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Cota v. Commissioner of Social Security

March 30, 2009


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


Plaintiff is represented by counsel and is proceeding in forma pauperis with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's application for disability insurance benefits (DIB) and supplemental security income (SSI) benefits under Titles II and XVI of the Social Security Act (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 History

On July 7, 2005, Plaintiff, who was born on December 18, 1964, and could not understand and speak English, protectively applied for DIB and SSI, alleging disability since June 1, 2005 due to pain and lack of strength to work caused by fibromyalgia, arthritis, and thyroid problems. (A.R. 80-85.) After Plaintiff's claim was denied initially and on reconsideration, Plaintiff requested, appeared at, and testified with the help of a Spanish language interpreter and an attorney at a hearing before the Honorable Peter J. Valentino, Administrative Law Judge (ALJ) of the Social Security Administration (SSA), held on January 7, 2008. (A.R. 23-36, 16, 260-83.) On January 25, 2008, the ALJ denied Plaintiff's application for benefits. (Id. at 16-22.) After the Appeals Council denied Plaintiff's request for review on April 16, 2008, Plaintiff filed the complaint in this action on June 16, 2008. (Id. at 5-7.) Briefing commenced on January 29, 2009, and was completed with the filing on March 12, 2009, of Plaintiff's reply to Defendant's opposition.

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

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. §§ 416(i), 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 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, 20 C.F.R. § 404.1520 (1997);*fn2 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, 20 C.F.R. § 404.1520(c); 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, 20 C.F.R. § 404.1520(d); 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, 20 C.F.R. §§ 404.1520(e), 404.1545(a); 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, 20 C.F.R. § 404.1520(f).

With respect to SSI, the five-step evaluation process is essentially the same. See 20 C.F.R. § 416.920.

Here, the ALJ determined that Plaintiff had fibromyalgia, a severe impairment; however, Plaintiff did not have an impairment or combination thereof that met or medically equaled a listed impairment. (A.R. 18-19.) Plaintiff had additional limitations that were not expressly identified in the ALJ's decision; however, he referred to them as having been communicated to the vocational expert (VE) at the hearing and having prompted the VE to opine that Plaintiff could perform the requirements of representative occupations of garment folder and small parts assembler. (A.R. 21.) The record reflects that the jobs found by the VE were consistent with light, unskilled work with a sit-stand option. (A.R. 280-81.) The ALJ found that although Plaintiff could not perform the full range of light work, and although Plaintiff was unable to perform her past, relevant, unskilled work, she could perform jobs that existed in significant numbers in the national economy, including representative occupations such as garment folder, with 880 regional and 1.2 million national jobs, and small parts assembler, with 920 regional jobs and 1.1 million national jobs. (A.R. 21.) Therefore, Plaintiff was not disabled from June 1, 2005, through the date of the ALJ's decision. (A.R. 22.)

III. Subjective Complaints

Plaintiff argues that because the medical evidence "wholly associates" Plaintiff's subjective symptoms with a clinically demonstrated impairment, the impairment involves solely subjective symptoms, and further because the reports of the treating physicians included in turn reports of Plaintiff's subjective symptoms that were consistent with the opinions of the treating physicians, the ALJ should have accepted Plaintiff's testimony.

A. Plaintiff's Testimony

Plaintiff, who was forty-three years old, testified that she lived in a house with her husband and her two children, aged seven and fifteen. (A.R. 264-65.) Plaintiff felt strong headaches once or twice a month, and she felt pain in her arms, back, neck, lower back, legs, and all her body. (A.R. 277-78, 267-68.) Also, the strength in her arms and legs would run out so that she was unable to work. (A.R. 268.) On an average day, Plaintiff could stand for fifteen minutes before her legs began to buckle; walk two or three blocks before she would look for a place to sit down because of fatigue and pain; and sit for about twenty-five to thirty minutes before needing to stand. (A.R. 276-77.) Her previous doctor, Dr. Bravo,*fn3 advised Plaintiff to walk, but she testified that she could not walk. (A.R. 273.) Plaintiff had a California driver's license and her own car, which she occasionally drove to take her children to school and go shopping; she prepared meals with her children's help, performed light household chores such as washing dishes, and attended church weekly. She could not perform heavy housework. (A.R. 269-71.) She could lift a gallon of milk with both hands. (A.R. 277.) As of May 2005, due to pain she was unable to do her previous work of picking grapes, defoliating, and tipping the vines, which required standing and stooping for most of the day and lifting and carrying from twenty-one to twenty-five pounds; she experienced a very strong pain in her entire body and a lack of strength in her arms and legs. (A.R. 264-71.)

Plaintiff testified that Dr. Berry, her treating rheumatologist, had recently increased her dose of Neurontin because her pain interfered with her sleep; her medications, including Neurontin and Ibuprofen for pain and Amitriptyline to help her sleep, helped a little but caused her sleepiness and dizziness, which caused her to lie down between eight and ten times a day for twenty to thirty minutes each time. (A.R. 269-273, 276.) Plaintiff asked to stand during the hearing because of anxiety or tiredness in her legs and a lot of pain in the back and lower back. (A.R. 273, 277.)

B. The ALJ's Decision

The ALJ noted that the record established fibromyalgia manifested by generalized pain, stiffness, fatigue, anxiety, and poor sleep. (A.R. 18.) Further, the ALJ found that Plaintiff's medically determinable impairments could be reasonably expected to produce the alleged symptoms, but Plaintiff's statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely credible. (A.R. 19.) The ALJ stated:

The claimant is only treated for her fibromyalgia on an infrequent basis. Her pain has been moderated by the prescribed medications including Cymbalta and Levoxyl (Exhibit 7F/15).

The analysis of Plaintiff's nonsevere impairments, supra, is incorporated by reference herein[.]*fn4 The weight of the objective evidence does not support the claims of the claimant's disabling limitations to the degree alleged. Indeed, progress notes report the claimant's reported symptoms but very little objective clinical findings (Exhibits 7F and 8F.) The only mention of trigger points was on December 16, 2005, it (sic) which it was noted that the claimant had trigger points consistent with significant fibromyalgia (Exhibit 8F/8). While she has complained of weakness, she has a normal gait and does not require any assistive devices to ambulate (Exhibit 7F/23). She has been neurologically intact. EMG/NCV testing was normal (Exhibit 2F/4).

The claimant has not generally received the type of medical treatment one would expect for a totally disabled individual. The claimant's courses of treatment since her alleged disability onset date has generally reflected a conservative approach. She has only been treated with medications.

The record does not show that the claimant requires any special accommodations (e.g., special breaks or positions) to relieve her pain or other symptoms.

In contrast to the allegations of the claimant's disabling fatigue and weakness, she does not exhibit any significant disuse muscle atrophy, loss of strength, or difficulty moving that are indicative of severe and disabling pain.

Although the claimant has been prescribed and has taken appropriate medications for the alleged impairments, which weighs in her favor, the objective medical evidence shows that the medications have been relatively effective in controlling the claimant's symptoms. Moreover, the claimant has not alleged any side effects from the use of medications.

In contrast to the claims of the claimant's disability due to (sic) There is no evidence of loss of weight due to loss of appetite due to pain. There is no evidence of sleep deprivation due to pain.

The claimant's allegations of significant limitations are not borne out in her description of her daily activities. The claimant is able to drive an automobile that she uses to take her children to school, and grocery shop. She is able to do light household chores.

None of the claimant's physicians have opined that she is totally and permanently disabled from any kind of work.

Consequently, the claimant's allegations are not credible to establish a more restrictive residual functional capacity than that found above. (A.R. 19-20.)

C. Analysis

The court in Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007), summarized the pertinent standards for evaluating the sufficiency of an ALJ's reasoning in rejecting a claimant's subjective complaints:

An ALJ is not "required to believe every allegation of disabling pain" or other non-exertional impairment. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). However, to discredit a claimant's testimony when a medical impairment has been established, the ALJ must provide "'specific, cogent reasons for the disbelief.' " Morgan, 169 F.3d at 599 (quoting Lester, 81 F.3d at 834). The ALJ must "cit[e] the reasons why the [claimant's] testimony is unpersuasive." Id. Where, as here, the ALJ did not find "affirmative evidence" that the claimant was a malingerer, those "reasons for rejecting the claimant's testimony must be clear and convincing." Id.

Social Security Administration rulings specify the proper bases for rejection of a claimant's testimony. See S.S.R. 02-1p (Cum. Ed.2002), available at Policy Interpretation Ruling Titles II and XVI: Evaluation of Obesity, 67 Fed.Reg. 57,859-02 (Sept. 12, 2002); S.S.R. 96-7p (Cum. Ed.1996), available at 61 Fed.Reg. 34,483-01 (July 2, 1996). An ALJ's decision to reject a claimant's testimony cannot be supported by reasons that do not comport with the agency's rules. See 67 Fed.Reg. at 57860 ("Although Social Security Rulings do not have the same force and effect as the statute or regulations, they are binding on all components of the Social Security Administration, ... and are to be relied upon as precedents in adjudicating cases."); see Daniels v. Apfel, 154 F.3d 1129, 1131 (10th Cir.1998) (concluding that ALJ's decision at step three of the disability determination was contrary to agency regulations and rulings and therefore warranted remand). Factors that an ALJ may consider in weighing a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and "unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment." Fair, 885 F.2d at 603; see also Thomas, 278 F.3d at 958-59.

The factors to be considered in weighing credibility are set forth in the regulations and pertinent Social Security rulings. They include the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate the symptoms; treatment, other than medication, the person receives or has received for relief of the symptoms; any measures other than treatment the claimant uses or has used to relieve the symptoms; and any other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529, 416.929; S.S.R. 96-7p.

With respect to the course of analysis directed by the regulations, the ALJ is first obligated to consider all symptoms and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. 20 C.F.R. §§ 404.1529(a), 416.929(a). Once it is determined that there is a medically determinable impairment that could reasonably be expected to produce the claimant's symptoms, the ALJ must then evaluate the intensity and persistence of the symptoms to determine how the symptoms limit the capacity for work. §§ 404.1529(b), (c); 416.929(b), (c). The ALJ will consider all available evidence. To the extent that the claimant's symptoms can be reasonably accepted as consistent with the objective medical evidence and other evidence, the symptoms will be determined to diminish the claimant's capacity for basic ...

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