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Wilson v. Colvin

United States District Court, Ninth Circuit

December 2, 2013

CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security Administration, Respondent.


CANDY W. DALE, District Judge.

Currently pending before the Court for consideration is Petitioner Patricia Lynn Wilson's ("Petitioner") Petition for Review (Dkt. 1) of the Respondent's denial of social security benefits, filed September 18, 2012. The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record ("AR"), and for the reasons that follow, will affirm the decision of the Commissioner.


Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on June 29, 2006, claiming disability due to back and knee pain that began June 29, 2006. This application was denied initially and on reconsideration, and a hearing was held on November 18, 2008, before Administrative Law Judge ("ALJ") Chester. ALJ Chester issued a decision finding Petitioner not disabled on December 19, 2008. Petitioner timely requested review by the Appeals Council, which on April 29, 2009, granted her request for review, and vacated and remanded the matter for further proceedings on remanded for a new hearing based upon several enumerated errors.

A second hearing was held on May 5, 2010, before ALJ Yellowtail. ALJ Yellowtail heard testimony from Petitioner and Mark McGowan, a vocational expert. On June 4, 2010, ALJ Yellowtail issued a decision finding Petitioner not disabled. Petitioner again timely requested review by the Appeals Council, which denied her request for review on July 18, 2012. Petitioner appealed this final decision to the Court. The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

At the time of the May 2010 hearing, Petitioner was forty-four years of age. Petitioner completed high school and a post graduate vocational program to obtain certification as a nurse assistant. Petitioner's prior work experience is minimal, with a seasonal job as a seed sorter.


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 substantial gainful activity. The ALJ found Petitioner had not engaged in substantial gainful activity since her alleged onset date of June 29, 2006. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's right hand osteoarthritis, left knee status post ACL repair, and right knee torn ACL, borderline intellectual functioning, and polysubstance abuse to be severe within the meaning of the Regulations.

Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Petitioner's impairments did not meet or equal the criteria for any listed impairments, specifically listings 1.02 (major dysfunction of a joint or joints), 12.02 (organic mental disorders), and 12.05 (intellectual disability). 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. The ALJ determined Petitioner's RFC limited her to sedentary work involving simple, repetitive tasks, and that she was precluded from fingering with her right hand.

The ALJ found Petitioner had no past relevant work. If a claimant has no past relevant work, the burden shifts to the Commissioner to demonstrate, at step five, that the claimant retains the capacity to make an adjustment to other work that exists in significant levels in the national economy, after considering the claimant's RFC, age, education and work experience. At this step, the ALJ found Petitioner could successfully adjust to occupations such as surveillance system monitor, or information clerk, and is therefore not disabled.


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); Flaten 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. Flaten, 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).

When reviewing a case under the substantial evidence standard, the Court may question an ALJ's credibility assessment of a witness's testimony; however, an ALJ's credibility assessment is entitled to great weight, and the ALJ may disregard self-serving statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ makes a careful consideration of subjective complaints but provides adequate reasons for rejecting them, the ALJ's well-settled role as the judge of credibility will be upheld as based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993).


Petitioner contends ALJ Yellowtail erred at steps three and four. At step three, Petitioner asserts the ALJ erred by failing to properly evaluate whether Petitioner met or equaled Listings 12.02, 12.05(C), 1.02A, and 1.03. At step four, Petitioner asserts that the ALJ failed to incorporate all of Petitioner's limitations within her RFC, and did not properly evaluate Petitioner's credibility or the lay witness testimony of Petitioner's significant other, which was submitted in writing.

1. Whether Petitioner Meets or Equals a Listed Impairment

The ALJ found that Petitioner's impairments did not meet or equal any listing. Specifically, the ALJ found that Petitioner's impairments did not meet or equal Listing12.02, 12.05(C), and 1.02A. Petitioner argues also that the ALJ failed to consider Listing 1.03 in his analysis, which was error.

The standard for meeting a listing is high. A claimant bears the burden of producing medical evidence to establish all of the requisite medical findings that her impairments meet or equal any particular listing. Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987). If a claimant meets or equals a listed impairment and satisfies the twelve month duration requirement, the claimant is presumed disabled regardless of age, education and work experience. 20 C.F.R. § 404.1520(a)(4)(iii), (d).

If the claimant alleges equivalence to a listing, the claimant must proffer a theory, plausible or otherwise, as to how her combined impairments equal a listing. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001). An impairment, or combination of impairments, is medically equivalent to a listing "if it is at least equal in severity and duration to the criteria of any listed impairment, " considering "all evidence in [the] case record about [the] impairment(s) and its effects on [the claimant] that is relevant...." 20 C.F.R. § 404.1526(a), (c). Further, equivalence depends on medical evidence only; age, education, and work experience are irrelevant. Id. at § 404.1526(c). Finally and critically, "the claimant's illnesses must be considered in combination and must not be fragmentized in evaluating their effects.'" Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995) (quoting Beecher v. Heckler, 756 F.2d 693, 694-95 (9th Cir. 1985)).

A. Listing 12.05, Intellectual Disability

Petitioner argues that she has proven medical equivalence to Listing 12.05 because she meets the C criteria for Mental Retardation based upon her low IQ score and diagnosis of borderline intellectual functioning. Respondent argues that Petitioner did not demonstrate that she meets the diagnostic criteria in the introductory paragraph of Listing 12.05, which Respondent argues requires a diagnosis ...

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