United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
V. ACOSTA UNITED STATES MAGISTRATE JUDGE
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.
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.
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.)
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
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).
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.
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.
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.
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.
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.
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.)
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.)
Fibromyalgia Evaluation at Step Three.
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