United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Candy W. Dale, United States Magistrate Judge
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.
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.
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 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.
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.
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.
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
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.
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.
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
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.
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.)
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).
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.)
her injury, orthopedist Tallerico evaluated Petitioner on
March 15, 2012, for purposes of her worker's compensation
claim. (AR 267.) 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.)
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.)
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.)
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.)
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.
contends the ALJ erred at step four 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