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Leoni v. Colvin

United States District Court, D. Idaho

January 24, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendants.


          Candy W. Dale United States Magistrate Judge


         Currently pending before the Court is Tammi Leoni's Petition for Review of the Respondent's denial of social security benefits, filed on November 24, 2015. (Dkt. 1.) 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 remand the decision of the Commissioner.


         Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on September 25, 2012. This application was denied initially and on reconsideration, and a hearing was held on January 29, 2014, before Administrative Law Judge (ALJ) John Molleur. After hearing testimony from Petitioner, Petitioner's spouse, and a vocational expert, ALJ Molleur issued a decision on March 3, 2014, finding Petitioner not disabled. Petitioner timely requested review by the Appeals Council, which denied her request for review on October 9, 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 forty-eight years of age. Petitioner has a high school education, and completed one semester of college as well as a dental assistant vocational program. Her prior work experience includes work as a billing collections clerk and benefit clerk.


         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 of August 15, 2007. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's fibromyalgia, migraines, post arthroscopic repair of a superior labral tear and subacromial decompression of the left shoulder, post plantar fasciotomy of the left heel, osteopenia, obesity, asthma, Barrett's esophagus, and GERD severe within the meaning of the Regulations.

         Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found Petitioner's impairments did not meet or equal the criteria for the listed impairments, specifically considering Petitioner's fibromyalgia under Sections 1.00 and 11.00, which address musculoskeletal impairments and neurological disorders, respectively. The ALJ considered also whether Petitioner's asthma met Listing 3.03 (Asthma), and whether Petitioner's GERD and Barrett's esophagus met Listing 5.00 (Digestive System Diseases). The ALJ considered also whether Petitioner's headaches were functionally equivalent to Listing 11.03 (Nonconvulsive epilepsy). And finally, the ALJ considered whether Petitioner's shoulder and foot injuries met Listings 1.02 or 1.04 (Major Dysfunction of a joint or Disorder of the Spine). The ALJ determined none of Petitioner's impairments met or equaled the criteria for the listed impairments considered.

         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. In assessing Petitioner's functional capacity, the ALJ determines whether Petitioner's complaints about the intensity, persistence and limiting effects of her pain are credible. Here, the ALJ found Petitioner's complaints not entirely credible. The ALJ found also that the medical source statement of Petitioner's treating physician, Dr. Hammond, was not consistent with the medical records from Petitioner's onset date forward. Accordingly, the ALJ gave Dr. Hammond's opinion minimal weight. After so doing, the ALJ determined Petitioner retained the RFC to perform sedentary work, with limitations on climbing, postural activities, avoiding temperature extremes and dusts, fumes, gases, or other odors, as well as no direct exposure to vibrations. With regard to Petitioner's mental limitations due to fibromyalgia, the ALJ limited Petitioner to simple, three and four step tasks. (AR 16.)

         The ALJ found Petitioner not able to perform her past relevant work as either a billing collections clerk or benefits clerk. 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. Here, the ALJ found Petitioner retained the ability to perform the requirements of representative occupations such as document preparer, call out operator, or semiconductor bonder. Consequently, the ALJ determined Petitioner was 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. At step three, Petitioner asserts the ALJ did not properly evaluate Petitioner's fibromyalgia in accordance with SSR 12-2P, and therefore did not properly evaluate her fibromyalgia with regard to a listing. At step four, Petitioner asserts the ALJ did not properly assess the opinion of her treating physician, Dr. Hammond; improperly rejected Petitioner's and her husband's testimony; and did not consider the combined effects of Petitioner's exertional and non-exertional limitations when formulating her residual functional capacity.

         1. SSR 12-2P and Listing Level

         Petitioner argues the ALJ neglected to address SSR 12-2p because the ALJ found fibromyalgia is not a listed impairment. (AR 14.) The ALJ indicates he considered SSR 12-2p, and he evaluated whether Petitioner's fibromyalgia medically equaled a listing. (AR 14.)

         Here, Petitioner seems to conflate SSR 12-2p with what constitutes listing level requirements. The Court finds the ALJ properly considered SSR 12-2p, which establishes two sets of guidelines for analyzing whether a claimant has fibromyalgia. The guidelines are relevant to the ALJ's determination at step two regarding whether a claimant has a medically determinable impairment of fibromyalgia. Wells v. Colvin, 2016 WL 1070665 *6 (N.D. Cal. Mar. 18, 2016). The ALJ found Petitioner's fibromyalgia was a medically determinable impairment which was severe under step two.

         At step three, the ALJ found Petitioner's impairments did not medically equal or meet a listed impairment. The ALJ noted the absence of any listing directly addressing fibromyalgia, and reviewed Petitioner's symptoms under Listing 1.00 and Listing 11.00 pertaining to musculoskeletal and neurological impairments, respectively.[1] The ALJ found Petitioner's impairments did not meet or equal a listing. There is therefore no error in the ALJ's failure to incorporate SSR 12-2p's diagnostic guidelines in his step three analysis, because step three required him only to determine whether Petitioner's impairments equaled a listed impairment. The ALJ found they did not. See Id. (finding no error when the ALJ failed to mention SSR 12-2p because it had no bearing on the ALJ's step three determination once the ALJ determined the claimant suffered from fibromyalgia).

         In her reply brief, Petitioner attempts to salvage her argument, contending the ALJ made merely a conclusory remark with regard to the listings he considered in connection with Petitioner's fibromyalgia, and that he failed to explain in detail why Petitioner's symptoms did not equal a listing. For a claimant to qualify for benefits by showing that her unlisted impairment, or combination of impairments, is “equivalent” to a listed impairment, she must present medical findings equal in severity to all the criteria for the one most similar listed impairment. Sullivan v. Zebley, 493 U.S. 521, 532 (1990) (citing 20 CFR § 416.926(a) (1989)) (a claimant's impairment is “equivalent” to a listed impairment “if the medical findings are at least equal in severity” to the medical criteria for “the listed impairment most like [the claimant's] impairment.”). When a person has a combination of impairments, “the medical findings of the combined impairments will be compared to the findings of the listed impairment most similar to the individual's most severe impairment.” Id. (citing SSR 83-19 at 91).

         While the Court agrees the ALJ's statements are conclusory, Petitioner has not offered any theory, plausible or otherwise, as to how her fibromyalgia and other impairments combined to equal a listed impairment. Nor has Petitioner pointed to evidence that shows how her combined impairments equal a listed impairment. See Lewisv. Apfel, 236 F.3d 503, 514(9th 2001) (finding that, although the ALJ did not discuss the combined effects of the claimant's impairments or compare them to any listing, the petitioner's failure to offer any theory or point to evidence explaining how his combined impairments equal a listed impairment was fatal to his claim). Petitioner has not put forth any evidence Petitioner suffered an extreme loss of function in her upper extremities preventing her from performing fine and gross movements effectively, or an extreme loss of function in the lower extremities causing an inability to ambulate effectively, which findings are required under Listing 1.00. Similarly, ...

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