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Rebecca Hensen v. Michael J. Astrue

September 12, 2011


The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge



Rebecca Hensen ("Petitioner") seeks review of the Commissioner of the Social Security Administration's final decision denying Petitioner's application for social security disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. (Dkt. 1.) The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record ("AR"). For the reasons that follow, the Court will affirm the decision of the Commissioner.


Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on January 25, 2007, claiming that she had been disabled and unable to work since November 1, 2003, due to fibromyalgia, arthritis, attention deficit hyperactivity disorder, panic and anxiety attacks, migraines, sleep apnea, and carpal tunnel syndrome. (AR 121.) Her application was denied initially and on reconsideration, and a hearing was held on March 7, 2009, before Administrative Law Judge ("ALJ") R. S. Chester. The ALJ issued a decision finding Petitioner not disabled on April 16, 2009, and Petitioner timely requested review by the Appeals Council. The Appeals Council denied Petitioner's request for review on June 17, 2010, and the ALJ's decision became the final decision of the Commissioner. Petitioner timely filed an appeal of the Commissioner's final decision to this Court on July 14, 2010. (Dkt. 1.) The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

At the time of the hearing, Petitioner was 40 years of age with a high school education. Petitioner's past relevant work experience includes jobs as a waitress, hostess, quality control technician, and companion.


The Commissioner follows a five-step sequential evaluation for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must be determined whether the claimant is engaged in substantially gainful activity. The ALJ found Petitioner had not engaged in substantial gainful activity since her alleged onset date. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner had medical impairments that caused more than a minimal effect on her ability to perform basic work activities, and found the following severe impairments: fibromyalgia, affective disorder, anxiety, personality disorder, and substance addiction disorder. (AR 15.)

Step three asks whether a claimant's impairments meet or equal a listed impairment under the implementing regulations. A finding that one or more of a claimant's impairments meets or equals a listing presumptively demonstrates disability. See 20 C.F.R. §§ 404.1520(d), 416.920(d); see also, Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1221-22 (9th Cir. 2010). At step three, the ALJ conducted a two-part analysis. First, the ALJ found Petitioner's metal impairments sufficiently severe as to render her presumptively disabled. Specifically, the ALJ found "claimant's mental impairments, including the substance use disorders, meet listings 12.04 Affective Disorder, 12.06 Anxiety-Related Disorder, 12.08 Personality Disorder, and 12.09 Substance Addiction Disorders." (AR 15-17.) The ALJ concluded, however, that substance abuse was a material contributing factor to Petitioner's disability. The ALJ then conducted a second analysis, asking whether, in the absence of substance abuse, Petitioner would have any remaining severe impairments. The ALJ found that, "[w]ithout substance abuse, the claimant continues to have severe signs and symptoms of fibromyalgia." (AR 17.) Petitioner's symptoms related to fibromyalgia were found not to meet or equal a listed impairment.

If a claimant's impairments do not meet or equal a listing, the Commissioner must assess the claimant's residual functional capacity ("RFC") and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. Concerning Petitioner's RFC, the ALJ found that, in the absence of substance abuse, the Petitioner could perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b).

At step four, relying on the testimony of vocational expert Deborah Lapoint, the ALJ found Petitioner was able to perform her past relevant work as a waitress, hostess, quality control technician, and companion. (AR 23.) In making this finding, the ALJ stated that "[t]his work does not require the performance of work-related activities precluded by the residual functional capacity the claimant would have if she stopped the substance use." (Id.) Because the ALJ found Petitioner could perform past relevant work at step four, he was not required to make a finding at step five. 20 C.F.R. 404.1520(a)(4) and 416.920(a)(4).

Having found that substance abuse was a material contributing factor to Petitioner's disabling mental impairments, and that Petitioner could perform past relevant work in the absence of substance abuse, the ALJ concluded that "the claimant has not been disabled within the meaning of the Social Security Act at any time from the alleged onset date through the date of this decision." (AR 24.)


Petitioner bears the burden of showing that disability benefits are proper because of the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Fitch, 438 F.2d 920, 921 (9th Cir. 1971). An individual will be determined to be disabled only if her physical or mental impairments are of such severity that she not only cannot do her previous work but is unable, considering her age, education, and work experience, to engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

On review, the Court is instructed to uphold the decision of the Commissioner if the decision is supported by substantial evidence and is not the product of legal error. 42 U.S.C. § 405(g); Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474 (1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than a preponderance, Jamerson v Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988).

The Court cannot disturb the Commissioner's findings if they are supported by substantial evidence, even though other evidence may exist that supports the petitioner's claims. 42 U.S.C. § 405(g); Flatten v. Sec'y of Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by substantial evidence, will be conclusive. Flatten, 44 F.3d at 1457. It is well-settled that, if there is substantial evidence to support the decision of the Commissioner, the decision must be upheld even when the evidence can reasonably support either affirming or reversing the Commissioner's decision, because the Court "may not substitute [its] judgment for that of the Commissioner." Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).


Petitioner attacks the ALJ's decision on four grounds. First, Petitioner asserts that her substance abuse ended in March of 2007, that she remained disabled due to her mental impairments after the substance abuse ended, and that the ALJ therefore erred in concluding that substance abuse was a material contributing factor to Petitioner's disability.*fn1 Second, Petitioner argues that her sleep apnea, carpal tunnel syndrome, obesity and diabetes are severe impairments and that the ALJ's failure to designate these impairments as severe constituted error at step two of the five-step analysis. Third, Petitioner argues that the ALJ erred by not taking into consideration all of her impairments in determining that Petitioner had the residual functional capacity to perform light work. Finally, ...

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