United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Candy W. Dale United States Magistrate Judge.
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
AND FACTUAL HISTORY
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.
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 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
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
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.
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
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.
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.
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).
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
Step Three: Meet or Equal a Listing
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
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 ...