Tidwell v. Apfel

Decision Date14 September 1998
Docket NumberNo. 97-35863,97-35863
Parties, Unempl.Ins.Rep. (CCH) P 16132B, 98 Cal. Daily Op. Serv. 8797, 99 Cal. Daily Op. Serv. 704, 1999 Daily Journal D.A.R. 877, 98 Daily Journal D.A.R. 12,231 Betty TIDWELL, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner, Social Security Administration, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

David B. Lowry, Portland, Oregon, for the plaintiff-appellant.

Frank W. Hunger, Assistant Attorney General, Kristine Olson, United States Attorney, Judith D. Kobbervig, Assistant United States Attorney, Lucille G. Meis, Chief Counsel, Seattle Region, Richard H. Wetmore, Assistant Regional Counsel, Seattle, Washington, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon Malcolm F. Marsh, District Judge, Presiding. D.C. No. 97-00018-JJ.

Before: J. Clifford WALLACE and Alex KOZINSKI, Circuit Judges, and David Alan EZRA, ** District Judge.

EZRA, District Judge:

Appellant appeals from the District Court's decision affirming the Administrative Law Judge's ("ALJ") denial of Appellant's application for disability insurance. The district court had jurisdiction pursuant to 42 U.S.C. § 405(g). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Our review of the Commissioner's decision is "essentially the same as that undertaken by the district court." Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.1985). Hence, we review de novo the district court's order upholding the Commissioner's final denial of benefits. See Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir.1995). The ALJ's decision denying the disability insurance benefits will be disturbed only if that decision is not supported by substantial evidence or it is based upon legal error. See id. Substantial evidence is more than a mere scintilla but less than a preponderance. See Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir.1997). At all times, the burden is on the claimant to establish her entitlement to disability insurance benefits. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir.1995), cert. denied, 517 U.S. 1122, 116 S.Ct. 1356, 134 L.Ed.2d 524 (1996).

Appellant's insured status expired on September 30, 1992. To be entitled to disability benefits, Appellant must establish that her disability existed on or before this date. See Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995). After a review of the entire record, it is evident that there is substantial evidence to support the ALJ's finding that Appellant failed to establish that she had a severe impairment at any time prior to September 30, 1992. The ALJ discussed and reviewed all of the evidence before him in making his determination. Additionally, the ALJ followed the sequential evaluation required by the regulations. See 20 C.F.R. § 404.1520 (1997).

Appellant contends that the ALJ erred in his determination under the second step of the sequential evaluation in finding that Appellant did not establish that she suffered from a severe impairment during her insured status. The record establishes that Appellant complains of back pain, depression and vaginal bleeding. The record is comprised of medical records from various physicians, including symptomatic descriptions, x-rays, a psychological examination, and transcripts of the testimony given by Appellant and her daughter, Danielle Foster, at the hearing before the ALJ.

With regard to Appellant's physical ailments, the evidence demonstrates that prior to the conclusion of her insured status she experienced some back pain as well as vaginal bleeding. However, her testimony indicates that in September 1992, she was doing the laundry, cleaning the house, vacuuming, mopping, dusting, and grocery shopping. Each of these activities requires physical functioning and use of her back, and each is inconsistent with Appellant's claim that she suffered from a severe physical disability during this time. Additionally, she told John Scoltock, M.D. that her lumbar pain was intermittent, and that a nonprescription medicine helped with the pain. There is no additional evidence that Appellant was treated subsequently for her lumbar pain.

Despite the fact that Appellant was not diagnosed with stress incontinence until 1995, the ALJ considered the vaginal bleeding and her bladder condition, and found insufficient evidence that these conditions amounted to a severe disability. Similarly, the first indication of fibromyalgia did not come until 1995. Even then, the record does not indicate a concrete diagnosis of fibromyalgia. Given all of the evidence in the record, there is substantial evidence that Appellant's physical impairments were not severe prior to the expiration of her insured status.

With regard to Appellant's mental impairment, the ALJ specifically requested a post-hearing psychological evaluation to supplement the record. Dr. Robert Kruger, Psy.D., concluded that Appellant did not suffer from a thought disorder or "vegetative signs of depression," but diagnosed her with an undifferentiated somatoform disorder and personality disorder with dependent and passive aggressive features. Despite the fact that the ALJ did not inform Dr. Kruger that the relevant date was September 30, 1992, there is no evidence that these conditions existed prior to 1995. Even if in 1992 Appellant did suffer from the same disorders, since Dr. Kruger found no impairment in her...

To continue reading

Request your trial
1983 cases
  • Swinscoe v. Astrue
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 18, 2012
    ...to her work related limitations - fail to substantiate Plaintiff's burden to demonstrate disability at Step Four. See Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998) ("It is Plaintiff's burden to demonstrate disability st Step Four.") The ALJ has the responsibility for resolving these a......
  • Van Ness v. Colvin
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • December 12, 2013
    ...by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such "'relevant evidence as a reaso......
  • Geraldine C. v. Comm'r of Soc. Sec.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • August 30, 2021
    ...Plaintiff has the burden to show that she has a medically severe impairment or combination of impairments at step two. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Where claimant presents a colorable claim of mental impairments, the ALJ must determine whether the claimant has a medi......
  • Manenica v. Astrue, CASE NO. 12-cv-05131 JRC
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • November 9, 2012
    ...by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such "'relevant evidence as a reason......
  • Request a trial to view additional results
8 books & journal articles
  • Administrative review issues
    • United States
    • James Publishing Practical Law Books Archive Social Security Issues Annotated. Vol. II - 2014 Contents
    • August 3, 2014
    ...the hearing, or keeping the record open after the hearing to allow supplementation of the record. Id., citing Tidwell v. Apfel , 161 F.3d 599, 602 (9 th Cir. 1998); Smolen , 80 F.3d at 1288. (5) A California district court observed that the fact that the claimant did not attend the hearing ......
  • Case survey
    • United States
    • James Publishing Practical Law Books Bohr's Social Security Issues Annotated - Volume I
    • May 4, 2015
    ...physician’s opinion, the ALJ could not reject those opinions, which were uncontroverted and corroborated). (2) In Tidwell v. Apfel , 161 F.3d 599, 602 (9th Cir. 1999), the Ninth Circuit held that the ALJ satisfied his duty under Smolen v. Chater , 80 F.3d 1273, 1288 (9th Cir. 1996), by voic......
  • Issue topics
    • United States
    • James Publishing Practical Law Books Archive Social Security Issues Annotated. Vol. II - 2014 Contents
    • August 3, 2014
    ...treating physician’s opinion, the ALJ could not reject those opinions, which were uncontroverted and corroborated). In Tidwell v. Apfel , 161 F.3d 599 (9th Cir. 1999), the Ninth Circuit held that the ALJ satisfied his duty under Smolen v. Chater , 80 F.3d 1273, 1288 (9th Cir. 1996), by voic......
  • Issue Topics
    • United States
    • James Publishing Practical Law Books Social Security Disability Collection - James' Best Materials. Volume 2
    • May 5, 2015
    ...treating physician’s opinion, the ALJ could not reject those opinions, which were uncontroverted and corroborated). In Tidwell v. Apfel , 161 F.3d 599 (9th Cir. 1999), the Ninth Circuit held that the ALJ satisfied his duty under Smolen v. Chater , 80 F.3d 1273, 1288 (9th Cir. 1996), by voic......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT