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Stenberg v. Commissioner Social Security Administration

United States District Court, D. Oregon, Portland Division

December 4, 2017

COMMISSIONER, Social Security Administration Defendant.



         Patricia Stenberg ("plaintiff') seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Because the Commissioner's decision is not supported by substantial evidence, her decision is REVERSED and REMANDED for further proceedings.

         Procedural Background

         Plaintiff filed her application for DIB and SSI on November 29, 2012, alleging disability beginning October 30, 2012. (Tr. 186.) She subsequently amended her alleged onset date to January 17, 2013, coinciding with her fiftieth birthday. (Tr, 21.) The Commissioner denied her application initially and upon reconsideration. (Tr. 94-95, 128-29.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and an administrative hearing was held on November 7, 2014. (Tr. 16-17, 37-63.) After the hearing, the ALJ issued a decision finding plaintiff not disabled dated January 5, 2015. (Tr. 21 -31.) The Appeals Council denied plaintiff s subsequent request for review on May 5, 2016, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6.) Plaintiff filed this appeal arguing the ALJ erred by: (1) improperly evaluating plaintiffs fibromyalgia at step three; (2) improperly crafting plaintiff s residual functional capacity ("RFC") by rejecting the opinions of her treating physicians and improperly evaluating her fibromyalgia; and (3) failing to pose a hypothetical to the vocational expert (" VE") that accounted for all of plaintiff s limitations.

         Factual Background

         Born in January, 1963, plaintiff was 50years old at the time of the administrative hearing. (Tr. 42-43, 64.) She earned a general equivalency diploma ("GED") and worked previously as a desk clerk, motel general manager, and short order cook. (Tr. 92, 225, 245.) Plaintiff alleges disability due to scoliosis, arthritis, fibromyalgia, depression, and autoimmune deficiency. (Tr. 64.)

         Standard of Review

         The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229(1938)). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [a court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486F3d 1149, 1152 (9th Cir. 2007) (citation omitted).

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a five step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140(1987); 20C.F.R. §§404.1520, 416.920. First, the Commissioner determines whether the claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, she is not disabled.

         At step two, the Commissioner evaluates whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment, she is not disabled.

         At step three, the Commissioner determines whether the claimant's impairments, either individually or in combination, meet or equal "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 140-41; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, she is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482U.S. at 141.

         At step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant can perform past relevant work, she is not disabled; if she cannot, the burden shifts to the Commissioner.

         At step five, the Commissioner must establish the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R, §§ 404.1520(g), 416.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§404.1566, 416.966.

         The ALJ's Findings

         The ALJ performed the sequential analysis, as noted above. At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since her amended alleged onset date. (Tr, 23.) At step two, the ALJ concluded plaintiff had the severe impairments of osteoarthritis, obesity, fibromyalgia, depression, and post-traumatic stress disorder ("PTSD"). (Id.) At step three, the ALJ determined plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. (Tr. 24.)

         The ALJ determined plaintiff had the RFC to perform "light work" as defined by 20 C.F.R. § § 404.1567(b), 416.967(b), but with the following limitations:

[She is] limited to tasks that involve no more than frequent stooping, climbing, crawling, crouching, or kneeling. She can perform simple, repetitive, routine tasks that require no more than occasional interaction with supervisors, co-workers, or the general public.

(Tr. 25-26.) At step four, the ALJ found plaintiff was unable to perform her past relevant work. (Tr. 29.) At step five, considering the plaintiff s age, education, work experience, and residual functional capacity, the ALJ found that a significant number of jobs in the national and local economy existed such that plaintiff could sustain employment despite her impairments. (Tr. 30.)


         I. Fibromyalgia Evaluation at Step Three.

         Plaintiff argues this case must be remanded because the ALJ did not properly consider plaintiff s fibromyalgia under Social Security Ruling 12-2p ("SSR 12-2p") at step three. Pl.'s. Br. 09-10 (ECF No. 15) ("Pl.'s Br."); see SSR 12-2p, available a/2012 WL 3104869 (July 25, 2012). At step three, the ALJ determines whether a claimant's impairment or combination of impairments meets or equals the criteria for a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Where an impairment does so, it is per se disabling and the ALJ has no discretion in awarding benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d); Young v. Sullivan,911 F.2d 180, 183 (9th Cir. 1990). However, an alleged diagnosis of fibromyalgia itself cannot meet the listing requirements because fibromyalgia is not a listed impairment. Britlon v. Colvin,787 F.3d 1011, 1012 (9th Cir. 2015); SSR 12-2p 2012 available at WL 3017612, at *6 ("[Fibromyalgia] cannot meet a listing in appendix ...

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