United States District Court, D. Idaho
CYNTHIA A. BELECZ, Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Respondent.
MEMORANDUM DECISION AND ORDER
HONORABLE CANDY W. DALE UNITED STATES MAGISTRATE JUDGE
pending before the Court is Cynthia Belecz's Petition for
Review of the Respondent's denial of social security
benefits, filed on September 2, 2016. (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 July 22,
2013. This application was denied initially and on
reconsideration, and a hearing was conducted on January 13,
2015, before Administrative Law Judge (ALJ) Luke Brennan.
After considering testimony from Petitioner and a vocational
expert, ALJ Brennan issued a decision on February 27, 2015,
finding Petitioner not disabled. Petitioner timely requested
review by the Appeals Council, which denied her request for
review on July 29, 2016.
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 amended disability onset date of August
19, 2013, Petitioner was fifty-six years of age. Petitioner
obtained an Associate's degree in liberal arts, and a
Bachelor of Science degree in forestry. Her past relevant
work experience includes work as an accounting clerk and an
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
August 19, 2013. At step two, it must be determined whether
the claimant suffers from a severe impairment. The ALJ found
Petitioner's fibromyalgia severe within the meaning of
three asks whether a claimant's impairments meet or equal
a listed impairment. The ALJ found that Petitioner's
fibromyalgia did not meet or equal the criteria for any
listed impairment. The ALJ did not identify which listing he
considered. (AR 15.) If a claimant's impairments do not
meet or equal a listing, the Commissioner must assess the
claimant's residual functional capacity (RFC) and then
determine, at step four, whether the claimant has
demonstrated an inability to perform past relevant work.
determined Petitioner retained the RFC to perform sedentary
work as defined by 20 C.F.R. § 404.1567(a), with
limitations. He found she could lift and carry ten pounds
occasionally, and less than ten pounds frequently; stand
and/or walk for six out of eight hours; sit for six out of
eight hours; frequently climb ramps and stairs, but never
climb ropes, ladders and scaffolds; and frequently balance,
stoop, kneel, crouch, and crawl.
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, her treatment history, and her daily activities.
(AR 16-17.) First, the ALJ determined that the objective
medical evidence, such as examination findings revealing
normal gait, strength, sensation, and range of motion, did
not support the level of impairment Petitioner claimed.
Second, the ALJ discredited Petitioner because she did not
seek out more invasive treatment for her condition, such as
trigger point injections. (AR 17.) And finally, the ALJ noted
Petitioner's daily activities could not be objectively
verified; she engaged in part time work; and the medical
evidence of her level of impairment was weak. (AR 17.)
the ALJ considered the opinions of Petitioner's treating
providers, Dr. Ashley Davis; Dr. Robert Friedman; Dr. Monika
Fealko; and Ashley Robinson, LCSW. The ALJ found that a
review of the medical evidence and Petitioner's
activities did not support Dr. Friedman's medical source
statement limiting Petitioner to sitting for two out of eight
hours and standing and walking for less than two out of eight
hours, or his opinion that she would miss two days of work
each month. (AR 18.) Next, on one hand, the ALJ gave Dr.
Davis's November 18, 2013 medical source opinion little
weight, while on the other hand, he gave a later opinion of
hers dated December 5, 2014, partial weight. (AR 18.) And
finally, the ALJ discounted Ashley Robinson's opinions
regarding Petitioner's emotional and mental functioning,
because Robinson did not explain the opinions, and her
opinions did not appear consistent with Petitioner's
hobbies and part time work.
the ALJ discredited the lay witness opinions for various
reasons, including that, as friends and family, the witnesses
were sympathetic to Petitioner; none of them had specialized
medical training; her family had a financial interest in a
favorable adjudication of Petitioner's application for
disability benefits; and, the statements were not consistent
with Petitioner's activities and hobbies.
upon his evaluation of the record as summarized above, the
ALJ found Petitioner was able to perform her past relevant
work as either an escrow clerk or an accounting clerk.
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 of the
sequential evaluation. Petitioner asserts the ALJ did not
consider whether Petitioner's fibromyalgia medically
equaled a listing at step three. Pet. Brief at 8. Next,
Petitioner maintains the ALJ improperly evaluated the
opinions of her treating providers. Pet. Brief at 11. And
last, she contends the ALJ erroneously assessed
Petitioner's credibility and did not properly evaluate
the lay witness testimony. Pet. Brief at 15. Accordingly,
Petitioner argues the ALJ's errors resulted in an
inaccurate RFC that failed to account for all her medically
determinable impairments and their effect as a whole on her
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 medical evidence that
establishes all the requisite medical findings that her
impairments meet or equal any 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).
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 medically
determinable impairment.” SSR 12-2P, 2012 WL 3104869 at
Equivalence is determined based on a comparison between the
“symptoms, signs and laboratory findings” about
the claimant's impairment as evidenced by the medical
records “with the medical criteria shown with the
listed impairment.” 20 C.F.R. § 404.1526.
asserts the ALJ failed to consider whether her impairments
medically equaled a listing. In her brief, she argued the
criteria for disorders of the Musculoskeletal System under
Listing 1.00 were met, because her pain and other symptoms
rendered her unable to ambulate effectively. During the
hearing before ALJ Brennan, Petitioner argued her pain and
symptoms are equivalent to the criteria for Listing 14.09,
Inflammatory Arthritis. (AR 35.)
argues Petitioner has not explained how her impairments meet
a specific listing, such as Listing 1.02, Major Dysfunction
of a Joint, under the broad category of Listing 1.00, which
encompasses several disorders of the musculoskeletal system.
Alternatively, Respondent contends Petitioner argued the
criteria in Listing 14.09 were met, and she did not raise
equivalence to a particular listing under Listing 1.00 before
made a finding that Petitioner did not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments. The ALJ did not
identify the listing he considered, and he provided no
analysis or explanation. (AR 15.)
ALJ's finding is insufficient to show that he actually
considered equivalence. The United States Court of Appeals
for the Ninth Circuit requires that, “in determining
whether a claimant equals a listing under step three of the
Secretary's disability evaluation process, the ALJ must
explain adequately his evaluation of alternative tests and
the combined effects of the impairments.” Marcia v.
Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). In other
words, “[a] boilerplate finding is insufficient to
support a conclusion that a claimant's impairment does
not” meet or equal a listed impairment. Lewis,
236 F.3d at 512 (citing Marcia v. Sullivan, 900 F.2d
172, 176 (9th Cir. 1990)).
this standard to the findings by the ALJ here, the conclusory
statement that Petitioner did not equal “any”
listing was insufficient. Marcia, 900 F.2d at 176.
At the hearing level, Petitioner argued her pain and joint
inflammation due to fibromyalgia symptoms was equivalent to
the listing for Inflammatory Arthritis, Listing 14.09. (AR
Despite having done so, the ALJ did not discuss equivalency
to Listing 14.09 or any other listing. It is the
responsibility of the ALJ to properly consider step three
equivalence. See Marcia, 900 F.2d at 176 (explaining
that the secretary is in a better position to evaluate the
medical evidence for a proper consideration of step three
equivalence); see also Tackett v. Apfel, 180 F.3d
1094, 1100 (9th Cir. 1999) (wherein the medical expert
thoroughly discussed the characteristics of Listing 1.03
before concluding the claimant did not meet the listed
upon this error, it would be appropriate for the Court to
remand this matter. Marcia, 900 F.2d at 176.
However, because other identified issues on review raise
questions regarding the adequacy of the ALJ's assessment
of fibromyalgia-related symptoms pursuant to SSR 12-2P, the
Court will discuss these issues. See Revels v.
Berryhill, 874 F.3d 648, 662 (9th Cir. 2017).
Whether the ALJ Improperly Weighed the Medical Opinion
social security cases, there are three types of medical
opinions: “those from treating physicians, examining
physicians, and non-examining physicians.”
Valentine v. Comm'r, 574 F.3d 685, 692 (9th Cir.
2009) (citation omitted). “The medical opinion of a
claimant's treating physician is given ‘controlling
weight' so long as it ‘is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the claimant's] case record.'”
Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir.
2017) (quoting 20 C.F.R. § 404.1527(c)(2)); see
also SSR 96-2P, 1996 WL 374188, at *1 (S.S.A. July 2,
1996) (stating that a well-supported opinion by a treating
source which is not inconsistent with other substantial
evidence in the case record “must be given controlling
weight; i.e. it must be adopted.”).
generally give more weight to medical opinions from treating
physicians “since these sources are likely to be the
medical professionals most able to provide a detailed,
longitudinal picture of [the claimant's] medical
impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations....” 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). Thus, the opinion of a
treating source is generally given more weight than the
opinion of a doctor who does not treat the claimant.
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
Should the ALJ decide not to give the treating
physician's medical opinion controlling weight, the ALJ
must weigh it according to factors such as the nature,
extent, and length of the physician-patient relationship, the
frequency of evaluations, whether the physician's opinion
is supported by and consistent with the record, and the
specialization of the physician. Trevizo, 871 F.3d
at 676; see 20 C.F.R. §§ 404.1527(c)(2),
a “treating physician's opinion is entitled to
‘substantial weight, '” Bray v.
Comm'r of Soc. Sec., 554 F.3d 1219, 1228 (9th Cir.
2009) (citation omitted), it is “not binding on an ALJ
with respect to the existence of an impairment or the
ultimate determination of disability.” Batson v.
Comm'r of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir.
2004). Rather, an ALJ may reject the uncontradicted opinion
of a treating physician by stating “clear and
convincing reasons that are supported by substantial
evidence.” Ryan v. Comm'r of Soc. Sec.,
528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted).
“If a treating or examining doctor's opinion is
contradicted by another doctor's opinion, an ALJ may only
reject it by providing specific and legitimate reasons that
are supported by substantial evidence.” Id.
(citation omitted); see also SSR 96-2P, at *5
(“[T]he notice of the determination or decision must
contain specific reasons for the weight given to the treating
source's medical opinion, supported by the evidence in
the case record, and must be sufficiently specific to make
clear to any subsequent reviewers the weight the adjudicator
gave to the treating source's medical opinion and the
reasons for that weight.”). However, “[t]he ALJ
need not accept the opinion of any physician, including a
treating physician, if that opinion is brief, conclusory, and
inadequately supported by clinical findings.”
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
argues the ALJ erred in evaluating the medical opinions.
First, Petitioner argues the ALJ's determination that
treating physician Robert Friedman's opinion should be
assigned only partial weight was not persuasively explained,
given Dr. Friedman's treatment history of two years;
consistent findings over time; and the physician's
expertise with treating fibromyalgia. Second, Petitioner
asserts the ALJ erred by discounting the opinions of
Petitioner's counselor, Ashley Robinson, LCSW, who had
observed Petitioner over the course of one year and wrote
extensive notes regarding Petitioner's level of
functioning. Third, Petitioner contends the ALJ gave
contradictory reasons when weighing the opinions of treating
physician Ashley Davis, and that his rationale for assigning
different weight to the contradictory findings of the same
provider was not logical. Last, she contends the ALJ erred