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Irwin v. Astrue

March 27, 2009


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge


Plaintiff Karen Lee Irwin (hereinafter "Plaintiff") challenges the final decision of Defendant Commissioner of Social Security (hereinafter "Defendant") to deny her application for social security benefits. The Appeals Council for the Social Security Administration denied Plaintiff's request for review and affirmed the Administrative Law Judge's decision, holding that Plaintiff was not disabled and could return to her previous job.

The parties have filed cross-motions for summary judgment. Pursuant to 28 U.S.C. §636(b)(a)(B) and Civil Local Rule 72.1(c)(1)(c) the motions were originally referred to Magistrate Judge Papas for a Report and Recommendation. The Court hereby withdraws the referral and finds these matters suitable for determination. For the reasons set forth below, the Court grants in part and denies in part Plaintiff's motion for summary judgment, grants in part and denies in part Defendant's cross- motion for summary judgment, and remands the case for further proceedings as more fully set forth herein.


On July, 20, 2005, Plaintiff applied for disability insurance benefits. [Transcript (hereinafter "Tr.") 79-88]. Plaintiff's application was denied, both initially and upon reconsideration, and Plaintiff requested a hearing. (Tr. 44-57). Two hearings were held before an Administrative Law Judge (hereinafter "ALJ"). Plaintiff and her attorney were present for both. The first hearing took place on October 17, 2006, at which Plaintiff and vocational expert Gloria Lasoff testified. (Tr. 433-457). On March 8, 2007, a supplemental hearing was held during which independent medical expert Dr. Arvin Klein and vocational expert Connie Guillory testified. (Tr. 458-471). On March 30, 2007, the ALJ denied Plaintiff's applications finding that she was not disabled within the meaning of the Social Security Act. (Tr. 12-22). On January 19, 2008, the Appeals Council denied Plaintiff's request for review of the matter. (Tr. 3-5).

Thereafter, Plaintiff filed a complaint for judicial review pursuant to 42 U.S.C. § 405(g). On October 24, 2008, Plaintiff filed a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. On November 20, 2008, Defendant, through the United States Attorney, filed a Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion. This matter is now before the Court.


Plaintiff alleges disability as of March 22, 2003, due to degenerative disc disease of the lumbar spine, lung problems, chronic headaches, depression, osteoarthritis in her right hip, a torn meniscus in her right knee, hypertension, fibromyalgia, and herpes zoster/shingles. (Tr. 436-444). Plaintiff was born May 12, 1946 and is currently unemployed. (Tr. 79, 89). Plaintiff has a high school education and past work experience. (Tr. 89-95). She last worked in October of 1998 as a receptionist. (Tr. 89). As Plaintiff's "date last insured" was December 31, 2003, the relevant time period for this case is, therefore, March 22, 2003 through December 31, 2003.

Plaintiff visited a number of doctors during the relevant time period to address her various health problems. On March 30, 2003 Plaintiff visited Dr. Barry Elswick after she injured her eye doing yard work. (Tr. 349). Plaintiff reported little pain and Dr. Elswick found no evidence of laceration or penetration nor any foreign body in the cornea. (Tr. 349-350).

On June 27, 2003, Plaintiff visited Physician's Assistant Zelkind complaining of sinus symptoms. (Tr. 348). Plaintiff was assessed as having sinusitis and prescribed Amoxicillian and nasal spray. (Tr. 348). While taking Plaintiff's history, P.A. Zelkind noted that Plaintiff reported chronic urinary tract infections as well as prior diagnosis of fibromyalgia. (Tr. 348).

On July 28, 2003, Plaintiff visited Dr. C. Sorrell complaining of foot fungus problems. (Tr. 346). Dr. Sorrell prescribed her appropriate medication. (Tr. 346). On September 4, 2003, Plaintiff again visited Dr. Sorrell complaining of break-out blisters on her back. (Tr. 345). These blisters were later determined to be herpes zoster also known as shingles. (Tr. 343).

Plaintiff visited an Urgent Care facility on November 8, 2003, again complaining of break-out blisters. (Tr. 344). During that visit, Plaintiff reported that there was not much pain associated with the outbreak. (Tr. 344). The Urgent Care notes state that this was the third outbreak in a year. (Tr. 344).

On December 26, 2003, Plaintiff had a mammogram which indicated scattered fibroglandular elements in both breasts although there were no significant masses or calcifications and there was no evidence of malignancy. (Tr. 339).

The remaining portion of the medical history illustrates medical treatment both prior to, and following, the relevant time period. The file reveals many visits to Dr. Sorrell from 2002 through 2005. These visits primarily involved visits for sinus related complaints, urinary tract infections, shingles, foot pain, blood pressure, and various back and shoulder pains. (Tr. 139-379). Dr. Peggy Shoval became Plaintiff's primary treating physician in 2005 and Plaintiff frequently visited her complaining of various back and shoulder pain, flu symptoms and sinus problems.


Title II of the Social Security Act (hereinafter the "Act"), as amended provides for payment of insurance benefits to persons who have contributed to a program and who suffer from a physical or mental disability. 42 U.S.C. § 423 (a) (1) (d) (1982 ed., Supp. III.) To qualify for disability benefits under the Act, an applicant must show that: (1) he or she suffers from a medically determinable impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of twelve months or more, and (2) the impairment renders the applicant incapable of performing work that the applicant previously performed and incapable of performing any other substantially gainful employment that exists in the national economy. 42 U.S.C. § 423 (d)(2)(A). An applicant must meet both of the above requirements in order to be "disabled" under this Act. Id.

The Secretary of the Social Security Administration has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920 (1986). If an applicant is found to be "disabled" or "not disabled" at any step in the analysis, there is no need to proceed to the subsequent steps. Tacket v. Apfel, 180 F.2d 1094, 1098 (9th Cir. 1999) (citing Federal Old-Age, Survivors and Disability Insurance (1950-1999), 20 C.F.R. § 404.1520 (1999)). Step one determines whether the claimant is engaged in "substantial gainful activity." If she is, disability benefits are denied. §§ 404.1520(b), 416.920(b). If she is not, the decision maker proceeds to step two, which is a determination of whether the claimant has a medically severe impairment or combination of impairments. That determination is governed by the "severity regulation" at issue in this case. The severity regulation provides in relevant part:

If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are therefore, not disabled. We will not consider your age, education, and work experience. §§ 404.1520 (c), 416.920 (c).

The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." §§ 404.1521 (b), 416.921(b). Such abilities and aptitudes include "[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling"; "[c]apacities for seeing, hearing, and speaking"; "[u]nderstanding, carrying out, and remembering simple instructions, co-workers, and usual work situations"; and "[d]ealing with changes in routine work setting." Id.

If the claimant does not meet the requirements for a severe impairment or a combination of impairments then the disability claim is denied at this level. If there is a finding of severe impairment or combination of impairments then the analysis goes to the third step. This step determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity. §§ 404.1520 (d), 416.920(d); 20 CFR pt. 404, subpt. P, App. 1 (1986). If the impairment meets or equals one of the listed impairments, the claimant is presumed to be disabled. If the impairment does not fall on the list, the claimant is not presumed to be conclusively disabled and the evaluation proceeds to the fourth step. At step four, a decision is made as to whether the impairment prevents the claimant from performing work she has performed in the past. If the claimant is able to perform her previous work, then she is not disabled under the Act. §§ 404.1520 (e), 416.920 (e). If it is found that the claimant can not return to her previous work, then the evaluation proceeds to the fifth step which determines whether she is able to perform other work in the national economy in view of her age, education, and work experience. The claimant is entitled to disability benefits only if she is not able to perform other work. §§ 404.1520 (f), 416.920 (f). The claimant bears the burden of proving steps one through four, consistent with the general rule that "[a]t all times, the burden is on the claimant to establish [her] entitlement to disability insurance benefits." Tidwell v. , 161 F.3d 599, 601 (9th Cir. 1998).


The decision to deny benefits will be disturbed only if it is not supported by substantial evidence or it is based on legal error. Brawner v. Secretary of Health & Human Services, 839 F.2d 432, 433 (9th Cir. 1987). The term "substantial evidence" refers to relevant evidence that a reasonable person might find adequate to support the ALJ's conclusion, considering the record as a whole. See Richardson v. Perales, 402 U.S. 389, 401 (1971). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "To determine whether substantial evidence supports the ALJ's decision, the court will review the administrative record as a whole, weighing both the evidence that supports the ALJ's decision and that which detracts from the ALJ conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The ALJ is responsible for determining and resolving conflicts in medical testimony. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The ALJ is likewise responsible for determining and resolving ambiguities. Id. In reaching his findings, the ALJ is entitled to draw inferences logically flowing from the evidence. Beane v. Richardson, 457 F.2d 758 (9th Cir.) The court must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).


Plaintiff contends that the ALJ erred (1) by finding that Plaintiff's mental impairment was non-severe, (2) by failing to give full consideration to statements made by third parties on Plaintiff's behalf, (3) by implicitly finding that Plaintiff could only perform part-time work in assessing her residual functional capacity (hereinafter "RFC"), (4) by failing to adequately support his rejection of the opinion of Plaintiff's treating physician, and (5) by failing to consider all of Plaintiff's impairments in determining her RFC.

The ALJ Properly Determined Plaintiff Did Not Suffer from a Severe Mental Impairment

Plaintiff maintains the ALJ erred when he concluded that her mental condition was not severe. (Plaintiff's Memorandum of Points and Authorities, p. 4-8). Specifically, she contends substantial evidence in the record does not support the ALJ's conclusion and that the ALJ applied the incorrect legal ...

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