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DeLeon v. Colvin

United States District Court, D. Idaho

September 29, 2017

JANET DELEON, Petitioner,
CAROLYN W. COLVIN, Then-Acting Commissioner of Social Security Respondent.


          Honorable Ronald E. Bush Chief U.S. Magistrate Judge

         Pending 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:


         On 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.

         On 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 Social Security.

         Having 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 decision.

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).


         To be 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).

         “Substantial 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, 565 (1988).

         With 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).

         With 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. 1987).


         A. Sequential Process

         In 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 Security Act.

         The 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).

         The 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).

         The 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).

         The 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.

(AR 21).

         In the 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).

         B. Analysis

         1. Petitioner's Credibility

         The ALJ 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 at 1112.

         In 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.

         “A 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.

         Here, 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 cane.

         To 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 part:

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 and tingly.
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 worse?
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 that's -
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. You know?
Q: And how do you feel during those times?
A: It's hard to function, to have what it takes to be a mom.
Q: Would you say that your activity changes during those times?
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 stop that.
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 dizzy.
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 objects?
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 day?
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 ...

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