United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
HONORABLE CANDY W. DALE, UNITED STATES MAGISTRATE JUDGE
pending before the Court is Donna Fleenor's Petition for
Review 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.
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.
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 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
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.
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.
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.
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.
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.
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.)
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
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).
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.) Her voice became
weak and raspy. (AR 411.) She also developed Horner
syndrome 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.
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 ...