Haney v. Astrue
ORDER that Claimant's Motion for Summary Judgment at docket 17 is DENIED without prejudice, and this matter is REMANDED to the Commissioner for further proceedings consistent with this decision. The Clerk will please enter judgment accordingly Signed by Judge John W Sedwick on 10/3/11. (DMT)
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
MICHAEL J. ASTRUE,
Commissioner of Social Security,
ORDER AND OPINION
Claimant, having exhausted her administrative remedies, filed a Social Security
Complaint alleging the final decision of the Social Security Commissioner was erroneous
as a matter of law and regulation.1 Claimant filed an Opening Brief on the Merits.2
Defendant filed a Memorandum in Opposition.3 Claimant did not file a reply.
The thirty-nine year old Claimant filed an application for disability insurance benefits
on April 2, 2008, and alleged a disability onset date of October 17, 2007.4 Her application
Administrative Record at 29, 124 [hereinafter “AR.”].
was initially denied on August 8, 2008,5 and her request for reconsideration was turned
down on October 6, 2008.6 Claimant’s request for a hearing before an Administrative Law
Judge (“ALJ”) was granted, and the hearing was held April, 30, 2009.7
At the hearing, Claimant, represented by her attorney, testified on her own behalf.
Claimant testified that she has a G.E.D and has finished vocational training schools in word
processing and law enforcement.8 She worked in law enforcement for about 16 years.9
Claimant also testified that she stopped working on October 17, 2007, and hasn’t been back
to work because of her liver disorder and other impairments.10 She has no other sources
of income besides welfare.11
The record indicates she was living with her mother in an assisted living senior home
at the time of the hearing.12 She has two children, one seventeen-year-old boy and one
twenty-year-old daughter.13 Claimant seeks disability for her worsening liver condition and
multiple impairments that inhibit her work performance. Weighing 185 lbs., at 5'5", she has
had significant weight gain over the years because of her poor liver health, which has lead
to an inability to lose weight. She indicated that she hardly ever eats, typically consuming
two Jell-O cups, a banana, and a piece of cake per day.14 Claimant testified that she has
stomach pain as a result of her liver condition.15 Claimant indicated the pain is so severe
that it interferes with daily living activities such as household chores.16 She testified that she
coughs up blood five times a day.17 She also suffers from a bulging disc in her lower back,
which she says is inoperable because of her liver condition.18
In addition to stomach and back pain, Claimant also claims to suffer from hand
stiffness.19 She testified that her hands and legs fall asleep constantly making it difficult to
write or drive.20 Claimant said her hands will tighten in a position and stay that way, having
to be peeled back.21 The stiffness prevents her from bending and picking up heavy objects.22
Claimant also suffers from depression, migraines, and insomnia.23 She testified she has
trouble concentrating and with short term memory.24
Claimant listed 15 different medications which she takes for her various conditions.25
She testified that the medications contribute to some of her impairments because of their
side effects.26 These side effects include dizziness, nausea, vertigo, numbness in her legs,
throwing up, and some stomach pain.27
In addition to Claimant, a vocational expert testified at the hearing.28 Responding
to a hypothetical question, he testified that a person with the same age, education, and work
history, and general impairments would be able to perform customer service and secretarial
AR 35, 39.
jobs.29 However, the expert indicated that these jobs could not be performed without
sustained concentration and persistence.30 With a lessened ability to concentrate he
testified that the jobs of assembly worker and quality control inspector could be performed.31
The expert further indicated that the assembly worker and quality control inspector positions
cannot be performed without hand dexterity and grip. Assuming these additional
impairments, the expert testified that no job would exist in the market that could adequately
Claimant”s medical records are voluminous. Having reviewed the records, the court
concludes that the summary of those records in the Commissioner’s response is correct and
adopts the same for use in this order.33 Lay statements in the record are also appropriately
summarized in the Commissioner’s briefing, and the court adopts them as well.34
The ALJ concluded that considering Claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant numbers in the national
economy that she could perform.35 Thus, the ALJ found the Claimant was not disabled as
defined under the Social Security Act.36
Claimant seeks judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g)
of the Social Security Act, and she asks the court to reverse the ALJ’s decision and enter
Doc. 22 at 2–14.
Id. at 4–16.
judgment remanding for payments of benefits. The Commissioner opposes the motion
arguing the denial of benefits is supported by substantial evidence and free of legal error.
III. STANDARD OF REVIEW
Factual finding by the Commissioner/ALJ are conclusive if supported by substantial
evidence.37 A decision to deny benefits will not be overturned unless it either is not
supported by substantial evidence, or is based upon legal error.38 “Substantial evidence”
has been defined by the United States Supreme Court as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”39 Such evidence must
be “more than a mere scintilla,” but also “less than a preponderance.”40 In making its
determination, the court considers the evidence in its entirety, weighing both the evidence
that supports and that which detracts from the Commissioner’s conclusion.41 If the evidence
is susceptible to more than one rational interpretation, the ALJ’s conclusion must be
A. Disability Determination
The Social Security Act (“the Act”) provides for payment of disability insurance
benefits (“DIB”) to people who have contributed to the Social Security program and who
suffer from a physical or mental disability.43 Disability is defined in the Social Security Act
See 42 U.S.C. § 405(g).
Matney on Behalf of Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
Sorenson v. Weinberger, 514 F.2d 1112, 1119, n.10 (9th Cir. 1975).
Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).
42 U.S.C. § 423(a)(1).
[I]nability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.44
The Act further provides:
An individual shall be determined to be under a disability only if his physical
or mental impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists
in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work. For purposes of the
preceding sentence (with respect to any individual), “work which exists in the
national economy” means work which exists in significant numbers either in
the region where such individual lives or in several regions of the country.45
The Commissioner has established a five-step process for determining disability. The
Code of Federal Regulations explains:
The sequential evaluation process is a series of five "steps" that we follow in
a set order. If we can find that you are disabled or not disabled at a step, we
make our determination or decision and we do not go on to the next step. If
we cannot find that you are disabled or not disabled at a step, we go on to the
next step. Before we go from step three to step four, we assess your residual
functional capacity. (See paragraph (e) of this section.) We use this residual
functional capacity assessment at both step four and step five when we
evaluate your claim at these steps.46
The five steps are as follows:
1. Substantial Activity: Determine whether a claimant is involved in “substantial
gainful activity.” If so, disability status is denied.47 If not, the decision maker proceeds to
42 U.S.C. § 423(d)(1)(A).
42 U.S.C. § 423(d)(2)(A).
20 C.F.R. §§ 404.1520(4)(2011), 416.920(4)(2011).
20 C.F.R. §§ 404.1520(a)(4)(i)(2011), 416.920(a)(4)(i) (2011).
2. Severe Impairment: Determine whether a claimant has a medically severe
impairment or combination of impairments.48 A severe impairment significantly limits a
claimant’s physical or mental ability to do basic work activities, and does not consider age,
education or work experience.49
If a claimant does not have a severe impairment or
combination of impairments that satisfies the duration requirement in 20 C.F.R. § 416.909,
the disability claim is denied at this step. If, on the other hand, it is found to be severe, the
decision maker goes on to the third step.
3. Listed Impairments: Determine whether the impairment is the equivalent of a
number of listed impairments that are so severe as to preclude substantial gainful activity.50
If the impairment is the equivalent of one of the listed impairments in 20 C.F.R. § 404
Subpt. P, App. 1 (2011) and meets the duration requirement, a claimant is conclusively
presumed to be disabled. If not, the evaluation goes on to the fourth step.
4. Past Employment: Determine whether the impairment prevents the claimant from
performing work performed in the past. At this point the analysis considers the claimant’s
residual functional capacity and past relevant work. If a claimant can still do his or her past
relevant work, the claimant is deemed not to be disabled. If a claimant cannot perform past
relevant work, the evaluation process moves to the fifth and final step.51
5. Future Employment Potential: Determine whether a claimant is able to perform
other work in the national economy in view of his or her age, education, and work
20 C.F.R. §§ 404.1520(a)(4)(ii)(2011), 416.920(a)(4)(ii) (2011).
20 C.F.R. § 416.920(c)(2011).
20 C.F.R. §§ 404.1520(a)(4)(iii)(2011), 416.920(a)(4)(iii)(2011); 20 C.F.R. pt. 404, Subpt. P, App.
20 C.F.R. §§ 404.1520(a)(4)(iv)(2011), 416.920(a)(4)(iv) (2011).
experience, and in light of the residual functional capacity. If so, a claimant is not disabled.
If not, the claimant is considered disabled.52
A claimant bears the burden of proof at steps one through four.53 The burden shifts
to the Commissioner at step five.54 The Commissioner can meet this burden “(a) by the
testimony of a vocational expert, or (b) by reference to the Medical-Vocational Guidelines.”55
The Medical-Vocational Guidelines are commonly referred to as “the grids.” If a claimant’s
residual functional capacity and vocational characteristics correspond precisely to the grids,
the grids are used to direct a finding of “disabled” or “not disabled.”56 The grids may be used
alone at step five where they “completely and accurately represent a claimant's limitations.
In other words, a claimant must be able to perform the full range of jobs in a given category,
i.e., sedentary work, light work, or medium work.”57 The Ninth Circuit has explained that
significant non-exertional impairments, such as poor vision or inability to tolerate dust or
gases, may make reliance on the grids inappropriate.58 Pain can be a non-exertional
limitation. But, mere allegation of a non-exertional limitation “does not automatically preclude
application of the grids. The ALJ should first determine if a claimant’s non-exertional
limitations significantly limit the range of work permitted by his exertional limitations.”59
Where the grids do not accurately reflect the claimant’s limitations, the testimony of a
vocational expert is necessary.
20 C.F.R. §§ 404.1520(a)(4)(iv)(2011), 416.920(a)(4)(iv) (2011).
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
20 C.F.R. § 404, Subpt. P, App. 2 (2011); Apfel, 180 F.3d at 1099.
20 C.F.R. § 404, Subpt. P, App. 2, § 200.00 (2011).
Tackett, 180 F.3d at 1101 (emphasis omitted).
Id. at 1101–02.
Id. at 1102.
The ALJ found at Step 1 that Claimant has not engaged in substantial gainful activity
since October 17, 2007.60 At Step 2 she found Claimant has severe impairments of:
“nonalcoholic steatohepatits (“NASH”), fibromyalgia, obesity, bilateral hand paresthesias,
lumbar degenerative disc disease, major depressive disorder.”61 The ALJ further noted that
Claimant has previously worked with and is being treated for “vertigo, dizziness, epistaxis,
reactive airway disease, gastroesophageal reflux disease with mild esophagitis, migraines,
mild diverticulosis and irritable bowel syndrome.”62 The ALJ found these and Claimant’s
reported hypoglycemia to be non-severe.63
At Step 3 the ALJ found Claimant does not have an impairment that meets or
medically equals one of the listed impairments.64 The ALJ reasoned that there was no
“radiographic findings consistent with the (required) level of severity,... and no testing,
imaging, pathology, or examination findings indicating a liver or digestive impairment.”65 The
ALJ further reasoned that no examining or treating medical provider determined that
Claimant’s physical impairments met or equaled any of the listed ones.66 Therefore, the ALJ
determined that Claimant’s impairments did not meet any of the listed impairments.
At Step 4, the ALJ noted that Claimant has past relevant work as a “corrections officer,
in security operations and as a security officer, as a customer service representative at
Cigna, and as a temporary secretary.”67 The ALJ then determined Claimant is unable to
perform her past relevant work.68
Finally, at Step 5 the ALJ concluded that Claimant has the residual functional capacity
to perform “at least sedentary work...limited to simple routine work and should avoid
moderate exposure to noxious substances, fumes, dusts, and gases, or to hazardous
conditions including unprotected heights or dangerous moving machinery.”69 The ALJ
considered Claimant’s age, education, work experience, and residual functional capacity, and
found jobs that exist in significant numbers in the national economy that Claimant could
It is undisputed that Claimant has not worked since the onset of her disability which
occurred October 17, 2007.71 In accord with that fact, the ALJ correctly concluded that the
Claimant has not engaged in substantial gainful activity since October 17, 2007.
At Step 2, the ALJ must consider the medical severity of a claimant’s impairments.72
To qualify for disability a claimant must have a severe medical impairment.73 A severe
impairment is one that significantly limits the claimant’s physical or mental ability to do basic
work activities.74 By contrast, an impairment is “not severe” where medical evidence
establishes only a slight abnormality or a combination thereof which would have no more
20 C.F.R. § 404.1520(ii)(2011).
20 C.F.R. § 404.1520(c)(2011).
than a minimal effect on a claimant’s ability to perform basic work activities.75 Additionally,
the ALJ must consider the aggregate effects of the claimant’s impairments, including those
that even in isolation are not severe.76 Finally, an ALJ’s conclusion that a claimant does not
have a severe impairment or combination of impairments must be supported by substantial
In this case, lab test results completed in April 2007 diagnosed Claimant with a fatty
liver, among other ailments.78 By August of that same year, her condition worsened to
NASH,79 a chronic liver disease.80 A year later, her condition continued, even with treatment,
to worsen to stage 3 liver disease and “well established cirrhosis.”81 The onset of NASH in
addition to documented impairments of obesity, fibromyalgia, bilateral hand paresthesias,
and lumbar degeneration of the disc are severe impairments because as a whole they
significantly limit Claimant’s physical or mental ability to do basic work activities. The ALJ
correctly considered these impairments to be severe.
The ALJ also determined that Claimant had the following non-severe impairments:
vertigo, dizziness, epistaxis, reactive airway disease, GERD, migraine headaches, mild
diverticulosis, and IBS.82 The ALJ reasoned these impairments were non-severe because
they were “long-standing conditions controlled with treatment.”83 However, in making a
20 C.F.R. § 404.1523(2011).
AR 368, 70.
20 C.F.R. § 404, Subpt. P, App. 1 (2011).
determination as to whether a claimant’s physical or mental impairments are severe, the ALJ
must also consider the combined effect of all of the claimant’s impairments.84 This requires
an analysis of the combined impact of both the severe and non-severe impairments on a
claimant’s ability to function.85 In this case, it appears that the ALJ failed to consider the
combined impact.86 Instead, the ALJ considered each of the non-severe impairments
individually under 20 C.F.R. § 404.1521 and in combination with the other non-severe
impairments under 20 C.F.R. §416.921, but she did not consider the combination of all the
non-severe impairments with the severe impairments as required by 20 C.F.R. § 404.1523.87
When an ALJ finds a medically severe combination of impairments, she must consider
the combined impact of all a claimant’s impairments throughout the disability determination
process. That means, the ALJ must not only consider the combination of impairments at
Step 2, but also thereafter. Step 3 requires the ALJ to consider whether the claimant has an
impairment that meets or equals one of the listed impairments under Appendix 1 of 20 C.F.R.
§ 404.1520 (Evaluation of Disability; Listing of Impairments). The listings streamline the
disability decision process by identifying claimants whose impairments are so severe that
they are likely to be found disabled without the need to review their vocational background
under Steps 4 and 5.88 It is not enough, however, to show that a claimant’s impairment
equals one of the listed impairments in order to find her per se disabled; rather, the claimant
42 U.S.C.A. § 423(d)(2)(B).
Bowen v. City of New York, 476 U.S. 467, 471 (1986).
must show that her impairment meets or equals severity and duration requirements for the
Both Steps 2 and 3 look to severity, but Step 3 focuses on whether a claimant’s
impairment is severe enough to prevent a person from doing any significant gainful activity.90
In this case, at Step 3, the ALJ considered the listed impairments in Sections 1.04
(“Disorders of the Spine under Musculoskeletal System”), 5.05 (“Chronic Liver Disease under
Digestive System”), and 12.04 (“Affective disorders under Mental Disorders”) of Appendix 1.91
She determined that Claimant Haney’s impairments did not equal any one of the listed
impairments, stating Claimant did not meet any of the specific requirements in the listings.92
The ALJ reasoned this because “the medical evidence did not establish limitations of listing
level severity.”93 However, as noted above in connection with Step 2, the ALJ did not
consider the combined effect of all Claimant’s severe and non-severe impairments as
required by 20 C.F.R. §404.1523.
The ALJ’s failure to consider the combined effect of all Claimant’s impairments makes
it impossible for this court to be sure that her decision is supported by substantial evidence.
While the ALJ may have reached the correct conclusion, the omission in her analysis
requires the court to remand this matter so the omission may be cured.
Young v. Sullivan, 911 F.2d 180 (9th Cir. 1990).
See 20 C.F.R. §404.1525(a)(2011).
AR. 18; See 20 C.F.R. § 404.1520, Subpt. P, App. 1 (2011).
Based on the foregoing, Claimant’s Motion for Summary Judgment at docket 17 is
DENIED without prejudice, and this matter is REMANDED to the Commissioner for further
proceedings consistent with this decision. The Clerk will please enter judgment accordingly.
DATED this 3rd day of October 2011.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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