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Petitt v. Astrue

March 2, 2010


The opinion of the court was delivered by: Gary S. Austin 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, which was protectively filed on November 16, 2005, and made pursuant to Title II of the Social Security Act, for a period of disability and disability insurance benefits (DIB), and in which she alleged she had been disabled since July 8, 2000, due to diabetes, foot problems, enlarged heart, high blood pressure, anxiety, and upper GI problems, causing pain, distraction, and inability to get around and stand for long periods. (A.R. 9, 108-110, 108, 121, 125.) The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), manifesting their consent in writings signed by the parties' authorized representatives and filed on behalf of Plaintiff on December 16, 2008, and on behalf of Defendant on January 9, 2009. Thus, the matter is 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) Christopher Larsen, dated September 3, 2008 (A.R. 9-15), rendered after a hearing held on June 30, 2008, at which Plaintiff appeared and testified with the assistance of an attorney (A.R. 16-56). Plaintiff's daughter, Christina Renee Petitt, and Thomas Dashlette, a vocational expert (VE), also testified. (A.R. 53-55.)

The Appeals Council denied Plaintiff's request for review of the ALJ's decision on October 29, 2008 (A.R. 1-3), and thereafter Plaintiff filed the complaint in this Court on December 16, 2008. Briefing commenced on July 30, 2009, and was completed with the filing of Plaintiff's reply brief on September 15, 2009. The matter has been submitted without oral argument to the Magistrate Judge.

I. Jurisdiction

The Court has subject matter jurisdiction pursuant to 42 U.S.C. § 405(g), which provides that individuals may obtain judicial review of a final decision of the Commissioner of Social Security by initiating a civil action in the district court within sixty days of the mailing of the notice of decision. Plaintiff timely filed her complaint on December 16, 2008, less than sixty days after the mailing of the notice of decision on or about October 29, 2008.

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

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. §§ 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;*fn1 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).

B. The ALJ's Findings

The ALJ found that Plaintiff had a severe impairment of peripheral neuropathy; her adjustment disorder with mixed mood was only a slight impairment which had minimal, if any, effect on Plaintiff's ability to work. (A.R. 11.) On December 31, 2005, the date on which Plaintiff last met the insured status requirements of the Act, Plaintiff had no impairment or combination of impairments that met or medically equaled a listed impairment. (A.R. 11-12.) Plaintiff retained the residual functional capacity (RFC) to lift and carry fifty pounds occasionally and twenty-five pounds frequently; stand and walk, or sit, a total of six hours in an eight-hour workday; occasionally climb ladders, ropes, and scaffolds; and avoid concentrated exposure to unprotected heights and uneven surfaces. (A.R. 12.) Plaintiff could perform her past relevant work as a human resources director, and thus she was not disabled at any time from July 8, 2000, the alleged onset date, through December 31, 2005, the date last insured. (A.R. 15.)

C. Plaintiff's Contentions

Plaintiff argues that the ALJ erroneously failed to 1) find that Plaintiff was credible, 2) adopt the testimony of Plaintiff's daughter, 3) adopt consulting examiner Dr. Dozier's limitation of standing and walking only two to four hours in an eight-hour day, 4) adopt the assessment of Mary Anderson, F.N.P, at Visalia Health Clinic, and 5) call on the services of a medical advisor to determine the date of onset of Plaintiff's impairments and thereby comply with Social Security Ruling 82-30. (Plaintiff's Opening Brief, pp. 6-7.)

IV. Medical Evidence

Progress notes from Plaintiff's visits to Dr. Booker at Visalia Family Practice in 2000 show an entry regarding borderline diabetes in April 2000 without any treatment indicated; Plaintiff was medicated for stress. (A.R. 191-92.)

Notes from Visalia Family Practice show that in December 2001, Plaintiff reported better mood and no crying spells on Effexor after having been diagnosed by Dr. Booker with anxiety and depression in November 2001. Plaintiff reported that she was looking for work. (A.R. 188.)

Plaintiff was prescribed Paxil at Visalia Family Practice in 2002, but she never picked it up. She was unemployed and being supported by her father; she was under house arrest and was feeling overwhelmed. She did not want any medication unless it was like Xanax. She complained that her feet hurt, but upon examination the doctor found good color and pulse and no deformity. Dr. Booker prescribed a vibrating foot massager and Xanax. (A.R. 187.)

In January 2003, Jaime Aguet, M.D., a radiologist, opined that there was a calcaneal spur on Plaintiff's right foot with an area of demineralization involving the fifth metatarsal head with indeterminate etiology. Dr. Aguet wrote that the differential diagnosis would include osteomyelitis. (A.R. 692.)

In June 2003, Dr. Booker diagnosed stress and foot pain when Plaintiff, who was unemployed and on probation, complained of stress, foot numbness and pain causing difficulty walking, and decreased sleep and appetite. Dr. Booker found that the feet were mildly mottled but with good "DP" pulse, good capillary refill in the toe tips, and mild tenderness at the area of the left third metatarsal head. Dr. Booker prescribed Lexapro and noted that the plan was to find employment. (A.R. 18.)

In January 2004, Plaintiff, who was medicated with Atenolol and Alprazolam, was taking classes at adult school and reported to Dr. Bishop "OK" sleep and appetite and decreased crying spells. (A.R. 185.) In May 2004, Dr. Bishop found a thickened sclerotic left second toenail; Lamisil was prescribed. (A.R. 185.)

In 2005, progress notes from Dr. Booker's office reflect that Plaintiff continued to be medicated with Atenolol and Xanax. In October, Plaintiff complained of pain in both feet and reported that she had fallen twice secondary to foot pain. Dr. Booker found dry, slightly darkened feet with 2/4 pitting pedal edema; DP and PT pulses were palpable, and sensation was reduced to the monofilament bilaterally. The impression was dependent edema with "HE" (m), and "Peripheral neuropathy-? Etol." (A.R. 184.) Plaintiff also reported that she was drinking "litle Etoh," (A.R. 184.)

In November 2005, Frank A. Mancuso opined with respect to tests concerning Plaintiff's lower extremities that Plaintiff had only mild atherosclerotic disease of the arteries of the left and right legs. (A.R. 180, 697.)

On December 1, 2005, Boota S. Chahil, M.D., a specialist in neurology and neurophysiology, performed motor and sensory nerve conduction studies after Plaintiff related that she had a history of diabetes, leg pain and numbness that was slowly progressive, and difficulty walking. Dr. Chahil opined that there was evidence of severe sensory motor polyneuropathy as seen in diabetes mellitus and evidence of active and chronic denervation in distal muscles only revealed by EMG needle examination of the tibialis anterior, peroneus longus, gastrocnemius, and vastus medialis muscles. Individual motor units were normal in configuration, duration, and amplitude in all muscles except the distal muscles. Motor nerve conduction studies revealed that some nerve responses were absent. There was no evidence of ongoing lumbar radiculopathy or compression neuropathy. (A.R. 179.)

On December 6, 2005, Mary Anderson, F.N.P, of the Visalia Health Care Center of the County of Tulare, examined Plaintiff and assessed severe sensory polyneuropathy secondary to diabetes mellitus. The plan was to give Plaintiff a letter for school and a "GR" form and to request a scholarship for Plaintiff. (A.R. 342.) Anderson completed a "GENERAL ASSISTANCE EMPLOYABILITY EXAMINATION REPORT," in which she opined that Plaintiff had diabetes, neuropathy, anxiety disorder, and hypertension, with fair prognosis for activities of daily living but poor prognosis for work, and she was permanently physically and mentally incapacitated from any type of work. The time of the incapacity was also identified as "12." (A.R. 343, 389.) Later that month Anderson assessed depression and insomnia and provided Seroquel samples to take as directed. (A.R. 341.)

On December 7, 2005, Plaintiff visited the emergency room for abdominal and back pain after having eaten sausages and drunk wine the night before. The impression was gastritis. (A.R. 735.) (A.R. 727.)

In January 2006, Plaintiff stopped taking Seroquel because it caused her to sleep all day. (A.R. 340.)

On January 30, 2006, licensed psychologist Mary K. McDonald, Ph.D., reviewed records from 2002 through 2005 and performed a consulting, psychological evaluation of Plaintiff, who asserted that she was unable to work primarily because of anxiety and depression, although she also complained of carpel tunnel and numbness in her feet. (A.R. 192-99.) She reported the termination of her job at Target and allegations of embezzlement; she stated she had defended herself on an embezzlement charge and had the felony reduced to a misdemeanor for which she served house arrest. Thereafter, she attended a community college for a real estate credential but fell twice at the college because her feet went numb, and therefore she was unable to complete that program.

Plaintiff also stated that all she wanted was a medical card and a food card; she lived with her dad and just needed a way of providing for food and her insurance. Her frustration regarding the problems she was having in obtaining disability was so great that she had written to the governor, her congressman, and a state senator. She expressed anxiety about the purpose of Dr. McDonald's evaluation and repeatedly indicated that she would like a copy of the report. Before each test that was administered, Plaintiff complained that she could not do it and that it was too hard and terrible.

Plaintiff reported that Dr. Ow-Yong had given her samples of Seroquel and Pregabatin, which she did not take because the Seroquel would "bonk" her out. Plaintiff did not see a therapist because she did not understand that it was available on her card. She no longer saw Dr. Booker because she did not have insurance. (A.R. 192.)

Dr. McDonald found that Plaintiff was oriented in all three spheres, memory for recent and long-term events was unimpaired, she appeared to be fairly bright, and she was alert, pleasant, anxious, and cooperative. Plaintiff denied suicidal ideation, exhibited no indications of delusions or hallucinations, worked slowly, and was easily distracted. Her gait was unimpaired.

On the Bender Visual Motor Gestalt II, Plaintiff's scores suggested low ability within the borderline range, but she had executed the designs using her right hand, which was in a brace. On the Wechsler Adult Intelligence Scale III, only the verbal section was administered because of problems with Plaintiff's right hand, but she obtained a verbal IQ of 72 in the third percentile and within the borderline range. Dr. McDonald noted that this was not at all consistent with someone who had worked as a human resources director for Target, attended college, and defended herself on an embezzlement charge; the doctor questioned how much effort Plaintiff was putting forth, especially considering Plaintiff's constant questioning why she had to do something and her need for tremendous reassurance and encouragement to continue. On the Miller Forensic Assessment of Symptoms Test, her raw score of eighteen was well above the cutoff level of six, and norms indicated that people with such scores might be exaggerating their symptoms. Plaintiff had endorsed rare combinations of symptoms, items that suggested that she was easily suggestible, and rare occurrences. (A.R. 194.)

Dr. McDonald's assessment was rule out malingering; social phobia or social anxiety disorder; noncompliance with medical treatment; and adult anti-social behavior; there was no diagnosis on Axis II, and the global assessment of functioning (GAF) was sixty-five with ability to handle funds. The prognosis was questionable. (A.R. 195.) Dr. McDonald recommended that with respect to Plaintiff's moderate anxiety, in view of Plaintiff's endorsement of many highly unusual symptoms that rarely occur together, "one would question if she may be exaggerating her difficulties." (A.R. 195.) Dr. McDonald opined that it would appear that any disability benefits would primarily be based on the presence of physical difficulties.

On February 11, 2006, consulting examiner Dr. Emanuel Dozier, M.D., reviewed medical records and test results and performed a comprehensive internal medicine evaluation of Plaintiff, who was fifty-one years old and complained of two years of numbness, tingling, and burning pain in both feet, occasional numbness and tingling in her right hand, difficulty feeling the floor beneath her feet, and limitations of standing for only thirty minutes and walking one-quarter block. (A.R. 200-04.) Plaintiff reported that although her constant pain was generally a 10/10, she took no medication for relief. Plaintiff reported that although she had been diagnosed with polyneuropathy likely secondary to diabetes, she had submitted to three tests done to evaluate her blood sugars, and the highest level was 115 and the lowest 80; further, she was not on any special diet, and she was undergoing no treatment for diabetes or neuropathic pain. Dr. Dozier wrote that Plaintiff's history of diabetes was questionable. (A.R. 201.) Plaintiff reported that she was an occasional drinker of wine. Her medications included Atenolol, Alprazolam, Triamterene, and Seroquel. (A.R. 201.) Plaintiff was alert, oriented, and able to sit without discomfort, transfer on and off the exam table without assistance, and ambulate with a normal, steppage gait down the hall without signs of pain, ataxia, or shortness of breath. (A.R. 201.) Plaintiff's back had normal muscle bulk and tone, no kyphoscoliosis, no trigger points or paravertebral spasm, negative straight leg raising, and preserved, normal cervical-lordotic curves. Extremities were normal. Plaintiff did not use an assistive device. Motor and grip strength were 5/5 bilaterally in all extremities. There was impairment of light touch with L5-S1 distribution and pinprick with L5-S1 distribution in both lower extremities, with vibration and position senses intact.

Dr. Dozier's impression was peripheral neuropathy, etiology unknown, rule out diabetes. Plaintiff could lift and carry fifty pounds occasionally and twenty-five pounds frequently, stand and walk for ...

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