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Jackson v. Saul

United States District Court, D. Idaho

September 23, 2019

ANDREW SAUL,[1] Commissioner of Social Security Administration, Respondent.


          Honorable Candy W. Dale United States Magistrate Judge


         Currently pending before the Court is Kaci Rae Jackson’s Petition for Review of the Respondent’s denial of social security benefits, filed on March 5, 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.


         On December 27, 2013, Petitioner filed two separate applications for a period of disability and disability insurance benefits. One was filed under Title II and the second was filed under Title XVI of the Social Security Act, 42 U.S.C. §§ 401-433, and §§ 1381 – 1383f.[2] These applications were denied initially and on reconsideration, and a hearing was conducted on August 24, 2016, before Administrative Law Judge (ALJ) Elizabeth Watson. After considering testimony from Petitioner and a vocational expert, ALJ Watson found that further development of the record was warranted, and she sent the Petitioner for consultative psychological and physical examinations. (AR 23.) These examinations were completed by Rebecca Alexander, Ph.D. and Debra McKinnon, D.O., on March 5, 2017, and March 24, 2017, respectively. (AR 982, 992.)

         The ALJ conducted a supplemental hearing on May 4, 2017, at which Petitioner appeared and testified by telephone, and the ALJ considered testimony from a second vocational expert. The ALJ issued a decision on May 22, 2017, finding Petitioner not disabled. Petitioner timely requested review by the Appeals Council, which denied her request for review on January 5, 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 March 1, 2009, Petitioner was twenty-nine years of age. Her date last insured for purposes of her Title II claim was December 31, 2013. Petitioner completed high school, and her past relevant work experience includes work as a nurse assistant, fast food worker and sales clerk.


         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 March 1, 2009. At step two, it must be determined whether the claimant suffers from a severe impairment. The ALJ found Petitioner’s lumbar degenerative disc disease; right hand wound, status post amputation of the right thumb distal phalanx; chronic obstructive pulmonary disease (COPD); bipolar II disorder; generalized anxiety disorder; posttraumatic stress disorder (PTSD); obsessive-compulsive disorder (OCD); attention deficit hyperactivity disorder (ADHD); borderline personality disorder; and methamphetamine dependence severe within the meaning of the Regulations.

         Step three asks whether a claimant’s impairments meet or equal a listed impairment. The ALJ considered Listings 1.04 (Spine Disorders), 1.05 (Amputation), 3.02 (COPD), 12.04 (Affective Disorder), 12.06 (Anxiety and OCD), 12.08 (personality disorder), 12.11 (ADHD), and 12.15 (PTSD).[3] (AR 26.) The ALJ found that Petitioner’s musculoskeletal and mental impairments did not meet or equal the criteria for any listed impairment. (AR 27.)

         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.

         The ALJ determined Petitioner retained the RFC to perform light work, with limitations. 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 her daily activities. (AR 29.)

         Based upon her evaluation of the record and the hypotheticals posed to the vocational experts, the ALJ found Petitioner was able to perform work as a photocopying machine operator, office helper, and postage machine operator, all of which constitute unskilled, light work jobs available in significant numbers in the national economy. Consequently, the ALJ determined Petitioner was not disabled.


         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 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).


         Petitioner argues the ALJ erred at step three of the sequential evaluation, because the ALJ did not evaluate the opinions of consultative examiners Rebecca Alexander, Ph.D., and Dr. Stephen Brennan, Psy.D., both of whom examined Petitioner and authored reports dated March 5, 2017, and March 11, 2014, respectively. (AR 760, 982.) Petitioner argues that, if the two opinions are credited at step three, they establish Petitioner met the “Paragraph B” criteria of the listings identified in section 12.00 of the listing of impairments, and Petitioner would have been found disabled at step three for the purpose of Petitioner’s Title XVI claim.

         Respondent argues the ALJ correctly evaluated the medical opinions, and that the ALJ’s findings at step three constituted a reasonable interpretation of the evidence. Respondent argues also that Petitioner did not adequately raise the issue whether the ALJ properly evaluated the opinions of examining psychologists Alexander and Brennan, and therefore waived this issue for judicial review.

         1. Applicable Standards at Step Three

         To qualify as disabled at step three of the sequential evaluation, a claimant must meet or exceed the criteria for one of the listed impairments in Appendix 1 to Part 404 of the regulations. 20 C.F.R. § 404.1520(d). To meet a listing in Appendix 1 for a mental disorder, a claimant must satisfy criteria in paragraph A of the listings, which medically substantiate the presence of a mental disorder, and the criteria in paragraphs B or C, which describe the functional ...

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