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Harris v. Astrue

September 8, 2009

NICOLE J. HARRIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The procedural facts are not disputed and are recited in the Joint Stipulation. [See JS 2]. Plaintiff alleged that she became disabled July 29, 2003, due to right knee and joint pain. [JS 1; see Administrative Record ("AR") 17-18]. In a written hearing decision dated October 12, 2006 that constitutes the Commissioner's final decision, an administrative law judge (the "ALJ") found that plaintiff retained the residual functional capacity ("RFC") to perform her past relevant work as a purchasing clerk and a telemarketer. [AR 24-25].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Discussion

Residual functional capacity Plaintiff contends that the ALJ erred because she failed to include the following limitations in her RFC finding: (1) plaintiff's need for a sit/stand option, as reflected in her subjective testimony and the opinion of Dr. Angerman, an agreed medical examiner in plaintiff's California workers' compensation case; (2) an impairment in plaintiff's concentration and memory; (3) her need to ambulate with a cane; (4) her need to remain close to a restroom; and (5) a preclusion from all postural activities. [See JS 4-10].

The ALJ found that plaintiff, who was then 33 years old, had severe impairments consisting of knee impairments, primarily on the right side, and obesity.*fn1 [AR 24]. The ALJ further found that plaintiff retained the RFC for sedentary work with no more that occasional postural activities, including stooping, bending, crawling, kneeling, crouching, and climbing, and that she should avoid walking on uneven surfaces.*fn2 [AR 18].

Plaintiff contends that "although the ALJ appeared to accept the plaintiff's testimony that she cannot sit for more than 30 minutes intervals more than 5 times a week and can sit for up to 1 hour intervals twice a week (AR 19)," the ALJ did not include the need for a sit/stand option in plaintiff's RFC. [JS 3]. Plaintiff's premise is faulty. The ALJ noted plaintiff's testimony that she could sit for at least the periods noted [AR 19], but she did not adopt plaintiffs testimony regarding her subjective symptoms and limitations.*fn3 [AR 19-20, 24].

Plaintiff also argues that Dr. Angerman's opinion "indicates the need to have a sit/stand option" because he opined that plaintiff would not be able to perform "prolonged standing or walking," and the two hours of standing or walking required by sedentary work "may be considered prolonged." [JS 2]. Plaintiff, however, misconstrues Dr. Angerman's opinion.

The ALJ concluded that Dr. Angerman's May 2005 permanent and stationary report, which was issued after plaintiff underwent right knee arthroscopic surgery with right knee debridement in November 2004, "supports the conclusion" that plaintiff could perform sedentary work with the additional limitations found by the ALJ. [AR 22-23]. In that report, Dr. Angerman opined that plaintiff required "prophylactic work restrictions" precluding her from, among other things, "prolonged standing and walking." [AR 232, 242]. The definition of sedentary work contemplates "occasional" standing or walking, meaning a total of about two hours standing and walking throughout the course of an eight-hour work day. Plaintiff cites no authority for the proposition that the need to avoid "prolonged" standing or walking bars her from standing and walking, in total, for no more than two hours during an eight-hour day. Cf. Desrosiers v. Sec'y of Health & Human Serv., 846 F.2d 573, 580 (9th Cir. 1988)(holding that a claimant who "can perform work that does not require prolonged lifting, bending, stooping, pulling, pushing, or climbing, and does not require the use of his left upper extremity above shoulder level" under the California workers' compensation guidelines has limitations that "place him somewhere between light and sedentary work" as defined by the Commissioner). Based on plaintiff's subjective complaints, Dr. Angerman classified her as having "constant slight pain" in the right knee "on most occasions, becoming slight to moderate with . . . prolonged standing and walking activities."*fn4 [AR 242]. He opined that plaintiff could not perform what he understood to be the "frequent standing and walking" required in her past work and opined that she was a candidate for vocational rehabilitation [AR 243], but he did not say that she needed to be able to sit or stand at will. Nothing in Dr. Angerman's report (or in the report of any other treating or examining doctor) suggests that plaintiff could not perform occasional standing or walking or required the ability to sit and stand at will.

Plaintiff also contends that the ALJ impermissibly excluded from his RFC finding "plaintiff's impairment in concentration and memory, which she testified to and was noted in the records." [JS 4]. Plaintiff does not cite any testimony or medical reports in the record documenting an impairment in memory and concentration, nor does she explain how any such impairment precluded her from working. The ALJ noted that plaintiff had seen a psychologist for the first time on August 14, 2006, about a month before the hearing. [AR 19, 289-290]. Plaintiff complained of anxiety and sadness.

She had lost an infant daughter to SIDS (Sudden Infant Death Syndrome) in 2004. [AR 19, 289, 322]. Plaintiff reported that she had received an eviction notice and said that she and her husband had physical problems. [AR 289]. No subjective complaints regarding concentration or memory were noted. [AR 289]. On mental status examination, plaintiff exhibited an unspecified degree of recent and remote memory impairment, but overall her examination revealed only "minimal disturbance." [AR 289]. The ALJ observed that plaintiff had seen a Dr. Silver on September 7, 2006, the day before the hearing. [AR 17-18]. Dr. Silver's progress note indicates that plaintiff complained of poor short-term memory and other problems, but no diagnosis or treatment is noted. [AR 293]. The [Editor's Note: Text missing.]

In the absence of any evidence of a medically-determinable impairment in concentration or memory, either severe or non-severe, the ALJ did not err in excluding such an impairment from his RFC assessment. See 20 C.F.R. ยง 404.1545 ("We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not "severe," as explained in ...


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