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Delaplain v. Commissioner of Social Security Administration

United States District Court, D. Oregon

March 17, 2017


          Tim Wilborn Wilborn Law Office, P.C. Attorney for Plaintiff

          Janice E. Hebert Assistant Sarah Moum Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNANDEZ United States District Judge

         Plaintiff Michelle Delaplain brings this action for judicial review of the Commissioner's final decision denying her application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act and Disability Insurance Benefits (DIB) under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c) (3)). The Commissioner's decision is affirmed.


         Plaintiff applied for SSI and DIB on May 17, 2011, alleging an onset date of February 20, 2008. Tr. 196-204.[1] Her application was denied initially and on reconsideration. Tr. 76, 110. On April 14, 2014, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 32-53. On April 16, 2014, the ALJ found Plaintiff not disabled. Tr. 26. The Appeals Council denied review. Tr. 1-6.


         Plaintiff alleges disability based on fibromyalgia, pain, degenerative arthritis, anxiety, and depression. Tr. 38, 221. Plaintiff was 40 years old at the time of the administrative hearing. Tr. 37. Plaintiff completed the eleventh grade and has previous work experience as a customer service representative, an insurance agent, a receptionist, and an auto parts clerk. Tr. 49.


         A claimant is disabled if unable 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). Disability claims are evaluated according to a five-step procedure. See, e.g., Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving disability. Id.

         In the first step, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. 137 at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

         In step three, the Commissioner determines whether the impairment meets or equals “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity to perform “past relevant work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.


         At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful activity since February 20, 2008, the alleged onset date. Tr. 18. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: degenerative disc disease of the lumbar spine, fibromyalgia, obesity, anxiety, status post left carpal tunnel release, lateral epicondylitis of the right elbow, and a rotator cuff syndrome of the left shoulder. Tr. 19. However, the ALJ determined that Plaintiff's impairments do not meet or medically equal the severity of a listed impairment. Id. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b), “except she is further limited to no more than frequent grasping, handling, and fingering on the left, and to no more than occasional overhead reaching bilaterally.” Tr. 20. “She is also limited to simple, repetitive, routine tasks requiring no more than occasional interaction with supervisors, co-workers, and the general public.” Id. The ALJ concluded that Plaintiff is unable to perform any past relevant work. Tr. 25. However, at step five the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as electronics worker, assembler of electrical accessories, and basket filler. Tr. 26. Thus, the ALJ concluded that Plaintiff is not disabled. Id.


         The reviewing court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence” means “more than a mere scintilla, but less than preponderance.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

         The court must weigh the evidence that supports and detracts from the ALJ's conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading. Id.; see also Batson, 359 F.3d at 1193. However, the court cannot not rely upon reasoning the ALJ did not assert in affirming the ALJ's findings. Bray, 554 F.3d at 1225-26 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).


         Plaintiff contends that the ALJ erred by (1) concluding that Plaintiff's impairments do not equal any of the listed impairments; (2) discounting the opinion of treating physician Dr. Tyne; (3) discounting Plaintiff's testimony; and (4) discounting the testimony of lay witness Ms. Hoagland. According to Plaintiff, the ALJ's errors render the ALJ's residual functional capacity (RFC) assessment and hypothetical posed to the Vocational Expert (VE) invalid.

         The Court affirms the ALJ's decision to discount the opinion of Dr. Tyne and the testimony of Plaintiff and Ms. Hoagland. Thus, Plaintiff's argument that the combination of her impairments meets two listed impairments fails. Similarly, there is no need for this Court to reach Plaintiff's arguments regarding the RFC and the hypothetical posed to the VE, because there is no indication that the ALJ erred in his determination of Plaintiff's impairments and limitations. In short, Plaintiff's arguments fail.

         I. Listed Impairments

         Plaintiff contends that the ALJ erred in concluding, at step three, that her combination of impairments does not medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. According to Plaintiff, the ALJ erred because Plaintiff's fibromyalgia, in combination with Plaintiff's other impairments, equals Listing 14.09D, inflammatory arthritis; and the mental impairment listing for anxiety disorders, Listing 12.06.

         The claimant has the initial burden of proving that an impairment meets or equals a Listing. See Sullivan v. Zebley, 493 U.S. 521, 530-33 (1990). At step three of the sequential evaluation process, the ALJ must evaluate the claimant's impairments to see if they meet or medically equal those in the Listings. See § 404.1520(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The List describes the characteristics of each impairment. The description includes the “symptoms, signs and laboratory findings” that make up the characteristics of each listed impairment. 20 C.F.R. § 404.1525. To meet a listed impairment, a claimant must establish that he or she meets each characteristic of a listed impairment relevant to his or her claim. Tackett, 180 F.3d at 1099. Listed impairments are those that are “so severe that they are irrebuttably presumed disabling, without any specific finding as to the claimant's ability to perform his past relevant work or any other jobs.” Lester v. Chater, 81 F.3d 821, 828 (9th Cir. 1995).

         An ALJ “must evaluate the relevant evidence before concluding that a claimant's impairments do not meet or equal a listed impairment.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). “A boilerplate finding is insufficient to support a conclusion that a claimant's impairment does not do so.” Id. The ALJ need not, however, “state why a claimant failed to satisfy every different section of the listing of impairments.” Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (finding that ALJ did not err in failing to state what evidence supported conclusion that claimant's impairments did not satisfy Listing). An ALJ's decision that a plaintiff did not meet a Listing must be upheld if it was supported by “substantial evidence.” See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006).

         Plaintiff's argument depends upon a finding that the ALJ erred in discounting the opinions and testimony given by Plaintiff, her friend, Crystal Hoagland; and her treating physician, Dr. Tyne. See Pl.'s Br. 14-15. Plaintiff contends that the opinions and testimony support a degree of limitation that, when combined with evidence of fibromyalgia and Plaintiff's other impairments, is medically equivalent to Listings 14.09D and 12.06.

         However, as discussed below, this Court affirms the ALJ's decision to discount the weight assigned to the testimony of Plaintiff and Ms. Hoagland, and the opinion of Dr. Tyne. In light of that affirmance, Plaintiff is left with “no theory, plausible or otherwise” or evidence as to how her combined impairments equaled a listed impairment. See Lewis, 236 F.3d at 514 (holding that the ALJ's failure to consider equivalence was not reversible error because the claimant did not offer any theory, plausible or otherwise, as to how his impairments combined to equal a listing impairment); see also Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (“An ALJ is not required to discuss the combined effects of a claimant's impairments or compare them to any listing in an equivalency determination, unless the claimant presents evidence in an effort to establish ...

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