McBride v. Colvin

Filing 18

MEMORANDUM DECISION AND ORDER the Court being otherwise fully advised in the premises, IT IS HEREBY ORDERED that the Commissioner's decision finding that the Petitioner is not disabled within the meaning of the Social Security Act is AFFIRMED and that the petition for review is DISMISSED. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

BRET MICHAEL MCBRIDE,
Petitioner,
v.

Case No. 1:14-cv-00176-CWD
MEMORANDUM DECISION
AND ORDER

CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Administration,
Respondent.

Before the Court is Petitioner Bret McBride’s Petition for Review of Respondent’s
denial of social security benefits, filed May 8, 2014. (Dkt. 1.) The Court has reviewed the
Petition for Review and the Answer, the parties’ memoranda, and the administrative
record (AR), and for the reasons that follow, will affirm the decision of the
Commissioner.
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on November 30, 2011, claiming disability beginning October 20, 2009,
due to gout, arthritis, obesity, back pain, photosensitivity, fibromyalgia, asthma, sleep
MEMORANDUM DECISION AND ORDER - 1

apnea, and laryngitis. This application was denied initially and on reconsideration, and a
hearing was conducted on December 14, 2012, before Administrative Law Judge (ALJ)
John Molleur. After hearing testimony from Petitioner and a vocational expert, ALJ
Molleur issued a decision on January 25, 2013, finding Petitioner not disabled. Petitioner
timely requested review by the Appeals Council, which denied his request for review on
April 9, 2014.
Petitioner appealed this final decision to the Court. The Court has jurisdiction to
review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
At the time of the hearing, Petitioner was 40 years of age. Petitioner holds a
bachelor’s degree and has completed most of the requirements for a master’s degree in
communications. Petitioner’s prior work experience includes experience as a customer
service/sales representative.
SEQUENTIAL PROCESS
The Commissioner follows a five-step sequential evaluation for determining
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must
be determined whether the claimant is engaged in substantial gainful activity. The ALJ
found Petitioner had not engaged in substantial gainful activity since he applied for
benefits on November 30, 2011. At step two, it must be determined whether the claimant
suffers from a severe impairment. The ALJ found Petitioner’s obesity, degenerative joint
disease of the bilateral knees, photosensitivity, gout, asthma, and obstructive sleep apnea
severe within the meaning of the Regulations. On the other hand, the ALJ found not
MEMORANDUM DECISION AND ORDER - 2

severe Petitioner’s alleged laryngitis and fibromyalgia, as well as his diagnosed
chorioetinitis, vitreous floaters, and myopia.
Step three asks whether a claimant’s impairments meet or equal a listed
impairment. The ALJ found that Petitioner’s impairments did not meet or equal the
criteria for the listed impairments, specifically Listings 1.02 (major joint dysfunction),
3.03 (asthma), 3.10 (sleep-related breathing disorders), and 14.00 (immune system
disorders). See 20 C.F.R. pt. 404, subpt. P, App. 1. If a claimant’s impairments do not
meet or equal a listing, the Commissioner must assess the claimant’s residual functional
capacity (RFC) and determine, at step four, whether the claimant has demonstrated an
inability to perform past relevant work.
The ALJ found Petitioner had the RFC to perform a limited range of sedentary
work. Accordingly, the ALJ determined Petitioner remained able to perform his past
relevant work as a customer/service sales representative in a call center. Based on this
finding, the ALJ determined Petitioner was not disabled and denied his application for
benefits.
STANDARD OF REVIEW
Petitioner bears the burden of showing that disability benefits are proper because
of the inability “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); see
also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971).
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An individual will be determined to be disabled only if his physical or mental
impairments are of such severity that he not only cannot do his previous work but is
unable, considering his age, education, and work experience, to engage in any other kind
of substantial gainful work which exists in the national economy. 42 U.S.C. §
423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Commissioner if
the decision is supported by substantial evidence and is not the product of legal error. 42
U.S.C. § 405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474
(1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v.
Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than a
preponderance, Jamerson v Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and “does not
mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552,
565 (1988).
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist that supports the petitioner’s
claims. 42 U.S.C. § 405(g); Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,
1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by
substantial evidence, will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if
there is substantial evidence to support the decision of the Commissioner, the decision
MEMORANDUM DECISION AND ORDER - 4

must be upheld even when the evidence can reasonably support either affirming or
reversing the Commissioner’s decision, because the Court “may not substitute [its]
judgment for that of the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th
Cir. 1999).
When reviewing a case under the substantial evidence standard, the Court may
question an ALJ’s credibility assessment of a witness’s testimony; however, an ALJ’s
credibility assessment is entitled to great weight, and the ALJ may disregard a claimant’s
self-serving statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where
the ALJ makes a careful consideration of subjective complaints but provides adequate
reasons for rejecting them, the ALJ’s well-settled role as the judge of credibility will be
upheld as based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th
Cir. 1993).
DISCUSSION
At the outset, the Court will note what is not at issue in this appeal: the ALJ’s
finding that Petitioner’s statements concerning his symptoms were not “fully credible” is
uncontested. (AR 19.) This adverse credibility finding is significant because Petitioner’s
three arguments on appeal each depend in part on Petitioner’s allegations concerning the
intensity, persistence, and limiting effects of his symptoms—which the ALJ found “not
credible to the extent they are inconsistent with the [RFC] and the medical evidence of
record.” (Id.) Because Petitioner has not challenged these findings, the Court gives great
weight to the ALJ’s credibility assessment and will limit its review to the issues
MEMORANDUM DECISION AND ORDER - 5

specifically raised in Petitioner’s opening brief. See Rashad, 903 F.3d at 1231; see also
Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (refusing to
“consider any claims that were not actually argued in appellant’s opening brief.”).
Petitioner contends ALJ Molleur erred at steps two, three, and four. With regard to
the alleged error at step two, Petitioner claims ALJ Molleur failed to properly evaluate
whether his laryngitis and back pain qualified as severe impairments. In addition,
Petitioner alleges the ALJ erred at step three by failing to find Petitioner’s degenerative
joint disease of the bilateral knees, compounded by his obesity and gout, was medically
equivalent to Listing 1.02 (major joint dysfunction). Finally, Petitioner contends the ALJ
erred at step four by assessing a RFC that did not account for the combined effect of all
Petitioner’s impairments. The Court addresses each issue below.
1.

Severe impairments
Before an ALJ can find a claimant’s impairment severe, the claimant must

establish the impairment is “medically determinable.” 42 U.S.C. § 423(d), Soc. Sec.
Ruling (SSR) 96-4p, available at 1996 WL 374181. 1 To be medically determinable, an
impairment must result from anatomical, physiological, or psychological abnormalities
that can be shown by medically acceptable clinical and laboratory diagnostic techniques.
Ukolov v. Barnhart, 420 F.3d 1002, 1004–05 (9th Cir. 2005). Reported symptoms alone
cannot establish the existence of a medically determinable impairment. Id. at 1005; 20
1

Social Security Rulings do not have the force of law but must be given some deference as
long as they are consistent with the Social Security Act and regulations. Ukolov v. Barnhart, 420
F.3d 1002, n.2 (9th Cir. 2005). In Ukolov, the Ninth Circuit found SSR 96-4p consistent with the
purposes of Titles II and XVI of the Social Security Act. Id.
MEMORANDUM DECISION AND ORDER - 6

C.F.R. § 404.1508. Rather, “a medical opinion offered in support of an impairment must
include ‘symptoms [and a] diagnosis.’” Id. at 1006 (quoting SSR 96-6p, available at 1996
WL 374180) (emphasis and alteration in original).
Additionally, a medically determinable impairment is not “severe” unless it
“significantly limit[s]” the claimant’s “physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1521(a). Basic work activities include physical functions
such as walking, standing, sitting, and lifting; capacities for seeing, hearing and speaking;
understanding, remembering, and carrying out simple instructions; using judgment;
responding appropriately in a work situation; and dealing with changes in a routine work
setting. 20 C.F.R. § 404.1521(b). Disability is defined, therefore, in terms of the effect a
physical or mental impairment has on a person’s ability to function in the workplace.
Bowen v. Yuckert, 482 U.S. 137, 146 (1987).
A.

Laryngitis

Substantial evidence supports ALJ Molleur’s conclusion that Petitioner’s
laryngitis was not a severe, medically determinable impairment. (AR 13–14.) In
particular, the ALJ accurately noted Petitioner’s complaints of chronic laryngitis,
hoarseness, or vocal fatigability were not substantiated by objective medical findings. For
example, the ALJ highlighted the inconsistency between the medical record and
Petitioner’s hearing testimony, when Petitioner claimed to have lost his voice completely
for six months following an illness in October 2009. During that six-month span, he was
seen by three medical providers, none of whom noted Petitioner could not speak or
MEMORANDUM DECISION AND ORDER - 7

suffered from any physical abnormality that would establish a medically determinable
impairment. Moreover, Petitioner repeatedly spoke to medical providers by phone and in
person during the period in question.
During an emergency room visit on October 7, 2009, Petitioner presented with flulike symptoms and stated “I have a cold and gout but I really just came in for a note for
work.” (AR 510.) The treating physician noted Petitioner’s voice was “mildly hoarse” at
that time. After a follow-up in November of 2009, the treating physician cleared
Petitioner to return to work without restrictions, noting no hoarseness or vocal symptoms.
(Id. at 507, 511.) In March of 2010, Petitioner consulted with an otolaryngologist, who
performed a laryngoscopy and noted some redness in Petitioner’s throat but normal vocal
cords. (Id. at 500.)
Petitioner continued to complain of hoarseness during several other medical
evaluations in 2010 and 2011, but none of these evaluations revealed the cause of the
problem or mentioned specific functional limitations related to Petitioner’s alleged
hoarseness. Likewise, in May of 2012, an otolaryngologist noted Petitioner’s reported
history of vocal fatigability but found “totally normal nose, pharynx, hypopharynx and
laryngeal findings” and did not “see a need for other workup at this time.” (Id. at 880.)
Thus, the medical record substantially supports the ALJ’s finding that “no doctors have
indicated that the claimant has significant work-related functional limitations due to
laryngitis.” (Id. 14.)
While conceding this is a correct assessment of the medical record, Petitioner
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nevertheless asserts his laryngitis prevents him from using his voice more than one or two
hours per day. This assertion rests solely on Petitioner’s subjective characterization of his
symptoms. That characterization is unsupported by clinical findings, undermined by the
ALJ’s unchallenged adverse credibility finding, and insufficient to establish a medically
determinable impairment. “‘[U]nder no circumstances may the existence of an
impairment be established on the basis of symptoms alone.’” Ukolov, 420 F.3d at 1005
(quoting SSR 94-6p, 1996 WL 374187, at *1). Given the lack of objective medical
evidence to corroborate Petitioner’s complaints, the ALJ had ample bases for concluding
Petitioner’s alleged laryngitis was not severe.
B.

Back pain

On the other hand, the ALJ did not make any express findings regarding
Petitioner’s alleged back pain. At the hearing before the ALJ, Petitioner mentioned he
experienced pain in his back, knees, and wrists. (AR 45.) In addition, Petitioner’s
medical records establish that he sought treatment for chronic back pain in 2011 and
2012. In October of 2011, Petitioner described his pain as acute “pulled muscle” pain in
his back and across his chest that was worse with deep breathing. (Id. at 700.) However,
in November of 2011, his treating doctor noted: “I don’t have a good explanation for his
symptoms of pain in the lower chest and mid back.” (Id. at 393.) The etiology of
Petitioner’s back pain was no clearer after a chest x-ray, chest CT scan, and MRI of his
thoracic spine revealed no abnormalities. (Id. at 393, 289, 535.) An MRI of his lumbar
spine revealed “minimal degenerative changes.” (Id. at 948.) Similar to Petitioner’s
MEMORANDUM DECISION AND ORDER - 9

alleged laryngitis, the record contains no diagnosis of a medically determinable
impairment that could reasonably be expected to produce Petitioner’s alleged back
pain—despite repeated evaluations and a battery of diagnostic tests.
ALJ Molleur made no findings, nor did he discuss the medical records, concerning
Petitioner’s back pain. He did, however, resolve step two in Petitioner’s favor, finding
Petitioner suffered from several severe impairments and continuing the analysis of
Petitioner’s claim through step four of the sequential process. When the ALJ proceeds
beyond step two, the Court must determine whether the ALJ’s failure to evaluate the
severity of an alleged impairment constitutes harmless error. See Stout v. Commissioner,
454 F.3d 1050, 1055 (9th Cir. 2006); see also Lewis v. Astrue, 498 F.3d 909, 911 (9th
Cir. 2007) (applying harmless error analysis to ALJ’s error at step two). An ALJ’s legal
error is harmless if it was “inconsequential to the ultimate nondisability determination.”
Stout, 454 F.3d at 1055.
Any error in evaluating Petitioner’s complaints of back pain at step two could
have prejudiced Petitioner at only steps three (listings analysis) or four (RFC). See Lewis,
498 F.3d at 911. With regard to step three, Petitioner does not argue his back pain, alone
or in combination with his severe impairments, would meet or equal the requirements of
any listing. Instead, his argument concerning Listing 1.02 focuses on the combined
effects of his obesity, gout, and knee problems on his ability to ambulate, as discussed
below. In addition, Petitioner does not argue his back pain imposed functional limitations
beyond those the ALJ incorporated into the RFC at step four. Considering the ALJ’s
MEMORANDUM DECISION AND ORDER - 10

unchallenged findings regarding Petitioner’s credibility, the Court is unable to conclude
that the failure to discuss Petitioner’s alleged back pain at step two would have altered
the ultimate determination. Therefore, any error with regard to Petitioner’s alleged back
pain was harmless.
2.

Medical equivalence to Listing 1.02
At step three, ALJ Molleur found Petitioner’s impairments did not meet or equal

any listing. Petitioner challenges the ALJ’s finding that his impairments were not
medically equivalent to the criteria for Listing 1.02, concerning major joint dysfunction.
Petitioner claims this finding was erroneous because it did not properly account for
Petitioner’s degenerative joint disease of the bilateral knees in combination with his other
medically determinable impairments, particularly his gout and obesity. While Petitioner
concedes he does not meet the criteria for Listing 1.02, he argues his combined
impairments hinder his ability to ambulate effectively, thus establishing medical
equivalence to the Listing.
If the claimant meets or equals a listing and the listed condition meets the twelve
month duration requirement, the Commissioner must find the claimant disabled without
considering age, education and work experience. 20 C.F.R. § 404.1520(a)(4)(iii), (d). A
claimant bears the burden of producing medical evidence that establishes all of the
requisite medical findings that his impairments meet or equal any particular listing.
Bowen v. Yuckert, 482 U.S. 137, 146, n.5 (1987). Further, if the claimant is alleging
equivalency to a listing, the claimant must proffer a theory as to how his combined
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impairments equal a listing. Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001).
An impairment, or combination of impairments, is medically equivalent to a
listing “if it is at least equal in severity and duration to the criteria of any listed
impairment,” considering “all evidence in [the] case record about [the] impairment(s) and
its effects on [the claimant] that is relevant….” 20 C.F.R. § 404.1526(a), (c). Equivalence
depends on medical evidence only; age, education, and work experience are irrelevant.
Id. § 404.1526(c). Likewise, a claimant’s allegations of pain or other symptoms are no
substitute for medical signs and laboratory findings in the equivalence analysis. Id.
§ 404.1529(d)(3). Finally and critically, “the claimant’s illnesses ‘must be considered in
combination and must not be fragmentized in evaluating their effects.’” Lester v. Chater,
81 F.3d 821, 829 (9th Cir. 1995) (quoting Beecher v. Heckler, 756 F.2d 693, 694-95 (9th
Cir. 1985)).
Although obesity is no longer a listed impairment, an ALJ must consider how
obesity affects a claimant’s other impairments and ability to work. Celaya v. Halter, 332
F.3d 1177, 1182 (9th Cir.2003); see also Social Security Ruling (“SSR”) 02–01p, 2002
WL 36486281 (stating that obesity is a medically determinable impairment and requiring
an ALJ to consider the effects of obesity in the five-step sequential evaluation). Because
obesity may complicate chronic diseases of the musculoskeletal system, obesity is
relevant to the evaluation of musculoskeletal impairments, including major joint
dysfunction under Listing 1.02. SSR 02-1p, 2002 WL 34686281, at *3, *5 “If the obesity
is of such a level that it results in an inability to ambulate effectively, as defined in
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section[] 1.001B2b . . . of the listings, it may substitute for the major dysfunction of a
joint(s) due to any cause (and its associated criteria), with the involvement of one major
peripheral weight-bearing joint in listings 1.02A.” Id. at *5.
In relevant part, Listing 1.02 requires major dysfunction of a joint or joints due to
any cause:
Characterized by gross anatomical deformity (e.g., subluxation, contracture,
bony or fibrous ankylosis, instability) and chronic joint pain and stiffness
with signs of limitation of motion or other abnormal motion of the affected
joint(s), and findings on appropriate medically acceptable imaging of joint
space narrowing, bony destruction, or ankylosis of the affected joint(s).
With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip,
knee, or ankle), resulting in inability to ambulate effectively, as defined in
1.00B2b
20 C.F.R. pt. 404, subpt. P, App. 1 § 1.02.
The Social Security Administration’s regulations define “inability to ambulate
effectively” as “an extreme limitation of the ability to walk; i.e., an impairment(s) that
interferes very seriously with the individual's ability to independently initiate, sustain, or
complete activities.” Id. § 1.00(B)(2)(b)(1). Generally, a claimant must have “insufficient
lower extremity functioning . . . to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both upper extremities.” Id.
(emphasis added). Examples of ineffective ambulation include:
the inability to walk without the use of a walker, two crutches or two canes,
the inability to walk a block at a reasonable pace on rough or uneven
surfaces, the inability to use standard public transportation, the inability to
carry out routine ambulatory activities, such as shopping and banking, and
MEMORANDUM DECISION AND ORDER - 13

the inability to climb a few steps at a reasonable pace with the use of a
single hand rail.
Id. § 1.00(B)(2)(b)(2).
Here, Petitioner proffered a theory of medical equivalence, arguing his obesity and
gout flare-ups exacerbate his medically documented degenerative knee condition to the
point that he cannot ambulate effectively for up to six months each year. The ALJ
acknowledged Petitioner’s painful gout flare-ups and found his “obesity is well
documented in the medical record” and “reasonably has some impact on functioning.”
(AR 15.) However, the ALJ concluded Petitioner’s impairments were not medically
equivalent to Listing 1.02, noting Petitioner had not presented sufficient evidence of an
inability to ambulate effectively. The ALJ’s critical finding in this regard is that, despite
evidence that Petitioner experiences pain in his weight-bearing joints and needs a cane or
crutch to ambulate, “the record does not support a finding that he requires two crutches
for one third to one half of the year, as alleged.” (Id. at 18.) In other words, the ALJ
found Petitioner’s alleged inability to ambulate was insufficient as a matter of both
duration and severity to medically equal Listing 1.02. Substantial evidence supports both
conclusions.
First, the ALJ cited substantial evidence that Petitioner’s knee pain and gout flareups were controlled with medication. In August and September of 2012, Petitioner
received Synvisc injections in both knees. (Id. at 824, 898–901.) Petitioner testified the
injections relieved his knee pain for three to four months but would eventually wear off,

MEMORANDUM DECISION AND ORDER - 14

necessitating the use of two crutches until the next injection. (Id. at 50–51.) Petitioner
also received various medications to treat his gout. (Id. at 456, 465, 658, 662, 832, 900.)
These treatments succeeded in controlling Petitioner’s uric acid levels and greatly
reducing the frequency of gout attacks. In fact, there is no evidence of additional gout
attacks after September 2012. This record of relatively successful treatment substantially
supports the conclusion that Petitioner’s gout and knee pain did not impose extreme
ambulatory limitations. See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006
(9th Cir. 2006) (“[I]mpairments that can be controlled effectively with medication are not
disabling for the purpose of determining eligibility for SSI benefits.”).
Second, there is substantial evidence that Petitioner did not experience extreme
ambulatory limitations for long enough to meet the duration requirement. Medical
equivalence to Listing 1.02A requires impairments so severe as to impose an “extreme
limitation of the ability to walk,” 20 C.F.R. pt. 404, subpt. P, App. 1 § 1.00(b)(1), over a
continuous twelve-month period. 20 C.F.R. § 404.1520(a)(4)(iii), (d). There is substantial
medical evidence that Petitioner needed and was prescribed a single cane or forearm
crutch to help him walk. (E.g., AR 49–50, 327, 351, 359, 363, 385, 431, 461, 470, 477,
572, 590, 622, 760, 886.) There is also some evidence, largely based on Petitioner’s
subjective complaints, indicating Petitioner occasionally needed two crutches or canes to
walk or was intermittently incapacitated by pain, swelling, and gout flare-ups in his lower
extremities. (E.g., id. at 350, 441, 484, 571.) Significantly, however, each medically
documented period of incapacitation or extremely limited ambulation occurred before
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Petitioner began receiving the efficacious gout and knee treatments noted above. This
record of intermittent flare-ups followed by relatively successful treatment constitutes
substantial evidence that Petitioner’s alleged extreme ambulatory difficulties did not last
and could not reasonably be expected to last for a continuous twelve-month period. See
Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995).
Third, the ALJ’s credibility assessment undercuts Petitioner’s argument that his
obesity imposes ambulatory restrictions equivalent to Listing 1.02. For example, the ALJ
noted that Petitioner’s doctors told Petitioner his symptoms would improve with weight
loss. Treating physicians observed that weight loss would be beneficial for not only
Petitioner’s knee pain, but also his back pain, breathing problems, and sleep apnea. But,
as the ALJ observed, Petitioner “has been somewhat resistant to this approach.” (AR 18.)
Despite multiple referrals to weight loss programs, Petitioner either stopped going or
outright refused to go on several occasions. (E.g., id. at 509, 572, 653, 792, 875.) The
record discloses no explanation for Petitioner’s failure to follow through with a weight
loss program, and the ALJ could properly rely on it as a factor for discrediting
Petitioner’s claims about the limiting effects of his obesity. See Fair v. Bowen, 885 F.2d
597, 603–04 (9th Cir. 1989).
The ALJ’s adverse credibility finding is significant, because Petitioner’s medical
equivalence argument largely depends on Petitioner’s statements about how his
impairments affect his ability to ambulate. Indeed, there is no medical opinion evidence
suggesting Petitioner could not walk a block at a reasonable pace on rough or uneven
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surfaces, could not use standard public transportation, could not go shopping, or could
not climb a few steps at a reasonable pace with the use of a single handrail. Rather,
Petitioner relies on his subjective complaints that walking on rough or uneven surfaces is
“just scary” and that he cannot negotiate stairs without using both a handrail and a cane.
(AR 50–51.) Not only are Petitioner’s descriptions of his functional limitations
insufficient to support an equivalence finding in the absence of medical evidence, they
are, according to the ALJ’s uncontested finding, not entirely credible. Considering the
record as a whole, the Court finds substantial evidence supports the ALJ’s conclusion that
Petitioner’s medically determinable impairments were not, in combination, equivalent to
Listing 1.02.
3.

Residual functional capacity
At the fourth step in the sequential process, the ALJ determines whether the

impairment prevents the claimant from performing work which the claimant performed in
the past—that is, whether the claimant has sufficient RFC to tolerate the demands of any
past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv). A claimant’s RFC is the most he can
do despite his limitations. 20 C.F.R. § 404.1545(a). An ALJ must consider all relevant
evidence in the record when making this determination. Id. An ALJ also must include all
limitations supported by substantial evidence in his hypothetical question to the
vocational expert. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). However,
the ALJ need not consider or include alleged impairments that have no support in the
record. Id.; see also Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2000) (“Because
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Mr. Osenbrock did not present any evidence that he suffers from sleep apnea, diabetes,
organic brain disorder, or hepatitis in support of his disability claim, the ALJ did not err
in failing to include these alleged impairments in the hypothetical question posed to the
VE.”).
Here, the ALJ concluded Petitioner had the RFC to perform a limited range of
sedentary work. In addition to a variety of postural, environmental, and exertional
limitations, ALJ Molleur specifically accounted for Petitioner’s obesity and knee
problems by finding he should be limited to only occasional balancing, “requires a cane
or single crutch for ambulation,” and “should not be required to walk on uneven
surfaces.” (AR 15.) Petitioner argues this RFC fails to account for the combined effect of
his impairments. In particular, Petitioner contends proper consideration of his laryngitis,
medication-related fatigue, obesity, sleep apnea, and gout flare-ups would compel the
conclusion that Petitioner is disabled.
As explained above, the ALJ properly disregarded Petitioner’s complaints of
disabling laryngitis. Not only was Petitioner’s account of losing his voice for six months
inconsistent with his activities and the notes of his medical providers, no diagnosed
medical condition substantiated his alleged inability to speak. ALJ Molleur provided
similar reasons, supported by substantial evidence, for discounting Petitioner’s reports of
medication-related fatigue and decreased mental acuity. Significantly, Petitioner has not
identified evidence in the medical record suggesting his medications contributed to his
fatigue. And, as the ALJ noted, Petitioner’s allegations of fatigue and reduced mental
MEMORANDUM DECISION AND ORDER - 18

acuity are undercut by the fact that he spent four to six hours per day at the computer.
Because Petitioner’s alleged laryngitis and fatigue have no support in the record aside
from Petitioner’s subjective complaints, the ALJ did not err by omitting their alleged
functional effects from the RFC. See Bayliss, 427 F.3d at 1217.
Petitioner has not identified any other credible, record-supported functional
limitations that would preclude the limited range of sedentary work set forth in the RFC.
Although Petitioner argues his chronic gout attacks would cause substantial absenteeism
inconsistent with fulltime employment, substantial evidence supports the ALJ’s
conclusion that Petitioner’s gout was controlled by medication. As noted above, there is
no medical evidence to suggest Petitioner experienced a gout flare-up since September of
2012. Further, the record discloses only two gout attacks in the period between April and
September of 2012. Even if this record could be construed in a light more favorable to
Petitioner, substantial evidence supports the ALJ’s conclusion that Petitioner could
perform sedentary work despite his gout.
Petitioner likewise failed to present substantial evidence of additional functional
limitations attributable to his sleep apnea and obesity. Aside from his general allegations
of fatigue—which the ALJ discredited—Petitioner does not argue that his sleep apnea
imposes any work-related functional limitations. Moreover, the RFC includes a variety of
limitations to address the mobility and postural limitations imposed by Petitioner’s
obesity. For instance, the RFC allows for only occasional balancing, no walking on rough
or uneven surfaces, and the use of a cane or crutch to assist with ambulation. The ALJ
MEMORANDUM DECISION AND ORDER - 19

was not required to account for additional functional limitations based solely on
Petitioner’s subjective complaints. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,
1197 (9th Cir. 2004). Accordingly, the Court finds substantial evidence supports the
ALJ’s RFC. Petitioner has not carried his burden to show the record compels more
restrictive functional limitations.
ORDER
Based upon the foregoing, the Court being otherwise fully advised in the premises,
IT IS HEREBY ORDERED that the Commissioner’s decision finding that the
Petitioner is not disabled within the meaning of the Social Security Act is AFFIRMED
and that the petition for review is DISMISSED.
July 14, 2015

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