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Evrett v. Astrue

August 28, 2008


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff is proceeding in forma pauperis and with counsel against the Commissioner of Social Security. Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff seeks judicial review of a final decision of the Commissioner denying an application for Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act (the Act). Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the Magistrate Judge to conduct all proceedings in this matter, including ordering the entry of final judgment.*fn1 The matter is currently before the Court on the parties' briefs, which have been submitted without oral argument to the Honorable Sandra M. Snyder, United States Magistrate Judge.

I. Procedural Summary

On October 22, 2003, Plaintiff, who was born on April 13, 1956, applied for Supplemental Security Income (SSI), alleging disability due to back pain and numb hands since July 1, 2002. (A.R. 13, 65-67, 75.) After Plaintiff's claim was denied initially and on reconsideration, Plaintiff appeared with counsel and testified at a hearing held before the Honorable James P Berry, Administrative Law Judge (ALJ) of the Social Security Administration (SSA), on May 30, 2006. (A.R. 42-45, 47-52, 13, 391-414.) On August 4, 2006, the ALJ denied Plaintiff's application for benefits. (Id. at 13-20.) After the Appeals Council denied Plaintiff's request for review on March 26, 2007, Plaintiff filed the complaint in this action on April 11, 2007. (Id. at 5-8.) Briefing commenced on December 11, 2007, and was completed on February 22, 2008, with the filing of Plaintiff's y brief.

II. Standard and Scope of Review

Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g).

Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner; the determination of the Commissioner as to a factual matter will stand if supported by substantial evidence because it is the Commissioner's job, and not the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).

In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).

III. Disability Findings

In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that the claimant is not only unable to do the claimant's previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of establishing a disability is initially on the claimant, who must prove that the claimant is unable to return to his or her former type of work; the burden then shifts to the Commissioner to identify other jobs that the claimant is capable of performing considering the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

The regulations*fn2 provide that the ALJ must make specific sequential determinations in the process of evaluating a disability: 1) whether the applicant engaged in substantial gainful activity since the alleged date of the onset of the impairment, 2) whether solely on the basis of the medical evidence the claimed impairment is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities; 3) whether solely on the basis of medical evidence the impairment equals or exceeds in severity certain impairments described in Appendix I of the regulations; 4) whether the applicant has sufficient residual functional capacity, defined as what an individual can still do despite limitations, to perform the applicant's past work; and 5) whether on the basis of the applicant's age, education, work experience, and residual functional capacity, the applicant can perform any other gainful and substantial work within the economy. See 20 C.F.R. § 416.920.

Here, the ALJ found that Plaintiff had severe impairments of degenerative joint disease, carpal tunnel syndrome (CTS), and major depressive disorder, but had no impairment or combination thereof that met or medically equaled a listed impairment. Plaintiff had the residual functional capacity (RFC) to lift and/or carry twenty pounds occasionally and ten pounds frequently and stand, walk, and sit six hours each in an eight-hour workday with occasional climbing, balancing, stooping, kneeling, crouching, and crawling and with occasional gross and fine manipulation. Plaintiff could perform simple, repetitive tasks (SRT); maintain attention and concentration, persistence, and pace; relate to and interact with others; adapt to usual changes in work settings; and adhere to safety rules. Plaintiff had no past relevant work. Plaintiff was forty-seven years old on the date the application was filed and thus was a younger individual with limited education but with the ability to communicate in English; considering her age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, including children's attendant and usher. Thus, Plaintiff was not under a disability since October 22, 2003, the date Plaintiff's application was filed. (A.R. 13-20.)

IV. Plaintiff's Medical History

A. Record relating to Physical Impairments

In September 2003, Plaintiff visited the emergency department of the Kaweah Delta District Hospital for left rib pain without precipitating trauma. She exhibited normal strength and tone in the extremities and mild tenderness at the anterior and lateral lower ribs. (A.R. 132-33.) An x-ray of the chest revealed moderate thoracic scoliotic deformity centered at T7/8 with concavity to the left. (A.R. 139.)

Radiologist Dr. Michael Bowers reported on October 2, 2003, that there was mild hypertrophic anterior spurring, mild cervical scoliosis, and moderate scoliosis in the upper thoracic spine. The cervical vertebral bodies were normal in height without compression fracture or subluxation. (A.R. 145, 194, 309-10.)

Dr. Ali at Hillman Health Center examined Plaintiff on October 13, 2003, and diagnosed osteoporosis among other things, and prescribed Bextra and an x-ray of the back. (A.R. 192.) An xray taken October 13, 2003, of the lumbar spine to rule out osteoporosis revealed a negative lumbar spine study with mild calcification of the abdominal aorta. (A.R. 191, 308.) In November 2003, Dr. Le examined Plaintiff and found some tenderness to palpation in the lumbar area with reduced range of motion secondary to pain; the assessment was chronic pack pain, and Bextra was continued. (A.R. 190.)

On January 31, 2004, Dr. Benjamin Chang, M.D., a consultative examiner who was board-certified in physical medicine and rehabilitation, performed a comprehensive orthopedic evaluation of Plaintiff. (A.R. 149-52.) Plaintiff complained of chronic low back pain that occasionally radiated down the left anterior thigh to the knee with associated numbness, and bilateral hand numbness. Dr. Chang reviewed a disability report, a chest x-ray, and a cervical spine x-ray dated September 30, 1998. (A.R. 149.) Plaintiff reported a cervical spine x-ray that revealed degenerative disk disease and some scoliosis in the thoracic spine, but there were no MRI's from the past; Plaintiff had not had any physical therapy or injections, and she reported that she cooked, washed dishes, and cleaned the house. (A.R. 149-50.) She had some difficulty walking on toes and heels due to pain and poor effort; lumbar flexion was zero to forty degrees, extension zero to ten degrees, and lateral flexion zero to ten degrees due to pain and poor effort. (A.R. 150.) Straight leg raising was negative. There was mild tenderness on palpation over the lower lumbar spine and crepitus in the left knee, but no spasm, deformities, or effusion. Motor strength was grossly -5/5 in the left quadriceps and hamstrings, and otherwise 5/5 in the bilateral extensor hallucis longus, gastrocnemius, and anterior tibialis; Tinel's sign was positive on the right wrist, motor strength was -5/5 with bilateral handgrips; and sensation was decreased to pinprick in the bilateral hands. The diagnosis was chronic low back pain, likely from degenerative arthritis, rule out radiculopathy; rule out bilateral carpal tunnel syndrome, especially on the right side, left knee osteoarthritis, depression, and hypothyroidism. (A.R. 151-52.) Dr. Chang opined that Plaintiff was expected to lift and carry ten pounds frequently and twenty pounds occasionally; and stand, walk, and sit for about six hours in an eight-hour workday with normal breaks, with postural limitations of occasional bending, stooping, crouching, crawling, pushing, and pulling, and manipulative limitations of occasional reaching, handling, feeling, and grasping with bilateral hands. (A.R. 152.)

On February 24, 2004, state agency medical consultant Dr. Carmen E. Lopez opined that Plaintiff could occasionally lift and/or carry twenty pounds, frequently lift or carry ten pounds, stand and/or walk with normal breaks for a total of about six hours in an eight-hour workday, sit with normal breaks for about six hours in an eight-hour workday, and engage in unlimited pushing and/or pulling, with only occasional climbing, stooping, crouching, and crawling, but with frequent balancing and kneeling, and with limited handling (gross manipulation), occasional forceful grasping and twisting of both hands secondary to complaints of parasthesias in both hand, CTS, and positive Tinel's and motor strength of 5-/5 in bilateral hands; and only occasional five-finger manipulation of both hands secondary to parasthesias and pinprick to bilateral hands. (A.R. 173-82.)

On April 16, 2004, Mary Anderson, family nurse practitioner, who had last seen Plaintiff on January 2, 2004, opined that Plaintiff could lift and/or carry less than ten pounds occasionally and frequently, stand and/or walk with normal breaks for less than two hours in an eight-hour day, sit less than six hours of an eight-hour workday with the need for alternate periods of standing and sitting at breaks and lunch periods, and never climb, balance, stoop, kneel, crouch, or crawl; these limitations were due to sciatica and osteoporosis, with chronic back pain also contributing to the postural limitations. (A.R. 183-84.) Nurse Anderson also assessed environmental restrictions. (A.R. 184.) She saw Plaintiff again in April for back pain and diagnosed chronic sciatica. (A.R. 189.) In May Plaintiff complained of back and leg pain, numbness in the shoulder, and pain with straight leg raising while sitting; medication was continued. (A.R. 187, 290.)

On May 21, 2004, Michael Bowers, M.D., a radiologist, reviewed an x-ray of the lumbosacral spine and opined that there was mild loss of height of the L5-S1 interspace (mild narrowing) and minimal lumbar scoliosis. (A.R. 199.)

On June 24, 2004, Dr. Glenn Ikawa, a state agency medical specialist, affirmed that Plaintiff had a RFC for light work.*fn3

In June 2004, nurse practitioner Anderson prescribed Neurontin and Valium for back pain and referred her to the surgery clinic. (A.R. 297.) Medications were later adjusted. (A.R. 296.)

In October 2004, nurse practitioner Anderson prescribed Vicodin, Flexeril, Dexasom, and Toradol for Plaintiff's back pain and ordered an MRI. (A.R. 315.)

Richard G. Anderson, M.D., a radiologist, interpreted an MRI scan of the lumbar spine taken on November 1, 2004. It revealed normal vertebral alignment, mild degenerative changes in the lower lumbar spine, with moderate narrowing of the L5-S1 disk space; left posterolateral herniation of the L5-S1 disk encroaching upon the left intervertebral foramen, with only encroachment upon the central spinal canal. The impression was chronic degeneration of the disk with moderate narrowing of the disk space, and the encroachment upon the central spinal canal was only minimal. There was also a minimal midline posterior bulging of the L4-5 disk, with decreased signal intensity but without any localized herniation. The other disks were normal, the spinal canal was normal in size and configuration, and the conus medullaris was normal in position and appearance. (A.R. 295.)

In December 2004, Dr. Charles H. Boniske, M.D., interpreted a bone scan which revealed that Plaintiff was below average for age in all areas imaged and was in an osteoporotic range in the LS spine putting her at a very high lifetime risk for fracture. (A.R. 289.)

A chest x-ray taken in March 2005 was negative. (A.R. 324.)

Nurse practitioner Anderson provided Plaintiff with handouts on exercises for her chronic lumbar back pain. (A.R. 320.) Medications were adjusted. (Id.) In April 2005, Plaintiff complained of bilateral hand numbness, and an EMG was ordered. (A.R. 319.)

In May 2005, an EMG requested by Dr. Zeismer revealed an abnormal study with compression neuropathy (carpal tunnel syndrome) (CTS) of the median nerves across the wrist, which is moderate on the left side and severe on the right side. There was no evidence of polyneuropathy or ongoing cervical radiculopathy. (A.R. 318.) She was subsequently referred to an orthopedist by Dr. Nguyen. (A.R. 316.)

Dr. Arthur Zeismer, M.D., saw Plaintiff in a treating capacity three times between October 17, 2005, and January 27, 2006, when he completed a residual functional capacity questionnaire. (A.R. 335-37, 325-29.) Dr. Zeismer's treatment notes of October 17, 2005, reflect that Plaintiff complained of severe lower back pain and insomnia; Dr. Zeismer noted that an MRI showed herniation of her disk, and he prescribed Vicodin ...

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