United States District Court, D. Oregon
Wilborn Wilborn Law Office, P.C. Attorney for Plaintiff
E. Hebert Assistant Sarah Moum Attorneys for Defendant
OPINION & ORDER
A. HERNANDEZ United States District Judge
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.
applied for SSI and DIB on May 17, 2011, alleging an onset
date of February 20, 2008. Tr. 196-204. 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.
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.
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.
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.
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.
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.
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.
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.
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)).
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
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.
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.
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).
“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).
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.
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 ...