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Fleenor v. Berryhill

United States District Court, D. Idaho

March 17, 2017

DONNA FLEENOR, Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, [1]Respondent.




         Currently pending before the Court is Donna Fleenor's Petition for Review[2] of the Respondent's denial of social security benefits, filed on December 30, 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 affirm the decision of the Commissioner.


         Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on May 28, 2012. This application was denied initially and on reconsideration, and a hearing was held on February 26, 2014, before Administrative Law Judge (ALJ) Ilene Sloan. A supplemental hearing was held on May 28, 2014. After hearing testimony from Petitioner, an impartial medical expert, and a vocational expert, ALJ Sloan issued a decision on July 24, 2014, finding Petitioner not disabled. Petitioner timely requested review by the Appeals Council, which denied her request for review on October 26, 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 May 28, 2014 hearing, Petitioner was forty-five years of age. Petitioner has a high school education. Her prior work experience includes full-time work as a time keeper, invoice control clerk, administrative clerk, and accounting 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 March 8, 2012.

         At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's pain disorder with psychological factors and her general medical condition--status post C5-7 anterior cervical discectomy and fusion--generalized anxiety disorder; and dysthymia 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 Listing 1.04A for disorders of the spine, 1.02 for major dysfunction of a joint, and 12.04 and 12.06 for her mental impairments.

         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 about the intensity and persistence of her pain not entirely credible. The ALJ reconciled the opinions of state agency physicians Guillermo Rubio, M.D.; Charles Wolfe, M.D.; and Edward Beaty, Ph.D., with Petitioner's treating physicians, Theodore Prier, M.D., and Dave Atteberry, M.D., as well as Julie Dueis, PA-C, and the impartial medical expert, Ronald Kendrick, M.D. The ALJ gave the state agency physicians' opinions more weight than Petitioner's treating physicians and care providers, for various reasons pertinent to either their treatment history, or inconsistencies with medical records.

         After so doing, the ALJ determined Petitioner retained the ability to perform light work, with the exception that she could stand or walk only four hours in an eight-hour workday and sit six hours during an eight-hour workday; occasionally climb ramps and stairs, but not ladders; frequently balance and occasionally stoop, kneel, crouch and never crawl; occasionally reach overhead bilaterally; and frequently handle, finger and feel with her bilateral upper extremities. The ALJ further limited Petitioner, indicating she should avoid moderate exposure to heights, moving machinery, and vibration. The ALJ determined Petitioner could understand, remember, and carry out simple, routine tasks. (AR 21.)

         The ALJ found Petitioner did not retain the ability to perform her past relevant work, and therefore proceeded to step five. 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 marker; production line sorter; and table worker. 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 underwent neck surgery on March 8, 2012, which was initiated by neurosurgeon Michael Thomas, D.O. However, Dr. Thomas was unable to complete the surgery, and thereafter, Dave Atteberry, M.D., was called upon to step in. Prior to arriving in the operating room, the surgical site had been open with the retractor in position for “close to two hours.” (AR 343.) Dr. Atteberry then performed an anterior cervical discectomy and fusion, using interbody spacers at ¶ 5-6 and C6-7, with fixation by plates and screws. (AR 343.) Petitioner suffered complications after the surgery, specifically complaining of an increase in right arm pain, with burning and paresthesias. (AR 411.)[3] Her voice became weak and raspy. (AR 411.) She also developed Horner syndrome[4] and difficulty swallowing postoperatively. (AR 411.) Petitioner reports she has difficulty with activities of daily living, due to the limited use of her right arm and hand, with associated pain.

         Petitioner contends first that the Appeals Council failed to acknowledge receiving additional evidence and incorporating that into its October 26, 2015 order. Next, Petitioner asserts the ALJ erred at step four, because she erroneously rejected the opinions of primary care physician Prier, and treating neurosurgeon Atteberry, in favor of the state agency reviewing physicians, Rubio, Wolfe, and Beaty. Petitioner contends also that the opinion of Julie Dueis, PA-C, was erroneously rejected. Third, Petitioner asserts the ALJ improperly assessed Petitioner's credibility. And finally, Petitioner contends the ALJ's residual functional capacity determination ...

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