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Fleury v. Berryhill

United States District Court, D. Idaho

September 21, 2018

AMY DAWN FLEURY, Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Respondent.




         Pending before the Court is Amy Fleury's Petition for Review of the Respondent's denial of social security benefits. (Dkt. 1.) The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record (AR), and for the following reasons, will affirm the decision of the Commissioner.


         Petitioner filed a Title XVI application for Disability Insurance Benefits and Supplemental Security Income on April 12, 2013, alleging disability beginning January 1, 2007. This application was denied initially and on reconsideration, and a hearing was conducted on July 27, 2015, before Administrative Law Judge (ALJ) Donna Walker. After hearing testimony from Petitioner, Petitioner's spouse, medical expert Lynne Jahnke M.D., and from vocational expert Jinnie Lawson, ALJ Walker issued a decision on August 14, 2015, finding Petitioner not disabled as of the amended onset date of April 12, 2013. (AR 16, 40, Dkt. 12.)

         Petitioner requested review by the Appeals Council, which denied her request on November 7, 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 July 27, 2015 hearing, Petitioner was 32 years of age.[1]Petitioner completed high school and attended some college, and her prior work experience includes work as a stock clerk, nursing school attendant, nursing assistant, general clerk, and pharmacy technician. (AR 54, 27.) She alleged disability because of fibromyalgia, migraine headaches, irritable bowel syndrome, fatty liver disease, depression, insomnia, borderline diabetes, restless leg syndrome, myalgias, malaise, and fatigue. (AR 24, 80.)


         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 after her amended onset date of April 12, 2013.

         At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's obesity, fibromyalgia, degenerative disc disease, and migraine headaches severe within the meaning of the Regulations.[2]

         Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Petitioner's impairments did not meet or equal the criteria for any listed impairments, specifically considering Listing 11.03 (epilepsy non-convulsive) for her migraine headaches and Listing 1.04 for disorders of the spine. 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.

         The ALJ determined that Petitioner retained the RFC to perform light work, with the ability to lift and carry up to twenty pounds occasionally and ten pounds frequently; sit up to six hours; and stand, walk, or both for up to thirty minutes at one time, for two hours each. (AR 24.) The ALJ determined also Petitioner had the unlimited ability to use her upper extremities, and unlimited manipulative, visual and communicative abilities, but that she should only occasionally climb ramps, stairs, balance, kneel, and crouch, and never crawl or climb ladders, ropes or scaffolds. (AR 24.)

         Based upon the RFC determination, the ALJ found Petitioner was not able to perform her past relevant work. If a claimant demonstrates an inability to perform past relevant work, 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. Upon receiving testimony from the vocational expert, the ALJ determined Petitioner retained the RFC to perform the requirements of representative occupations such as production assembler, cashier II, and marker/pricer. (AR 28.) Accordingly, the ALJ concluded Petitioner was not under a disability at any time since the amended onset date of April 12, 2013, and she therefore issued a finding of 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 ...

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