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Lawson v. Astrue

March 15, 2010

REGINA LAWSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Titles XVI and II, respectively, of the Social Security Act ("Act"). For the reasons that follow, Plaintiff's Motion for Summary Judgment is DENIED, the Commissioner's Cross Motion for Summary Judgment is GRANTED, and the Clerk is directed to enter judgment for the Commissioner.

BACKGROUND

Plaintiff, born February 24, 1964, applied on October 18, 2002 for disability benefits. (Tr. at 485-86.) Plaintiff alleged she was unable to work due to asthma, back and neck pain, arthritis, stomach ulcers, and ovarian cysts. (Id. at 529, 539, 29.) Plaintiff was initially denied disability benefits by ALJ Mark C. Ramsey on May 17, 2004. She then filed subsequent applications for DIB and SSI in November, 2004, which were awarded on April 1, 2005 with a finding of disability as of June 18, 2004. The Appeals Council then reopened this favorable determination, vacated the ALJ's decision in regard to the first set of applications, consolidated the claims and remanded the case for further proceedings on the entire period from the alleged onset date of September 16, 2002 to the present, based on substantive defects and for further development of the record. (Id. at 26, 465-68.)

After remand, in a decision dated December 19, 2006, ALJ Mark C. Ramsey determined plaintiff was not disabled based on her applications filed October 18, 2002.*fn1 (Tr. at 38.) The ALJ made the following findings:*fn2

1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2007.

2. The claimant has not engaged in substantial gainful activity since September 16, 2002, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq, 416.920(b) and 416.971 et seq.)

3. The claimant has the following severe impairments: asthma, chronic obstructive pulmonary disease, allergies, cervical strain, lumbar strain, bilateral carpal tunnel syndrome, hypothyroidism, migraine headaches, history of ovarian cysts and abdominal adhesions, major depression, borderline intellectual functioning or cognitive disorder, an anxiety disorder, and obsessive-compulsive disorder.

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform simple, unskilled work that does not involve working with others on joint tasks (teamwork). The claimant is limited to lifting 20 pounds occasionally and 10 pounds frequently. There are no standing, walking, sitting, postural or manipulative limitations. She is unable to perform jobs involving concentrated exposure to dust o[r] fumes. [Alternative findings incorporating many of the limitations assessed by Dr. Sheikh are provided in #10 below.]

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on February 24, 1964 and is currently 42 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).

11. The claimant has not been under a "disability," as defined in the Social Security Act, from September 16, 2002 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. at 26-38.)

ISSUES PRESENTED

Plaintiff has raised the following issues:

A. Whether the ALJ Failed to Properly Evaluate Whether Ms. Lawson's Mental Impairment Met or Equaled the Requirements of Listing 12.05C;

B. Whether the ALJ Failed to Properly Evaluate and Credit the Opinions of Plaintiff's Treating Physicians Without a Legitimate Basis;

C. Whether the ALJ Failed to Credit Plaintiff's Testimony Regarding Her Pain and Functional Limitations; and

D. Whether the ALJ Failed to Properly Assess Plaintiff's RFC and as a Result Failed to Properly Question the Vocational Expert.

LEGAL STANDARDS

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

ANALYSIS

A. Listing 12.05C

Plaintiff contends that she meets or equals Listing 12.05C. The ALJ determined in finding no. 4 of the decision that plaintiff's impairments did not meet or equal an impairment listed in the Regulations' "Listing of Impairments" ("Listings"), which lists impairments to thirteen categories of body systems which are severe enough to preclude any gainful activity. Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990); 20 C.F.R. § 404.1520(d). When all the requirements of a listing are met, the described condition is irrebuttably presumed disabling. Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir. 1985); 20 C.F.R. § 404.1520(d).

At the third step of the disability analysis, the ALJ determines whether a person's condition either "meets" or "equals" a listing. A mere diagnosis of a listed impairment is not sufficient. Specific findings included in each listing also must be met. See, e.g., Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir. 1985). Alternatively, other diagnostic tests, or the combined effects of various conditions, may demonstrate the "equivalent" of the specific required findings. See, e.g., Sullivan v. Zebley, 493 U.S. 521, 531 (1990); Marcia v. Sullivan, 900 F.2d 172 (1990). In sum, however, unless an impairment is as severe as and has lasted as long as described in the listing, a person is not presumptively disabled. Young, 911 F.2d at 183.

Listing 12.05 provides in part:

Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.*fn3

The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied. ...

C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work- related limitation of function; ...

20 C.F.R. Pt. 404, Subpt. P., App. 1, § 12.05(c). (emphasis added). "An impairment imposes a significant work-related limitation of function when its effect on a claimant's ability to perform basic work activities is more than slight or minimal." Fanning v. Bowen, 827 F.2d 631, 633 (9th Cir. 1987). This, in other words, is the definition of a "severe" impairment. Thus, in this circuit, a person who has a severe physical or other mental impairment, as defined at step two of the disability analysis, apart from the decreased intellectual function, meets the second prong of the §12.05C listing. Id.; see also Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997); Edwards v. Heckler, 736 F.2d 625, 629-31 (11th Cir.1984); Nieves v. Secretary of Health & Human Servs., 775 F.2d 12, 14 & n. 7 (1st Cir.1985)). Indeed, in footnote 3 of the Fanning decision, the court found that the "extra" impairment need not even reach the "severe" limit; although one might be hard pressed to call a less than "severe" impairment, an impairment at all.

In Fanning, the first prong of the listing was met because plaintiff's IQ was found to be between 76 and 69. Fanning, 827 F.2d at 633. The court imposed a standard applicable to the second prong, that the impairment must have more than a slight or minimal effect on plaintiff's ability to perform basic work activities. Id. Because the ALJ had not considered this question in regard to the plaintiff's knee injury, the court remanded the matter. Id.

In the instant case, the ALJ found plaintiff to have the severe impairment of borderline intellectual functioning. (Tr. at 29.) In making this finding, the ALJ found that plaintiff's IQ scores were in the 60s. (Id.) The record supports a finding that plaintiff met this first prong of subsection (C) of the listing.

The ALJ refused to find, however, that plaintiff's onset occurred prior to age 22. He stated:

She indicated that she had not been in special education until she was in college. She worked as a pre-school teacher. She has been able to obtain a driver's license. At the hearing, Dr. Walter testified that the record did not establish that the claimant had developmental mental retardation ...


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