United States District Court, D. Idaho
DECISION AND ORDER INTRODUCTION
CANDY W. DALE, Magistrate Judge.
Currently pending before the Court for consideration is Petitioner Jason Swarm's ("Petitioner") Petition for Review (Dkt. 1) of the Respondent's denial of social security benefits, filed April 15, 2013. 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 Commissioner's decision.
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on October 20, 2008, claiming disability beginning May 1, 2006, caused by back pain. This application was denied initially and on reconsideration. Hearings were conducted on November 19, 2010, May 12, 2011, and July 27, 2011, before Administrative Law Judge ("ALJ") Lloyd Hartford. The first hearing was continued to allow time for Petitioner to obtain counsel and undergo a mental consultative examination. At the second hearing, Petitioner was represented by counsel, and the ALJ heard testimony from Petitioner, Petitioner's uncle, and Petitioner's examining physician, Dr. Nilsson. At the supplemental hearing on July 27, the ALJ heard testimony from vocational expert Kent Granat and medical expert Margaret Moore. ALJ Hartford issued a decision finding Petitioner not disabled on August 29, 2011. Petitioner timely requested review by the Appeals Council, which denied his request for review on February 20, 2013.
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 Petitioner filed his application, he was thirty four years of age. Petitioner was born in 1974. Petitioner obtained his GED, and he has no significant prior work experience given lengthy periods of incarceration.
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 his alleged onset date, which was amended to October 20, 2008. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's degenerative disc disease of the lumbar spine, obesity, depressive disorder, and antisocial personality features 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 the listed impairments, specifically considering Listings 1.04, 12.04, and 12.08. 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.
Although Petitioner had some work experience as a flagger and landscaper, the ALJ found Petitioner had not engaged in any past relevant work. If a claimant demonstrates an inability to perform 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 residual functional capacity, age, education and work experience. The ALJ determined Petitioner retained the RFC to perform light work, and Petitioner could perform such occupations as garment folder, housekeeping cleaner, cleaner polisher, dowel inspector, waxer, and brimer.
STANDARD OF REVIEW
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. Finch, 438 F.2d 920, 921 (9th Cir. 1971). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he not only cannot do his previous work but is unable, considering his 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 & 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 a claimant's 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 believes the ALJ erred at steps three and four. First, Petitioner argues the ALJ should have found Petitioner met or medically equaled Listings 12.02, 12.04, 12.06, and 1.04 based upon the testimony of Dr. Nilsson. Second, Petitioner contends the ALJ failed to properly develop the record or consider the evidence, because Petitioner's demeanor at the hearing and the State of Idaho's vocational rehabilitation records support a finding of disability; the ALJ improperly refused to grant counsel's request to subpoena the consultative examiner; and, the ALJ did not properly develop testimony from the vocational expert. Next, Petitioner finds fault with the ALJ's assessment of Petitioner's credibility. And finally, Petitioner contends the ALJ erred when evaluating the medical source opinions.
1. Meet or Equal a Listing
If the claimant satisfies the criteria under a listing and meets the twelve month duration requirement, the Commissioner must find the claimant disabled without considering age, education and work experience. 20 C.F.R. § 404.1520(a)(4)(iii), (d). A claimant bears the burden of producing medical evidence that establishes all of the requisite medical findings that his impairments meet or equal any particular listing. Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987). Further, if the claimant is alleging equivalency to a listing, the claimant must proffer a theory, plausible or other, as to how his 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. Listings 12.02 (Organic Mental Disorders), 12.04 (Affective Disorders), and 12.06 (Anxiety Related Disorders)
For a claimant to meet Listings 12.02, 12.04, or 12.06, he must show that he has marked restrictions "in at least two" of the following categories listed in Part B:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, ...