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Jackson v. Berryhill

United States District Court, D. Idaho

February 27, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Respondent.


          Honorable Candy W. Dale United States Magistrate Judge.


         Currently pending before the Court is Karen Lynn Jackson's Petition for Review of the Respondent's denial of social security benefits, filed on September 29, 2017. (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.


         Petitioner filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, on October 4, 2013. This application was denied initially and on reconsideration, and a hearing was conducted on February 24, 2016, before Administrative Law Judge (ALJ) R. J. Payne. After considering testimony from Petitioner, medical expert Lynne Jahnke, M.D., and a vocational expert, ALJ Payne issued a decision on April 14, 2016, finding Petitioner not disabled. Petitioner timely requested review by the Appeals Council, which denied her request on August 4, 2017.

         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 alleged disability onset date of May 17, 2013, Petitioner was fifty-seven years of age. Petitioner obtained a master's degree in special education, and her past relevant work experience includes work as a clinical therapist.


         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 May 17, 2013. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's migraine headaches, degenerative disk disease of the lumbar spine, fibromyalgia, and benign positional vertigo severe within the meaning of the Regulations.

         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. The ALJ did not identify which listing or listings he considered. If a claimant's impairments do not meet or equal a listing, the Commissioner must assess the claimant's residual functional capacity (RFC) and next determine, at step four, whether the claimant has demonstrated an inability to perform past relevant work.

         The ALJ determined Petitioner retained the RFC to perform light work as defined by 20 C.F.R. § 404.1567(b), with limitations. He found she could sit without limit; stand and walk up to four hours total in any combination; never climb ropes, ladders or scaffolds; and that she should avoid concentrated exposure to temperature extremes of heat and cold, industrial vibrations, and hazardous machinery; and avoid all exposure to unprotected heights. He determined that she could lift up to twenty pounds occasionally, and lift or carry ten pounds frequently.

         In determining Petitioner's RFC, the ALJ found that Petitioner's impairments could reasonably be expected to cause the symptoms she alleged, but that her statements about the intensity, persistence, and limiting effects of her conditions “were not entirely consistent with the medical evidence and other evidence in the record….” (AR 24.) First, the ALJ determined that the “objective medical evidence does not support the level of impairment claimed, ” because there was no objective evidence to support her claims of numbness and balance issues. Specifically, the ALJ found that a review of the medical evidence “shows that the doctors have not reported detecting numbness or weakness on examination, and her nerve conduction study was normal.” (AR 25.) The ALJ discounted the opinion of Dr. Dustin Dinning, Petitioner's treating physician, and her physical therapist, Chadwick Romano, instead assigning “great weight” to the opinion of medical expert Lynne Jahnke, M.D., who testified at the hearing.

         At step four, the ALJ found Petitioner was able to perform her past relevant work as a clinical therapist. Because Petitioner did not demonstrate an inability to perform past relevant work, the ALJ did not reach step five. 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 argues the ALJ erred at steps three and four. Petitioner asserts the ALJ did not consider whether Petitioner's impairments equaled a listing at step three. Pet. Brief at 11. Next, Petitioner maintains the ALJ erroneously discounted the opinion of Dr. Dustin Dinning, Petitioner's treating physician, by failing to evaluate Petitioner's fibromyalgia under the appropriate diagnostic criteria required by SSR 12-2P. See 2012 WL 3104869 (S.S.A. July 25, 2012). And last, Petitioner argues the ALJ's failure to consider and evaluate Petitioner's pain and vertigo under SSR 16-3P, 2016 WL 1119029 (S.S.A. Mar. 16, 2016), resulted in an inaccurate RFC that failed to account for all of Petitioner's medically determinable impairments and their effect as a whole on Petitioner's capacity to perform work. Petitioner asks the Court to reverse the ALJ's decision and remand for an award of benefits.

         1. Step Three: Meet or Equal a Listing

          If the claimant satisfies the criteria under a listing and meets the twelve-month duration requirement, the Commissioner must find the claimant disabled without considering age, education and work experience. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d). A claimant bears the burden of producing evidence that she has a medically severe impairment or combination of impairments that meet or equal a particular listing. Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987). Further, if the claimant is alleging equivalency to a listing, the claimant must proffer a theory, plausible or otherwise, as to how her combined impairments equal a listing. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001).

         Fibromyalgia is not a listed impairment. Accordingly, the ALJ must determine whether fibromyalgia “medically equals a listing (for example, listing 14.09D in the listing for inflammatory arthritis), or whether it medically equals a listing in combination with at least one other ...

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