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Valerie E. v. Commissioner of Social Security

United States District Court, D. Oregon

May 23, 2019

VALERIE E., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          Michael McShane United States District Judge

         Plaintiff brings this action for judicial review of the Commissioner's decision denying her application for social security disability insurance benefits. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). On June 4, 2014, Plaintiff filed an application for benefits, ultimately alleging disability as of January 22, 2014. After a hearing, the administrative law judge (“ALJ”) determined Plaintiff was not disabled under the Social Security Act. Tr. 13-26.[2]Plaintiff argues the ALJ erred in finding that she did not meet or equal listing 1.04, in finding her less-than fully credible, and in rejecting certain lay witness testimony. Because the Commissioner's decision is based on proper legal standards and supported by substantial evidence, the Commissioner's decision is AFFIRMED.

         STANDARD OF REVIEW

         The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal 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 is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can reasonably support either affirming or reversing, ‘the reviewing court may not substitute its judgment' for that of the Commissioner.” Gutierrez v. Comm'r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).

         DISCUSSION

         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of proof rests upon the claimant to meet the first four steps. If the claimant satisfies his burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner must show that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (RFC), age, education, and work experience. Id. If the Commissioner fails to meet this burden, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).

         As relevant here, the ALJ found Plaintiff suffered from cervical degenerative disc disease and lumbar degenerative disc disease. Tr. 16. There is no question that these qualify as severe impairments. Plaintiff has suffered from chronic pain in her lower back since 1997 Tr. 190. Around that time, Plaintiff also began suffering from neck pain. Tr. 286. Objective medical imaging results confirmed the impairments, including evidence of nerve root compression. Plaintiff underwent multiple surgeries over two decades in various attempts at resolving the impairments or at least improving Plaintiff's quality of life. The final surgery, in January of 2014, was a cervical fusion at ¶ 3-C7. Plaintiff alleges that date is her disability onset date.

         Initially, Plaintiff and the surgeon, Dr. Angeles, deemed the surgery a success and Dr. Angeles released Plaintiff to return to work. After roughly six weeks back at work, Plaintiff's condition deteriorated to the point Plaintiff had to quit her career as a tobacco company sales representative. Plaintiff spent the next 18 months or so attending appointments with various physicians, physical therapists, nurse practitioners, and a chiropractor. Generally speaking, outside of a few weeks of improvement following steroid injections, Plaintiff's condition during this time neither improved nor regressed. Instead, Plaintiff generally complained of chronic pain.

         In February 2016, Plaintiff began working part-time at her chiropractor's office. For the next year, through the date of her hearing before the ALJ, Plaintiff worked approximately 20 hours per week performing clerical office tasks. Tr. 468. With the exception of three months, Plaintiff's monthly earnings during that year where above the presumptive limit for substantial gainful activity under the Act. Tr. 16, 158.

         At step one, the ALJ found Plaintiff engaged in substantial gainful activity beginning in March of 2016.[3] Tr. 16. Therefore, the ALJ focused on the roughly two-year time period between the alleged onset date of January 2014 and March 2016. Tr. 18. At step three, the ALJ determined Plaintiff's spinal impairments did not meet or medical equally the severity of listing 1.04. Tr. 17. The ALJ then determined Plaintiff had the RFC to perform light work with several additional limitations discussed below. As noted, Plaintiff argues the ALJ erred in finding Plaintiff did not meet or medically equal listing 1.04. Additionally, Plaintiff argues the ALJ erred in finding Plaintiff could perform limited light work on a sustained basis. Generally, Plaintiff argues the evidence demonstrates Plaintiff is limited to, at best, intermittent sedentary activity. I address each argument in turn.

         1. Listing 1.04

         Listing 1.04 covers disorders of the spine:

1.04 Disorders of the spine (e.g. herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);
OR
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthia, resulting in the need for changes in position or posture more than once every 2 hours[.]

20 C.F.R. Part 404, Subpart P, App. 1.

         The ALJ specifically mentioned listing 1.04 and concluded Plaintiff did not meet or equal the listing at step 3.[4] Tr. 17. The ALJ, however, did so in a somewhat conclusory fashion, with little explanation in the step 3 portion of the findings as to why Plaintiff's combination of impairments did not medically equal the listing. The ALJ's failure to delve extensively into the medically equals analysis is perhaps explained by the fact that Plaintiff never mentioned this argument below. See Tr. 234-35 (alerting ALJ that Plaintiff's theory of the case is that Plaintiff is unable to perform full-time activity at a sedentary level and neither mentioning listing 1.04 nor arguing that Plaintiff medically equals the listing); see also Tr. 139-40 (same); see also Tr. 32-53 (transcript from hearing where Plaintiff does not mention listing 1.04 or argue her combination of impairments medically equals any listing).

         To meet a listing, the claimant must demonstrate both a diagnosis of a listed impairment and that the impairment results in the findings described in the listing. Marcia v. Sullivan, 900 F.2d 172, 175 (9th Cir. 1990) (noting that while regulations require diagnosis, Social Security Ruling 83-19, at 90 (Jan. 1983) provides that “an impairment meets a listed condition ‘only when it manifests the specific findings described in the set of medical criteria for that listed impairment.'”). Listing 1.04A requires findings of “motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).”

         Plaintiff acknowledges she lacks a positive straight-leg raising test. Additionally, the ALJ expressly noted the record demonstrated Plaintiff did not experience motor loss. Tr. 19 (noting April and August 2014 exams revealed Plaintiff had normal motor strength in extremities); id. at 19-20 (noting that although Plaintiff reported weakness in her legs in October 2014, on examination “Lower extremity strength was 5/5 in all major muscle groups.”); id. at 21 (noting October 2015 neurological examination revealed motor strength of 5/5 throughout). Although the ALJ mentioned these findings when discussing Plaintiff's RFC, the findings relate to listing 1.04A's requirement of motor loss. After discussing two years of medical evidence, the ALJ found that, “despite abnormalities as shown on imaging studies of the lumbar and cervical spine, straight leg raises were negative; the claimant's gait was generally normal; and strength in the upper and lower extremities was typically normal.” Id. at 22 (emphasis added). Although Plaintiff points to isolated evidence of slight motor loss, such as a June 2015 note from Katrina Cypcar, PA-C of 4/5 motor strength in Plaintiff's right upper extremity, the ALJ looked at the overall record, with numerous instances of full motor strength over several years, and concluded Plaintiff's impairments did not result in motor loss.[5] Stated another way, the ALJ resolved somewhat conflicting evidence in the record. Substantial evidence supports the ALJ's conclusion. See Tr. 256, 278, 282, 297, 312, 354, 364, 394, 440, 447 (examinations indicating Plaintiff experienced no motor loss). Therefore, the ALJ did not err in concluding Plaintiff did not meet listing 1.04A at step three.

         Plaintiff argues she meets listing 1.04B because the record contains evidence of a diagnosis for spinal arachnoiditis, confirmed by appropriate medically acceptable imaging. In support, Plaintiff points to an April 16, 2016 MRI showing “slight clumping, as well as slight peripheral localization and these findings may indicate mild chronic arachnoiditis.” Tr. 405. The regulations, however, require a specific finding, as opposed to an inference, of a listed condition. Marcia, 900 F.2d at 175 n.3 (“An inference is not a specific finding as required by the regulations.”). Therefore, the ALJ did not err in concluding Plaintiff did not meet listing 1.04B.

         Plaintiff also argues that she equals listing 1.04 or, in the alternative, that Marcia requires remand because the ALJ failed to adequately explain the finding that Plaintiff does not equal the listing. “Equivalence is determined on the basis of a comparison between ‘the symptoms, signs and laboratory findings' about the claimant's impairment as evidenced by the medical records ‘with the medical criteria shown with the listed impairment.'” Marcia, 900 F.2d at 176 (quoting 20 C.F.R. § 404.1526). “For a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is equivalent to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (internal quotations omitted).

         In Marcia, the ALJ's finding as to equivalence consisted of: “The claimant has failed to provide evidence of the medically determinable impairments that meet or equal the Listings to Subpart P of Regulation 4 or the duration requirements of the Act . . . .” Marcia, 900 F.2d at 176. The Ninth Circuit reversed, “hold[ing] that, in determining whether a claimant equals a listing under step three of the Secretary's disability evaluation process, the ALJ must explain adequately his evaluation of alternative tests and the combined effects of the impairments. Applying this standard to the findings in this case, we find that the statement that Marcia did not equal the listing was insufficient.” Id. As discussed above, the ALJ here specifically found that “despite abnormalities as shown on imaging studies of the lumbar and cervical spine, straight leg raises were negative; the claimant's gait was generally normal; and strength in the upper and lower ...


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