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Belecz v. Berryhill

United States District Court, D. Idaho

March 4, 2019

CYNTHIA A. BELECZ, Petitioner,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Respondent.

          MEMORANDUM DECISION AND ORDER

          HONORABLE CANDY W. DALE UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Currently 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 the Commissioner.

         PROCEDURAL AND FACTUAL HISTORY

         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 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.

         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 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 escrow clerk.

         SEQUENTIAL PROCESS

         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 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 the Regulations.

         Step 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.

         The ALJ 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.

         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, 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.)

         Next, 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.

         Last, 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.

         Based 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.

         STANDARD OF REVIEW

         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).

         DISCUSSION

         Petitioner 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 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 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).

         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 medically determinable impairment.” SSR 12-2P, 2012 WL 3104869 at *6.[1] 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.

         Petitioner 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.)

         Respondent 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 the ALJ.

         The ALJ 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.)

         The 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)).

         Applying 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 35.)[2] 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 impairment).

         Based 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).

         2. Whether the ALJ Improperly Weighed the Medical Opinion Evidence

         In 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.”).

         ALJs 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), 416.927(c)(2).

         Although 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. 2002).

         Petitioner 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 ...


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