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Hansen v. Colvin

United States District Court, D. Idaho

September 1, 2016

CAROLYN W. COLVIN, Commissioner of Social Security, Respondent.


          Honorable Ronald E. Bush Chief U.S. Magistrate Judge

         Now 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.


         Petitioner 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).

         On 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.


         To be 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).

         “Substantial 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, 565 (1988).

         With 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).

         With 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. 1987).


         A. Sequential Process

         In 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 Security Act.

         The 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. (AR 11).

         The 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).

         The 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.)

         The 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. (AR 14).

         In the 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).

         B. Analysis

         1. The ALJ Erred by Failing to Find that Claimant's Migraine Headaches Were a Severe Impairment at Step Two.

         The 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.

         The ALJ 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 the evidence.

         The 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).

         The 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.”[1]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 ...

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