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DeLeon v. Berryhill

United States District Court, D. Idaho

March 31, 2017

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


          Honorable Candy W. Dale, United States Magistrate Judge


         Currently pending before the Court is Corrina DeLeon's Petition for Review of the Respondent's denial of social security benefits, filed on February 5, 2016. (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 for an award of benefits.


         Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on October 24, 2012. This application was denied initially and on reconsideration, and a hearing was held on February 12, 2014, before Administrative Law Judge (ALJ) John Molleur. After hearing testimony from Petitioner and a vocational expert, ALJ Molleur issued a decision on March 13, 2014, finding Petitioner not disabled. Petitioner timely requested review by the Appeals Council, which denied her request for review on January 1, 2016.

         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 thirty-nine years of age. Petitioner has a high school education, and completed a certificate program in medical assisting. Her prior work experience includes work as a medical assistant.


         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 16, 2011.

         At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ bifurcated the decision, and set forth two different time periods- one prior to February 13, 2013, and one after February 13, 2013. The ALJ found that, prior to February 13, 2013, Petitioner's impairments-left shoulder injury with resulting lesion of the axillary nerve, degenerative disc disease of the cervical spine with disk protrusion at ¶ 4-5, and insulin dependent diabetes mellitus-severe within the meaning of the Regulations. With regard to the time period after February 13, 2013, the ALJ found Petitioner's impairments-multiple sclerosis, chondromalacia of the patella, and diabetic retinopathy, in addition to the previously mentioned impairments-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 Listings 1.02 (major dysfunction of a joint); 1.04 (spine disorders) and 1.08 (soft tissue injuries of an upper or lower extremity). The ALJ determined none of Petitioner's impairments met or equaled the criteria for the listed impairments considered.[2]

         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 residual 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 statements of Petitioner's treating medical care providers, Dr. Donaldson, Dr. Harris, and nurse practitioner Deborah Sullivan, were entitled to limited weight.

         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.

         The ALJ assigned Petitioner a RFC for each time frame. For the period prior to February 13, 2013, the ALJ determined Petitioner retained the RFC to perform less than the full range of light work, with limitations upon pushing or pulling with her left upper extremity, occasional overhead reaching with her left arm, and avoidance of climbing ropes, ladders or scaffolds, no direct exposure to vibrations, and no work around unprotected heights. Based on this RFC finding, the ALJ determined Petitioner could have performed her past relevant work as a file clerk and medical assistant.

         For the time period after February 13, 2013, the ALJ determined Petitioner retained the RFC to perform sedentary work, with limitations on pushing or pulling with her left upper extremity, and only occasional overhead reaching with her left arm; limited to only frequent postural activities, avoidance of climbing ropes, ladders or scaffolds, no direct exposure to vibrations, and no work around unprotected heights, and limited to jobs not requiring more than frequent binocular vision. Based on this RFC finding, the ALJ determined Petitioner could have made a vocational adjustment to other jobs existing in significant numbers in the national economy, such as document preparer; order clerk; and call out operator. (AR 25.)

         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 suffered a work related injury to her left shoulder on May 24, 2011. She was initially diagnosed with cervical radiculitis and a sprain of her neck and left shoulder. (AR 16.) Later, Dr. Michael O'Brien, on September 20, 2011, noted atrophy of the deltoid muscle and weakness in abducting or lifting her arm outwards. Dr. O'Brian diagnosed a lesion of the axillary nerve that supplied the deltoid muscle in the area, significant enough to cause continuing pain, muscle atrophy, and sensory loss. (AR 16.) Later, on February 17, 2012, Katrina Johnson, PA-C, diagnosed adhesive capsulitis of Petitioner's left shoulder, and she recommended an intra-articular injection along with anti-inflammatory medication, plus physical therapy. (AR 17.) Petitioner continued to complain of ongoing symptoms, including neck pain and bilateral numbness and tingling, as well as pain at her upper extremities. Dr. Michael Curtin on August 21, 2012, confirmed the diagnosis of adhesive capsulitis with profound contracture of the left shoulder and diminished strength of the left side. (AR 17.) A neurological evaluation by Dr. Tyler Frizzell on October 23, 2012, revealed hypoactive reflexes. (AR 17.)

         Following her injury, orthopedist Tallerico evaluated Petitioner on March 15, 2012, for purposes of her worker's compensation claim. (AR 267.)[3] Dr. Tallerico noted Petitioner's complaints, which included numbness and tingling in her left arm following physical therapy. (AR 268.) According to Dr. Tallerico, Petitioner's left shoulder problem “has developed into a rather bizarre constellation of symptoms including migratory pain symptoms across her upper back, neck, to where the symptoms will be similar down her right arm.” (AR 270.) He noted Petitioner described spasm and muscle tightness, as well as fatigue. (AR 270.) Upon examination, Dr. Tallerico noted visible spasm in her right arm and hand; abnormal range of motion in all joints; give way weakness in every single major motor group in the upper and lower extremities; diminished pinprick and light touch in upper and lower extremities in a nonanatomic distribution; a slow shuffling gait; and that she had to terminate the exam due to nausea. Dr. Tallerico reached the opinion that Petitioner was “willfully misrepresenting her physical condition as it relates to the industrial injury of May 24, 2011.” (AR 275.)

         Petitioner sought treatment also from Dr. Shoemaker, her treating physician, throughout 2011. On September 1, 2011, Dr. Shoemaker concluded that, despite Petitioner's complaints of continued pain, he did not have “a reasonable pain generator” to explain her continued persistent diffuse pain symptoms. (AR 288, 19.) In his opinion, Petitioner's pain complaints were related to degenerative pre-existing changes in her cervical spine, and he had no other opinion regarding Petitioner's left shoulder with numbness, tingling in both hands, and distribution of pain throughout her left upper extremity. (AR 299.)

         Upon referral from Dr. Timothy Doerr, Petitioner on March 12, 2013, underwent an MRI. (AR 479-480.) The MRI results indicated subtle intramedullary signal disturbance at the mid C2 level and the C3-4 level suggesting a demyelinating process. Based upon the MRI results, Dr. Wade Harris, on April 17, 2013, diagnosed Petitioner with multiple sclerosis. (AR 496.) At the examination, Dr. Harris noted Petitioner was “positive for visual change, memory loss, weakness, gait instability and sensory change.” (AR 496.) Dr. Harris observed an abnormal gait, which included abnormal arm swing, stride, and turn, and that Petitioner could not perform tandem walk without balance support. (AR 497.) Because of Petitioner's reported symptoms, which included vision changes, voice changes and memory loss consistent with multiple sclerosis, Dr. Harris ordered an MRI of the brain and a lumbar puncture to further evaluate the etiology of Petitioner's demyelinating changes. (AR 497.)

         The MRI of Petitioner's brain, which occurred on April 25, 2013, revealed multifocal areas of nodular white matter signal abnormality, as well as other findings, consistent with a demyelinating process such as multiple sclerosis. (AR 592.) Petitioner underwent a lumbar puncture on May 10, 2013, which reflected a high level of oligoclonal bands, seen in patients with multiple sclerosis. (AR 489, 594.)

         Dr. Harris, together with nurse practitioner Deborah Sullivan, provided a medical source statement on July 22, 2013. (AR 481 - 488.) In their opinion, based upon their examinations, clinical observations, training, and expertise, Petitioner could only sit, stand and/or walk for less than 2 hours in an 8-hour workday, could only occasionally lift and/or carry less than 10 pounds, and she had varying degrees of limitations in her upper and lower extremities due to weakness and pain. They noted Petitioner had problems with balance, decreased strength, and decreased sensation.

         Petitioner contends the ALJ erred at step four[4] by failing to consider all of Petitioner's impairments, and assigning two different periods and two RFCs. Petitioner contends also the ALJ erred in evaluating Petitioner's credibility, and in rejecting the opinions of treating providers Dr. Harris, nurse practitioner Sullivan, and chiropractor Donaldson. Consequently, Petitioner asserts the RFC determination did not adequately account for the cumulative effects of ...

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