If Your Treating Doctor Says You Are Disabled, The Judge Must Grant You Benefits.

TALLEY v. ASTRUE BRENDA L. TALLEY, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant. April 11, 2012. MEMORANDUM OPINION AND ORDER BETH DEERE, Magistrate Judge. Plaintiff Brenda L. Talley appeals the final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying her claim for Disability Insurance benefits ("DIB") under Title II of the Social Security Act (the "Act") and Supplemental Security Income ("SSI") under Title XVI of the Act. For the following reasons, the decision of the Commissioner must be REVERSED and REMANDED. I. Background: Ms. Talley filed for DIB and SSI on May 15, 2008, claiming disability since June 23, 2007. Ms. Talley alleged that she was disabled as a result of diabetes, arthritis, anxiety, morbid obesity, malabsorption syndrome, agoraphobia, hypertension, supraventricular tachycardia, obsessive compulsive disorder, neuropathy, retinopathy, endometriosis, degenerative joint disease, chronic insomnia, and deep vein thrombosis. After denials initially and upon reconsideration, Ms. Talley requested a hearing before an Administrative Law Judge ("ALJ"). The ALJ held a hearing on July 6, 2009, at which Ms. Talley appeared with her attorney and testified. The ALJ also heard testimony from a vocational expert. The ALJ issued a decision on November 4, 2009, finding that Ms. Talley was not disabled for purposes of the Act. On January 20, 2011, the Appeals Council denied her request for review, making the ALJ's decision the Commissioner's final decision. At the time of the hearing before the ALJ, Ms. Talley was 47 years old and was living alone in a house next door to her mother and brother. (Tr. 19, 40-41) She had previous work as a registered nurse. II. Decision of the Administrative Law Judge: The ALJ followed the required five-step sequence to determine: (1) whether the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the impairment (or combination of impairments) met or equaled a listed impairment; (4) if not, whether the impairment (or combination of impairments) prevented the claimant from performing past relevant work; and (5) if so, whether the impairment (or combination of impairments) prevented the claimant from performing any other jobs available in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)-(g); 416.920(a)-(g). The ALJ found that Ms. Talley had not engaged in substantial gainful activity since her alleged disability onset date but noted that she had received unemployment benefits into the first quarter of 2008, indicating she was available and willing to return to work during that period. The ALJ also found that Ms. Talley had the following severe impairments: diabetes mellitus, back disorder (degenerative arthritis), obesity, and mood disorder. According to the ALJ, Ms. Talley did not have an impairment or combination of impairments, however, that met or equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1526, 416.926). The ALJ determined that Ms. Talley retained the residual functional capacity ("RFC") to perform sedentary work except as follows: she could occasionally lift/carry ten pounds and frequently lift/carry less, stand/walk for two hours; occasionally climb, balance, crawl, kneel, stoop, and crouch. She had moderate restriction in her ability to maintain the activities of daily living, social functioning, and concentration, persistence, and pace. She was moderately limited in her ability to understand, remember, and carry out detailed instructions; make judgments on simple work related decisions; interact appropriately with the public; and respond appropriately to usual work situation and routine work changes. She could perform work where interpersonal contact was incidental to the work performed, complexity of tasks is learned and performed by rote, with few variables, little judgment was required, and supervision was simple, direct, and concrete. The ALJ concluded that Ms. Talley could not perform her past relevant work as a registered nurse. (Tr. 58) Relying on the vocational expert's responses to interrogatories, the ALJ concluded Ms. Talley could perform work as a production worker, credit authorizer, or interviewer and that she was not disabled within the meaning of the Act. III. Analysis: A. Standard of Review. In reviewing the Commissioner's decision, this Court must determine whether there is substantial evidence in the record as a whole to support the decision. Substantial evidence is something less than a preponderance, but it must be, "sufficient for reasonable minds to find it adequate to support the decision." In reviewing the record as a whole, the Court must consider both evidence that detracts from the Commissioner's decision and evidence that supports the decision; but, the decision cannot be reversed, "simply because some evidence may support the opposite conclusion." B. Severe Impairments and Residual Functional Capacity Ms. Talley complains that the ALJ erred by failing to find that her diabetic retinopathy, supraventricular tachycardia (SVT), peripheral neuropathy, and hip pain were severe impairments. She also complains that the ALJ's residual functional capacity assessment is not supported by substantial evidence in the record. Ms. Talley had the burden of showing that her impairments were severe; however, this burden is not a great one. Rather, step two of the sequential evaluation process provides a de minimus screening device to dispose of groundless claims. An impairment is severe if the effect of the impairment on the claimant's ability to perform basic work is more than slight or minimal. Basic work activities are the abilities and aptitudes necessary to do most jobs, such as hearing, standing, walking, sitting, lifting, handling, remembering simple instructions, using judgment, and dealing with changes in a routine work setting. 20 C.F.R. §404.1521. The Commissioner must resolve any doubt as to whether the required showing of severity has been made in favor of the claimant. SSR 85-28 at *4 (1985). Once it is determined that an individual has a severe impairment for purposes of step two, the combined effect of all impairments are considered in determining an individual's residual functional capacity, regardless of whether the impairments are labeled severe or non-severe. 20 C.F.R. §§ 404.1545(e) and 416.945(e). In assessing residual functional capacity, the ALJ must give appropriate consideration to all of the claimant's impairments, and base the assessment on competent medical evidence. Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011) (citations omitted). An ALJ should consider the quality of the claimant's daily activities and the ability to sustain activities, interests, and relate to others over a period of time. The frequency, appropriateness, and independence of the activities must also be considered. Boettcher, 652 F.3d at 866 (internal quotation marks and citation omitted). 1. Diabetic Retinopathy Ms. Talley claims that the ALJ erred by failing to find that her diabetic retinopathy was a severe impairment. The ALJ noted that Ms. Talley had been referred for an evaluation of diabetic retinopathy and stated that her diabetes could be expected to cause vision changes. But he did not find her diabetic retinopathy to be a severe impairment; nor did he discuss Ms. Talley's vision when assessing her residual functional capacity. The Commissioner does not dispute that Ms. Talley was diagnosed with diabetic retinopathy, but argues that the diagnosis, by itself, does not indicate a severe impairment. This statement of the law is true, as far as it goes. However, the ALJ still had a duty to consider Ms. Talley's diabetic retinopathy when considering her residual functional capacity, and it appears that he failed to do so. In November, 2009, Ms. Talley was referred for an eye examination after complaints that her eyes were hurting. The records from Ms. Talley's visit to an opthamologist in November, 2008, indicate that she had a history of retinal bleeding and glaucoma. In a narrative report dated November 13, 2009, Gary Russell, M.D., a physician at River Valley Medical Center, wrote that, according to her ophthalmologist, Ms. Talley had diabetic retinopathy with marked decrease in her vision and at least one retinal hemorrhage that was treated with laser therapy. On November 19, 2009, Ms. Talley was seen at River Valley Christian Clinic ("River Valley") complaining of vision problems. She was referred to an eye doctor. At the hearing, Ms. Talley testified that she had glasses, but that they were for distance vision and not for reading. She stated that she was no longer able to read the newspaper because her vision was impaired. However, she was able to read a large-print Bible. She also testified that one reason she used a cane was to help her deal with her visual impairment because she had difficulty detecting depth and color change. In spite of considerable evidence in the record indicating that Ms. Talley's diabetic retinopathy has more than a minimal effect on her ability to work, it does not appear that the ALJ considered it when assessing her residual functional capacity. The ALJ found that Ms. Talley was capable of working as a production worker which, according to the Dictionary of Occupational Titles, would require her to frequently use near acuity and depth perception, and to occasionally use color vision. Employment and Training Admin., U.S. Dep't of Labor, Dictionary of Occupational Titles (4th ed. rev. 1991). Further, it does not appear that any consulting or examining source offered an opinion about the extent of visual limitation caused by Ms. Talley's retinopathy. Remand is necessary for the ALJ to more fully and fairly develop the record regarding the extent of Ms. Talley's visual impairment, if any. 2. Peripheral Neuropathy On November 7, 2007, Kenneth Turner, M.D., diagnosed Ms. Talley with diabetic peripheral neuropathy. On September 18, 2008, Ms. Talley complained of numbness and tingling during her visit to River Valley. At the hearing, Ms. Talley testified that her feet and legs were cold and numb bilaterally. She stated that she had problems with strength and grip, could not open jars, and dropped things. She had difficulty holding a glass of milk because of problems with her grip. She also stated that her peripheral neuropathy caused her knees to buckle, leading her to use a cane. (Tr. 30) She had difficulty getting up and down the three steps leading to her house. In his opinion, the ALJ acknowledged Ms. Talley's diabetic neuropathy and considered whether there was documentation of neuropathy in two extremities significant enough to meet a Listing. He also noted that her diabetes could cause "tingling and numbness" in the hands or feet. When assessing Ms. Talley's residual functional capacity, however, the ALJ focused his assessment only on the neuropathy in her feet. He noted that she had reported numbness, tingling, and pain in her feet. The ALJ stressed, however, that the orthopedic specialist had found that she had normal gait, that her neurovascular status was intact, and that she had positive straight leg tests. The ALJ concluded that Ms. Talley could sit for six hours; stand/walk for two hours; and could occasionally climb, balance, crawl, kneel, stoop, or crouch. The ALJ did not address the evidence in the record indicating that Ms. Talley's peripheral neuropathy also affected her hands. He did not limit her residual functional capacity in any way related to her hands and concluded she could perform work as a credit authorizer and interviewer — jobs that require frequent handling. The ALJ's failure to fully account for Ms. Talley's peripheral neuropathy in assessing residual functional capacity is error. Again, it does not appear that any examining medical professional had ordered a nerve conduction study of Ms. Talley or had offered an opinion as to the extent of the limitation caused by her peripheral neuropathy. On remand, the Commissioner should consider the effect, if any, that Ms. Talley's peripheral neuropathy in her legs, hands, and feet has on her residual functional capacity. 3. Hip Pain Ms. Talley alleges that it was error for the ALJ not to conclude that her hip pain was a severe impairment. The ALJ acknowledged Ms. Talley's complaints of hip pain at various points in his opinion. He noted that Ms. Talley complained of hip pain to Dr. Turner, who recorded in treatment notes that Ms. Talley had a right hip that "pops out at times." The ALJ also acknowledged that Ms. Talley was examined by Owen Kelly, M.D., at Arkansas Orthopaedic Institute in November, 2007. Dr. Kelly took x-rays of Ms. Talley that revealed some degenerative disc disease. On examination, he noted that she had normal gait, but tenderness of the greater trochanter bursa and around the lumbosacral area. He diagnosed low back pain, degenerative disc disease, and right leg radiculopathy. He ordered an MRI of Ms. Talley's lumbar spine, but she reported to Dr. Turner that she was unable to have the test because of her financial situation. On October 2, 2008, Ms. Talley complained of hip pain during a visit to Stanley Teeter, M.D., at River Valley. She was diagnosed with degenerative arthritis in her hip. Dr. Teeter prescribed Etodolac but, as the ALJ noted, that medication was discontinued due to gastritis. At her hearing, Ms. Talley testified that Dr. Teeter had told her she had "bone against bone" on her right hip, and that her hip socket was degenerated. She stated that he had advised her to keep as much weight as possible off of it, so she used a cane. Additionally, Ms. Talley testified that she was not able to bend down to pick up objects that dropped on the floor. She relied on her brother or mother to come to her house and do that for her. The ALJ discounted the effects of Ms. Talley's hip pain, noting that no surgical treatment was recommended. However, Dr. Kelly, the orthopedic specialist, had ordered an MRI in order to have a complete work-up on Ms. Talley, but she was not able to have the test because of her limited financial resources. She never returned to Dr. Kelly, but instead continued to seek treatment for hip pain from her general practitioners at the free clinic. Further, the ALJ noted that none of Ms. Talley's doctors had restricted her activities. However, Ms. Talley's testimony contradicts this assertion. She testified that Dr. Teeter had advised her to keep as much weight off of her hip as possible. The ALJ's opinion does not offer any explanation for discrediting this testimony. Further, Dr. Russell, one of Ms. Talley's treating physicians, stated that Ms. Talley was unable to sit or stay in one position for an extended period of time. While the ALJ did not have Dr. Russell's assessment at the time he wrote his opinion, the Court may consider that opinion, which was available to, and considered by, the Appeals Council. The court's role is to determine whether the ALJ's decision is supported by substantial evidence including the evidence submitted after the determination was made. The ALJ's conclusion that Ms. Talley could perform sedentary work and could occasionally climb, balance, crawl, kneel, stoop, and couch is not supported by substantial evidence in the record. 4. Mental Impairments Ms. Talley also claims that the ALJ erred in assessing her mental impairments. The ALJ concluded Ms. Talley had moderate restriction in activities of daily living; in her social functioning; and in concentration, persistence, and pace. He noted that she was hospitalized in 2001 following a suicide attempt. The ALJ found that Ms. Talley's mood disorder was a severe impairment, but he concluded that she maintained the residual functional capacity for unskilled work. Ms. Talley points out that the ALJ declined to discuss the mental consultative examination performed by Don Ott, Psy.D., on September 17, 2008. Dr. Ott observed that, during the examination, Ms. Talley's affect was rigid and flat. He stated that she made very little eye contact, and that her voice was tired and resigned. She seemed distracted and talked excessively during the evaluation. Dr. Ott concluded that Ms. Talley's social interaction was "fairly limited." Her concentration was impaired, and her capacity to cope with the mental demands of work was deficient. Dr. Ott diagnosed Ms. Talley with major depressive disorder, recurrent, moderate and assigned a GAF score of 50-60. The Commissioner points out that the ALJ addressed Dr. Ott's opinion by stating, "the opinions of the claimant's examining and treating physicians are given substantial weight consistent with 20 C.F.R. 404.1527." Further, he argues that Dr. Ott's opinion is not contradictory to the ALJ's assessment of Ms. Talley's residual functional capacity, pointing out that Dr. Ott "never opined as to Plaintiff's actual limitations in concentration or any work-related domain." The ALJ's handling of Dr. Ott's opinion was inadequate. As explained in Social Security Ruling 96-6p, administrative law judges and the Appeals Council are not bound by findings made by State agency or other program physicians and psychologists, but they cannot ignore these opinions and must explain the weight given to the opinions in their decisions. SSR 96-6p (1996). Dr. Ott's opinion that Ms. Talley's concentration was impaired and that her ability to cope with the mental demands of work was deficient should have at least been addressed by the ALJ in his opinion. The ALJ's assessment of Ms. Talley's treatment records was also deficient. In his opinion, the ALJ based his residual functional capacity assessment on the July, 2008 assessment of Richard H. Sundermann, Jr., M.D. (Tr. 443-44) Dr. Sundermann recounted Ms. Talley's history of depression and anxiety. He noted that she had been unable to afford Effexor and had switched to a generic, but had been unable to afford even an adequate dose of the generic drug. He diagnosed Ms. Talley with moderate, recurrent major depressive disorder and prescribed Effexor, which he could supply to her through a patient assistance program. The ALJ states the Effexor resulted in fewer suicidal thoughts and an improved mood. He summarized the remaining treatment notes by stating that Ms. Talley continued to attend therapy sessions and medication management, "with a few more changes in the medications and improvement of her mood." Based on this analysis of Ms. Talley's treatment records, the ALJ concluded that she could perform unskilled work. The ALJ's assessment that Ms. Talley's depression and anxiety were controlled with medication and therapy is not supported by substantial evidence in the record. In April, 2008, Ms. Talley complained of increased anxiety and depression to Dr. Turner. He referred her to Counseling Associates noting that, "[s]he is not actually suicidal but needs more intensive care for depression than I can provide alone." In May of 2008, Ms. Talley called Dr. Turner's office seeking samples of Effexor because she could not purchase her medication. He was unable to provide samples of Effexor and changed her medication to Cymbalta. On June 4, 2008, Ms. Talley presented to Counseling Associates complaining of anxiety and depression since she was a child. She reported daily symptoms of depression and anxiety, stating that her social anxiety was so severe that she remained isolated and felt like a failure. She was initially diagnosed with major depressive disorder, recurrent, moderate, without psychotic features, and anxiety disorder with agoraphobia. She was assigned a GAF score of 50. (Tr. 331-336) On July 9, 2008, Dr. Sundermann evaluated Ms. Talley. He noted that she had a difficult time digesting her food and medicine because she had undergone gastric bypass surgery in 2001. He stated that Prozac, which Ms. Talley had previously taken with good result, had stopped working. She reported a failed suicide attempt years earlier, which had resulted in her being psychiatrically hospitalized for seven days. Dr. Sundermann prescribed Effexor XR and therapy. On August 26, 2008, Ms. Talley began therapy with Erin Willcutt, LAC. On September 8, 2008, Ms. Talley was evaluated by Sam Hernandez, APN. Progress notes from the visit indicate that Ms. Talley reported that her depression seemed worse and that she wanted to stay in bed most of the time. She was observed to have a flat affect and admitted to having fleeting suicidal thoughts with a plan at times. Nurse Hernandez increased her Effexor, and Ms. Talley agreed to allow her brother to help her manage her medications. During a therapy session on September 12, 2008, Ms. Talley seemed to be doing better. But on October 1, 2008, her therapist noted that her response to treatment has been "marginal," and her anxiety level was very high. On October 6, 2008, Ms. Talley returned to Nurse Hernandez, who noted that she seemed to be doing quite a bit better. Ms. Talley returned to see Ms. Willcutt on October 14, 2008. Ms. Willcutt noted that Ms. Talley seemed to be doing a little better, but still has difficulty getting motivated to do things to improve her situation. During visits on November 12, 2008, and December 9, 2008, Ms. Talley reported doing better. On December 11, 2008, Nurse Hernandez diagnosed major depressive disorder, recurrent, moderate and continued her on Effexor and individual therapy. On January 15, 2009, Ms. Talley reported feeling a little more depressed, but she returned on February 4, 3009, to report feeling better. Ms. Willcutt noted that at her session on March 6, 2009, Ms. Talley had a depressed mood. She noted that Ms. Talley was not doing as well as she had been at her last visit and reported feeling very depressed after her mother had yelled at her. Ms. Talley was examined by Roy Ragsdill, M.D., on April 7, 2009. Ms. Talley complained to Dr. Ragsdill of problems with her mother and social anxiety. He suggested adding dependent personality traits to her diagnosis and noted that Ms. Talley had only a "partial response to Effexor" but that he was "reluctant" to change her medications. He continued her medications and suggested an increase in therapy to weekly. Ms. Willcutt reported that on April 21, 2009, Ms. Talley's response to therapy was "minimal" and her thought patterns were "very negative." Ms. Willcutt suggested that they increase their sessions. On May 5, 2009, Ms. Talley was noted to have a very depressed mood, negative thought process, and very tearful behavior. Ms. Talley admitted to thoughts of wanting to die and not wanting to go on, but denied any plan or intent to harm herself. Ms. Willcutt discussed possible acute care with Ms. Talley, but she rejected the idea because she had formerly worked at the acute unit and felt this would make her feel like more of a failure. Ms. Willcutt noted that cognitive therapy was minimally successful and noted her intention to meet with her case manager and discuss the case with Ms. Talley's psychiatrist. Ms. Willcutt recommended an increased level of care for Ms. Talley with weekly therapy and meetings twice per month with her case manager. Notes from Ms. Talley's May 20, 2009 therapy session indicate that she exhibited depressed mood, negative thought process, and no change in behavior of functioning. On June 16, 2009, Dr. Ragsdill examined Ms. Talley. He noted that her mood was somewhat better, but discussed with her the possibility of adding lithium as an augmentation to her treatment. Ms. Talley rejected the idea. Notes from Ms. Talley's therapy session with Ms. Willcutt on November 18, 2009, indicate that Ms. Talley's response to therapy was not positive. She stated, "Brenda is very depressed and apathetic about her current living situation. She was very negative in session and reports having no energy to do or work on current situation. She reports feeling like `Brenda' is slipping away." Ms. Willcutt noted that "Brenda is isolating and avoiding friends, family, and appointments when possible." She recommended that Ms. Talley increase the frequency of her therapy sessions and case management appointments. Ms. Willcutt met with Ms. Talley again on December 9, 2009. She noted that Ms. Talley's mood was depressed and overwhelmed; her thoughts were negative; and her behavior was anxious. Ms. Talley reported difficulties living with her mentally ill mother and brother. Ms. Willcutt noted that Ms. Talley's activity level was "significantly reduced." On December 9, 2009, Ms. Talley was also seen by her psychiatrist, Dr. Ragsdill. He noted that Ms. Talley was walking with a cane, was anxious, and did not want to go out much. He assessed that she was having an "incomplete response" to her antidepressant regimen. He increased her Effexor to the maximum dose and added lithium. In a treatment and prognosis summary dated December 13, 2009, Ms. Willcutt noted that Ms. Talley's depression and anxiety had increased over the past several months. She pointed out that Ms. Talley's thought patterns were increasingly negative and her anxiety was more apparent. She stated that she had agreed with her current diagnosis of major depressive disorder, recurrent, moderate to severe and anxiety disorder NOS and stated that, in her opinion, Ms. Talley's prognosis was guarded, due to the recurrent nature of her mental disorder and severe stressors. Evidence from treating sources are generally accorded great weight because they are most able to provide a longitudinal picture of a claimant's impairments. 20 C.F.R. § 416.927. The ALJ had access to Ms. Talley's treatment records from Counseling Associates through June, 2009, but opted to focus on the first few months of her treatment, when she showed some signs of improvement. The Appeals Council had access to Ms. Talley's records through December, 2009, but concluded that the information did not provide a basis for changing the ALJ's decision. The Court disagrees. The treating source records, taken as a whole, indicate that Ms. Talley's depression and anxiety had not improved on medication but, in fact, steadily declined after March of 2009. The ALJ erred by failing to address Dr. Ott's opinion and by relying on a six-month snapshot of Ms. Talley's treatment records when assessing her mental residual functional capacity. IV. Conclusion After consideration of the record as a whole, the Court concludes that the decision of the Commissioner is not supported by substantial evidence. The Commissioner's decision is reversed and remanded for action consistent with this opinion. IT IS SO ORDERED.

Illegal Immigrants, Social security benefits, and Freedom Of Information Act

RODRIGUEZ-CERVANTES v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
RAUL RODRIGUEZ-CERVANTES, Plaintiff, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

Civil Action No. 11-1387 (JEB).

United States District Court, District of Columbia.

April 6, 2012.

RAUL RODRIGUEZ-CERVANTES, Plaintiff, Pro Se.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant, represented by Fred Elmore Haynes, U.S. ATTORNEY’S OFFICE.
SOCIAL SECURITY ADMINISTRATION, Defendant, represented by Fred Elmore Haynes, U.S. ATTORNEY’S OFFICE.

MEMORANDUM OPINION
JAMES E. BOASBERG, District Judge.
Plaintiff Raul Rodriguez-Cervantes, a federal prisoner incarcerated in Post, Texas, brings this pro se suit under the Freedom of Information Act, 5 U.S.C. § 552. In so doing, Plaintiff seems to have put the cart before the horse. Plaintiff has brought a FOIA suit before first having his FOIA request denied. Indeed, he has brought a FOIA suit before even submitting a FOIA request. As such, the Court will grant Defendants’ Motion for Summary Judgment and dismiss the case without prejudice.
I. Background
On December 15, 2010, Plaintiff sent a letter to Defendant Social Security Administration (SSA) seeking assistance regarding applying for social security benefits. The letter stated in relevant part:
I worked in the United States for about 15 years and always paid my social security deductions. Now I am a federal prisoner and upon the expiration of my sentence I will be removed to Mexico, my native country. At this time, I would like to know if there is any way/application to get my social security benefit before the age established by the S.S. policies. My question is due to the fact that I will be deported from this country and I do not know whether I should have a relative or friend in this country (which I do not have) to get those benefits or I should file some forms to get it in advance of the age required by the S.S. Administration.

SSA responded with a standard form letter in which it informed Plaintiff that “[n]either Social Security benefits not SSI payments are payable to prisoners just because they are being released or because they have been in prison.” In addition to providing Plaintiff with a phone number to call if he wished to file for social security benefits, SSA enclosed in the letter two brochures entitled “Social Security: What Prisoners Need To Know” and “Social Security: Entering The Community After Incarceration—How We Can Help.”
On April 8, 2011, Plaintiff sent another letter to SSA stating:
This is a request for Social Security Disability Benefits.
In suport of my request, a deportation from the United States will be executed as soon as my current sentence be completed. The term of deportation is undefined. Although, my age is not the required in accordance with the proceedings, however, there is undisputable that a deportation will satisfy more than the necessary disability [sic].
Accordingly, please provide me with the necessary information in order to proceed with my request.
According to Plaintiff, on April 20, 2011, the agency responded with “an identical letter as the [prior one].”
Finally, on May 12, 2011, Plaintiff sent yet another letter to SSA stating:

I am an inmate incarcerated at the Giles W. Dalby Correctional Facility in Post, Texas. Since I can’t visit your office in Lubbock and I have no access to a computer, I am requesting that you please send me an application so that I may apply for my social security benefits.
Opp., Exh. 2 (Plaintiff’s Letter). This time, SSA responded with “Social Security Earnings Information,” and Plaintiff was informed that SSA was “returning [his] request for information from [his] earnings record” because “[i]n light of the current budget situation, [SSA has] suspended the Request[-]a[-]Social[-]Security[-]Statement service.” Opp., Exh. 1 (SSA Letter). Plaintiff was, however, given the option to go online to estimate his retirement benefits using SSA’s online Retirement Estimator. Id.
No other record exists of Plaintiff’s seeking to obtain information from SSA. Plaintiff has nonetheless brought this FOIA suit seeking the “disclos[ure] . . . [of] his entire record as maintained within the System of Records of the Social Security Administration Office on December 15, 2010, together with any other records pertinent to the said request.” Before the Court now is Defendant’s Motion for Summary Judgment.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record.” The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. “[A] material fact is `genuine’ . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party” on an element of the claim. Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary.
FOIA cases typically and appropriately are decided on motions for summary judgment. In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations if they are relatively detailed and when they describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.’”
III. Analysis


The sole basis for Plaintiff’s FOIA claim seems to be that SSA did not produce “his entire record as maintained within [SSA's] System of Records” in response to his December 15 letter, which merely requested “to know if there is any way/application to get my social security benefits before the age established by the S.S. policies.” The natural question raised by this claim is whether the December 15 letter—or indeed any of Plaintiff’s other letters to SSA—somehow amounts to a FOIA request. Although common sense offers an answer to this question, the Court will probe further.
A valid FOIA request must (i) “reasonably” describe the records sought and (ii) must be made “in accordance with [the requested agency's] published rules stating the time, place, fees (if any), and procedures to be followed.” [s] specifically to the FOIA.” Importantly, “an agency’s obligations commence upon receipt of a valid request; failure to file a perfected request therefore constitutes failure to exhaust administrative remedies.” And, as is well settled, a FOIA suit cannot be sustained where the plaintiff has failed to exhaust his administrative remedies. (“It goes without saying that exhaustion of remedies is required in FOIA cases.”)). Since SSA requires that all FOIA requests actually “ask for records,” any purported request that does not do so is invalid. A requester that fails to ask for records, therefore, fails to exhaust his administrative remedies.
Even if given the liberal interpretation that Plaintiff urges, his December 15 letter is by no means a FOIA request, and the circumstances plainly suggest he did not intend it to be one. Plaintiff’s letter contains no explicit or even implicit request for the production of any records. Indeed, in his own words, Plaintiff characterizes the letter as one “seeking assistance for benefits under the grounds of his deportation.” In addition, neither of Plaintiff’s two other letters to SSA was a FOIA request or anything that could be liberally construed to amount to a request for records. Plaintiff requests information about how to apply for social security benefits, asks whether or not he qualifies for those benefits given his circumstances, and seeks an application for social security benefits. He does not, however, request the production of records. As his letters merely pose questions to SSA or ask for assistance in applying for social security benefits, they do not constitute valid FOIA requests. Whether or not Plaintiff was satisfied by the responses to his questions or the level of assistance he was receiving, a FOIA suit is not the proper means by which to obtain a different response.
Finally, the fate of Plaintiff’s suit is sealed with his concession that “there may not have record of a freedom information request, but, however there his request for benefits [sic].” Plaintiff himself admits that he has no FOIA request before SSA. He has, therefore, brought a FOIA suit without first filing a FOIA request and exhausting available remedies. It cannot survive.
The Court last notes that Plaintiff’s objective throughout may simply be to acquire an application for social security benefits. To that end, Defendant has offered to arrange for Plaintiff to request a copy of his earnings record and to provide him with an application for benefits. The Court appreciates the assistance.
IV. Conclusion
As the Court finds that Plaintiff has failed to exhaust his administrative remedies, the Court will grant Defendant’s Motion for Summary Judgment. A separate Order consistent with this Opinion will issue dismissing the case without prejudice.

Lawyers Fight Among Themselves Before They Fight The Opposition

Seattle-based John Henry Browne is the civilian attorney representing Staff Sergeant Robert Bales, the U.S. soldier accused of murdering 17 Afghan villagers. Attorney Browne wants to replace the military lawyer assigned to the case. They are having serious disagreements over how to handle the defense.

"You are fired, sorry, but we have much more experience than you," Attorney Browne, said to military lawyer Major Thomas Hurley. Major Hurley is an experienced military lawyer. He has handled more than 60 military courts-martial; three involved homicide charges; however, none were capital cases.

The Army assigns defense counsel such as Hurley to soldiers facing court martial but defendants also have the right to hire additional civilian counsel. The military assigned counsel is called the Detailed Military counsel (DMC). The hired civilian counsel is called the Individual Military counsel (IMC).

"Major Hurley is not a team player and has no experience in murder cases, we do," Attorney Browne has said. "We have gotten 17 not guilty verdicts in murder cases and have gotten life verdicts in all our death penalty cases."

Browne unleashed a unilateral public attack on the way U.S. prosecutors are handling the investigation into the shooting and accused U.S. authorities of blocking access to potential witnesses. There is also disagreement over the decision to put Bales' wife on the television talk show circuit.

Major Hurley believes making public statement on television before the trial "limit our options at trial or expose important witnesses to effective cross-examination that they would otherwise not have to face".

I faced similar situations when I was a retired officer Coast Guard Law Specialist representing Coast Guard members in Coast Guard Base New York in courts-martial. However, I never had to assert my authority as lead counsel, Individual Military Counsel (IMC). The Coast Guard always detailed the most junior and inexperienced military counsel to the members that I represented. They were only qualified to carry my brief case and take notes, and they knew it. They were content to observe and listen and sometimes offer a helpful comment. I had just retired, I knew the Uniform Code of Military Justice; I knew the accused; and I knew the judges and all of the members of the Prosecution team; so, I was better qualified to represent the accused. And the military counsels knew this, so , they never challenged my decisions in conducting the defense of the accused.

In the case of the Coast Guard Academy court-martial of Cadet Webster Smith there was similar tension and disagreement between CDR Merle Smith, (IMC) and LT Stuart Kirkby, (DMC). LT Kirkby was not even a Coast Guard Law Specialist. He was a Navy Judge Advocate General from the Naval Submarine Base at Groton, CT..

There was serious tension between CDR Smith and LT Kirkby. The tension and friction became so acute that it required several emergency sessions with the parents of Cadet Webster Smith to settle the issues. (THIS SUBJECT WILL BE TREATED IN DETAIL IN MY NEXT BOOK, THE SEQUEL TO CONDUCT UNBECOMING an Officer and Lady)

There were disagreements about who to put on the witness list, who to call as a witness, who wouldl make the Opening Statement, who wouldl make the Closing Argument, who would argue which motion, which motions to bring, who wouldl examine which witnesses, who would make objections to statement and questions by the Prosecution, whether to give interviews to the news media, which questions to ask which witness; and , the biggest issue of all, whether to put the Accused, Webster Smith, on the witness stand. That is always a crucial decision. In the Webster Smith Case, it may have been the one issue decided the final verdict in the case.

http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-ebook/dp/B006VPAADK





This review is from: CONDUCT UNBECOMING an Officer and Lady (Kindle Edition)

CONDUCT UNBECOMING an Officer and a Lady: A Review.



I read this book. Judge London Steverson, the author, a 1968 Coast Guard Academy graduate, and retiree, did an outstanding job of parsing the facts of what is arguably a judicial tragedy.



According to the book, leaders at the Coast Guard Academy failed to follow the recommendation of the investigating officer, which was not to prosecute the accused of sexual assault, among other allegations, because evidence of the alleged crimes seemed insufficient; failed to follow procedures in responding to the defendant's Article 138 claim and failed to allow the defendant the customary grace period before reporting for confinement. There are a few other apparent missteps--like failing to instruct the jury that the defense does not have a burden of proof in criminal cases--that are capably documented in the book. Rather, according to the author, the Coast Guard Academy leadership chose to prosecute on the recommendation of a staff attorney in spite of the recommendation of the investigating officer the leadership appointed.



As for the defendant, some of his alleged conduct could, conceivably, call into question his judgment and discretion. To that end, he seemed to overlook a common, conspiratorial axiom: "There is no honor among thieves." As it relates to discretion, at his age he may not have heard the axiom, "Loose lips sink ships." The defendant was popular and athletic according to the book. These are traits that some others usually find attractive. Judge Steverson details how these traits attracted several cadets to the defendant. Consequently, one of the attractees had a mishap that directly involved the defendant and the two entered into a secret pact not to reveal the mishap because it could have an impact on both of their lives as cadets. Well, the defendant's second error seemed one of indiscretion because this particular attractee subsequently got wind of the tale involving the shared secret and turned her apparent affection into unabated vengeance. Not only did she turn to vengeance towards the once popular, now vilified athlete, but another five or six attractees also seemed to act in concert, according to the text. According to the author's account. All it took to convict the defendant was the allegations of sexual assault among other allegations.



The gist of the book is the author's plea to the Coast Guard to live up to the Constitution that its members, including the Court Martial's convening authority and the defendant, swore to uphold and protect. He pleads with Coast Guard Academy leadership not to substitute their personal feelings of how they think the world should operate for justice. The author asks them to remain faithful to this nation's long-standing creed of "Equal protection under the law." Finally, the author pleads with the Coast Guard Academy leadership to adhere to established legal procedures. Rather than answer the author's pleas to uphold and protect the Constitution, ensure equal protection under the law and adhere to established legal procedures, the author asserts the Coast Guard seemed to want to send a message to this cadet. Why this cadet? We may never know. He was talented, athletic and popular, but it is fairly certain most cadets are talented and athletic, even if not popular. Perhaps, the timing was wrong; perhaps the Coast Guard thought it was time to address the issue of sexual assault at the Coast Guard Academy or was it just bad timing for this cadet? That this cadet was the first cadet in Coast Guard history to be court martialed and had a distinguishable ethnicity is germane. Wrong place? Wrong time? You decide.



The author gives you a lot to work with. It is readily apparent the esteemed author thoroughly researched this matter and presented exhaustive explanations of law and fact. Transcripts of the legal proceedings are provided in the appendixes. This book is recommended to anyone interested in military legal proceedings or simple justice. The author's assertion that this case will live in infamy does not seem like an exaggeration. Only time will tell if it is the Coast Guard Academy's or the defendant's infamy.

A Low IQ Score May Qualify You For Social Security Benefits.

SLATER v. ASTRUE
DEMON V. SLATER, v. MICHAEL J. ASTRUE, Commissioner of Social Security.
March 23, 2012.
Demon Victorell Slater, Plaintiff, represented by Quinn Eric Brock, Brock & Stout.
Michael J. Astrue, Commissioner of Social Security, Defendant, represented by Dorrelyn K Dietrich, Social Security Admin, Office of General Counsel Region VIII, John Jay Lee, Social Security Administration, & Robert Randolph Neeley, U.S. Attorney’s Office.
MEMORANDUM OPINION AND ORDER
TERRY F. MOORER, Magistrate Judge.
Demon V. Slater (“Plaintiff” or “Slater”) originally applied for supplemental security income under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381 et seq., on August 23, 2007. After being denied, Slater timely filed for and received a hearing before an administrative law judge (“ALJ“) who rendered an unfavorable decision on February 18, 2010. Slater subsequently petitioned for review to the Appeals Council who rejected review of Slater’s case on March 17, 2011. As a result, the ALJ’s decision became the final decision of the Commissioner of Social Security (“Commissioner”). Id. Judicial review proceeds pursuant to 42 U.S.C. § 405(g), and 28 U.S.C. § 636(c). After a thorough review of the record in this case and the briefs of the parties, the Court concludes that the decision of the Commissioner should be REVERSED and this case REMANDED to the Commissioner for further proceedings.
I. NATURE OF THE CASE
Slater seeks judicial review of the Commissioner’s decision denying his application for disability insurance benefits. United States District Courts may conduct limited review of such decisions to determine whether they comply with applicable law and are supported by substantial evidence. 42 U.S.C. § 405. The court may affirm, reverse and remand with instructions, or reverse and render a judgment. Id.
II. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is a limited one. The Court’s sole function is to determine whether the ALJ’s opinion is supported by substantial evidence and whether the proper legal standards were applied.
“The Social Security Act mandates that `findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.’” Thus, this Court must find the Commissioner’s decision conclusive if it is supported by substantial evidence. Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion.
If the Commissioner’s decision is supported by substantial evidence, the district court will affirm, even if the court would have reached a contrary result as finder of fact, and even if the evidence preponderates against the Commissioner’s findings. The Court “may not decide facts anew, re-weigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but rather it “must defer to the Commissioner’s decision if it is supported by substantial evidence.”
The Court will also reverse a Commissioner’s decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law.
III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB“) provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. § 423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate and distinct program. SSI is a general public assistance measure providing an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line. Eligibility for SSI is based upon proof of indigence and disability. However, despite the fact they are separate programs, the law and regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims for DIB and SSI are treated identically for the purpose of determining whether a claimant is disabled. Applicants under DIB and SSI must provide “disability” within the meaning of the Social Security Act which defines disability in virtually identical language for both programs. A person is entitled to disability benefits when the person is unable to
Engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
The Commissioner of Social Security employs a five-step, sequential evaluation process to determine whether a claimant is entitled to benefits.
(1) Is the person presently unemployed?
(2) Is the person’s impairment(s) severe?
(3) Does the person’s impairment(s) meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.”
The burden of proof rests on a claimant through Step 4. Claimants establish a prima facie case of qualifying disability once they meet the burden of proof from Step 1 through Step 4. At Step 5, the burden shifts to the Commissioner, who must then show there are a significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s Residual Functional Capacity (“RFC”). Id. at 1238-39. RFC is what the claimant is still able to do despite his impairments and is based on all relevant medical and other evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and work experience to determine if there are jobs available in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational Guidelines (“grids”) or hear testimony from a vocational expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not Disabled.” Id.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Slater, age 36 at the time of the hearing, completed the twelfth grade and received a certificate of completion. Slater had special education classes in high school and has limited reading and writing abilities. Slater performed past relevant work as an industrial cleaner (unskilled, medium). Slater has not engaged in substantial gainful activity since his alleged disability onset date of August 23, 2007. Slater has not “ever really worked,” except for a couple positions which spans from a few days to a few weeks. Slater’s mother supports him from her fixed income. Slater claims he is unable to work because he suffers from major depression, anxiety, diabetes, depression, and an IQ score that falls within the range of mental retardation. Slater received disability benefits in the past until the benefits were terminated upon his incarceration.
Slater’s alleged disabilities stem from multiple sources.A doctor diagnosed Slater as suffering from diabetes in 1997. He received regular treatment to control his diabetes, while he received disability benefits and also while incarcerated, but upon release Slater has been unable to afford his medications except when he was able to attain his medications free of charge. Id. Slater alleges that his diabetes has caused him to be admitted to the hospital and the doctors have had to increase his insulin dosage. Slater alleges that he has diabetic neuropathy which causes pain and numbness in his lower legs, feet, and sometimes in his left hand. Id. Slater also alleges that he suffers from hypertension (high blood pressure). Id. Slater is also unable to afford the medications to control his neuropathy and hypertension.
Since Slater’s release from incarceration, he alleges that he suffers from anxiety and major depression. Slater alleges that his anxiety and depression cause him to randomly begin crying, to feel shortness of breath and pain in his chest, and difficulty sleeping. Slater claims that when on his medication these symptoms subside and he is able to sleep well, but at the moment he is unable to afford his medications. Slater also claims that he has difficulty getting along with other people and mostly keeps to himself. Slater alleges that he suffers from mental retardation as defined in the listings of impairments section 12.05. IQ tests reveal Slater has a score of 64 in verbal intelligence IQ, 62 in performance IQ, and a full scale IQ of 60. Slater was in special education classes in high school and alleges that he cannot read or spell very well. Slater also claims that while watching television he is unable to concentrate or follow the storyline.
Slater received treatment from various medical practitioners and the ALJ considered the medical records from these practitioners. The records of Charles A. Wood, M.D. from September and October of 2002 show that Slater was monitored for hypertension, diabetes, and peripheral neuropathy. Slater had elevated glucose and hemoglobin A1C levels. Id. Also, Dr. Woods found Slater suffers from depression post a suicide attempt.
In November of 2007, Mark B. Ellis, D.O. performed a consultative physical evaluation. Id. Slater reported to Dr. Ellis that he sufferes from depression, poor reading skills, diabetes, neuropathy with bilateral leg burning and numbness, decreased sensation to light touch in the feet, and leg weakness. Dr. Ellis found decreased sensation to light touch from Slater’s knees down “becoming more prominent” at the feet, as well as decreased sensation on the bottom and back of Slater’s feet. Dr. Ellis’ diagnostic impression was “poorly controlled diabetes with diabetic neuropathy; and hypertension, high cholesterol, and depression all by history.” Dr. Ellis recommended optimal diabetic care; however, a month later Slater was admitted to Dale Medical Center for uncontrolled diabetes mellitus with a glucose level of 700, blurred vision, nausea, vomiting, hypertension, and neuropathy.
Also in November of 2007, Randall Jordan, Psy.D saw Slater for a consultative mental evaluation. Slater reported depression with chronic sadness, sleep disturbances, and being in special education classes while in school. Id. Dr. Jordan noted that Slater exhibited restricted affect, compromised memory, and below average fund of information. Dr. Jordan administered a Wechsler Adult Intelligence Scale Third Edition (“Wechsler”) which tested Slater on verbal, performance, and full scale IQ. Slater earned scores of 64, 62, and 60, respectively. Dr. Jordan noted that these scores are indicative of intellect in the range of mental retardation. Id. However, Dr. Jordan also noted a diagnostic impression of malingering.
In June of 2009, Slater returned to Dale Medical Center with complaints of chest pain. In July of 2009, Slater underwent a stress test which revealed “resting baseline hypertensive heart disease and a marked accelerated hypertensive response to chemical stress.” After being released from Dale Medical Center, Connie Chandler, M.D. followed Slater for chest pain, diabetes, and hyperlipidemia. Slater received numerous medications to control his symptoms. Id. The ALJ noted that no noticeable physical symptoms or complications associated with hyperlipidemia were evidenced, and because of such the ALJ found that it has no effect on Slater’s ability to work. In August of 2009, Dr. Fernando Lopez at Spectra Care saw Slater for his “depressive disorder” and “psychotic features.” Slater claimed he had “sleep disturbances with intermittent nightmares, visual hallucinations, panic attacks, nervousness, and paranoia.” Id. Dr. Lopez proscribed psychotropic medications to Slater to manage his depressive and psychotic symptoms. Id.
V. ISSUES
Slater raises two issues for judicial review:
(1) Whether the ALJ failed to consider if Slater’s medically determinable impairments met or equaled listing 12.05(C); and
(2) Whether the ALJ’s Residual Functional Capacity finding failed to include the required “function-by-function” assessment. See Doc. 12 at 3.
VI. DISCUSSION AND ANALYSIS
The plaintiff raises several issues and arguments related to this Court’s ultimate inquiry of whether the Commissioner’s disability decision is supported by the proper legal standards and substantial evidence. “[n]o presumption of validity attaches to the Secretary’s determination of the proper legal standards to be applied in evaluating claims”). However, the Court pretermits discussion of the plaintiff’s specific arguments because the Court concludes that the ALJ erred as a matter of law at step three of the sequential analysis. Ergo, the ALJ’s conclusion that the plaintiff is not disabled is not supported by substantial evidence.
The ALJ notes:
At step three, the undersigned must determine whether the claimant’s impairment or combination of impairments meets or medically equals the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925, and 416.926). If the claimant’s impairment or combination of impairments meets or medically equals the criteria of a listing and meets the duration requirement (20 CFR 416.909, the claimant is disabled.
The burden of proof rests on a claimant to establish a prima facie case of qualifying disability. Phillips, 357 F.3d at 1237-39. Slater argues that “the ALJ failed to consider whether Mr. Slater’s medically determinable impairments met or equaled listing 12.05(C).” (Pl. Br. 3). Slater provided sufficient medical evidence to meet the prima facie requirement in Phillips, 357 F.3d at 1237-39. The record is replete with references to anxiety and depression, with the ALJ also noting the “full scale IQ scores of 64, 62, and 60.” Plaintiff directly argues the listing of 12.05(C) in the record of the hearing as well as testifying to other limiting factors.
In Fitts v. Massanari, the court “notes that the ALJ made an error more fundamental regarding the listings in that he never once mentioned Listing 12.05, specifically 12.05(C), in his decision denying benefits.” The court held that the ALJ erred in failing to include mild mental retardation in the list of severe impairments and in failing to analyze the evidence in light of the specific requirements of listing 12.05. Id. at *2. In Fitts the court noted that the ALJ’s finding documented both a physical impairment which imposed an “additional and significant work-related limitation of function” and that the record also contained evidence of a valid verbal, performance or full scale IQ score of 60 through 70. Id.
The Court recognizes that a valid IQ score does not mean that conclusive evidence of mental retardation exists, however the validity of IQ score must be addressed by the ALJ. Thomas v. Barnhart, (11th Cir. Dec. 7, 2004)(where the Eleventh Circuit specifically noted that the ALJ did not specifically address the validity of the claimant’s IQ score of 69 and there was “significant evidence” that the score was valid and remanded the case so that the ALJ may properly consider the validity of the claimant’s IQ score.). While the Court concludes there is some question as to the validity and accuracy of the IQ score of Slater, there is no analysis done by the ALJ for the Court to consider. See e.g. Outlaw v. Barnhart, 197 Fed.Appx. 825 (11th Cir. 2006) (where the court held that a “valid IQ score is not conclusive of mental retardation when the IQ score is inconsistent with other evidence in the record about claimant’s daily activities.”).
The Commissioner argues that Slater did not carry his burden to produce evidence that he met the criteria of the listing. (Def. Br. 13, at 7). “[A] claimant must have a diagnosis included in the Listings and must provide medial reports documenting that the conditions meet the specific criteria of the Listings and the duration requirement.” The ALJ must consider whether the claimant meets or equals the listings presented by the claimant. While the ALJ does not need to mechanically recite the fact that a claimant does not meet a listing in his decision, and that the failure to meet the listing may be implied from the record, the ALJ must develop a full and fair record sufficient for this Court to review. Additionally, the Court notes that Slater bears a burden “of proving that he is disabled, and consequently, he is responsible for producing evidence in support of his claim.” The Court makes the limited ruling that the issue of mental retardation pursuant to the listing 12.05(C) was raised sufficiently by Slater to show a prima facie case of a possible ailment that, by itself, can be found to be disabling, or disabling in conjunction with other disabilities, and the ALJ failed to address it in either the hearing or the opinion. The Court notes that the ALJ directly addressed and discussed the Listings for 12.04 and 12.06, looking at the “paragraph B” and “paragraph C” requirements, but conspicuously failed to address the 12.05(C) Listing that was directly argued by the Claimant.
Furthermore, because the ALJ did not recognize the evidence that Slater suffers from mental retardation, he did not properly consider the effects of this impairment on Slater’s ability to work. Consequently, the Court cannot determine whether the ALJ’s conclusion that Slater is not disabled is properly supported by substantial evidence. It is plain that the plaintiff suffers from physical and non-physical impairments, but it is less clear as to the effect of those impairments. “Even a `mild’ mental impairment may `prevent [a] claimant from engaging in the full range of jobs contemplated by the exertional category for which the claimant otherwise qualifies.’”
For these reasons, the Court concludes that the Commissioner erred as a matter of law, and that the case warrants remand for further proceedings regarding whether the IQ score is valid, and if there are other mental or physical impairments that would cause the claimant to meet the listing under 12.05(C). The ALJ must consider every impairment alleged by the plaintiff and determine whether the alleged impairments are sufficiently severe — either singly or in combination — to create a disability. All of the plaintiff’s impairments must be considered in combination even when the impairments considered separately are not severe. In light of the ALJ’s failure to fully and fairly consider the evidence in the record of the plaintiff’s possible mental retardation, the Court concludes that the ALJ failed to meet his burden in this regard. As a result of his failure to consider the plaintiff’s impairments in combination, doubt is necessarily cast upon the ALJ’s conclusion that the plaintiff is not disabled.
V. Conclusion. Accordingly, this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion. A separate order will be entered.

How A Social Security Judge Can Tell When a Claimant Lies Under Oath.

GORREMANS v. ASTRUE
MICKAEL GORREMANS v. MICHAEL J. ASTRUE, Commissioner of Social Security.

United States District Court, D. Idaho. March 16, 2012.
Mickael Gorrmans, Plaintiff, represented by Louis Garbrecht.
Commissioner Michael J. Astrue, Defendant, represented by Benjamin J Groebner, SOCIAL SECURITY ADMINISTRATION & Joanne P Rodriguez, US ATTORNEY’S OFFICE.




MEMORANDUM DECISION AND ORDER
RONALD E. BUSH, Magistrate Judge.
Now pending before the Court is Petitioner Mickael Gorremans’ Petition for Review filed September 16, 2010, seeking review of the Social Security Administration’s final decision to deny his disability benefits. This 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 January 9, 2009, Mickael Gorremans (“Petitioner”) applied for SSI disability benefits, alleging a disability onset date of December 24, 2008, when he was 56 years old. Petitioner’s claim was initially denied and, again, denied on reconsideration. Petitioner timely filed a Request for Hearing before an Administrative Law Judge (“ALJ”). On February 9, 2010, ALJ James W. Sherry held a hearing in Spokane, Washington at which time Petitioner, represented by attorney Louis Garbrecht, appeared and testified. A vocational expert, K. Diane Kramer, also appeared and testified. At the time of the hearing, Petitioner had past relevant work as a groundskeeper, machine operator, janitor, floor cleaner/buffer, certified nurses assistant, and home health aide.
On April 8, 2010, the ALJ issued a decision, denying Petitioner’s claims, finding that Petitioner was not disabled within the meaning of the Social Security Act. Petitioner timely requested review from the Appeals Council on June 3, 2010. The Appeals Council then denied review on August 23, 2010 rendering the ALJ’s decision the Commissioner’s final decision. Plaintiff now seeks judicial review of the Commissioner’s decision to deny benefits. Petitioner contends the ALJ erred by not giving controlling weight to the opinion of his treating physician, Dr. Dirks, and improperly rejecting Petitioner’s own testimony. He also argues that the residual functional capacity finding is not supported by the record and that Medical-Vocational Guideline 202.06 directs a finding of disabled.
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). 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.
“Substantial evidence” is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The standard requires more than a scintilla but less than a preponderance, and “does not mean a large or considerable amount of evidence.”
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. The ALJ is responsible for determining credibility and resolving conflicts in medical testimony, resolving ambiguities, and drawing inferences logically flowing from the evidence. 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.
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 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.”
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. §§ 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 her physical/mental impairments are and regardless of her 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 had not engaged in SGA since January 9, 2009, the application date. (AR 16).
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 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: “multilevel cervical degenerative disk disease with facet arthrosis, status post disectomy and fusion and cervical laminectomy at C3 & C4 with autograft; and central cord syndrome.” (AR 16).
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 16).
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 capacity 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. 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 ruled that Petitioner has the residual functional capacity to perform the full range of medium work as defined in 20 C.F.R. § 416.967(c). The ALJ also determined that Petitioner could perform his past relevant work as a janitor, certified nurse’s assistant, home health aide, and groundskeeper. The ALJ determined that this work does not require performance of work-related activities precluded by Petitioner’s residual functional capacity. (AR 21).
In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of his impairments, the burden shifts to the Commissioner to show that the claimant retains the ability to do alternate work and to demonstrate that such alternate work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also 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. Because the ALJ found Petitioner capable of performing past relevant work, he did not have to proceed to step five. However, the ALJ did found that even if Petitioner was restricted to less than a full range of light work, there were jobs that existed in significant numbers in the regional and national economies, of cleaner I and electronics assembler, that Petitioner could perform. (AR 21).
B. Analysis
1. Petitioner Credibility
Petitioner contends that the ALJ gave insufficient reasons for rejecting his testimony. In his opinion, the ALJ stated the claimant’s statements concerning the “intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.” The ALJ further stated that the objective evidence established that Petitioner is capable of performing basic work activities. The ALJ remarked that Petitioner did not follow through with physical therapy as recommended by his treating physician, Dr. Dirks, because he could not afford it and that he only medicates his pain with over-the-counter medications every other day. The ALJ also noted that while the claimant described daily activities which are fairly limited, great weight was not given to this evidence because the “allegedly limited daily activities cannot be objectively verified with any reasonable degree of certainty” and because of the difficulty attributing “that degree of limitation to the claimant’s medical condition, as opposed to other reasons, in view of the relatively weak medical evidence . . .” The ALJ further concluded:
The claimant’s statements on the function report are not entirely credible. He said he can perform his personal care slowly. He is able to prepare simple meals. He claims he is fairly limited in several areas as a result of paralysis. He claimed he cannot do any housework, he cannot drive, and he cannot handle money. He also stated that he is under doctor’s orders to not go outside. There is no evidence in the record of continued paralysis in the upper extremities. The treatment notes show the claimant’s strength in his upper extremities has continued to improve (at least 4/5 strength). Furthermore, there is no reference in the treatment record to any doctor directing the claimant to not go outside. The claimant testified he has problems gripping and grasping items with his hands; however, after the first surgery, it is noted to have improved (4/5 strength after first surgery). Furthermore, this testimony is not consistent with the claimant’s testimony that he is able to fish, which shows he is able to hold on to a fishing pole and reel in a fishing line, which requires an ability to grip and grasp items.
The claimant testified he has difficult reaching overhead, but there is no indication in the treatment notes of any limitations in this area. There are no range of motion tests and no significant signs of weakness. The claimant asserted he has problems with stairs; however, he also said he has several flights of stairs at home to climb and descend. This suggests the claimant is able to climb and descend stairs with little difficulty. The bulk of treatment notes do not support the claimant’s assertions regarding his limitations in walking and standing. It has been noted the claimant has no difficult with ambulation. Finally, the claimant stated he can only sit for no more than ½ hour; yet, the hearing lasted longer than ½ hour and the claimant showed no signs of needing to change positions.
(AR 19-20).
The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities. The ALJ’s findings must be supported by specific, cogent reasons. If a claimant produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective complaints of pain based solely on lack of medical evidence. Unless there is affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for rejecting pain testimony. The reasons an ALJ gives for rejecting a claimant’s testimony must be supported by substantial evidence in the record.
In evaluating credibility, the ALJ may engage in ordinary techniques of credibility evaluation, including consideration of a claimant’s reputation for truthfulness and inconsistencies in claimant’s testimony, or between claimant’s testimony and conduct, as well as claimant’s daily activities, claimant’s work record and testimony from physicians and third parties concerning the nature, severity and effect of the symptoms of which claimant complains. Also, the ALJ may consider: location, duration and frequency of symptoms; factors that precipitate and aggravate those symptoms; amount and side effects of medications; and treatment measures taken by claimant to alleviate those symptoms. See Soc. Sec. Ruling (SSR) 96-7p. Here, the ALJ focused on inconsistencies in claimant’s testimony as well as between his claimed limitations and the support for those limitations in the medical record. The ALJ noted that while Petitioner claimed to have great difficulty grasping and gripping many everyday items, he also testified that he would go fishing which would be inconsistent with the claimed limitations.1 Additionally, the ALJ remarked that although Petitioner stated he could not sit for longer than 20 to 30 minutes at a time, the hearing lasted longer than 30 minutes and he did not appear to need to switch positions. The ALJ also observed that Petitioner testified to extreme limitations in his upper extremities as well as with walking and standing, yet the medical evidence demonstrated improved strength (at least 4/5) in his upper extremities after his surgeries and indicated no problems with ambulation. While lack of medical evidence cannot be the sole reason for rejecting pain testimony, “medical evidence is still a relevant factor in determining the severity of the claimant’s pain and its disabling effects.” The ALJ also focused on treatment measures taken by Petitioner, which he testified was to use over-the-counter pain medication every other day. Over-the-counter pain medication is an example of “evidence of `conservative treatment’” that “is sufficient to discount a claimant’s testimony regarding severity of an impairment.”
Where, as here, there is substantial evidence in the record to support the ALJ’s credibility finding, the Court will not engage in second-guessing. In other words, if the evidence can support either outcome, the Court may not substitute its judgment for that of the ALJ. The Court reviews the administrative record as a whole to determine whether substantial evidence supports the ALJ’s decision. The issue is not whether the Court agrees with the ALJ’s credibility assessment, but whether the assessment is supported by the requisite findings and record evidence. Here, it is, and the Court will not substitute its own assessment for that of the ALJ.
2. Treating Physician’s Opinion
Petitioner argues that the ALJ improperly rejected the opinion of his treating physician, Dr. Dirks, by relying on the opinion of a non-examining physician.
Ninth Circuit case law distinguishes among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians). Generally, more weight is accorded to the opinion of a treating source than to nontreating physicians. In turn, an examining physician’s opinion is entitled to greater weight than the opinion of a nonexamining physician. If the treating physician’s opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing” reasons. If the treating doctor’s opinion is contradicted by another doctor, the Commissioner may not reject the treating physician’s opinion without providing “specific and legitimate reasons” supported by substantial evidence in the record for doing so.
An ALJ is not required to accept an opinion of a treating physician if it is conclusory and not supported by clinical findings. Additionally, an ALJ is not bound to a physician’s opinion of a petitioner’s physical condition or the ultimate issue of disability. If the record as a whole does not support the physician’s opinion, the ALJ may reject that opinion. Items in the record that may not support the physician’s opinion include clinical findings from examinations, conflicting medical opinions, conflicting physician’s treatment notes, and the claimant’s daily activities.
The ALJ provides a detailed description of Petitioner’s medical records, which come from his treating surgeon, Dr. Dirks. On January 27, 2009, following Petitioner’s second surgery, Dr. Dirks stated that Petitioner was not released back to work and the issue should be reevaluated in three months. On April 9, 2009, he opined that Petitioner was “disabled and unable to return to work at this stage.” On November 3, 2009, the last treatment note from Dr. Dirks, he stated that he supported Petitioner in his quest for obtaining Social Security disability as he did “not believe he will be able to have gainful employment at this time.” (AR 304).
In regard to Dr. Dirks’ opinions as to disability, the ALJ gave his opinion little weight and stated:
Dr. Dirks provides no range of motion testing in the treatment notes. His treatment notes show the claimant’s condition has improved after both surgeries. Muscle strength testing shows the claimant has at least 4/5 strength in the upper extremities. There is no evidence of ongoing paralysis in the upper extremities. Although the doctor stated the claimant is `disabled,’ it is not clear that the doctor was familiar with the definition of `disability’ contained in the Social Security Act and regulations. The possibility always exists that a doctor may express an opinion in an effort to assist a patient with whom he or she sympathizes for one reason or another. Another reality which should be mentioned is that patients can be quite insistent and demanding in seeking supportive notes or reports from their physicians, who might provide such a note in order to satisfy their patient’s requests and avoid unnecessary doctor/patient tension. While it is difficult to confirm the presence of such motives, they are more likely in situations where the opinion in question departs substantially from the rest of the evidence of record, as in the current case.
While a treating physician’s opinion is entitled to great weight, the ALJ is not bound by his or her opinion on the ultimate issue of disability. This is especially true if the opinion is conclusory and not supported by the clinical findings. The ALJ does not discount the medical records from Dr. Dirks, instead he provides a thorough discussion of Petitioner’s medical history. However, the ALJ found that Dr. Dirks’ opinion of disability departed “substantially” from the rest of the evidence in the record and conflicted with his own treatment notes and the clinical findings. Under the Social Security regulations, the ALJ is not required to follow a treating physician’s opinion that a claimant is “disabled” or “unable to work.” 20 C.F.R. § 416.927(e)(1). Additionally, these opinions of treating physicians are not entitled to any special significance. Id. at § 416.927(e)(3). Lastly, while, as Petitioner contends, the ALJ did give significance to the Physical Residual Functional Capacity Assessment completed by a non-examining physician, this assessment was not used as a basis for rejecting Dr. Dirks’ opinion on disability. Instead, the ALJ provided specific and legitimate reasons for giving Dr. Dirks’ opinion regarding disability little weight.
3. Residual Functional Capacity Finding
Petitioner contends there is not substantial evidence in the record to support the ALJ’s finding of a medium residual functional capacity. A claimant’s residual functional capacity is the most he can do despite his limitations. 20 C.F.R. § 404.1545(a). An ALJ considers all relevant evidence in the record when making this determination. Id. The regulations define “medium work” as “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c).
In finding that the Petitioner could perform the full range of medium work, the ALJ relied, in part, on the opinions of two non-examining state agency physicians who reviewed the medical record and opined that Petitioner could perform medium work. (AR 286-98, 299). Petitioner contends that the ALJ should not rely on these opinions because they were made without the November 3, 2009 treatment note of Dr. Dirks which stated that he “continued to show signs and symptoms of central cord syndrome” and that he “continues to exhibit poor walking ability and poor strength.” (AR 304). Although the ALJ gave “significant weight” to the assessment of the state agency physician, Dr. Dickey, this was not the only evidence he relied upon in forming his assessment. The ALJ also evaluated the medical evidence from Dr. Dirks, including this November 3, 2009 treatment note, and Petitioner’s own testimony. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (finding the ALJ was not required to incorporate opinion evidence which was permissibly discounted). The ALJ commented on the November 3, 2009 treatment note and remarked that other treatment notes found “claimant’s strength was measured as at least 4/5 and it has been noted the claimant’s ambulation is good.” (AR 19). The ALJ has considered all the relevant evidence in making his residual functional capacity finding and it is supported by substantial evidence.
Although it was not raised by Petitioner, when evaluating the ALJ’s residual functional capacity finding, the Court sua sponte examined whether the ALJ should have further developed the record in this case. Under Ninth Circuit law, an ALJ has “an independent duty to fully and fairly develop the record and to assure that the claimant’s interests are considered.” The ALJ must supplement the record if there is “ambiguous evidence” or the ALJ has found “the record is inadequate to allow for proper evaluation of the evidence.” When reviewing this, the Court determined that the evidence was in conflict, rather than ambiguous and the ALJ’s duty to develop the record was not invoked. Even though this is a case in which the Court has some misgivings about the result and those misgivings may have caused the Court to decide the case differently, the ALJ is entitled to deference when the decision is supported by substantial evidence. In other words, if the evidence can support either outcome, the Court may not substitute its judgment for that of the ALJ.
4. Medical-Vocational Guideline 202.06
Petitioner contends that under Medical Vocational Guideline 202.06, he should be found disabled. Medical Vocational Guideline 202.06 directs a finding of disability where a claimant is limited to light work, is of advance age (55 and older), has a high school education and does not have transferrable skills. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 2, Rule 202.06.
In his decision, after finding that Petitioner was capable of performing past relevant work, thus directing a finding of not disabled, the ALJ went on to state that even if claimant was “restricted to less than a full range of light work . . . the vocational expert testified [he] could perform the jobs of cleaner I and electronics assembler, jobs which exist in significant numbers in the regional and national economy.”
Petitioner is correct that under Ninth Circuit law, a vocational expert’s testimony cannot “supplant or override a disability conclusion dictated by the Guidelines.” The Commissioner contends that any error made by the ALJ in this regard is “harmless error.”
The Ninth Circuit has affirmed “under the rubric of harmless error where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ’s ultimate disability conclusion.” For example, in Matthews v. Shalala, the ALJ failed to include one of claimant’s limitations in his hypothetical to the vocational expert. However, because the claimant had failed, at step four, to show that he could not return to his past work, the burden remained on him and the ALJ was not required to rely on the vocational expert’s testimony to show that the claimant could perform other kinds of work. Id. The court concluded: “The vocational expert’s testimony was thus useful, but not required . . . Any error would have been harmless.” Id.
Similarly, in this case, the ALJ concluded that Petitioner had the residual functional capacity to perform the full range of medium work (AR 16) and thus could perform his past relevant work. The ALJ then found, alternatively, that even if Petitioner was limited to light work, significant jobs that he could perform existed in the national economy. This was an unnecessary step that the ALJ was not required to perform having found Petitioner capable of performing past relevant work and not disabled at step four. Accordingly, if an error was made by the ALJ in not following the Medical-Vocational Guidelines, it was harmless.
IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences from facts and determining credibility. 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.
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. Indeed, in this case, this Court might well have found differently if was to decide the case de novo. However, such a statement is drawn from a cold record, and it is not this Court’s role to alter the ALJ’s decision without some appropriate basis under the law for doing so, consistent with its role as a reviewing court only. Here, the ALJ’s decision as to Petitioner’s alleged disability is based on proper legal standards and supported by substantial evidence. Therefore, the Court concludes that the Commissioner’s determination that Petitioner is not disabled within the meaning of the Social Security Act is supported by substantial evidence in the record and is based upon an application of proper legal standards.
Accordingly, the Commissioner’s decision is affirmed.
V. ORDER
Based on the foregoing, Petitioner’s Petitioner for Review (Dkt. 1) is DENIED, the decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety, with prejudice.

Social Security Can Ignore Your Treating MD's Opinion, If The Gov't Non-treating MD Agrees With Other Evidence.

OSMORE v. ASTRUE

COULETTE OSMORE v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration

No. 11-35212.

United States Court of Appeals, Ninth Circuit.

Filed March 20, 2012.

Before: PAEZ and FERNANDEZ, Circuit Judges, and GWIN, District Judge.***

MEMORANDUM

Coulette Osmore appeals the district court’s judgment reversing the Commissioner’s final decision that Osmore was not disabled within the meaning of Title XVI of the Social Security Act, 42 U.S.C. §1383c(a)(3), and remanding the matter for further administrative proceedings. With her appeal, Osmore seeks an order that, on remand, the Adminstrative Law Judge (ALJ) must complete an entirely new evaluation of Osmore’s Supplemental Security Income and Disability Insurance Benefits applications. We affirm.

Evaluation of the Medical Evidence

The Commissioner says that, on remand, he will both consider the effects of Osmore’s mental impairments and allow Osmore to argue that medication side effects limit her residual functional capacity. Accordingly, Osmore’s claim that the ALJ improperly disregarded evidence of Osmore’s depression and medication side effects is moot. (“An appeal is moot if there exists no `present controversy as to which effect relief can be granted.’” On remand, the ALJ must consider Osmore’s mental impairments and medication side effects.

The ALJ did not err by failing to discuss specifically Osmore’s MRI and CT scan results. “[I]n interpreting the evidence and developing the record, the ALJ does not need to discuss every piece of evidence.“Here, Osmore’s MRI results were consistent with her CT scan results. Both revealed that Osmore has the severe impairment spondylolisthesis. The ALJ properly considered Osmore’s medical records—including records that evaluated her MRI and CT scan—in evaluating Osmore’s impairments.

The ALJ provided specific and legitimate reasons for rejecting Dr. Tim Truschel’s (a treating physician) opinion: other treating and non-treating physicians’ opinions, along with Osmore’s treatment records, contradicted Dr. Truschel’s opinion. A non-examining physician’s opinion may constitute substantial evidence to disregard the opinion of an examining physician if it is consistent with other independent evidence in the record and the ALJ does not rely on the non-examining physician’s report alone.

The ALJ did not err in evaluating the medical records from Osmore’s twelve other physicians. The ALJ noted Osmore’s history of back pain, cited several of Osmore’s physicians’ medical opinions and treatment records, and appropriately developed and considered the record.

Evaluation of Other Evidence

The ALJ did not err in discrediting Osmore’s symptom testimony based on inconsistencies with 1) the objective medical evidence and 2) Osmore’s daily activities. (Inconsistencies with clinical observations can “satisfy the requirement of a clear and convincing reason for discrediting a claimant’s testimony.”); (The ALJ may reject the claimant’s testimony when inconsistent with the claimant’s daily activities and contrary to the medical evidence.).

The ALJ did not err in failing to consider Osmore’s lay-witness evidence. In 2004, Osmore’s husband and sister prepared reports for Osmore’s prior Social Security benefits applications; the present application concerns disability beginning March 2005. Accordingly, these out-of-date lay-witness reports are not probative evidence of Osmore’s 2005 disability status. (“[T]he evidence which the Secretary ignored was neither significant nor probative.”). On remand, however, Osmore may seek leave to submit additional evidence from lay witnesses.

Other Claims of Error

The district court explained that because “the ALJ erred in evaluating the medical evidence in the record concerning [Osmore's] mental impairments and limitations,” the ALJ also erred “in assessing [Osmore's] residual functional capacity.” In its judgment reversing and remanding, the district court ordered the ALJ to make a new determination of Osmore’s residual functional capacity and of Osmore’s ability to perform past relevant and current work. Accordingly, Osmore’s remaining allegations of error—regarding the ALJ’s determination of Osmore’s residual functional capacity and ability to perform past relevant and current work—are also moot. See W. Coast Seafood, 643 F.3d at 704.

AFFIRMED.