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Barker v. Colvin

United States District Court, D. Idaho

September 29, 2016

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


          Honorable Candy W. Dale, United States Magistrate Judge


         Before the Court is Charlene Barker's Petition for Review, filed on July 10, 2015. (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 remand the decision of the Commissioner.


         Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on April 30, 2013, claiming disability beginning April 30, 2013. Petitioner alleges significant impairments, which include major depressive disorder; bipolar disorder; degenerative disk disease of the cervical and lumbar spine, status post L4-5 fusion; Factor V deficiency; seizure disorder; deep vein thrombosis of the right lower extremity; obesity; and obstructive sleep apnea. This application was denied initially and on reconsideration, and a hearing was held on March 23, 2015, before Administrative Law Judge (ALJ) Luke Brennan. After hearing testimony from Petitioner and vocational expert Kourtney Layton, ALJ Brennan issued a decision on April 2, 2015, finding Petitioner not disabled. Petitioner timely requested review by the Appeals Council, which denied her request for review on May 19, 2015.

         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 hearing, Petitioner was 49 years of age. Petitioner graduated from high school and completed a certificate program in esthetics. Petitioner's prior work experience includes work as a medical assistant and receptionist.


         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. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's major depressive disorder; bipolar disorder; degenerative disk disease of the cervical and lumbar spine, status post L4-5 fusion; Factor V deficiency; seizure disorder; deep vein thrombosis of the right lower extremity; obesity; and obstructive sleep apnea 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 Listing 1.04 (Disorders of the spine); Listing 3.10 (Sleep related breathing disorders); Listing 11.02 (Epilepsy - convulsive epilepsy (grand mal or psychomotor)) and Listing 11.03 (Epilepsy - nonconvulsive epilepsy (petit mal, psychomotor, or focal)); Listing 7.08 (chronic thrombocytopenia); and Listings 12.04, 12.06, and 12.08 (Affective disorder, anxiety-related disorder, and personality disorder).

         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 retained the RFC to perform light work, with additional limitations. Those limitations included the following restrictions: lift and carry 20 pounds occasionally and 10 pounds frequently; frequently climb ramps and stairs; never climb ladders and scaffolds; frequently stoop, kneel, crouch, and balance; occasionally crawl; avoid concentrated exposure to hazards such as extreme heat and cold; avoid moderate exposure to vibration; avoid all exposure to hazards including unprotected heights and moving machinery; and limited to simple, routine tasks, with occasional interaction with supervisors, co-workers, and the public.

         With such an RFC, the ALJ found Petitioner was not able to perform her past relevant work as either a receptionist or medical assistant. 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. Given Petitioner's RFC and the hypothetical posed to the vocational expert, the ALJ found Petitioner would be able to perform the requirements of representative occupations such as marker; mail clerk; and routing clerk. Accordingly, the ALJ found Petitioner 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. Finch, 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 & 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 contends the ALJ erred at steps three and four. Specifically, Petitioner argues the ALJ erred when he found Petitioner did not meet either Listing 11.02 (Epilepsy) or Listing 12.07 (Somatoform mental disorder). Petitioner argues also the ALJ erred in his credibility assessment and improperly discounted the opinions of Petitioner's treating physician, Dr. Stephen Denagy, and other treating sources. Each assignment of error will be discussed in turn.

         1. Meet or Equal a Listing

         The ALJ found Petitioner's impairments did not meet or equal any listing. At issue here are Listings 11.02 (Epilepsy) and 12.07 (Somatoform disorders). Petitioner claims her seizures, which are classified as psychogenic non-epileptic seizures (PNES), are medically equivalent to epileptic seizures, or alternatively would meet the definition of a somatoform disorder.

         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 establishing 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). Further, if the claimant is alleging equivalency to a listing, the claimant must proffer a theory, plausible or other, as to how her combined impairments equal a listing. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001).

         Equivalence is determined on the basis of a comparison between the “symptoms, signs and laboratory findings” about the claimant's impairment as evidenced by the medical records “with the medical criteria shown with the listed impairment.” 20 C.F.R. § 404.1526. 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 boilerplate finding is insufficient to support a conclusion that a claimant's impairment does not” meet or equal a listed impairment. Lewis, 236 F.3d at 512 (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990)).

         The ALJ concluded Petitioner “does not have any medically acceptable objective diagnostic evidence of a seizure disorder (see below).” (AR 24.) To support his conclusion, the ALJ relied upon Petitioner's normal EEG results, obtained in October of 2011, and in February of 2012. In addition, the ALJ found the record was “not consistent with the claimant's allegations of disabling seizures” because Petitioner has not been observed to have any bruising or other indicia of having suffered injuries due to the seizures, despite Petitioner's allegations that the seizures last at least half an hour, are highly convulsive, and happen every day.

         The ALJ further found that, despite Petitioner's allegations of suffering postictal symptoms of convulsion that last several hours and sometimes up to a day or two, “one would expect Petitioner to be in a confused stupor most of the time. Yet she is almost never observed to exhibit confusion, word finding difficulties, or other indicia of such postictal symptoms.” The ALJ next proceeded to discount Petitioner's description that her seizures lessened in duration, but not frequency, on the grounds that Petitioner's physician remarked in July of 2014 that, whereas she used to observe the Petitioner having seizures, “it had been a long time since she had observed such a seizure.” (AR 28.) The ALJ drew the conclusion that, because Petitioner's physician had not witnessed a seizure recently, the seizures decreased in frequency, contrary to Petitioner's allegations that they had not.

         Petitioner contends the ALJ erred, because Petitioner's seizure disorder is not detected by, or diagnosed with, an EEG. Further, Petitioner notes the ALJ witnessed the occurrence of a seizure during the hearing, yet failed to mention it in his written decision. Petitioner contends the ALJ erred by manufacturing his own conclusions regarding Petitioner's seizure disorder that are not supported by evidence in the record. The Court finds Petitioner is correct.

         Epilepsy is a listed impairment evaluated according to the type, frequency, duration, and after-effect of seizures. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). To meet Listing 11.02, a claimant must document by detailed description a typical seizure pattern, including all associated phenomena, which occurs more frequently than once a month in spite of at least three months of prescribed treatment. The seizures must present as either daytime episodes (loss of consciousness and convulsive seizures) or nocturnal episodes manifesting residuals which interfere significantly with activity during the day.[1]

         Respondent argues substantial evidence supports the ALJ's finding that Petitioner did not have medically acceptable objective diagnostic evidence of a seizure disorder because Petitioner failed to present the requisite objective evidence of a detailed description of a typical seizure. On the contrary-Petitioner presented several detailed descriptions of a typical seizure in her brief, with references to the record where medical providers documented their own personal observations. (Dkt. 13 at 7-8.)

         For example, Petitioner cited to a January 27, 2012 emergency department report, where the medical provider noted: “Pt in active seizure when EMS arrived. Pt arrived moaning and having seizure like activity upon arrival in to ED.” (AR 303.) Medical providers noted Petitioner was shaking upon arrival, had an altered mental status, and had intermittent shaking, which could be stopped abruptly with painful stimuli. (AR 303-305.) The initial evaluation indicated it “was clear that the patient was having pseudoseizures.” (AR 306.)

         Petitioner cited to her evaluation at Swedish Medical Center, where Petitioner underwent EEG monitoring from February 13, 2012, to February 17, 2012, for a total of four full days of continuous monitoring. (Dkt. 13 at 8; AR 314-317.) During observation, although no electrical abnormalities were seen via an EEG, Petitioner was described as exhibiting minimal sleep and observed as having numerous clinical events, the first of which consisted of hyperventilation, shoulder shaking, shoulder twitching, backwards head arching, stiffness, and upper body jerks in a waxing and waning fashion. A second event was described as rapid shoulder and head shaking, moaning, increased movement intensity, repetitive tension with small arching and brief periods of arching of the upper back and neck, with corresponding unresponsiveness to verbal stimulation. Additional, similar seizure-like events were observed throughout the four days of testing and observation. Id.

         The third seizure description Petitioner cited was the event documented by Pearl Health Clinic on October 8, 2013. (Dkt. 13 at 9; AR 404.) In the treatment note, Nurse Practitioner Elizabeth Bentley documented that, two hours into the assessment process, Petitioner demonstrated acute anxiety, or a seizure, which lasted for 20-30 minutes, characterized by tightening muscles in her arms and hands, heavy breathing, and thrashing. (AR 404.) Bentley noted Petitioner was cognitively alert and able to ...

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