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Thomas v. Astrue

January 10, 2010


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


Plaintiff is proceeding with counsel with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's application of April 21, 2006, for Supplemental Security Income benefits in which she had claimed to have been disabled since September 1, 2006,*fn1 due to back problems, asthma, varicose veins, mental condition, and high blood pressure. (A.R. 132, 136, 132-43, 339.) The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), and pursuant to the order of Judge Lawrence J. O'Neill filed September 30, 2008, the matter has been assigned to the Magistrate Judge to conduct all further proceedings in this case, including entry of final judgment.

The decision under review is that of Social Security Administration (SSA) Administrative Law Judge (ALJ) James P. Berry dated June 23, 2008 (A.R. 8-16), rendered after a hearing held April 30, 2008, at which Plaintiff appeared and testified with the assistance of counsel (A.R. 8, 17-49). The Appeals Council denied Plaintiff's request for review on July 24, 2008 (A.R. 1-3), and thereafter Plaintiff filed his complaint in this Court on September 5, 2008. Briefing commenced on May 19, 2009, and was completed with the filing of Defendant's opposition on July 16, 2009. The matter has been submitted without oral argument to the undersigned Magistrate Judge.

I. Standard and Scope of Review

This Court has jurisdiction of the underlying controversy pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g).

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).

II. Disability

A. Legal Standards

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 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.

B. The ALJ's Findings

Here, the ALJ found that Plaintiff had severe impairments of bipolar disorder, degenerative disc disease, and asthma which did not meet or medically equal a listed impairment, but she retained the residual functional capacity (RFC) to lift and carry twenty pounds occasionally and ten pounds frequently, sit, stand and walk for six hours each out of an eight-hour day, occasionally climb, but should avoid concentrated exposure to pulmonary irritants; she could perform simple, repetitive tasks (SRT), maintain attention, concentration, persistence, and pace, relate to and interact with others, adapt to usual changes in work settings, and adhere to safety rules. She could not perform her past relevant work, but as a younger individual (forty-six years old) with a high school education and ability to communicate in English, and considering Plaintiff's work experience and RFC, jobs existed in significant numbers in the national economy that Plaintiff could perform. Thus, Plaintiff was not under a disability since April 21, 2006.*fn2 (A.R. 10-16.)

III. The Course of the ALJ's Analysis

Plaintiff argues that the ALJ erred in failing to evaluate the claimant's mental impairment and resulting functional limitations. (Brief pp. 1, 7-9.) Plaintiff argues that the ALJ failed to follow the required steps of analysis of Plaintiff's functional impairment, steps that are set forth in 20 C.F.R. § 416.920, including determining Plaintiff's impairments or a combination thereof, determining the severity of those impairments and whether or not they meet or medically equal a listed impairment, determining Plaintiff's RFC while considering all impairments (even those that are not severe), considering whether the claimant can perform past relevant work, and, if not, whether an adjustment can be made to other work. Further, with respect to any mental impairment found, the ALJ must engage in an analysis pursuant to 20 C.F.R. § 416.920a, including identifying the mentally determinable impairment and specifying the signs, symptoms and findings that substantiate its presence; rating the degree of functional limitation in terms of four broad areas of functioning (activities of daily living, social functioning, concentration, persistence, and pace, and episodes of decompensation); determining whether any impairment is severe and whether any severe impairment meets or is equivalent in severity to a listed impairment; and assessing residual functional capacity (RFC).

Reference to the ALJ's decision shows that the ALJ followed the required analytical path. The ALJ found that Plaintiff had specified severe impairments (bipolar disorder, degenerative disc disease, and asthma) at step two (A.R. 10); cited to the medical evidence from Drs. Kim, Bansal, and Obrocea (A.R. 10-11); evaluated the severity of the impairments and Plaintiff's functionality (A.R. 11-12); concluded that Plaintiff's mental impairment did not cause at least two "marked" limitations or one "marked" limitation and repeated episodes of decompensation (A.R. 11-12); determined that the evidence did not satisfy the "B" and "C" criteria (A.R. 12); and assessed Plaintiff's RFC (A.R. 12-15).

Contrary to Plaintiff's assertion (Brief pp. 9-10), the ALJ did not merely consider limitations concerning simple repetitive tasks, attention and pace, relating to and interacting with others, adaption, and adherence to safety rules. The ALJ expressly considered the "paragraph B" and "paragraph C" criteria. (A.R. 11-12.) The ALJ concluded that Plaintiff was mildly restricted in activities of daily living; moderately restricted in social functioning and maintaining concentration, persistence or pace; and there were no episodes of decompensation. (A.R. 12.) The ALJ considered whether a listing was met. The ALJ further considered the effect of the impairments on Plaintiff's RFC, expressly addressing Plaintiff's daily activities, rejecting the treating physician's functional assessment, and putting weight on the opinions of the state agency physicians concerning Plaintiff's specific abilities concerning understanding, memory, sustained concentration and persistence, social interaction, and adaptation. (A.R. 14-15.)

The Court therefore concludes that the ALJ followed the appropriate course of analysis in evaluating Plaintiff's impairments.

IV. Use of Inhaler and Formulation of RFC

In an abundance of caution, the Court will address Plaintiff's assertion made in the factual background section of her brief (p. 6, ll. 10-16) that the ALJ gave no consideration to Plaintiff's requirement of using a nebulizer and completely disregarded the functional limitations outlined by the claimant's treating physician.

Reference to the record shows that the ALJ did not ignore Plaintiff's asthma. In various parts of the decision, the ALJ detailed the medical evidence concerning Plaintiff's severe impairment of asthma. He noted a long history of treatment for asthma (A.R. 10), with a chest x-ray taken in January 1995 revealing no acute cardiopulmonary disease (A.R. 10, 197 [costophrenic angles and lung fields clear]). He cited to neurologist Dr. Kim's orthopedic evaluation of March 2005 (A.R. 10-11, 202-05), in which Plaintiff reported that she smoked a half pack of cigarettes per day (A.R. 203) and upon examination had lungs that were clear to auscultation throughout (A.R. 204). The ALJ also cited to the report of internist Dr. Radhey Bansal's consultive examination of July 2006 (A.R. 11, 260-67, 261-62) in which Plaintiff denied smoking and reported a history of COPD and asthma episodes intermittently, getting worse off and on, with medications of Albuterol inhaler, Advair inhaler, and even nebulizer treatments at home. The ALJ expressly noted that Dr. Bansal reported upon examination a few scattered rhonchi, occasional basal rales, fair air entry, and no significant shortness of breath,*fn3 and that he diagnosed a history of chronic obstructive pulmonary disease and bronchial asthma fairly controlled with various medications. (A.R. 11, 262.)

Further, in the course of considering Plaintiff's RFC, the ALJ undertook an analysis of Plaintiff's subjective complaints which Plaintiff does not expressly challenge but which demonstrates that the ALJ rejected Plaintiff's subjective complaints concerning her asthma medication. The ALJ expressly found that Plaintiff's impairments could reasonably expected to produce the alleged symptoms but that her statements concerning the intensity, persistence, and limiting effects of the symptoms were not entirely credible. (A.R. 14.)

Plaintiff had testified at the hearing that when her asthma was really bad, she had to use a nebulizer every six hours or four times a day. The nebulizer was a machine that one turned on and breathed through for a breathing treatment that generally took about fifteen to twenty minutes per treatment. Use of it varied, but Plaintiff said she had to use it four times a day at least three to four times during the course of a week. She had used two different machines for six or seven years. She had used an Albuterol inhaler twice a day or when needed, and at the time of the hearing she had instead a new ProAir inhaler that she used by inhaling a single pump, waited ten minutes, and inhaled another pump; she did this four to six times a day. It all would start when she would suffer allergy symptoms, which irritated her nose; she would get a sore throat and be all clogged up, and it would end up in bronchitis, asthma, or respiratory infection; but if she was just normal, she would use the inhaler at least twice a day. She also used a steroid inhaler, Flovent or Advair depending on which worked better, and "Accolate" pills taken twice daily. She used the steroid inhaler twice a day with the Albuterol when she had to take the breathing treatments. Pollen or dust or anything like that would cause Plaintiff to start coughing, as did the heat. Plaintiff had suffered such symptoms and participated in such treatment over the past several years, and it limited her walking and physical exertion in the heat. (A.R. 23-29.)

The ALJ adverted to Plaintiff's claims of a sedentary existence virtually devoid of daily activities with limitations in lifting, standing, and walking. (A.R. 13-14.) He also mentioned her subjective complaints regarding her asthma. In the course of his credibility analysis, the ALJ stated that he had considered the extent to which Plaintiff's symptoms could reasonably be accepted as consistent with the objective medical evidence and other evidence, and he had considered the pertinent factors for credibility determination. (A.R. 12.) The ALJ stated that where statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms were not substantiated by medical evidence, he was required to make a finding on the credibility of the statement based on the entire case record. (A.R. 12.) The ALJ expressly noted Plaintiff's undated asthma questionnaire in which she reported that she used an inhaler and nebulizer four times daily and could not be without her medications. (A.R. 13, 144-45.) The ALJ then noted the inconsistent medical record of March 2005, which reflected that Plaintiff had stopped using her Albuterol and Advair inhalers for two days. (A.R. 13, 259.) Further, as noted by the ALJ, progress notes indicated that her throat was clear, asthma was stable, and lungs were clear to auscultation with no wheezing. (A.R. 13, 251-59, 255 [no wheezing or retraction on asthma follow-up in November 2005], 254 [same in January 2006], 253 [asthma stable in May 2006], 250 [March 2006, Kern Medical Center outpatient aftercare instructions, with additional follow-up instructions "Please stop smoking"), 245 [April 2006 note from Kern Medical Center that medications were refilled and that Plaintiff smoked one-half pack per day], 230 [instruction in April 20, 2006, to please stop smoking in one week], 227 [Kern Medical Center assessment of stable asthma, smoker, with plan to use Albuterol for nebulizer], 226 [note from April 20, 2006, that lungs were clear to auscultation].)

In addition to the inconsistency with the medical record, the ALJ noted Plaintiff's inconsistent statements concerning her work history. (A.R. 13-14.) Substantial evidence supported the ALJ's reasoning. In her application, Plaintiff had claimed to be unable to work as of April 9, 1999 (A.R. 136), and she had reported to Dr. Bansal in April 2006 that she was unable to work since 1995 due to mainly severe back pain (A.R. 260.)

However, she inconsistently admitted in an undated work history report that she worked from September 1999 through June 2005 as a babysitter and child care provider for three and one-half hours a day, five days a week, walking for fifteen hours, standing five hours, sitting one and one-half to two hours, and supervising three people (interpreted as a reference to three children). (A.R. 149, 146-49.) She reported to Dr. Kim in March 2005 that she was employed at providing childcare in her home. (A.R. 203.) A Kern County Mental Health progress note from April 2006 reflected that Plaintiff stated that she could take care of her autistic grandson ("can't sit down"). (A.R. 302.) In July 2007, she reported that she was taking care of all of her grandchildren; in a work history report of April 2008 she reported that she babysat her ...

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