Sullender v. Berryhill
Filing
20
MEMORANDUM DECISION AND ORDER. The decision of the Commissioner be AFFIRMED and that this action be DISMISSED in its entirety with prejudice. Signed by Judge Ronald E. Bush. (alw)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
BRENDA LEE SULLENDER,
Petitioner,
Case No.: 4:18-cv-00075-REB
MEMORANDUM DECISION AND
ORDER
vs.
NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant,
Pending before the Court is Petitioner Brenda Lee Sullender’s Complaint/Petition for
Review (Docket No. 1), seeking review of the Social Security Administration’s decision denying
her applications for Social Security Disability Insurance benefits and Supplemental Security
Income for lack of disability. See generally Compl./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 September 24, 2014, Petitioner Brenda Lee Sullender (“Petitioner”) filed applications
for Title II Disability Insurance benefits and Title XVI Supplemental Security Income, alleging
disability beginning August 1, 2012. Both claims were denied on December 31, 2014 and, again,
on reconsideration on March 13, 2015. On March 30, 2015, Petitioner timely filed a Request for
Hearing. On February 15, 2017, Administrative Law Judge Stephen Marchioro held a hearing in
Pocatello, Idaho, at which time Petitioner, represented by attorney Dan Bott appeared and
testified. Impartial vocational expert, Sara Statz, also appeared and testified.
On March 22, 2017, the ALJ issued a Decision denying Petitioner’s claim, finding that
she was not disabled within the meaning of the Social Security Act. Petitioner timely requested
MEMORANDUM DECISION AND ORDER - 1
a review from the Appeals Council and, on December 15,2017, the Appeals Council denied
Petitioner’s Request for Review, making final the ALJ’s decision.
Having exhausted her administrative remedies, Petitioner timely filed the instant action,
arguing that “[t]he conclusions and findings of fact of the [Respondent] are not supported by
substantial evidence and are contrary to law and regulation.” Compl./Pet. for Review, p. 2
(Docket No. 1). In particular, Petitioner argues that “[t]he [residual functional capacity
assessment] is unsupported by substantial evidence because the ALJ failed to follow the treating
physician rule and the [residual functional capacity] is not supported by any medical opinion.”
Mem. ISO Pet. for Review, pp. 7-13 (Docket No. 17). Petitioner therefore requests that the
Court either reverse the ALJ’s Decision and find that she is entitled to disability benefits or,
alternatively, remand the case for further proceedings and award attorneys’ fees. See id. at p. 13;
see also Compl./Pet. for Review/Compl., 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
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
MEMORANDUM DECISION AND ORDER - 2
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).
As to questions of fact, the Court’s role is to review the record as a whole to determine
whether it contains evidence allowing a reasonable mind to accept the conclusions reached by
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 within the medical testimony (see
Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)), resolving any 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 contained in the record (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).
As 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. At the same time, the ALJ’s
construction of the Social Security Act is entitled to deference if it has a reasonable basis in law.
See id. However, reviewing federal courts “will not rubber-stamp an administrative decision that
is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying
the statute.” See 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 (see 20 C.F.R. §§
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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 her physical/mental
impairments are and regardless of her 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 Petitioner “has not engaged in substantial gainful activity
since August 1, 2012, the alleged onset date.” (AR 18).
The second step requires a determination of whether the claimant has a medically
determinable impairment, or combination of impairments, that is severe and meets the duration
requirement. See 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or
combination of impairments is “severe” 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 there is no severe
medically determinable impairment or combination of impairments, benefits are denied. See 20
C.F.R. §§ 404.1520(c), 416.920(c). The ALJ found that Petitioner has the following severe
impairments: “ulcerative colitis and abdominal pain status-post hernia surgery.” (AR 18).
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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 Petitioner’s abovelisted impairments, while severe, do not meet or medically equal, either singly or in combination,
the criteria established for any of the qualifying impairments. See (AR 19).
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. See 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. 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. On this point, the ALJ concluded:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b). In addition, the claimant is able to frequently
climb ramps and stairs, but only occasionally climb ladders, ropes or scaffolds. the
claimant also requires reasonable access to the bathroom in a normal office or factor
environment, and the claimant would be off-task for 8 percent or less of a workday
for bathroom breaks.
(AR 19).
MEMORANDUM DECISION AND ORDER - 5
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of 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. 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). Here, the ALJ found that Petitioner is capable of performing past relevant work as an
inspector-assembly party clerk and kitchen helper because such work does not require the
performance of work-related activities precluded by Petitioner’s RFC. See (AR 22-23).
Therefore, the ALJ concluded that Petitioner “has not been under a disability, as defined by the
Social Security Act, from August 1, 2012, through the date of this decision.” (AR 23).
B.
Analysis
The ALJ is responsible for resolving ambiguities and conflicts in the medical testimony.
See Magallanes, 881 F.2d at 750. The ALJ must provide clear and convincing reasons for
rejecting the uncontradicted medical opinion of a treating or examining physician, or specific and
legitimate reasons for rejecting contradicted opinions, so long as they are supported by
substantial evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). However,
“[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that
opinion is brief, conclusory, and inadequately supported by clinical findings.” Chaudhry v.
Astrue, 688 F.3d 661, 671 (9th Cir. 2012). Additionally, the ALJ may discount physicians’
opinions based on internal inconsistencies, inconsistencies between their opinions and other
evidence in the record, or other factors the ALJ deems material to resolving ambiguities. See
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999).
Here, Petitioner argues that the ALJ did not give the appropriate level of deference to the
opinions of her treating physician, David Beckstead, M.D. See Mem. ISO Pet. for Review, pp.
MEMORANDUM DECISION AND ORDER - 6
7-8 (Docket No. 17). Relevant here, Dr. Beckstead’s October 16, 2014 “Residual Functional
Capacity Questionnaire” diagnosed Petitioner with “chronic pain/[abdominal] pain syndrome,”
indicating symptoms of abdominal pain, chronic gastritis, and irritable bowel syndrome,
alongside a “poor” prognosis. (AR 400). Dr. Beckstead further concluded that Petitioner was
limited to (1) lifting/carrying less than 10 pounds frequently and 10-20 pounds occasionally; (2)
sitting 30 minutes at one time for a total of one hour in an eight-hour workday; and (3) standing
10 minutes at one time for a total of one hour in an eight-hour workday. See (AR 400-01). From
such limitations, Dr. Beckstead opined that Petitioner could not work. See (AR 400); see also
(AR 417) (October 17, 2014 treatment note: “All of these problems have resulted in a chronic
pain syndrome and an inability lift or do any significant work.”); (AR 432) (February 17, 2017
treatment note: “All of these daily symptoms make it so that she cannot successfully work.”).
The ALJ essentially agreed with Dr. Beckstead’s clinical observations, noting that
Petitioner suffered from ulcerative colitis and abdominal pain and that such impairments were
indeed severe. See (AR 18).1 But the ALJ could not adopt Dr. Beckstead’s opinion that
Petitioner is altogether incapable of any employment whatsoever. See (AR 21) (“The
undersigned finds that objective medical evidence does not support the extreme degree of
exertional limitations in [Dr. Beckstead’s] opinion, and it is unclear what the claimant would be
1
In this respect, the ALJ rejected the State agency medical consultants’ assessments of
Petitioner’s impairments, who determined that the medical evidence failed to establish a severe
impairment. See (AR 21) (“While these opinions are based upon a thorough review of the
available medical records and a comprehensive understanding of agency rules and regulations,
the State agency medical consultants did not have the same opportunity as the undersigned to
review the evidence submitted through the date of the hearing or to see and hear the claimant’s
testimony. The undersigned finds that the evidence received at the hearing level is sufficient to
find that the claimant’s ulcerative colitis and abdominal pain status-post hernia surgery are
severe impairments and determine her residual functional capacity. . . . . Even though the
undersigned finds that the severity and limitations of these conditions are not entirely supported
by the objective medical evidence, the treatment record reasonably supports finding that these
conditions more than minimally affect the claimant’s ability to perform basic work activities.”).
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doing for the remaining six hours of an eight-hour day if she is only able to sit and be on her feet
for a total of two hours.”).
The Court finds no fault with the ALJ’s ruling in that regard, particularly given the
applicable standard of review. It is undisputed that the medical record is scant; this reality, by
itself, cannot operate to reject Dr. Beckstead’s opinions outright. However, owing to the very
nature of Petitioner’s impairments and limited medical corroboration, Dr. Beckstead’s
unequivocal conclusions concerning Petitioner’s functional limitations are necessarily driven by
Petitioner’s own subjective complaints which the ALJ rejected as not credible (see (AR 20-21))
and which Petitioner does not contest here. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th
Cir. 2008) (ALJ may reject treating doctor’s opinion if it is based “to a large extent” on
claimant’s self-reports that have been properly discounted as not credible). Absent legitimate
substantiating moorings, Dr. Beckstead’s opinions on these points are revealed as overly vague
and speculative. See Bayliss, 427 F.3d at 1216 (ALJ not required to accept medical opinion that
is brief, conclusory, or inadequately supported by objective findings). In short, without more,
Petitioner’s understood impairments do not ipso facto amount to a disability determination. See
Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998) (“At all times, the burden is on the claimant to
establish her entitlement to disability insurance benefits.”); see also 20 C.F.R. §§ 404.1512(a),
416.912(a) (“In general, [a claimant] must prove to us that you are blind or disabled.”).2
This is particularly the case where, elsewhere in the record, Petitioner’s daily activities
reflect an inconsistency with a finding of disability. For example, despite Petitioner’s contention
2
Though concluding here that Dr. Beckstead’s opinions are not supported by the record
on the whole, the Court does not agree with the ALJ’s apparent attempt at casting them as
conflicting with the objective medical record by virtue of examinations showing “no deformities
or tenderness in the extremities, normal motor function, a full range of motion of all joints and
extremities, normal gait, and a soft non-tender abdomen.” (AR 20-21). Petitioner’s conditions
would not clearly cause such problems. See Mem. ISO Pet. for Review, pp. 8-9 (Docket No. 17).
MEMORANDUM DECISION AND ORDER - 8
that, “for the rest of the day,”3 she would “either be in the bathroom, reclining, or lying down”
(Mem. ISO Pet. for Review, p. 9 (Docket No. 17)), the ALJ appropriately referenced that
Petitioner is able to handle all personal care, prepare several-course meals, water the lawn, do
laundry, drive, shop in stores, and clean the house. See (AR 20) (“As for activities of daily
living, the undersigned finds that the claimant’s reported activities of daily living are not as
limiting as one would expect from an individual alleging complete diversity.”) (citing (AR 26573)). And, in post-alleged onset date treatment notes with the Nurse Practitioners of Preston,
Petitioner (1) controls her diarrhea and constipation “quite well with diet” (AR 350, 352, 354);
(2) “likes to ride motorcycles, fish, and work with horses” (AR 351, 353, 355); and (3) was
“encouraged to exercise on a regular basis, especially in doing stomach crunches to help
strengthen her back” (AR 355). The ALJ may discount the medical opinion where the prescribed
restrictions were inconsistent with the level of activity maintained by the claimant. See, e.g., Lee
v. Berryhill, 2017 WL 6629018, *1 (9th Cir. 2017) (finding that ALJ provided specific and
legitimate reasons to reject examining physician’s opinions where claimant’s “daily activities
[were] inconsistent with [the physician’s] conclusion that [the claimant] cannot work”); Curry v.
Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (where claimant “indicated that she was able to
take care of her personal needs, prepare easy meals, do light housework, and shop for some
groceries,” court found that “[a]n ability to perform such activities may be seen as inconsistent
with the presence of a condition which would preclude all work activity”).
Finally, although his treatment notes unquestionably paint the picture of a claimant
suffering from multiple severe impairments (with which the ALJ agreed), such notes are not
consistent justification for Dr. Beckstead’s accompanying opinions concerning Petitioner’s
3
By this, Petitioner is referring to the six hours in an eight-hour workday where she is
allegedly incapable of either sitting or standing, according to Dr. Beckstead. See supra.
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functional imitations and related inability to work. In other words, the fact that Petitioner
occasionally saw Dr. Beckstead for a litany of conditions operates only to establish that fact; if
those treatment notes do not foretell Dr. Beckstead’s opinion that Petitioner cannot work due to
impairments, their import extends only so far. To be sure, as indicated by the ALJ, it is possible
to interpret Dr. Beckstead’s treatment notes as indicating that Petitioner’s recognized severe
impairments are managed with a consistent medication protocol. See (AR 22) (“Dr. Beckstead’s
treatment notes contain minimal physical observations, and Dr. Beckstead noted in May 2015
that the claimant was doing very well with her current Prednisone dosage.”) (citing (AR 422)
(“She is here for her monthly re-fill”; doing very well on pred.”)); see also (AR 426) (“Went off
meds and got sick; went back on, doing better.”). Moreover, as also pointed out by the ALJ,
despite her allegations of disabling pain, Petitioner did not see Dr. Beckstead “for seven months
after a December 2015 visit.” (AR 22). The ALJ properly relied on this reason to discount
symptom testimony. See Marsh v. Colvin, 792 F.3d 1170, 1173 n.2 (9th Cir. 2015) (ALJ properly
considered treatment gap in assessing claimant’s symptoms); Burch v. Barnhart, 400 F.3d 676,
681 (9th Cir. 2005) (ALJ properly relied on three- to four-month treatment gap in discrediting
claimant’s testimony).4 Thus, a disconnect exists between Dr. Beckstead’s treatment notes that
merely highlight Petitioner’s medical conditions on the one hand, and his assertion that Petitioner
is effectively disabled as a result of those conditions on the other hand.
4
Petitioner argues that her “conservative treatment and infrequent office visits actually
support her claims for disability, as she cannot afford the treatment that would likely help her
improve so that she could work.” Mem. ISO Pet. for Review, pp. 9-10 (Docket No. 17) (citing
Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (claimant’s failure to receive medical treatment
during period that he had no medical insurance could not support adverse credibility finding.”)).
However, such an argument not only highlights Dr. Beckstead’s reliance on Petitioner’s selfreports (see supra), it also is belied by office visits during the same seven-month stretch for other
issues, including an injured rib (AR 424), and a cough with congestion (AR 427). Cf. (AR 40910, 412) (indicating Petitioner’s office visits with Dr. Beckstead for urinary tract infection and
sore throat, albeit in 2014).
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The Petitioner suffers from several impairments (acknowledged as “severe” by the ALJ
(see (AR 18)) that impact her ability to work; however, the ALJ provided clear and convincing
reasons for rejecting/questioning Dr. Beckstead’s opinions. These opinions were not given the
weight Petitioner argues that they deserved, but such opinions clearly were considered in the
context of the surrounding medical record. The Court’s duty here is not to ultimately decide
whether Petitioner is once-and-for-all disabled as that term is used within the Social Security
regulations. Rather, this Court must decide whether the ALJ’s decision that Petitioner is not
disabled is supported by the record. In this record, there are opinions, testimony, and accounts
that inform the ALJ’s decisions on how to consider Petitioner’s claims. His decision to discount
Dr. Beckstead’s opinions is supported by clear and convincing, specific, and legitimate reasons.
Hence, because the evidence can reasonably support the ALJ’s conclusions in these respects, this
Court will not substitute its judgment for that of the ALJ’s even if this Court were to have a
different view. See Richardson, 402 U.S. at 401; Matney, 981 F.2d at 1019.
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 decisions as to Petitioner’s disability claim were based on
proper legal standards and supported by substantial evidence. Therefore, the Commissioner’s
determination that Petitioner is not disabled within the meaning of the Social Security Act is
MEMORANDUM DECISION AND ORDER - 11
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, IT IS HEREBY ORDERED that the decision of the
Commissioner be AFFIRMED and that this action be DISMISSED in its entirety with prejudice.
DATED: June 17, 2019
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge
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