United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Ronald E. Bush Chief U.S. Magistrate Judge
before the Court is Petitioner Janet DeLeon's Petitioner
for Review, seeking review of the Social Security
Administration's final decision to deny her claim for
disability benefits. See generally Pet. for Review
(Docket No. 1). This action is brought pursuant to 42 U.S.C.
§ 405(g). Having carefully considered the record and
otherwise being fully advised, the Court enters the following
Memorandum Decision and Order:
March 13, 2013, Janet DeLeon (“Petitioner”)
protectively filed a Title II application for a period of
disability and disability insurance benefits, alleging
disability beginning December 15, 2011. This claim was
initially denied on April 24, 2013 and, again, on
reconsideration on July 11, 2013. On July 25, 2013,
Petitioner timely filed a Request for Hearing before an
Administrative Law Judge (“ALJ”). On June 16,
2014, ALJ Luke A. Brennan held a hearing in Boise, Idaho, at
which time Petitioner, represented by attorney Angela
Hermosillo, appeared and testified. Impartial vocational
expert, Polly A. Peterson, also appeared and testified during
the same June 16, 2014 hearing.
September 9, 2014, the ALJ issued a Decision denying
Petitioner's claim, finding that Petitioner was not
disabled within the meaning of the Social Security Act.
Petitioner timely requested review from the Appeals Council
on November 7, 2014. On March 23, 2016, the Appeals Council
denied Petitioner's Request for Review, making the
ALJ's decision the final decision of the Commissioner of
exhausted her administrative remedies, Petitioner timely
files the instant action, arguing that:
The decision of the hearing examiner, as affirmed by [the]
Appeals Council, was wrong, not supported by substantial
evidence in the record, or contrary to the law and regulation
because: the ALJ's decision was made against the
substantial weight of the evidence in that he did not consult
with the appropriate experts at the time of the hearing; he
did not adequately consider the opinions of the
claimant's treating providers; he did not request a
consultative examination or satisfy his burden to re-contact
any providers in the presence of any ambiguity or lack of
clarity; he did not adequately consider Plaintiff's
credibility and subjective complaints; he failed to account
for the full impact Plaintiff's impairment has on her
ability to function; he did not adequately consider all the
factors that must be accounted for when ascertaining a
plaintiff's residual functional capacity; and he also
neglected to adequately consider testimony from the
vocational expert that would have yielded a favorable
Pet. for Review, pp. 2-3 (Docket No. 1). From this,
Petitioner's arguments crystallized into the following,
more specific arguments: (1) the ALJ failed to properly
evaluate Petitioner's credibility; (2) the ALJ failed to
properly evaluate the medical opinion evidence; (3) the
Commissioner failed to establish that there is other work in
the national economy that Petitioner can perform; and (4) the
Appeals Council failed to properly evaluate the new evidence
which was submitted in support of Petitioner's request
for review of hearing decision. See Pet.'s
Brief, p. ii (Docket No. 18). Petitioner therefore requests
that the Court either reverse the ALJ's decision and find
that she is entitled to disability benefits or,
alternatively, remand the case for further proceedings and
award attorneys' fees. See Pet. for Review, p. 3
(Docket No. 1).
STANDARD OF REVIEW
upheld, the Commissioner's decision must be supported by
substantial evidence and based on proper legal standards. 42
U.S.C. § 405(g); Matney ex. rel. Matney v.
Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992);
Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir.
1990). Findings as to any question of fact, if supported by
substantial evidence, are conclusive. 42 U.S.C. §
405(g). In other words, if there is substantial evidence to
support the ALJ's factual decisions, they must be upheld,
even when there is conflicting evidence. Hall v.
Sec'y of Health, Educ. & Welfare, 602 F.2d 1372,
1374 (9th Cir. 1979).
evidence” is defined as such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401
(1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413
(9th Cir. 1993); Flaten v. Sec'y of Health &
Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The
standard requires more than a scintilla but less than a
preponderance (see Sorenson v. Weinberger, 514 F.2d
1112, 1119 n. 10 (9th Cir. 1975); Magallanes v.
Bowen, 881 F.2d 747, 750 (9th Cir. 1989)), and
“does not mean a large or considerable amount of
evidence.” Pierce v. Underwood, 487 U.S. 552,
respect to questions of fact, the role of the Court is to
review the record as a whole to determine whether it contains
evidence that would allow a reasonable mind to accept the
conclusions of the ALJ. See Richardson, 402 U.S. at
401; see also Matney, 981 F.2d at 1019. The ALJ is
responsible for determining credibility and resolving
conflicts in medical testimony (see Allen v.
Heckler, 749 F.2d 577, 579 (9th Cir. 1984)), resolving
ambiguities (see Vincent ex. rel. Vincent v.
Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)), and
drawing inferences logically flowing from the evidence
(see Sample v. Schweiker, 694 F.2d 639, 642 (9th
Cir. 1982)). Where the evidence is susceptible to more than
one rational interpretation in a disability proceeding, the
reviewing court may not substitute its judgment or
interpretation of the record for that of the ALJ.
Flaten, 44 F.3d at 1457; Key v. Heckler,
754 F.2d 1545, 1549 (9th Cir. 1985).
respect to questions of law, the ALJ's decision must be
based on proper legal standards and will be reversed for
legal error. Matney, 981 F.2d at 1019. The ALJ's
construction of the Social Security Act is entitled to
deference if it has a reasonable basis in law. See
id. However, reviewing federal courts “will not
rubber-stamp an administrative decision that is inconsistent
with the statutory mandate or that frustrates the
congressional purpose underlying the statute.”
Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir.
evaluating the evidence presented at an administrative
hearing, the ALJ must follow a sequential process in
determining whether a person is disabled in general
(see 20 C.F.R. §§ 404.1520, 416.920) - or
continues to be disabled (see 20 C.F.R. §§
404.1594, 416.994) - within the meaning of the Social
first step requires the ALJ to determine whether the claimant
is engaged in substantial gainful activity
(“SGA”). 20 C.F.R. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is defined as work
activity that is both substantial and gainful.
“Substantial work activity” is work activity that
involves doing significant physical or mental activities. 20
C.F.R. §§ 404.1572(a), 416.972(a). “Gainful
work activity” is work that is usually done for pay or
profit, whether or not a profit is realized. 20 C.F.R.
§§ 404.1572(b), 416.972(b). If the claimant has
engaged in SGA, disability benefits are denied, regardless of
how severe her physical/mental impairments are and regardless
of her age, education, and work experience. 20 C.F.R.
§§ 404.1520(b), 416.920(b). If the claimant is not
engaged in SGA, the analysis proceeds to the second step.
Here, the ALJ found that Petitioner has not engaged in
substantial gainful activity since December 15, 2011, the
alleged onset date. (AR 20).
second step requires the ALJ to determine whether the
claimant has a medically determinable impairment, or
combination of impairments, that is severe and meets the
duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii),
416.920(a)(4)(ii). An impairment or combination of
impairments is “severe” within the meaning of the
Social Security Act if it significantly limits an
individual's ability to perform basic work activities. 20
C.F.R. §§ 404.1520(c), 416.920(c). An impairment or
combination of impairments is “not severe” when
medical and other evidence establish only a slight
abnormality or a combination of slight abnormalities that
would have no more than a minimal effect on an
individual's ability to work. 20 C.F.R. §§
404.1521, 416.921. If the claimant does not have a severe
medically determinable impairment or combination of
impairments, disability benefits are denied. 20 C.F.R.
§§ 404.1520(c), 416.920(c). Here, the ALJ found
that Petitioner had the following severe impairment: multiple
sclerosis. (AR 20).
third step requires the ALJ to determine the medical severity
of any impairments; that is, whether the claimant's
impairments meet or equal a listed impairment under 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the answer is
yes, the claimant is considered disabled under the Social
Security Act and benefits are awarded. 20 C.F.R. §§
404.1520(d), 416.920(d). If the claimant's impairments
neither meet nor equal one of the listed impairments, the
claimant's case cannot be resolved at step three and the
evaluation proceeds to step four. Id. Here, the ALJ
concluded that Petitioner's above-listed impairment,
while severe, did not meet or medically equal, either singly
or in combination, the criteria established for any of the
qualifying impairments. (AR 20-21).
fourth step of the evaluation process requires the ALJ to
determine whether the claimant's residual functional
capacity (“RFC”) is sufficient for the claimant
to perform past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual's
RFC is her ability to do physical and mental work activities
on a sustained basis despite limitations from her
impairments. 20 C.F.R. §§ 404.1545, 416.945.
Likewise, an individual's past relevant work is work
performed within the last 15 years or 15 years prior to the
date that disability must be established; also, the work must
have lasted long enough for the claimant to learn to do the
job and be engaged in substantial gainful activity. 20 C.F.R.
§§ 404.1560(b), 404.1565, 416.960(b), 416.965.
Here, the ALJ determined that Petitioner has the RFC to
“perform sedentary work as defined in 20 C.F.R.
[§] 404.1567(a).” (AR 21). Specifically, the ALJ
determined that Petitioner:
can lift and carry 20 pounds occasionally and 10 pounds
frequently. She can stand or walk for 2 hours out of an
8-hour workday but can sit for up to 6 hours out of an 8-hour
workday. Specifically, the claimant can frequently climb
ramps and stairs but never climb ladders or scaffolds. She
can occasionally balance but can frequently stoop, kneel,
crouch, and crawl. She must avoid unprotected heights and
moving machinery. She can occasionally use her left upper
extremity for fingering, handling, or reaching. She can
frequently use her right upper dominant extremity for
fingering, handling, and reaching.
fifth and final step, if it has been established that a
claimant can no longer perform past relevant work because of
her impairments, the burden shifts to the Commissioner to
show that the claimant retains the ability to do alternate
work and to demonstrate that such alternate work exists in
significant numbers in the national economy. 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1520(f), 416.920(f); see also Matthews v.
Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the
claimant is able to do other work, she is not disabled; if
the claimant is not able to do other work and meets the
duration requirement, she is disabled. Here, the ALJ found
that Petitioner is unable to perform any past relevant work.
(AR 24). However, the ALJ further found that there are jobs
that exist in significant numbers in the national economy
that Petitioner can perform, including an out operator. (AR
25). Therefore, based on Petitioner's age, education,
work experience, and RFC, the ALJ concluded that Petitioner
“has not been under a disability, as defined in the
Social Security Act, from December 15, 2011, through the date
of this decision.” (AR 26).
is responsible for determining credibility, resolving
conflicts in medical testimony, and for resolving
ambiguities. See Reddick v. Chater, 157 F.3d 715,
722 (9th Cir. 1998). Where, as here, the
Petitioner has presented evidence of an underlying impairment
and the government does not argue that there is evidence of
malingering, the Court reviews the ALJ's rejection of her
testimony for specific, clear, and convincing reasons.
See Burrell v. Colvin, 775 F.3d 1133, 1136
(9th Cir. 2014); see also Molina v.
Astrue, 674 F.3d 1104, 1112 (9thCir. 2012).
As the Ninth Circuit has recognized, this is not an easy
requirement to meet because “the clear and convincing
standard is the most demanding required in Social Security
cases.” Garrison v. Colvin, 759 F.3d 995, 1015
(9th Cir. 2014). However, “the ALJ is not
required to believe every allegation of disabling pain,
” otherwise disability benefits “would be
available for the asking, a result plainly contrary to 42
U.S.C. § 423(d)(5)(A).” Molina, 674 F.3d
evaluating a claimant's credibility, the ALJ may engage
in “ordinary techniques of credibility
evaluation.” Id. An ALJ may consider factors
such as: (1) inconsistencies either in the claimant's
testimony or between the testimony and the claimant's
conduct; (2) unexplained or inadequately explained failure to
seek treatment or to follow a prescribed course of treatment;
(3) whether the claimant engages in daily activities
inconsistent with the alleged symptoms; (4) the observations
of treating and examining physicians and other third parties
regarding the claimant's symptoms; and (5) functional
restrictions caused by the symptoms. See id.
finding that a claimant's testimony is not credible
‘must be sufficiently specific to allow a reviewing
court to conclude the adjudicator rejected the claimant's
testimony on permissible grounds and did not arbitrarily
discredit a claimant's testimony regarding
pain.'” Brown-Hunter v. Colvin, 806 F.3d
487, 493 (9th Cir. 2015) (quoting Bunnell v.
Sullivan, 947 F.2d 341, 345-46 (9th Cir.
1991)). “General findings are insufficient; rather, the
ALJ must identify what testimony is not credible and what
evidence undermines the claimant's complaints.”
Brown-Hunter, 806 F.3d at 493. “Although the
ALJ's analysis need not be extensive, the ALJ must
provide some reasoning” that will allow a reviewing
court “to meaningfully determine whether the ALJ's
conclusions were supported by substantial evidence.”
Id. at 495.
the ALJ's credibility findings are supported by
substantial evidence. The September 9, 2014 Decision
articulates specific, clear, and convincing reasons for
determining that Petitioner's testimony was not entirely
credible - particularly given the absence of objective
medical evidence supporting Petitioner's claims of
debilitating limitations, coupled with her daily activities
and arguable refusal to take prescribed medications and use a
begin, Petitioner claims to be disabled as a result of the
symptoms attendant to multiple sclerosis - namely, nausea,
predominantly-left-side numbness/tingling, fatigue, vison
problems, equilibrium issues, depression, heat intolerance,
inability to concentrate, forgetfulness, sun/heat
sensitivity, incontinence, and dexterity issues (with
exacerbation of certain of these symptoms upon the
presentation of stressful situations). See, e.g.,
Pet.'s Brief, pp. 4-7 (Docket No. 18). To this end, at
the June 16, 2014 hearing, Petitioner's attorney (and the
ALJ) invited Petitioner to discuss the limitations associated
with her multiple sclerosis, with Petitioner testifying in
Q: And how has [the multiple sclerosis diagnosis] affected
your life . . . .?
A: My life has changed pretty drastically since the
diagnosis. Some of it for the good, most of it just learning
how to deal with what my life is like now compared to what it
was before. Certain restrictions, certain things that I
can't do. I can't go out and be in the sun for th
lengths of time. I get run down really easily. I miss certain
things that my kids do.
Q: How do you feel in the morning when you wake up?
A: Most mornings, I'm still pretty tired. I don't
sleep very well at nights. It takes awhile to get myself up
and going on a daily basis.
Q: Do you experience vision problems in the morning?
A: I've had many days where I wake up and my vision in my
eye - my left eye is very blurry and it takes awhile. I
hydrate a little bit and it gets a little better as the day
progresses. Once I'm up and moving around.
Q: And can you tell us about the numbness and tingling. Do
you experience that every day?
A: I do, I do. Most of the time, my left hand is tingly and
numb. In more stressful cases, whether it's stress at
home or just in general, the left side of my face gets numb
Q: In your function report, you noted that your left leg
sometimes has a mind of its own. Could you explain that?
A: It's kind of what I - I call it dead leg. I have to
really focus on it to get it to work right. When I walk, it
just kind of will flop and I have a little bit of experience
with that. My mom had a stroke and she had that dead leg and
it kind of has a funny look to it. It's hard to explain
without actually seeing it, but it's difficult. I have to
focus on that quite a bit.
Q: Has it caused you to fall?
A: I'm trying to think. I don't believe that the dead
leg has caused me to fall, no. My equilibrium has, so.
Q: Do you tire easily?
A: Yes. Yes, I do.
Q: Can you explain or describe the tiredness for us?
A: I have mornings where I will take my kids to school and
when I come back, I will sit down in the chair and notice
that three hours has passed by and I don't know what
I've done. I mean, I haven't done anything, but three
hours, it just goes by and I've sat there because I
don't have - I'm too tired to get up and do anything.
Q: Have you noticed specific things that make your fatigue
A: Lack of sleep, stress definitely. Stress is almost
unavoidable in life, especially when you have teenagers, but
stress does a lot.
Q: How are you affected by the heat?
A: The heat wipes me out. I get really run down if I'm
out in the sun for too long. And like we were talking before
this, the heat in the wintertime is almost more difficult
than in the summertime, because in the wintertime, you
can't just shed your clothes off because the house is -
you're enclosed in the heat. In the summertime, you can
at least wear shorts and a tank top and you can cool yourself
off, but in the heat, everyone else in the house has to stay
warm. I can't crank it down to next to nothing, so
Q: When you find yourself getting really tired, are there
things that help you feel better?
A: Mostly just rest. I rest - we do have - I have a gazebo in
our back yard that I try to go out and my husband calls it my
“inner peace finding, ” you know, I try to go out
there and just relax.
Q: Would you say that you have episodes of depression?
A: Definitely, whenever I'm faced with days, whenever I
can't do things that I normally used to be able to do.
Q: And how do you feel during those times?
A: It's hard to function, to have what it takes to be a
Q: Would you say that your activity changes during those
A: Definitely, definitely. I don't want to do anything. I
used to be a very social person and now I avoid it.
Q: Have you noticed any issues with concentration?
A: Definitely. There's simple little things, like he has
asked me to do or something needs to be mailed or whatnot,
and I forget. I don't - I don't remember.
Q: Have you had any issues with your bladder?
A: I have. That's probably the most embarrassing one.
We'll be out and all of a sudden, my bladder just opens
up and I've had a bladder sling put in to help, but this
was before all of this, but there's no muscle control to
Q: You mentioned that you have some issues with your
equilibrium. Can you explain that a little bit further?
A: Just little things, like if I'm sitting down for, you
know, 20 minutes or so and I stand up, I get a little dizzy
and my equilibrium is off. Just this morning in the shower
washing my hair, I slipped. I luckily caught myself. Anytime
I close my eyes, you know, to rinse my hair, my equilibrium
goes kind of - kind of - it sways, I guess that's the
word I'll say. Sways from - and if I bend over and I
stand back up, I think my equilibrium, I catch myself getting
Q: Have you experienced falls?
A: I've only - I think I've only fallen a couple of
times. Just stumbling after I've stood up. Bend over and
I stand up, which - it's - may I take my sweater off,
please? . . . . I've fallen - I got into our boat and I
got back out, just stumbled over my own feet. Luckily, I
caught myself before I fell completely.
Q: Do you have any difficulty using your hands to grasp
A: All the time. Picking up a pen, I drop that. On occasion,
makeup. I drop that all the time. Doing dishes, I've
dropped a knife. Luckily, it just missed my foot. Sometimes,
the numbness is in both hands. Most generally, it's just
my left one. I drop things all the time. Things that I
shouldn't drop and picking up. I was trying to do
something the other day. I don't remember what. See,
that's another thing: memory.
Q: Do you have any difficulty opening jars?
A: Oh, a lot of the time, yes. I have to find my kids or my
husband to open jars or bottles of water because I just
don't have the grip in my hands.
Q: Do you have difficulty picking things up off the table?
A: Yes, I do. Just any small things because I just don't
have the sensitivity in my fingers that I used to.
Q: Do you have issues with your handwriting?
A: My handwriting has definitely changed. My signature, some
days it looks like mine and other days, it doesn't. It
doesn't work the way that it used to.
Q: And do you have issues with typing?
A: Yes, and that was one thing, my first diagnoses, I
thought, “Well, at least maybe I could at least type,
” and I've sat down and tried to do some typing
just after that, and the left hand just doesn't - I can
type, but I can't be as consistent as I used to be at
times. There's times when I sit down behind the computer
and think, “I'll just do some of this and see how
things work, ” and they just, they don't work the
way that they used to, definitely.
Q: Do you feel that you could do activities that require
repetitive hand movements for most of an eight-hour working
A: No, I don't think I could. Not for -
Q: Do you have problems with bending or crawling?
A: Not really.
Q: Do you do that on a consistent basis?
A: I bend, I don't crawl. Bending, picking, bend over to