Moen v. Commissioner of Social Security

Filing 16

MEMORANDUM DECISION AND ORDER - NOW THEREFORE IT IS HEREBY ORDERED: 1) The Petition for Review (Dkt. 1 ) is GRANTED. 2) This action shall be REMANDED to the Commissioner for further proceedings consistent with this decision.3) This Remand shall be c onsidered a sentence four remand, consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). 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 (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RICKI LEE MOEN,
Petitioner,

Case No. 2:17-CV-00392-CWD

v.

MEMORANDUM DECISION
AND ORDER

NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Respondent.

INTRODUCTION
Currently pending before the Court for its consideration is Ricki Lee Moen’s
Petition for Review of the Respondent’s denial of social security benefits, filed
September 20, 2017. (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 remand to the Commissioner.

MEMORANDUM DECISION AND ORDER - 1

PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on November 25, 2013, claiming Title II disability insurance benefits.
This application was denied initially and on reconsideration, and a hearing was held on
May 25, 2016, before Administrative Law Judge (ALJ) Jesse K. Shumway. After hearing
testimony from Petitioner, vocational expert Thomas A. Polsin, medical experts Haddon
Christopher Alexander, III, M.D., and Philip J. Gelber, M.D., ALJ Shumway issued a
decision finding Petitioner not disabled on June 21, 2016. Petitioner timely requested
review by the Appeals Council, which denied her request for review on June 9, 2017.
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 33 years of age. Petitioner has less than a
high school education, completing through the 11th grade. Petitioner’s prior work
experience includes work as a cashier/checker and stock clerk.
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. Preliminarily, the
ALJ found that Petitioner had disability insurance coverage on December 31, 2013,
which means Petitioner had to prove she was disabled by that date. At step one, it must
be determined whether the claimant is engaged in substantial gainful activity. The ALJ
found that, although Petitioner worked after the date she alleges she became disabled,
MEMORANDUM DECISION AND ORDER - 2

September 30, 2013, the work did not rise to the level of substantial gainful activity.
At step two, it must be determined whether the claimant suffers from a severe
impairment. The ALJ found Petitioner’s ankylosing spondylitis (inflammatory arthritis)
and uveitis (inflammation of the eye) severe within the meaning of the Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed
impairment. The ALJ found that, through the date last insured of December 31, 2013,
Petitioner’s impairments did not meet or equal the criteria for the listed impairments,
specifically, for ankylosing spondylitis, under Listings 14.09C and 14.09D. See 20
C.F.R., Part 404, Subpart P, Appendix 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 was not able to perform her past relevant work as a cashier/checker,
a combination light job with a specific vocational preparation, and also was not able to
perform her past relevant work as a stock clerk, a heavy job. (AR 28.)
If a claimant demonstrates an inability to perform past relevant work, the burden
shifts to the Commissioner to demonstrate, at step five, that the claimant retains the
capacity to make an adjustment to other work that exists in significant levels in the
national economy, after considering the claimant’s residual functional capacity, age,
education and work experience. At step five, the ALJ determined Petitioner retained the
capacity to perform a range of light work, with a restriction to no work requiring depth
MEMORANDUM DECISION AND ORDER - 3

perception due to her sight limitations. The ALJ cited representative light work jobs such
as a small parts assembler, cafeteria attendant, and a housekeeper. The ALJ found further
that Petitioner retained the capacity to perform representative sedentary jobs, with the
same depth perception limitation, such as order clerk, cashier, and charge account clerk.
Thus, the ALJ found Petitioner not disabled from the alleged onset date, September 30,
2012, though the last date of her last insurance coverage, December 31, 2013.
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).
An individual will be determined to be disabled only if her physical or mental
impairments are of such severity that she not only cannot do her previous work but is
unable, considering her 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.
MEMORANDUM DECISION AND ORDER - 4

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
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
MEMORANDUM DECISION AND ORDER - 5

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
Petitioner believes the ALJ erred at step three by failing to consider evidence in
the record establishing her ankylosing spondylosis as a severe impairment meeting
Listing 14.09D. In the alternative, Petitioner argues the ALJ erred at step three by failing
to consider Petitioner’s ankylosing spondylosis, uveitis, and chronic pain in
combination—as manifestations of the same arthritic condition—and to find that they
equal Listing 14.09D. In turn, Respondent argues the ALJ properly found Petitioner’s
impairments do not meet Listing 14.09D, that Petitioner failed to show her impairments
equal the listing’s requirements, and that the ALJ properly considered the effects of
Petitioner’s illnesses in combination, including her chronic pain. The Court will discuss
the merits of Petitioner’s challenges below.
1.

Meet or Equal a Listing
The ALJ found that Petitioner’s impairments did not meet or equal any listing.

Specifically, the ALJ found that Petitioner’s impairments did not meet or equal Listing
14.09C and Listing 14.09D. As summarized above, Petitioner challenges the ALJ’s
finding only as to Listing 14.09D.
If the claimant satisfies the criteria under a listing and meets the twelve month
duration requirement, the Commissioner must find the claimant disabled without
MEMORANDUM DECISION AND ORDER - 6

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 her impairments meet or equal any particular listing.
Bowen v. Yuckert, 482 U.S 137, 146, n. 5 (1987).
Listing 14.00 concerns immune system disorders in adults—Section 14.09
specifically concerns inflammatory arthritis. Ankylosing spondylitis is specifically
identified in Listing 14.09C. The ALJ considered 14.09C and found Petitioner’s
ankylosing spondylitis did not meet or equal that listing. Petitioner does not challenge
that finding. The ALJ considered also Listing 14.09D, which concerns repeated
manifestations of inflammatory arthritis, and would encompass Petitioner’s ankylosing
spondylitis. The ALJ found Petitioner’s ankylosing spondylitis did not meet or equal
Listing 14.09D, which reads as follows:
D.
Repeated manifestations of inflammatory arthritis, with at least two
of the constitutional symptoms or signs (severe fatigue, fever, malaise, or
involuntary weight loss) and one of the following at the marked level:
1.

Limitation of activities of daily living.

2.

Limitation in maintaining social functioning.

3.

Limitation in completing tasks in a timely manner due to
deficiencies in concentration, persistence, or pace.

20 C.F.R., Part 404, Subpart P, Appendix 1, Listing 14.09D.
The listing provides the following applicable definitions that are significant to the
ALJ’s determination of whether Listing 14.09D is met or equaled in Petitioner’s case.
Under the listing, “constitutional symptoms or signs” means “severe fatigue, fever,
MEMORANDUM DECISION AND ORDER - 7

malaise, or involuntary weight loss.” Listing 14.00(C), Definitions. “Sever fatigue”
means “a frequent sense of exhaustion that results in significantly reduced physical
activity or mental function.” Id. “Malaise” means “frequent feelings of illness, bodily
discomfort, or lack of well-being that result in significantly reduced physical activity or
mental function.” Id. And, “severe” means “medical severity used by the medical
community” and does not have the same meaning as used in connection with a finding at
the second step of the sequential evaluation process. Id.
Additionally, the listing provides information specific to the documentation and
evaluation of inflammatory arthritis. Id. at 14.00D(6). The listing explains that the
“spectrum of inflammatory arthritis includes a vast array of disorders that differ in cause,
course, and outcome.” Clinically, however, the “inflammation of major peripheral joints”
is often the dominant manifestation” and “there may be joint pain, swelling, and
tenderness. Id. The listing explains also that, “in combination with extra-articular
features, including constitutional symptoms or sights (severe fatigue, fever, malaise,
involuntary weight loss) inflammatory arthritis may result in an extreme limitation.” Id.
The listing provides that inflammatory arthritis involving the axial spine may be
associated with ankylosing spondylitis. Id. at 6(b)(iii). Notably, severity in Listing
14.09D is shown by “inflammatory arthritis that involves various combinations of
complications of one or more major peripheral joints,” includes “extra-articular features,
repeated manifestations, and constitutional symptoms or signs.” Id. at 6(e)(ii). Extraarticular features of inflammatory arthritis “may involve any body system.” The listing
MEMORANDUM DECISION AND ORDER - 8

provides specific examples of these systems, including uveitis. Id. at 6(e)(iii).
i.

The ALJ’s finding that Petitioner’s ankylosing spondylitis does not meet
listing 14.09D is supported by substantial evidence in the record.

The ALJ found that the record does not establish that Petitioner has two of the
constitutional symptoms or signs required for her ankylosing spondylitis to meet listing
14.09D. (AR 24.) While acknowledging the record establishes Petitioner’s reports of
fatigue, the ALJ found no documentation of fever or malaise attributable to Petitioner’s
ankylosing spondylitis. Id. The ALJ found further that the record does not show weight
loss during the relevant period (September 2012 to December 2013). Id. Instead, the ALJ
found the medical evidence shows Petitioner’s weight fluctuated between about 110
pounds and 118 pounds. Id. While Petitioner does not challenge the ALJ’s finding about
fever or malaise, she does assert that the record establishes she had weight loss during the
relevant period. (Dkt. 12 at 7-8, 11-14.)
The record contains the following evidence related to Petitioner’s weight from the
period between September 30, 2012, through December 31, 2013, and after the relevant
adjudicatory period, from January 1, 2014, through the date of the final medical record,
December 17, 2015:
Adjudicatory period

Post-adjudicatory period

Date

Weight (pounds)

Date

Weight

October 12, 2012

114.6
(AR 305)
117.4
(AR 303)

February 13, 2014

112
(AR 375)
113
(AR 392)

Nov. 12, 2012

May 8, 2014

MEMORANDUM DECISION AND ORDER - 9

Dec. 5, 2012
January 7, 2013
January 10, 2013
January 15, 2013
January 18, 2013
April 24, 2013
July 17, 2013
Nov. 12, 2013

115.8
(AR 300)
114.6
(AR 299)
117.8
(AR 298)
116
(AR 296)
113
(AR 295)
118
(AR 362)
116
(AR 367)
110 pounds
(AR 371)

June 9, 2014
July 2, 2014
July 30, 2014
May 6, 2016
Nov. 25, 2014
July 31, 2014
January 30, 2015
May 4, 2015
August 18, 2015
Dec. 10, 2015
Dec. 17, 2015

113
(AR 392)
116
(AR 387)
108
(AR 379)
119.2
(AR 518)
114
(AR 435)
110
(AR 385)
116
(AR 480)
109
(AR 438)
114
(AR 441)
113
(AR 412)
114
(AR 513)

In his evaluation of this evidence, the ALJ noted that Petitioner lost 12 pounds
over an approximately 6-month period (weight of July 30, 2014, 108 pounds) but the
weight loss occurred after Petitioner’s date of last insured and is outside of the
adjudicatory period. (AR 24.) As recorded above, the medical evidence shows that
Petitioner’s weight continued to fluctuate until December 17, 2015, when the record
closes. Although Petitioner’s weight of 108 pounds on July 30, 2014, was 10 pounds less
than her weight of 118 pounds on April 24, 2013, by January 2015, Petitioner’s weight
was back up to 116 pounds. Months later, in May 2015, her weight dropped again, this
time to 109 pounds. Months later, it was up to 114 pounds.
MEMORANDUM DECISION AND ORDER - 10

The Court finds that, although evidence of a continuing pattern of weight loss after
the adjudicatory period would have been relevant to show her weight was continuing to
decline, the record evidence shows instead that her weight continued to fluctuate.
Provided this, the Court finds also that Petitioner has not met her burden of producing
medical evidence to establish involuntary weight loss during the adjudicatory period.
Thus, the ALJ’s finding that Petitioner did not experience weight loss, but instead, weight
fluctuation, is supported by substantial evidence in the record and there is no error in the
ALJ’s determination that Petitioner’s ankylosing spondylosis does not meet listing
14.09D.
ii.

The ALJ erred by failing to consider Petitioner’s illnesses in combination
when determining whether her impairments medically equaled the severity
of at least one listed impairment.

Petitioner argues that she has three severe documented conditions –ankylosing
spondylosis, uveitis, and chronic pain– that, when considered in combination, medically
equal Listing 14.09D. (Dkt. 12 at 11.) Petitioner argues “it is clear that she ‘medically
equals’ [Listing 14.09D] because of the waxing and waning nature of her [ankylosing
spondylosis] and uveitis during the relevant time period.” (Dkt. 12 at 11.) Petitioner
proffers that, when the record as a whole is considered, it shows she was having repeated
periods of inflammation in her body and in her eyes, as shown by her medical treatment
during the relevant period.
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
MEMORANDUM DECISION AND ORDER - 11

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). Further,
equivalence depends on medical evidence only; age, education, and work experience are
irrelevant. Id. at § 404.1526(c). 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, 69495 (9th Cir. 1985)). “A boilerplate finding is insufficient to support a conclusion that a
claimant’s impairment does not” meet or equal a listed impairment. Lewis, 236 F.3d at
512 (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990)). Finally, if the claimant
is alleging equivalency to a listing, the claimant must proffer a theory, plausible or
otherwise, as to how her combined impairments equal a listing. See Lewis v. Apfel, 236
F.3d 503, 514 (9th Cir. 2001).
In support of his findings that Petitioner’s impairments do not meet or equal
Listing 14.09D, the ALJ reviewed the record for evidence of fatigue, fever, and malaise
attributable to her ankylosing spondylitis. (AR 24.) Also, as discussed above, the ALJ
reviewed the record for evidence of weight loss related to the same. Id. In further support
of his findings, the ALJ cited record evidence that showed Petitioner attended her
children’s school events and played with them. Id. The ALJ highlighted the fact that
Petitioner stated she could pay attention “as long as needed,” that she stated she could
follow instructions “very well, and had no problems getting along with others.” Id. The
ALJ also cited Petitioner’s activities of daily living that established she could engage in
MEMORANDUM DECISION AND ORDER - 12

many household chores, including doing laundry and preparing meals. Id.
Finally, the ALJ considered the opinion of testifying medical expert, Haddon
Christopher Alexander, III, M.D., who opined that, although Petitioner’s ankylosing
spondylitis is a form of inflammatory arthritis, it does not meet or medically equal Listing
14.09D, because the record does not establish that Petitioner “has constitutional
symptoms supported by an active disease process.” Id. The ALJ gave great weight to Dr.
Alexander’s opinion, finding it consistent with the medical evidence. Id.
Despite the reasoning above, at no point in his discussion of whether Petitioner’s
limitations meet or equal Listing 14.09D did the ALJ mention Petitioner’s severe
limitations from uveitis. Id. The ALJ also failed to recognize that the listing for
inflammatory arthritis specifically includes uveitis as an extra-articular feature that
demonstrates listing-level severity. See 20 C.F.R., Part 404, Subpart P, Appendix 1,
Listing 14.00D(6)(e)(ii-iii); see also § 404.1529(4)(d)(2).
When the ALJ did discuss Petitioner’s uveitis, it was in the context of determining
her residual functional capacity (RFC). (AR 27.) In that context, the ALJ concluded that
“the record establishes that [Petitioner] does not have consistently effective vision
because of her uveitis.” Id. Of note, the ALJ specifically highlighted evidence of an
occasion during August 2013 (within the relevant period) when the examination by
Petitioner’s treating optometrist reported 10/400 vision in her left eye. (AR 342.) The
ALJ included limitations within Petitioner’s RFC specifically related to her vision loss
shown by evidence like this, but failed to address or consider the same limitations at step
MEMORANDUM DECISION AND ORDER - 13

three. Additionally, the ALJ also failed to consider related pain in making his
determination about whether Petitioner’s impairments medically equaled the listing. See
20 C.F.R. § 404.1529(4)(d)(1).
In sum, the ALJ’s failure to consider Petitioner’s impairments in combination for
purposes of determining whether they medically equal a listing constitutes clear legal
error.
Upon a finding of error, Petitioner asks the Court to reverse this case because of
the nature of her impairments. (Dkt. 12 at 11.) Ordinarily “the proper course ... is to
remand to the agency for additional investigation or explanation.” (Fla. Power & Light
Co. v. Lorion, 470 U.S. 729, 744 (1985). However, the Court may “reverse or modify an
administrative decision without remanding the case for further proceedings” if the
circumstance is appropriate. Harman v. Apfel, 211 F.3d 1172, 1177-78 (9th Cir. 2000);
386 42 U.S.C. § 405(g).
To apply this standard and award benefits, a court must find: “(1) the record has
been fully developed and further administrative proceedings would serve no useful
purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting
evidence; and (3) if the improperly discredited evidence were credited as true, the ALJ
would be required to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d
995, 1020 (9th Cir. 2014). However, the credit-as-true analysis allows the Court
“flexibility to remand for further proceedings when the record as a whole creates serious
doubt” as to whether the Petitioner is disabled. Id. at 1021.
MEMORANDUM DECISION AND ORDER - 14

Petitioner does not satisfy all three conditions of the credit-as-true standard.
Although it is likely unnecessary to further develop the record or have additional
administrative hearings, and although the Court finds the ALJ failed to supply legally
sufficient reasons to determine Petitioner’s limitations did not medically equal a listing, if
the improperly discredited evidence were credited as true, it is not necessarily the case
that the ALJ would be required to find the claimant disabled on remand.
Listing 14.09D requires the record to establish that Petitioner has a marked
limitation in activities of daily living, social functioning, or completing tasks in a timely
manner because of deficiencies in concentration, persistence, or pace. (AR 25.) Although
the ALJ considered some facts related to Petitioner’s limitations in these areas, as
discussed above, the ALJ’s opinion indicates he limited his analysis to the effects of
Petitioner’s ankylosing spondylitis only. The facts cited by the ALJ suggest he did not
include consideration of limitations directly related to Petitioner’s uveitis—i.e., her sight
and vision limitations.
Furthermore, the Court finds upon its review of the record as a whole, that there is
serious doubt as to whether Petitioner was disabled during the relevant period. For
example, the Court notes that evidence in the record suggests Petitioner’s severe
limitations responded well to medical treatment—in particular, positive improvements
were reported in July 2013 after she started taking Humira—a medication that modulates
the immune system. (AR 344; 358.). It is also clear, however, that although Petitioner
received injections into her left eye as a therapeutic treatment for her uveitis, the
MEMORANDUM DECISION AND ORDER - 15

condition was nevertheless consistent throughout the relevant period and must be
considered, as explained above.1 (See AR 346.)
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

The Petition for Review (Dkt. 1) is GRANTED.

2)

This action shall be REMANDED to the Commissioner for further
proceedings consistent with this decision.

3)

This Remand shall be considered a “sentence four remand,” consistent with
42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir.
2002).
March 08, 2019

The ALJ cited to Petitioner’s work history, which showed her working into late 2012, despite
having all relevant limitations and symptoms, and that her work history was sporadic, suggesting
alternative explanations for her inability to sustain employment. (AR 27.)
1

There is also mention in the record that Petitioner was accused of selling her prescription
methadone and an indication she may have been consuming more than prescribed. (See AR 309; 321;
390.) There is also mention in the record that one of Petitioner’s health care providers did not believe the
conditions she reported related to her health. (AR 295.)

MEMORANDUM DECISION AND ORDER - 16