survive judicial review. He did not do so.
The ALJ did not specifically identify objective findings in the record that he found to be
inconsistent with Dr. Erikson’s medical opinions. Nor did he identify specific activities of daily
living that contradicted such opinions. This alone establishes that the ALJ did not provide a
“specific and legitimate reason[] that [is] supported by substantial evidence” for rejecting Dr.
Erikson’s opinions on this basis. Moreover, as mentioned supra, the record includes independent
findings that are at least broadly consistent with Dr. Erikson’s medical opinions. Furthermore,
the ALJ found that
Regarding her activities of daily living, [Petitioner] states that she has limited social
activities and mostly watches TV for leisure. Dressing, bathing and caring for hair
takes more time than it used to, and she has difficulty sleeping for more than a few
hours due to pain, she wrote (9E/2). However, the claimant indicated she is able to
shop in stores once or twice a week, drive, go outside for fresh air, clean her house,
do some lawn mowing, feed and care for pets, and prepare meals.
(AR 25.) This discussion occurred two pages earlier in the ALJ’s decision and is not otherwise
connected to his assessment of Dr. Erikson’s opinions except by the phrase “activities of daily

MEMORANDUM DECISION AND ORDER – 10

life.” The Court does not read anything in the ALJ’s decision about Petitioner’s stated activities
of daily life that is incompatible or inconsistent with Dr. Erikson’s medical opinions. Nothing in
the ALJ’s statement on her activities suggests that Petitioner could sustain such activities in a
work setting for long enough to qualify as substantial gainful activity. Thus, even assuming such
activities are the ones the ALJ had in mind when rejecting those opinions, the ALJ has not met
the standard to reject the opinions.
Finally, the ALJ states that Dr. Erikson “labels the claimant as disabled, but also
equivocates about what activities she can do.” (AR 28.) This assertion is only partially correct.
Dr. Erikson’s March 2014 opinion expressed uncertainty about whether Petitioner could perform
work that “is something extremely light duty,” opining that “even desk work would probably be
problematic.” (AR 382.) The Court is persuaded that the ALJ did not err to the extent that he
rejected this opinion because it was ambiguous about the extent of Petitioner’s functional
limitations.2 Dr. Erikson’s January 2016 letter falls into the same category. It was not uncertain
or ambiguous like the March 2014 letter, but it nonetheless was silent as to the extent of
Petitioner’s functional limitations besides expressing the ultimate opinion that she is disabled.
(AR 412.)
However, Dr. Erikson’s physical assessment form from January 2016 did not equivocate
about the activities Petitioner could perform. (AR 409–411.) It contained Dr. Erikson’s opinion
as to numerous concrete limitations about Petitioner’s limitations and requirements during an 8hour workday, such as her need to recline or lie down in excess of typical break periods, her
inability to sit for more than three hours or stand or walk for more than one hour per workday,

2

Moreover, the ultimate question of whether a claimant is disabled is reserved to the
Commissioner. 20 C.F.R. § 404.1527(d)(1).
MEMORANDUM DECISION AND ORDER – 11

her need to take unscheduled breaks of 5–10 minutes multiple times per hour, and the likelihood
that she would be absent from work more than four times per month due to her impairments.
(Id.) Each of these opinions was stated in definite, certain terms; nothing about any of them was
equivocal. The ALJ was free to disagree with such opinions, but to do so properly he needed to
provide specific and legitimate reasons for doing so. Stating that these unequivocal opinions
were equivocal was not sufficient.
In sum, the ALJ improperly rejected one of Dr. Erikson’s medical opinions, a physical
assessment that appears in the administrative record at pages 409–411. Hence, the assessed RFC
was not based on all of the relevant evidence of record. For this reason, the ALJ’s decision
cannot stand and Petitioner’s petition must be granted.
B. The ALJ’s RFC Was Inconsistent With Dr. Boge’s Credited Opinion.
Petitioner also contends the ALJ erred in assessing an RFC that was inconsistent with the
opinion of Dr. Boge, the consulting examiner whose opinion the ALJ credited. (AR 27.) Dr.
Boge opined, and the ALJ repeated, that Petitioner was “moderately limited” in sitting. (AR 27,
377.) Dr. Boge’s opinion in this regard was “based on medical findings expressing this
examiner’s opinion of the claimant’s ability to do work-related physical activities.” (AR 377.)
The ALJ gave the opinion “significant weight because it addresses specific functioning,
compares the claimant’s subjective reports with objective medical evidence, and is based on Dr.
Boge’s expertise and familiarity with the Social Security Administration’s program of
disability.” (AR 27.)
Yet the ALJ assessed Petitioner as having the RFC to “sit 8 hours of an 8-hour workday
(with normal breaks).” (AR 25.) He also acknowledged Petitioner’s allegations that she

MEMORANDUM DECISION AND ORDER – 12

“stopped working as a police dispatcher in 2012 due to difficulty sitting with low back pain” and
that “she cannot sit for an entire shift due to back pain.” (AR 25.)
The Court cannot reconcile the ALJ’s RFC imposing no limitation on Petitioner’s sitting
with his giving significant weight to Dr. Boge’s opinion that she was moderately limited in
sitting. Regardless of how one might define “moderately limited” sitting, it cannot be that sitting
8 hours of an 8-hour work day – which is no limitation at all – can be called a moderate
limitation.3 The ALJ must fully account for all aspects of a State agency opinion that is
purportedly assigned significant weight. Williams v. Berryhill, 2017 WL 1957127 at *3 (W.D.
Wash., May 11, 2017); see also SSR 96-8p, 1996 WL 374184, at *7 (Jul. 2, 1996) (“If the RFC
assessment conflicts with an opinion from a medical source, the adjudicator must explain why
the opinion was not adopted.”) Thus, the Court is persuaded that the ALJ committed reversible
error by simultaneously giving significant weight to the opinion of a consultative examiner while
assessing an RFC that is incompatible with such opinion.
The ALJ’s RFC assessment was not supported by substantial evidence both because it
excluded the improperly-rejected medical opinion of Dr. Erikson and because it failed to account
for the sitting limitation expressed in the credited opinion of Dr. Boge.
2. Petitioner’s Credibility Determination Was Not Supported by Substantial Evidence.
Petitioner contends the ALJ erred in discounting her credibility. Pet’r’s Mem. ISO Pet.
for Review 18–22 (Dkt. 16.) An ALJ may reject a claimant’s testimony about the severity of her

3

Respondent argues that SSA regulations define moderate limitation as “[y]our
functioning in this area independently, appropriately, effectively, and on a sustained basis is
fair.” Resp’t’s Br. 7 (Dkt. 17). But the quoted definition deal with evaluating the effects of a
claimant’s mental disorder, rather than the extent of her physical limitations. 20 C.F.R. Pt. 404,
Subpt. P, App. 1, at 12.00F2c; 81 Fed. Reg. 66137, 66164 (Sept. 26, 2016). The Court finds that
the quoted definition does not apply here.
MEMORANDUM DECISION AND ORDER – 13

symptoms only by offering specific, clear and convincing reasons for doing so. Dodrill v.
Shalala, 12 F.3d 915, 918 (9th Cir. 1993).
The ALJ’s decision did not address Petitioner’s credibility in detail. The ALJ stated that
“the claimant’s statements concerning the intensity, persistence and limiting effects of [her
alleged] symptoms are not entirely credible for the reasons explained in this decision. More
significantly, the medical evidence of record does not substantiate the claimant’s subjective
allegations of limitations and allegation of total disability.” (AR 26.) Immediately following
this statement, the ALJ spent the next two pages discussing medical evidence of record detailing
various physical examinations performed on Petitioner. (AR 26–27.) Although such discussion
includes several instances where the ALJ referred to normal physiology or only mild physical
issues, notably missing from the decision is any further mention of Petitioner’s credibility.
Rather, the focus is on the ALJ’s evaluation of the weight of the medical opinions in the record.
Moreover, the ALJ’s treatment of the evidence serves more as a neutral recitation of what the
record contains rather than a critical evaluation of the significance or meaning of its contents.
Additionally, Petitioner points out that the ALJ’s decision does not address Dr. Biddulph’s
findings from a January 2014 x-ray that included “severe degenerative disc disease.” Pet’r’s
Reply Mem. 3 (Dkt. 18); AR 381.
The reason the ALJ gave for discounting Petitioner’s credibility is that her allegations of
the limiting effects of her impairment are not supported by the medical evidence of record. As
an initial matter, the Court’s conclusion, described supra, that the ALJ erred in rejecting Dr.
Erikson’s medical opinion has the effect of undermining the ALJ’s credibility determination as
to Petitioner because such opinion supports Petitioner’s allegations. More to the point, however,

MEMORANDUM DECISION AND ORDER – 14

is that the ALJ’s reason for rejecting Petitioner’s credibility does not meet the standard of being
specific, clear, and convincing.
The ALJ may have intended to comment on Petitioner’s credibility when he mentioned
that the Petitioner “indicated she wanted to observe and consider her options rather than pursue
injections or surgery.” (AR 26.) Although this might be read to suggest that the ALJ disbelieved
the alleged severity of Petitioner’s impairments because she was not more proactive in seeking
treatment, he did not say so. The Court will not presume as to the ALJ’s beliefs or intentions in
his assessment of Petitioner’s credibility. On this record, and upon carefully reading the ALJ’s
decision, the Court is persuaded that the ALJ did not provide specific, clear, and convincing
reasons to support his credibility determination. Accordingly, the ALJ erred in rejecting
Petitioner’s credibility and her petition will be granted on this issue.
Early in the hearing, while the ALJ was asking Petitioner about Dr. Erikson’s treatment
of her, the ALJ described his own personal experience with seeing a medical source for back
pain:
Q

Well, what I’m looking at is this: I’ve got a doctor that does exactly the
same thing for me regarding my back. I’ve had two back surgeries, and
that’s what my primary family doctor does. I have a specialist that I go see
for my back when I’m having flare-ups in my back, and that’s my
orthopedic surgeon. That’s -- and he’s not your orthopedic surgeon. And
other than giving you the medications, checking your blood pressure
regarding toxicity, et cetera, providing different types of exercises and
recommendations, that’s all he does in respect to treating your disabling
impairments?

(AR 43.) Later, while the ALJ was questioning Petitioner about how long she can sit or stand,
the following exchange occurred:
Q
A
Q

Okay. And so after you’ve stood for 10 to 15 minutes, you generally have
to lie down?
Or sit down. One of the two.
Or sit down. All right. And that’s because of what reason?

MEMORANDUM DECISION AND ORDER – 15

A
Q
A
Q

A
Q
A

Well, if I’m, like, trying to cook something, I just try to rest enough till I
can go back and continue and finish what I’m cook or, you know, if I’m -Well --- in the middle of something that -- a project that I want to try to finish, you
know, I’ll rest until I feel that I can continue and try to get things -- get that
thing done.
Well, see, now, that response indicated to me that you’re not having a lot of
pain because you’re just going to lie down to rest and then you get up and
go do something and then continues what you’re doing.
I was anticipating you’d tell me the reason why you have to lie down after
standing for 10 or 15 minutes was due to your severe back pain, your leg
pain, your ankle pain, your feet pain.
Well -But it’s just the rest?
No, sir. It would be because of the pain. Just the duration of how long I
would be down would be depending on how pressing the issue at hand was.

(AR 53–54.) Finally, the ALJ questioned Petitioner’s reason for leaving her job:
Q
A
Q
A
Q
A
Q

A
Q
A
Q

A

So you were working 12-hour shifts for five years?
Yes.
So maybe that’s the reason why you decided to terminate that job; you got
tired of working 12 hours a day, five days a week?[4]
No. Actually, it was a very fulfilling -- it was a good job. You felt like you
were helping people and doing good for the community and -Well, then -It was an important job. I was sorry I had to leave.
Well, then, you know what that indicates to me? That your back and your
conditions couldn’t have been too serious if you could sit 12 straight hours
and never get a break except three breaks in 12 hours, every 4 hours. How
bad could your physical condition have been then?
Well, it got worse over time.
Yeah. Well -It certainly did.
-- I could understand that too, and I can certainly understand the fact that
after working the job 12 hours a day, five days a week for five years you’d
finally get tired of it and say, well, I’m not going to do this anymore. I can
understand that. So that’s another factor.
Well, and then if you also consider the fact that I was a detective sergeant
when I resigned -- or when I retired in Utah and then I went to a dispatcher,
that was a considerable step backward as far as rank or pay or level of skill
necessary to perform a job. But I was very proud of being a public servant.

4

Petitioner elsewhere testified that “our work [week] was two 8-hour shifts, two 12-hour
shifts. But because of staffing, many of those 8-hour shifts turned into 12s. So it wouldn’t be
uncommon that I might work four 12s. It wasn’t scheduled that way.” (AR 78.)
MEMORANDUM DECISION AND ORDER – 16

Q
A
Q

I’m very -- it was important to me to be able to help people and to have a
purpose in life. I felt like it was a job that I was very proud of having, and
it wasn’t just a job that I was tired of so I thought I’d quit.
Well -I was very sorry to leave.
-- I -- I certainly understand what you’re saying. I’m a public servant too
in this job that I have. We’re supposed to do 500 to 700 hearings a year -management says that, and they think we can spend two point five hours
doing each case, from reviewing the case to holding the hearing to driving
to the hearing, et cetera. And my job requires me to travel all over Montana
and Wyoming and Idaho. And -But the long and the short is this: I have reached the point where I physically
and mentally don’t work all the hours I had to do. I work 12 hours or more
in other words to do my job. So I certainly understand what you say, but
there is a point where mentally and physically you become exhausted -maybe exhausted’s the wrong word, but you reach that point of diminishing
returns.

(AR 76–78.)
In context, it is inescapable that the ALJ did not find Petitioner credible. What is not
clear is why. Because the ALJ did not provide specific, clear, and convincing reasons supported
by substantial evidence for questioning Petitioner’s credibility, the ALJ erred.
IV. CONCLUSION
Petitioner has shown that the ALJ committed reversible legal error by assessing an RFC
unsupported by substantial evidence and by improperly rejecting Petitioner’s credibility. The
ALJ did not provide adequate justification for rejecting the medical opinion of treating provider
Dr. Erikson. The ALJ also assessed an RFC that was inconsistent with the credited opinion of
consultative examiner Dr. Boge. Finally, the ALJ did not provide specific, clear, and convincing
reasons supported by substantial evidence for rejecting Petitioner’s credibility. For these
reasons, the ALJ’s decision is reversed. The appropriate remedy in this case is to remand for
further proceedings.

MEMORANDUM DECISION AND ORDER – 17

V. ORDER
Based on the foregoing, Petitioner’s Petition for Review (Dkt. 1) is GRANTED, the
decision of the Commissioner is REVERSED, and this action is REMANDED to the
Commissioner of Social Security under sentence four of 42 U.S.C. § 405(g) for further
proceedings consistent with this opinion.

DATED: September 28, 2018
_________________________
Honorable Ronald E. Bush
Chief U.S. Magistrate Judge

MEMORANDUM DECISION AND ORDER – 18