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Nelson v. Astrue


February 17, 2009


The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge


Plaintiff Nancy K. Nelson filed a complaint on December 13, 2007, seeking review of the Commissioner's decision denying her application for disability benefits. The Commissioner answered the complaint on April 28, 2008, and the parties filed a joint stipulation on June 3, 2008.



On February 5, 2004 (protective filing date), plaintiff applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, claiming an inability to work since January 1, 2004, due to chronic fatigue immune dysfunction syndrome, fibromyalgia, and mitral valve prolapse. Certified Administrative Record ("A.R.") 57-60, 70. The plaintiff's application was initially denied on May 22, 2004, and was denied again on September 13, 2004, following reconsideration. A.R. 43-52. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Barry S. Brown ("the ALJ") on June 9, 2005, and February 9, 2006. A.R. 53, 374-419. On September 28, 2006, the ALJ issued a decision finding plaintiff is not disabled. A.R. 10-19. The plaintiff appealed this decision to the Appeals Council, which denied review on October 30, 2007. A.R. 5-9.


The plaintiff, who was born on July 22, 1944, is currently 64 years old. A.R. 58, 377, 393. She has a law school degree and has previously worked as an attorney. A.R. 71, 76, 97-100, 377, 394-97.

Between March 27, 2001, and September 6, 2005, Na'Imah D. Powell, M.D., treated plaintiff, whom he diagnosed with chronic fatigue syndrome*fn1 and fibromyalgia.*fn2 A.R. 249-65, 311-17, 332-33. Laboratory tests performed on plaintiff on March 27, 2001, September 9, 2002, and March 10, 2005, were positive for Epstein-Barr virus. A.R. 263-65, 359. On August 28, 2003, Dr. Powell certified plaintiff had chronic fatigue/fibromyalgia, A.R. 249, and on July 13, 2004, he reiterated those diagnoses. A.R. 317.

Between June 14, 2001, and March 15, 2005, Oscar Matthews, M.D., treated plaintiff, whom he diagnosed with symptomatic mitral valve prolapse*fn3 and a history of chronic fatigue syndrome. A.R. 267-93, 318-28. An echocardiograph performed on November 21, 2002, showed systolic mitral valve prolapse, but was otherwise normal, and a carotid duplex scan showed bilateral obstruction of the internal carotid arteries with mild plaque. A.R. 326-27. On March 17, 2003, Dr. Matthews decided not to treat plaintiff for mitral valve prolapse due to the rarity of the arrhythmias on Holter monitoring. A.R. 277. On April 22, 2003, plaintiff underwent a myocardial perfusion study, which was normal at rest, and which showed a modest change in the midanterolateral wall with exercise. A.R. 306. On June 3, 2003, plaintiff underwent noninvasive cardiac testing, which demonstrated minimally decreased resting ejection fraction of 44%,*fn4 increasing appropriately to 63% with global augmentation of wall motion with the exception of the lateral wall. A.R. 273. On April 13, 2004, plaintiff underwent: an echocardiograph, which showed possible borderline right ventricular enlargement and mild mitral valve prolapse; a carotid duplex scan, which was normal; and an electrocardiogram exercise test and a myocardial perfusion study, which were negative for ischemia. A.R. 321-25. Laboratory studies taken on April 29, 2004, were positive for Epstein-Barr nuclear antibodies. A.R. 286-87, 356-57.

On April 20, 2004, Steven E. Gerson, D.O., examined plaintiff and concluded she should be able to lift 10 pounds frequently and 20 pounds occasionally, stand and walk for 6 hours in an 8-hour workday, and sit for 6 hours in an 8-hour workday. A.R. 139-43.

On August 24, 2004, Evelyn Mendoza, M.D., examined plaintiff and diagnosed her with most likely very mild benign cyclic neutropenia*fn5 for which she was then currently asymptomatic. A.R. 307-09.

On June 5-6, 2005, plaintiff was treated at the Inland Valley Medical Center, where she was diagnosed with atypical chest pain, gastroesophageal reflux disease, mitral valve prolapse, fibromyalgia/chronic fatigue immune dysfunction syndrome, and a history of osteoporosis. A.R. 334-73. Essentially, plaintiff was admitted with chest pain and found to have gastroesophageal reflux disease, which was treated. Chest x-rays showed no evidence of acute cardiopulmonary disease, and upper gastrointestinal x-rays revealed moderately severe gastroesophageal reflux disease with no evidence of a hiatal hernia. A.R. 340-41. A cardiac stress test showed no evidence of infarction or ischemia with an ejection fraction of 50%, and a carotid duplex test was normal. A.R. 341-43.

On June 23, 2005, medical expert Joselyn E. Bailey, M.D., opined:

[Plaintiff] has had a variety of non-specific complaints since 1999 such as dizziness, vomiting, salt craving, chest fluttering, [and] tremors of hands and muscles[,] all of which resolved,[ ]usually spontaneously and required no prolonged treatment. Blood tests, CT scan of the brain, Holter monitor, Stress test, heart study, radionuclide angiogram, exercise test and lab reports were all normal or unremarkable. [¶] Her physical exam 4/20/04 was normal. Her ongoing complaint was chronic fatigue 7/13/04. At that time the assessment of fibromyalgia was also made. There has been no objective documentation of chronic fatigue syndrome as required to make the diagnosed [sic]. [¶] Based on[]this information, she neither meets nor equals any of the Listings.

A.R. 330 (citations omitted). Dr. Bailey further opined plaintiff: can sit for 8 hours in an 8-hour work day, and 1 hour at a time; can stand for 6 hours in an 8-hour work day, and 1 hour at a time; can walk for 4 hours in an 8-hour work day, and 1 hour at a time; can occasionally lift and/or carry up to 25 pounds, squat and crawl; can frequently lift and/or carry up to 10 pounds, bend, climb stairs, and reach; is moderately restricted from working at unprotected heights; and is mildly restricted from being around moving machinery. A.R. 331.

Dr. Bailey also testified at the administrative hearing on February 9, 2006, reiterating her assessment of plaintiff's physical limitations and opining there was no evidence plaintiff has chronic fatigue syndrome. A.R. 378-87.



The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Sam v. Astrue, 550 F.3d 808, 809 (9th Cir. 2008) (per curiam); Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th Cir. 2008).

The claimant is "disabled" for the purpose of receiving benefits under the Act if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).

The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. § 404.1520. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting her from performing basic work activities. 20 C.F.R. § 404.1520(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 404.1520(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform her past work. 20 C.F.R. § 404.1520(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 404.1520(g).

Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since her alleged onset date, January 1, 2004. (Step One). The ALJ then found plaintiff "has the following severe impairments: fibromyalgia and chronic fatigue immune syndrome" (Step Two); however, she does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). The ALJ next determined plaintiff can perform her past relevant work as an attorney; therefore, she is not disabled. (Step Four).


A claimant's residual functional capacity ("RFC") is what she can still do despite her physical, mental, non-exertional, and other limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). Here, the ALJ found plaintiff has the following RFC:

[Plaintiff can] lift and carry 25 pounds occasionally and 10 pounds frequently, sit for one hour at a time, and stand or walk for one hour at a time, for a total of 8 hours sitting, six hours of standing, and four hours of walking during an eight[-]hour day. The [plaintiff] can use her hands for repetitive simple grasping, occasional pushing and pulling of arm controls, and repetitive fine manipulation. She can use her right or left foot for repetitive pushing and pulling of leg controls, and both feet on an occasional basis. The [plaintiff] can occasionally squat and crawl, and frequently bend, climb stairs, and reach. There is a mild restriction against working . . . around moving machinery, and moderate restriction against working at unprotected heights. Also, there [are] no restrictions against working at exposure to marked changes in temperature and humidity, driving automotive equipment, and exposure[] to dust, fumes and gases.

A.R. 15-16. However, plaintiff contends the ALJ's decision is not supported by substantial evidence because, among other things, the ALJ erroneously determined she was not a credible witness.

The plaintiff testified at the administrative hearing that she experiences neck, right arm, lower back, hip, knee and foot pain, she occasionally gets migraine headaches, and she recently had an episode of chest pain. A.R. 397-401. The plaintiff also reported she experiences severe fatigue daily, and has trouble sleeping at night. A.R. 404, 407. She also stated that on a daily basis she gets sore throats, experiences dizziness, loses equilibrium, becomes confused and disoriented when she is fatigued, and she sometimes experiences nausea and vomiting and sees spots in front of her eyes. A.R. 399, 402-05, 410-11, 417. The plaintiff indicated she can walk for half an hour without resting, and she can stand for about 15 minutes in the morning without discomfort, but by the afternoon, it is difficult for her to stand at all. A.R. 405-06. She testified she usually lies down for about 3-4 hours during the day. A.R. 408-09. The plaintiff reported she does not have any problems sitting, and she can generally use her hands and fingers fine. A.R. 406.

Once a claimant has presented objective evidence that she suffers from an impairment that could cause pain or other non-exertional limitations,*fn6 the ALJ may not discredit the claimant's testimony "solely because the degree of pain alleged by the claimant is not supported by objective medical evidence." Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). Thus, if the ALJ finds the claimant's subjective complaints are not credible, he "'must provide specific, cogent reasons for the disbelief.'" Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). Furthermore, if there is medical evidence establishing an objective basis for some degree of pain and related symptoms, and no evidence affirmatively suggesting that the claimant is malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear and convincing." Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Vasquez, 547 F.3d at 1104-05.

The ALJ partially rejected plaintiff's subjective complaints because her "symptoms in combination are not so disabling that she is unable to engage in activities typical of most individuals." A.R. 17-18. Because "many home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication[,]" Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989), to base a negative credibility determination on a claimant's daily activities, the ALJ must make a finding that the claimant "'is able to spend a substantial part of [her] day engaged in pursuits involving the performance of physical functions that are transferable to a work setting. . . .'" Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (quoting Morgan, 169 F.3d at 600; emphasis in original). Here, the ALJ found plaintiff "testified she drives short distances, plays with the flute for two hours, dresses herself, shops herself, and does some housework, not including vacuuming and mopping." A.R. 18. The ALJ also stated that "[t]he third-party statement of record from the [plaintiff's] spouse shows that the [plaintiff] remains somewhat active, and indicates that she does some dusting, laundry on Saturdays, and makes the bed daily. She also takes part in flute practices and yoga for one hour a week." Id. The plaintiff testified she plays the flute in an orchestra two hours, once a week. A.R. 407-08. She occasionally shops, and could probably grocery shop if that is all she did that day. A.R. 408. Furthermore, while plaintiff stated she does do light housework, id., her husband clarified that the chores plaintiff "does require minimal physical work and last 5-15 minute periods." A.R. 90. These limited activities, which are "sporadic and punctuated with rest[,]" are "fully consistent" with chronic fatigue syndrome.*fn7 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); see also Wilson v. Comm'r of Soc. Sec., __ Fed. Appx. __, 2008 WL 5268548, *1 (9th Cir. (Ariz.)) ("Evidence that [the claimant] occasionally drove to Phoenix, took a vacation to Hawaii, and sometimes found the energy to go grocery shopping are not clear and convincing evidence that the claimant led a life that is not compatible with disabling [chronic fatigue syndrome and fibromyalgia].");*fn8 Blau v. Astrue, 263 Fed. Appx. 635, 637 (9th Cir. 2008) (Although ALJ found claimant still drives, pays bills, does taxes, shops, does the laundry, and successfully completed schooling in real estate, such activities did not constitute "clear and convincing" reason for rejecting claimant's subjective symptoms of fatigue, diffuse pain, confusion and memory loss since "[t]he activities the ALJ relied upon to discredit [claimant] are generally considered consistent with the sporadic nature of [chronic fatigue syndrome,]" because "none of [the claimant's] daily activities consume a substantial part of her day or require extended periods of concentration[,]" and as "[d]aily household chores and grocery shopping are not activities that are easily transferable to a work environment, 'where it might be impossible to periodically rest or take medication'" (citations omitted)); Vertigan, 260 F.3d at 1049-50 (claimant's ability to go grocery shopping with assistance, walk approximately an hour in malls, get together with friends, play cards, swim, watch television, read, take physical therapy, and exercise at home did not constitute clear and convincing reason for rejecting her pain testimony).

The ALJ's other reason for rejecting plaintiff's testimony is that it was contradicted by the medical evidence. A.R. 17. More specifically, the ALJ stated:

The [plaintiff] has complained of pain and has displayed limited range of motion, but these are largely subjective signs. Clinical signs typically associated with chronic pain have not been consistently present on physical examination. There is no objective evidence of atrophy in the extremities, persistent neurological deficits (i.e., reflex, motor or sensory loss), or persistent inflammatory signs (heat, redness, swelling, etc.). The [plaintiff] also complained of chronic fatigue and fibromyalgia. There were ongoing complaints of chronic fatigue; however, there is limited evidence, which was significant [sic] to meet or equal any of the listings. As previously noted, the [plaintiff's] blood pressure was 132/78. The [plaintiff's] heart had a regular rate and rhythm with a 1/6 murmur. The [plaintiff's] lungs were clear to auscultation. The exam was not consistent with acute congestive heart failure or cardiac decompensation. The [plaintiff] did not describe any chest pain in the past suggestive of coronary insufficiency. Also, the medical records do not describe the [plaintiff] as a surgical candidate relative to her musculoskeletal complaints, nor has she required a series of hospitalizations, prolonged participation in physical therapy or a pain clinic, or other aggressive treatment commonly utilized for chronic and debilitating pain. There is no evidence of side effects from medications which were not eliminated or greatly reduced by changes in the types or dosages. . . . She also testified that she has no prescription of crutches or walkers, has had no physical therapy and/or psychological treatments.

A.R. 17-18. Thus, although the plaintiff's claims she is disabled due to chronic fatigue syndrome/fibromyalgia, see, e.g., A.R. 70, the ALJ gave exceedingly short shrift to these complaints, noting only that although plaintiff has consistently complained of fatigue, "there is limited evidence[,]" which does not meet or equal a listed impairment. A.R. 17. However, "[t]he fact that a claimant's testimony is not fully corroborated by the objective medical findings, in and of itself, is not a clear and convincing reason for rejecting it."

Vertigan, 260 F.3d at 1049; see also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) ("While an ALJ may find testimony not credible in part or in whole, he or she may not disregard it solely because it is not substantiated affirmatively by objective medical evidence."); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) ("It is improper as a matter of law to discredit excess pain testimony solely on the ground that it is not fully corroborated by objective medical findings."). Moreover, to the extent the ALJ suggests plaintiff's credibility is suspect because she has received only conservative treatment for her illness, this is not a clear and convincing reason for rejecting her subjective complaints in this case since no definitive treatment for chronic fatigue syndrome exists. See Reddick, 157 F.3d at 727 ("[T]he ALJ considered only pain and its effect on Claimant's activities and the potential relief by medication, rather than fatigue which is the basis of Claimant's disability claim. The ALJ's focus on pain medication and treatment is misplaced, as the CDC has made it clear that no definitive treatment for [chronic fatigue syndrome] exists.").

Thus, "the ALJ provided unsatisfactory reasons for discounting [plaintiff's] credibility, and . . . his findings were unsupported by substantial evidence based on the record as a whole." Reddick, 157 F.3d at 724. Therefore, the ALJ's assessment of plaintiff's RFC, and his subsequent conclusion that plaintiff retains the RFC to perform her past relevant work, are not supported by substantial evidence. Id. at 728.


When the Commissioner's decision is not supported by substantial evidence, the Court has authority to affirm, modify, or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). "Remand for further administrative proceedings is appropriate if enhancement of the record would be useful." Benecke, 379 F.3d at 593. Here, because there are "insufficient findings as to whether [plaintiff's] testimony should be credited as true," remand is the appropriate remedy. Connett, 340 F.3d at 876; see also Bunnell v. Barnhart, 336 F.3d 1112, 1116 (9th Cir. 2003) (affirming district court's remand order when ALJ failed to properly reject plaintiff's subjective complaints and lay testimony).*fn9


IT IS ORDERED that: (1) plaintiff's request for relief is granted and defendant's request for relief is denied; and (2) the Commissioner's decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly.

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