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Woolf v. Saul

United States District Court, D. Idaho

September 20, 2019

BRYCE WOOLF, Petitioner,
v.
ANDREW SAUL,[1] Commissioner of Social Security Administration, Respondent.

          MEMORANDUM DECISION AND ORDER

          CANDY W. DALE, UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Currently pending before the Court is Bryce Woolf’s Petition for Review of the Respondent’s denial of social security benefits, filed on June 20, 2018. (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 for an award of benefits.

         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 November 4, 2014. This application was denied initially and on reconsideration, and a hearing was conducted on February 23, 2017, before Administrative Law Judge (ALJ) Michael Kilroy. After considering testimony from Petitioner and a vocational expert, ALJ Kilroy issued a decision on May 31, 2017, finding Petitioner not disabled. Petitioner timely requested review by the Appeals Council, which denied his request for review on April 27, 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 alleged disability onset date of August 15, 2012, Petitioner was thirty-seven years of age. Petitioner completed his GED and attended two years of college. Petitioner served five years in the Army as a crewman and received a medically-related discharge following a right ankle injury. His past relevant work experience includes work as a tractor-trailer truck driver, project engineer, and salesperson.

         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 his alleged onset date of August 15, 2012.[2] At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner’s degenerative disc disease of the lumbar and cervical spine; migraines; and right shoulder impairment 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 physical impairments did not meet or equal the criteria for any listed impairment. The ALJ specifically considered whether the severity of Petitioner’s physical impairments, considered singly and in combination, met or medically equaled the criteria of listings 1.02 (Major Dysfunction of a Joint) or 1.04 (Disorders of the Spine). (AR 18.) 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.

         In determining Petitioner’s RFC, the ALJ found that Petitioner’s impairments could reasonably be expected to cause the symptoms he alleged, but that his statements about the intensity, persistence, and limiting effects of his conditions were not entirely consistent with the medical evidence and other evidence of record. (AR 19.) As part of his evaluation of Petitioner’s RFC, the ALJ discredited the Petitioner’s VA disability rating; discounted the opinions of three examining physicians; and found Petitioner less than fully credible.

         Petitioner was medically discharged from military service. On October 3, 2016, the VA determined that Petitioner’s disability rating was 90%. The rating was based upon an assignment of disability as follows: 50% for migraine headaches; 10% radiculopathy, right lower extremity; 40% degenerative disc disease; and 10% radiculopathy, left lower extremity. (AR 21, 221-231.) The ALJ gave “limited weight” to the VA disability rating for three reasons: the standards used to determine VA disability differ from those used by the Social Security Administration; the issue of disability is reserved to the Commissioner; and, the VA disability rating did not provide specific functional limitations. (AR 21.)

         Next, the ALJ considered the opinions of three examining physicians. Dr. Keri L. Jackson performed a consultative examination on August 2, 2016, at the VA’s request and as part of the VA’s compensation and pension review. (AR 815.) The ALJ gave “little weight” to the report prepared by Dr. Jackson, on the grounds that it overstated Petitioner’s physical limitations. The ALJ relied upon the “mild to moderately severe” findings on Petitioner’s MRIs, “predominantly mild physical signs, ” and mildly affected activities of daily living to discredit Dr. Jackson’s opinion that Petitioner’s lumbar and cervical pain restricted Petitioner from working more than four hours each day. (AR 21.)

         Drs. Benjamin Blair and Michael O’Brien examined Petitioner in connection with a worker’s compensation claim. The reports of Drs. Blair and O’Brien are dated February 27, 2013, March 15, 2013, May 1, 2014, and July 27, 2016. (AR 21; 919-938.) Dr. Blair was of the opinion Petitioner’s prognosis was “guarded” due to chronic pain. (AR 923.) Dr. O’Brien’s examination revealed limited and painful range of motion resulting in a restriction to sedentary work, and he was of the opinion Petitioner’s migraines would cause Petitioner to miss work one or two days each month. (AR 933.)

         The ALJ gave the opinions of Drs. Blair and O’Brien “some weight.” But, the ALJ discounted the physicians’ opinions because worker’s compensation opinions use “different methods and standards” than do disability opinions, and Petitioner’s activities of daily living suggested more functionality. However, the ALJ did incorporate Dr. O’Brien’s opinion related to lifting, bending, and difficulty with overhead lifting into the RFC determination based upon Petitioner’s right shoulder MRI and other “objective medical evidence.” (AR 22.) The ALJ rejected Dr. O’Brien’s opinions regarding Petitioner missing work, because “the record is minimal in terms of migraine treatment.” (AR 22.)

         Turning to Petitioner’s credibility, the ALJ cited four reasons based upon his review of the evidence of record to discredit Petitioner’s testimony about the frequency and severity of his physical pain symptoms: Petitioner’s activities of daily living were inconsistent with total disability; medical records revealed improvement after surgery; Petitioner received minimal treatment from the VA for his migraines; and, medical records showed “generally only mild to moderately severe physical findings.” (AR 19-20.)

         Based upon his evaluation of the record as summarized above, the ALJ found Petitioner was not able to perform his past relevant work. If a claimant demonstrates an inability to perform past relevant work, 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 residual functional capacity, age, education and work experience. The ALJ determined Petitioner retained the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), but had the following exertional limitations:

The claimant can walk and/or stand or some combination for four hours in an eight-hour workday. The claimant can sit for two hours at a time and seven hours in an eight-hour day. The claimant can perform overhead reaching occasionally with the right upper extremity and even then with only one pound or less in terms of lifting overhead. The claimant cannot crawl or climb ladders/ropes/scaffolds. The remainder of the claimant’s postural activities can be performed occasionally. The claimant should avoid concentrated exposure to extreme cold and vibrations.

(AR 18-19.)

         The vocational expert testified that an individual with the above RFC who missed more than two workdays in a month and required more than typical break periods would be unemployable. (AR 88.) However, the ALJ rejected that aspect of the vocational expert’s testimony, and found at step five that Petitioner retained the RFC to perform the requirements of representative occupations such as router and routing clerk. (AR 23.) 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 his physical or mental impairments are of such severity that he not only cannot do his previous work but is unable, considering his 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 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. First, Petitioner asserts the ALJ did not consider whether Petitioner’s migraines medically equaled a listing at step three. Second, Petitioner maintains the ALJ improperly evaluated the VA disability rating. Third, Petitioner contends the ALJ erred by rejecting the uncontradicted opinion of Dr. Keri Jackson. And last, Petitioner asserts the ALJ erred in assessing Petitioner’s credibility. As a result, Petitioner argues the ALJ’s RFC determination was not supported by substantial evidence.

         Each of the alleged errors will be discussed in turn.

         1. Step Three – Listing Level Severity of Petitioner’s Migraines

         Petitioner argues the ALJ was required to consider whether Petitioner’s migraines, a severe impairment, met or equaled the requirements of Listing 11.02 (Neurological Disorders - Epilepsy).[3] Petitioner contends that, by finding Petitioner’s migraines constituted a severe impairment, the ALJ was obligated to consider whether migraines met or equaled a listed impairment, and he failed to do so. Respondent argues that Petitioner had the burden to prove his migraines met or equaled Listing 11.02, and by failing to offer a plausible theory or otherwise allege his migraines met a listed impairment during the administrative hearing, he waived the right to do so. Thus, Respondent argues the ALJ did not err.

         An impairment, or combination of impairments, is medically equivalent to a listing “if it is at least equal in severity and duration to the criteria of any listed impairment, ” considering “all evidence in [the] case record about [the] impairment(s) and its effects on [the claimant] that is relevant….” 20 C.F.R. § 404.1526(a), (c). Further, equivalence depends on medical evidence only; age, education, and work experience are irrelevant. Id. at § 404.1526(c). Finally and critically, “the claimant’s illnesses ‘must be considered in combination and must not be fragmentized in evaluating their effects.’” Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995) (quoting Beecher v. Heckler, 756 F.2d 693, 694-95 (9th Cir. 1985)).

         A claimant bears the burden of producing medical evidence that establishes all of the requisite medical findings that his impairments meet or equal a particular listing. Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987). If the claimant is alleging equivalency to a listing, the claimant must proffer a theory, plausible or otherwise, as to how his combined impairments equal a listing. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001).

         Having found a claimant to have at least one severe impairment at step two, see 20 C.F.R. § 416.920(a)(4)(ii), step three of the evaluation process requires the ALJ to consider whether a claimant has an impairment that meets or medically equals any listing found at 20 C.F.R., Pt. 404, Subpt. P, App’x 1 (§§ 416.920(a)(4)(iii), 416.920(d); Listing of Impairments, 20 C.F.R. § 416.925). Dunlap v. Colvin, No. 15-CV-02139-NYW, 2016 WL 5405208, at *6 (D. Colo. Sept. 28, 2016), cited in Rader v. Comm'r of Soc. Sec., No. 2:17-CV-00131-CWD, 2018 WL 4087988, at *3 (D. Idaho Aug. 27, 2018).

         “For cases at the Administrative Law Judge or Appeals Council level, the responsibility for deciding medical equivalence rests with the Administrative Law Judge or Appeals Council.” 20 C.F.R. § 416.926(e)(3) (effective March 27, 2017). See also 20 C.F.R. § 416.926(b)(2) (effective March 27, 2017) (if an impairment is not described in the Listing of Impairments, “we will compare your findings with those for closely analogous listed impairments.”).

         The most analogous listing for determining medical equivalence for migraines is Listing 11.02. Rader v. Comm'r of Soc. Sec., No. 2:17-CV-00131-CWD, 2018 WL 4087988, at *3 (D. Idaho Aug. 27, 2018). When the ALJ issued his written determination in May of 2017, Listing 11.02 provided:

Epilepsy, documented by a detailed description of a typical seizure and characterized by A, B, C, or D:
A. Generalized tonic-clonic seizures (see 11.00H1a), occurring at least once a month for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); or
B. Dyscognitive seizures (see 11.00H1b), occurring at least once a week for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); or C. Generalized tonic-clonic seizures (see 11.00H1a), occurring at least once every 2 months for at least 4 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); and a marked limitation in one of the following:
1. Physical functioning (see 11.00G3a); or
2. Understanding, remembering, or applying information (see 11.00G3b(i)); or
3. Interacting with others (see 11.00G3b(ii)); or
4. Concentrating, persisting, or maintaining pace (see ...

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