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Dickinson v. Saul

United States District Court, D. Idaho

August 13, 2019

SUSAN LYNN DICKINSON Petitioner,
v.
ANDREW SAUL, Commissioner of Social Security Administration, [1] Respondent.

          MEMORANDUM DECISION AND ORDER

          HONORABLE CANDY W. DALE, UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Currently pending before the Court is Susan Dickinson's Petition for Review of the Respondent's denial of social security benefits, filed April 13, 2018. (Dkt. 1.) The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record (AR). For the reasons that follow, the Court will remand to the Commissioner.

         PROCEDURAL HISTORY

         Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on March 24, 2014, alleging disability based on a combination of impairments, including a learning disability, diabetes, stroke, short-term memory loss, and high blood pressure. This application was denied initially and on reconsideration, and a hearing was held on May 25, 2016, before Administrative Law Judge (ALJ) Marie Palachuk. After hearing testimony from Petitioner, medical experts Lynne Jahnke, M.D., and Donna Veraldi, Ph.D., vocational expert K. Diane Kramer, and lay witness Cheryl Lorraine Teets, ALJ Palachuk issued a decision on August 1, 2016, finding Petitioner not disabled. (AR 12-1.) Petitioner timely requested review by the Appeals Council, and also submitted new evidence for consideration. The Appeals Council denied Petitioner's request for review on February 12, 2018.

         Petitioner timely 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 hearing, Petitioner was fifty-four years of age. Petitioner did not graduate from high school, but later obtained her GED. Petitioner had no prior relevant work experience.

         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 application date of March 24, 2014. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner's morbid obesity, diabetes mellitus, history of depression, and borderline intellectual functioning 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 specifically considered Listings 9.00 (Endocrine disorders), 12.02 (Organic Mental Disorders), 12.04 (Affective Disorders), and 12.05 (Intellectual disability).

         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. In assessing Petitioner's RFC, the ALJ found Petitioner had no past relevant work, and therefore proceeded to step five.

         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 RFC, age, education and work experience. At step five, the ALJ determined Petitioner retained the RFC to perform light work as defined by 20 C.F.R. § 404.1567(b), with limitations. The ALJ found Petitioner was limited to occasional postural activities except for climbing ladders, ropes or scaffolds. Petitioner should also avoid kneeling or crawling; concentrated exposure to industrial vibration; and all exposure to hazards such as moving machinery and unprotected heights. The ALJ found Petitioner retained the ability to understand, remember and carry out simple, routine tasks and instructions; maintain attention and concentration on simple, routine tasks for two-hour intervals between regularly scheduled breaks; and perform in a predictable environment with infrequent changes in the work setting/routine. However, the ALJ determined Petitioner would not be able to maintain attention and concentration in a fast-paced, production rate or assembly line type of work setting, and would be unable to multi-task.

         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 37.) First, the ALJ determined that the objective medical evidence did not support the level of impairment claimed, because there was no objective medical evidence to support Petitioner's claims of a stroke, vision problems, left sided weakness, loss of memory, or fatigue. (AR 38.) Second, the ALJ determined Petitioner's failure to seek treatment for her mental impairments undermined her credibility. (AR 38.) Third, the ALJ concluded Petitioner's “extremely poor work history” and her unemployment for reasons unrelated to her alleged disabling medical impairment suggested “very poor work motivation.” (AR 39.) And finally, the ALJ cited Petitioner's “reasonably high-functioning activities of daily living that are not consistent with her allegations of disability.” (AR 39.)

         Based upon the testimony of the vocational expert, the ALJ found Petitioner not disabled because she found Petitioner could perform the requirements of representative occupations such as small parts assembler, mail clerk, and office cleaner I, all of which fell within the exertional category comprising light work. (AR 41.)

         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 contends the Appeals Council committed legal error by not considering new and material evidence submitted with the request for review, in violation of 20 C.F.R. § 416.1470(b). Petitioner asserts also the ALJ erred for two reasons. The first is the ALJ's failure to consider relevant lay witness testimony from Petitioner's sister, Cheryl Teets, who testified at the hearing. And second, Petitioner contends the ALJ failed to provide specific, clear and convincing reasons for discounting Petitioner's testimony regarding the severity of her impairments.

         Respondent argues the Appeals Council reasonably determined the evidence submitted to it was not material. Additionally, Respondent contends Petitioner's argument regarding the ALJ's failure to consider relevant lay witness testimony was not sufficiently raised in Petitioner's opening brief, and that the Court should not consider the issue. Finally, Respondent contends the ALJ provided numerous specific, clear and convincing reasons supported by substantial evidence to support the adverse credibility determination. Each issue will be discussed below.

         1. New Evidence Submitted to the Appeals Council

          The Social Security regulations provide that the Appeals Council may review a case in a number of scenarios, including when a claimant submits “additional evidence that is new, material, and relates to the period on or before the date of the hearing decision [by the ALJ], and there is a reasonable probability that the additional evidence would change the outcome.” 20 C.F.R. § 404.970(a)(5).[2] There is no good cause showing required for the claimant to submit additional evidence to the Appeals Council. Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). And, “evidence submitted to and considered by the Appeals Council is not new but rather part of the administrative record and properly before the district court.” Id.

         Here, the additional evidence includes a medical imaging report with results of a CT head/brain scan without IV contrast performed on June 20, 2016, and medical records dated September 12 through October 4, 2016, submitted to the Appeals Council for consideration after the hearing before the ALJ and the ALJ's decision. (AR 2.) The CT scan results confirmed evidence of an “old right middle cerebral artery infarct.” (AR 47.) A follow-up appointment with Petitioner's treating physician, Dr. Lois Niska, on October 4, 2016, confirmed loss of left peripheral vision, noted the “remote incident 20 years ...


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