United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
W. Dale United States Magistrate Judge
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
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.
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 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.
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
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.
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.)
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.
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. 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
SSR 12-2P and Listing Level
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.)
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.
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. 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
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
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, ...