United States District Court, D. Idaho
CHARLENE S. BARKER, Petitioner,
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Respondent.
MEMORANDUM DECISION AND ORDER
Honorable Candy W. Dale, United States Magistrate Judge
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
AND FACTUAL HISTORY
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.
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).
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
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
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).
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.
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
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.
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).
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).
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).
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.
Meet or Equal a Listing
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
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).
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.
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.
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.
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.
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.
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.)
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.)
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.
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 ...