United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Ronald E. Bush Chief U.S. Magistrate Judge
pending before the Court is Petitioner Lenora Hansen's
Petition for Review (Dkt. 1), filed June 3, 2015, seeking
review of the Social Security Administration's final
decision to deny her 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.
BACKGROUND AND ADMINISTRATIVE PROCEEDINGS
applied for SSDI benefits on July 12, 2011, alleging a
disability onset date of May 4, 2011. (AR 9). On that same
day she also filed an application under Title XVI for
supplemental security income. These claims were denied
initially and again on reconsideration on January 24, 2012.
(AR 9). Thereafter, Petitioner filed a request for a hearing
with an Administrative Law Judge (ALJ), which occurred on
July 12, 2013 in Boise, Idaho. (AR 12). (AR 28-48). ALJ John
Molleur presided over the hearing, at which the Petitioner
was present and represented by her attorney, Joseph P. Brown.
Beth Cunningham, an impartial vocational expert, also
testified at the hearing. At the time of the hearing,
Petitioner was 46 years old, and had past work experience as
an administrative clerk and a food service worker. (AR 19).
August 15, 2013, the ALJ issued a decision, denying
Petitioner's claims, finding that she was not disabled
within the meaning of the Social Security Act. (AR
9-21). Petitioner timely requested review from the
Appeals Council on October 17, 2013. (AR 5.) The Appeals
Council then denied review on April 1, 2015 (AR 1-4),
rendering the ALJ's decision the Commissioner's final
decision. Petitioner now seeks judicial review of the
Commissioner's decision to deny benefits, contending that
the ALJ erred in the following ways. First, she alleges that
the ALJ erred by failing to identify her chronic migraine
headaches as a “severe impairment” at step two.
Second, she argues that the ALJ erred by concluding that her
subjective pain complaints far exceeded any objective medical
evidence, and relatedly, by improperly assessing her
credibility. She also argues that the ALJ erred in rejecting
the opinions of her treating neurologist, Dr. Allen Han, with
respect to her level of functional capacity. Finally,
Petitioner argues that the ALJ erred in discounting her
morbid obesity and finding that her non-compliance with
treatment for that condition made her credibility suspect.
The Court concludes that the ALJ committed errors in a number
of respects, either by failing to apply controlling legal
standards, by mis-characterizing evidence, and by ignoring
evidence favorable to the claimant in such a pronounced
manner that not even the generous “substantial
evidence” standard can sustain the decision. For these
reasons, which are discussed more thoroughly below, the Court
will grant Petitioner's request for review and remand the
case for an immediate entry of benefits.
STANDARD OF REVIEW
upheld, the Commissioner's decision must be supported by
substantial evidence and based on proper legal standards. 42
U.S.C. § 405(g); Smolen v. Chater, 80 F.3d
1273, 1279 (9th Cir. 1996); Matney ex. rel.
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992);
Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir.
1990). 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. Hall v.
Sec'y of Health, Educ. & Welfare, 602 F.2d 1372,
1374 (9th Cir. 1979).
evidence” is defined as such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401
(1971); Webb v. Barnhart, 433 F.3d 683, 686
(9th Cir. 2005); Flaten v. Sec'y of Health
& Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).
The standard requires more than a scintilla but less than a
preponderance of evidence, Sorenson v. Weinberger,
514 F.2d 1112, 1119 n. 10 (9th Cir.1975); Magallanes v.
Bowen, 881 F.2d 747, 750 (9th Cir. 1989), and
“does not mean a large or considerable amount of
evidence.” Pierce v. Underwood, 487 U.S. 552,
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. See Richardson, 402 U.S. at
401; see also Matney, 981 F.2d at 1019. The ALJ is
responsible for determining credibility and resolving
conflicts in medical testimony, and for resolving
ambiguities. Andrews v. Shalala, 53 F.3d 12035, 1039
(9th Cir. 1995); Allen v. Heckler, 749
F.2d 577, 579 (9th Cir. 1989). The ALJ is also responsible
for drawing inferences logically flowing from the evidence,
Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.
1982). 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.
Flaten, 44 F.3d at 1457; Key v. Heckler,
754 F.2d 1545, 1549 (9th Cir. 1985).
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.”
Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir.
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
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 the claimant had not engaged in SGA
since May 4, 2011, the alleged onset date of the disability.
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: morbid
obesity, osteoarthritis of the knees, hip and shoulder, mild
degenerative disc disease of the lumbar spine, fibromyalgia,
and adjustment disorder. (AR 11). Although Petitioner also
had a history of migraine headaches, the ALJ concluded that
these were not a severe impairment at step two. (AR 12).
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. 20 C.F.R. §§
404.1520(e), 416.920(e). Here, the ALJ concluded that
Petitioner did not have an impairment or combination of
impairments that met or medically equaled the severity of one
of the listed impairments. (AR 12-14.)
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 determined that the Petitioner had the residual
functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) and 416.967(a), with the additional
limitation that she was limited to work requiring
“uninvolved” three-to-four step tasks and only
brief and incidental interactions with the general public.
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, she is not disabled; if
the claimant is not able to do other work and meets the
duration requirement, she is disabled. The ALJ found, at step
five, that Petitioner can no longer perform her past relevant
work, but also found that she is capable of making a
successful adjustment to other work that exists in
significant numbers in the national economy. (AR 20).
The ALJ Erred by Failing to Find that Claimant's Migraine
Headaches Were a Severe Impairment at Step Two.
first assignment of error relates to the ALJ's assessment
of Petitioner's migraine headaches. Despite a
well-documented history of migraines dating back to at least
2007, and despite uncontroverted testimony that Petitioner
had lost her prior job due to missing several days of work
per month because of those headaches, the ALJ concluded that
these headaches did not constitute a severe impairment at
step two. This conclusion was error.
stated that he had considered Petitioner's allegations
regarding disabling headaches, but found that “recent
work-ups for her neurological issues were normal per the new
evidence submitted at C-13F and C-14 F, including MRI scans
of the brain.” (AR 12). The ALJ also noted that
claimant had recently “told her treating physician,
Allen Han, M.D. that she has a mild headache all day every
day, but severe headaches two to three times per week;
however, she also noted these headaches are effectively
treated with medication.” (Id.). These
conclusions represented a serious misunderstanding of the
relevant medical condition as well as serious misreading of
inquiry at step two is a “de minimis screening device
to dispose of groundless claims.” Smolen v.
Chater, 80 F.3d at 1273, 1290 (9th Cir.
1996). The Ninth Circuit has held that an “overly
stringent application of the severity requirement violates
the [Social Security] Act by denying benefits to claimants
who do [or who potentially might] meet the statutory
definition of disabled.” Corrao v. Shalala, 20
F.3d 943, 949 (9th Cir. 1994). An impairment is
considered severe at Step Two if it has “more than a
minimal effect on an individual's ability to do basic
work activities.” Webb v. Barnhart, 433 F.3d
683, 687 (9th Cir. 2005).
ALJ's ruling at step two effectively required Petitioner
to provide “objective” evidence for her migraine
headaches when no such evidence would have been attainable.
As numerous courts, including the Ninth Circuit, have held,
it is error to require objective evidence for conditions
(like fibro-myalgia or migraine) that elude precise
measurement. See, e.g. Green-Younger v. Barnhart,335 F.3d 99, 108 (2nd Cir. 2003) (holding that
ALJs cannot require “objective” medical evidence
for conditions that are not amenable to definitive diagnosis,
such as fibromyalgia). As one sister court has explained,
“migraine headaches are a common malady that are
readily diagnosed through the evaluation of symptoms. They
are difficult to control with or without medication. . . . No
diagnostic tests are useful, except to exclude other
causes.” Dalley v. Commissioner of Social
Security, 2006 WL 2578269 at * 7 (N.D. Cal. 2006).
According to the most recent online version of the Merck
Manual, “doctors diagnose migraines when symptoms are
typical and results of a physical examination are normal. . .
. No procedure can confirm the diagnosis. If headaches have
developed recently or if certain warning signs are present,
computer tomography (CT) or magnetic resonance imagine (MRI)
of the head is often done and a spinal tap (lumbar puncture)
is sometimes done to exclude other
disorders.”Indeed, the relevant records from
Petitioner's treating neurologist indicate that the MRI
and other tests she underwent in 2013 were being used to
rule out several potentially disastrous conditions, such
as tumor ...