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Lambert v. Astrue

April 1, 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 March 23, 2004, made pursuant to Titles II and XVI of the Social Security Act, for disability insurance benefits (DIB) and supplemental security income (SSI), in which she alleged that she had been disabled since November 10, 2002, due to degenerative disc disease and carpal tunnel syndrome with associated back and leg pain, weakness and numbness in the legs, inability to stand more than thirty minutes at a time, inability to sit or lie for prolonged periods, and need to use a cane to walk. (A.R. 189-92, 661-64, 208.) 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 January 29, 2009, and on behalf of Defendant on March 2, 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) Patricia Leary Flierl, dated September 4, 2008 (A.R. 16-24)*fn1 , and rendered after a hearing held on June 27, 2008, at which Plaintiff appeared and testified with the assistance of an attorney (A.R. 16, 64-97). Plaintiff's husband and a vocational expert also testified. (A.R. 16.)

The Appeals Council denied Plaintiff's request for review of the ALJ's 2008 decision on December 18, 2008 (A.R. 8-10), and thereafter Plaintiff filed the complaint in this Court on January 29, 2009. Appellant's opening brief was filed on August 6, 2009, and Defendant's motion for summary judgment was filed on August 31, 2009. Plaintiff's reply was timely filed on September 22, 2009, after the refiling of Defendant's responsive brief. The matter has been submitted without oral argument to the Magistrate Judge.

I. Jurisdiction

This Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g), which provide that an applicant suffering an adverse final determination of the Commissioner of Social Security with respect to disability or SSI benefits after a hearing may obtain judicial review 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 January 29, 2009, less than sixty days after the mailing of denial of review by the Appeals Council on December 18, 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;*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 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.

B. The ALJ's Findings

The ALJ found that Plaintiff met the insured status requirements of the Act through December 31, 2007, but not thereafter. Plaintiff had severe impairments of borderline carpal tunnel syndrome, degenerative disc disease of the cervical spine, and mild degenerative disc disease of the lumbar spine most prominent at L4/5 and L5/S1, but Plaintiff had no impairment or combination thereof that met or medically equaled a listed impairment. (A.R. 19.) Plaintiff retained the residual functional capacity (RFC) to lift and carry ten pounds occasionally, stand and/or walk two hours, stoop occasionally, with no kneeling, crouching, crawling, pushing, pulling, reaching at or above shoulder level, or exposure to pulmonary irritants. (A.R. 19.) Plaintiff could not perform her past relevant work, but Plaintiff, who was thirty-eight years old on the alleged date of onset of disability, could perform other jobs that existed in significant numbers in the national economy, such as ticket counter, order clerk, and receptionist. (A.R. 22-23.) Accordingly, Plaintiff was not disabled at any time from November 10, 2002, through September 4, 2008, the date of decision. (A.R. 23-24.)

C. Plaintiff's Contentions

Plaintiff argues that with respect to her residual functional capacity, the ALJ failed to 1) state clear and convincing reasons, supported by substantial evidence, for negative findings concerning Plaintiff's credibility; 2) state legally sufficient reasons concerning Plaintiff's husband's testimony, and 3) state legally sufficient reasons, supported by substantial evidence in the record, for rejecting the opinion of Plaintiff's treating physician, Dinesh Sharma, M.D.

IV. Plaintiff's Testimony

Plaintiff, who was born in 1965 and was forty-three years old at the time of the hearing, testified that she had pain in her neck, shoulder, back, arms, wrists, legs, and knees. (A.R. 71.) Her back and legs had been about the same in the past couple of years, but her neck had been progressively worsening; it caused migraine headaches, which in turn made it difficult for Plaintiff to concentrate, and it resulted in a cold, numb feeling in the jaws and ears. (A.R. 87-88.) Plaintiff testified that she had "mild carpal tunnel" in both wrists, although Dr. Sharma had told her that the jerkiness and pain in her hands was due to her neck condition. (A.R. 89.)

Monthly injections in the neck helped loosen the muscles and increase mobility. (A.R. 71-72.) Dr. Sharma had also recommended a traction unit for Plaintiff's neck for use at home, and she was awaiting approval through worker's compensation. (A.R. 72.) She used the TENS unit, which helped, four days a week for most of the day, and even slept with it on really low. She would have used it more, but it irritated her skin. (A.R. 73.) For two years she had taken Darvocet and Naproxen for pain and inflammation, Ambien for sleep, and three to six Soma daily to relax her muscles. The medications helped but caused chronic constipation, and the Soma made her "loopy" to the point that she did not feel competent to drive. She experienced soreness after the injections. (A.R. 74-75, 84, 86.) She used a cane three to four days a week when she left her small house and believed that she should use it more often for stability, but she was tired of dragging it around. (A.R. 76.) She sometimes used a shopping cart as a walker and also used motorized carts to shop, but she tried to follow her doctor's advice to walk as much as possible. (A.R. 76-77.) She sometimes took her son to help her with shopping. (A.R. 78.)

Plaintiff awoke early, fixed lunch and coffee for her husband, and drove several times a week (A.R. 85-86.)

Plaintiff could lift and briefly carry about ten pounds, stand a maximum of two hours but on an average for thirty minutes if she was able to move around, sit for about two hours maximum, and walk less than a block. She could not lift ten pounds for two to three hours of an eight-hour day. (A.R. 89.) She would take four to five rest breaks lasting fifteen minutes to half a day in an eight-hour day; she had four to five really bad days a month. She sometimes had trouble writing for prolonged periods and grasping small things because her thumb would lock up. She could use a keyboard for thirty or forty-five minutes until her wrist tired to the point of weakness and quivering; she had no typing skills. (A.R. 80-84.)

For a month and one-half, Plaintiff had been temporarily baby sitting her grandchildren with the help of her son, with whom she shared the money she made. (A.R. 78.)

Plaintiff testified that Dr. Sharma had said he would "put in for" surgery for Plaintiff's neck when she was ready, but Plaintiff was scared by the uncertainty of what would happen to her. (A.R. 86.)

V. Testimony of Plaintiff's Husband

Steven Lambert, Plaintiff's husband of twenty-seven years, testified that he could tell when Plaintiff was in pain because she complained, cried, and was unable to do normal, routine, household things such as cook without complaining of pain; he confirmed that grasping things was a problem sometimes. She could not sit for prolonged periods without pain and needing to move around. She used the cane sixty to seventy percent of the time, and monthly she had at least three to four bad days on which she was unable to do anything. (A.R. 90-94.)

VI. Medical Evidence

On December 28, 2000, David Tenn, M.D., of the Valley Industrial Medical Group examined Plaintiff for a work injury she sustained on November 24, 2000, when she had been using a floor scrubber machine seven hours a day on a regular basis and began to experience bilateral shoulder pain with radiation into both forearms. (A.R. 334-35, 340.) There was mild diffuse tenderness of the trapezius bilaterally without appreciable spasm, and mild tenderness over the thenar area of the right thumb. The assessment was improved overuse myalgias of the upper extremities and upper back and neck, improved with conservative treatment, including physical therapy; residual complaints did not require any extensive work-up. Plaintiff was to complete physical therapy and was released to regular work on a trial basis because she had been moved to a position folding clothes on the night shift. Id.

In January 2001, Plaintiff visited Dr. Pradeep K. Kamboj, M.D., concerning her worker's compensation injury in her hands and shoulders due to use of a floor scrubber at work. Examination showed tenderness of the palmer aspect of the right thumb overlying the metacarpal phalangeal area as well as myofascial stiffness of the trapezius bilaterally. The asssessment was trigger thumb, right side, to be treated with a brace and Vioxx. (A.R. 409.) Several weeks later Dr. Kamboj assessed myofascial neck pain based on a finding of stiffness of the trapezius bilaterally, with the remainder of the exam being unremarkable. Plaintiff was gradually improving. (A.R. 408.) In April 2001, Plaintiff reported she was felling a little better. (A.R. 407.)

Dr. Dinesh Sharma, M.D., a treating specialist in physical medicine and rehabilitation, saw Plaintiff on April 17, 2001, for her upper extremity pain. Paraspinal and trapezius muscles were mildly to moderately tender, neck mobility was sixty percent of normal, Spurling's maneuver was mildly positive on turning to the right and into the right shoulder as well as in turning to the left on extension. Both shoulder girdles had good mobility with some tenderness in the parascapular region. Plaintiff had mild tenderness along the lateral aspect of the elbows and on the left wrist dorsum, mildly positive Phalen's sign on the right, and slight weakness of the right hand. Dr. Sharma diagnosed cervical radiculitis, bilateral, left greater than right, and overuse syndrome of the upper extremities bilaterally, to be explored with tests and to be treated with medication (Vioxx and Zanaflex). (A.R. 471.)

Dr. Sharma opined that nerve conduction studies of the right arm performed on May 9, 2001, were mildly abnormal and appeared to reflect evidence of borderline compression of the median sensory fibers, which suggested borderline carpal tunnel syndrome (CTS). (A.R. 472.) Electromyographic examination of the muscles undertaken the same day was normal. (A.R. 473.) Dr. Sharma opined that a nerve conduction study and an electromyographic examination of the left arm performed on May 16, 2001, were normal. (A.R. 467.) An x-ray and CT scan of the cervical spine reflected a benign-appearing lesion of uncertain etiology in the C7 vertebral body, hypolordosis that was possibly secondary to positioning and/or muscle spasm, and degenerative disc disease with osteophytes from the C5 to C7 levels and a slight narrowing of the C6/C7 disc space without gross evidence of large, posterior disc protrusions or significant narrowing of the neural canals. (A.R. 464.) Dr. Mario Deguchi, a radiologist, opined that a MRI study of the cervical spine performed on May 9, 2001, reflected reversal of the cervical curvature, also possibly due to positioning or muscle spasm; mild degenerative disc disease with a small anterior disc protrusion at C6/C7; a bone lesion of uncertain etiology involving the C7 vertebral body; and a posterocentral disc protrusion measuring approximately three millimeters at C5/C6. (A.R. 474-75.)

Dr. Deguchi opined that an x-ray and CT scan of the cervical spine taken in June 2001 demonstrated the same impressions as the MRI study from May 9, 2001. Dr. Deguchi stated there was only a slight narrowing of the C6/C7 intervertebral disc space and no evidence of large posterior disc protrusions or significant narrowing of the neural canals. The posterocentral disc protrusion at C5/C6 measured about three millimeters. (A.R. 391-93.)

In October 2001, at Dr. Sharma's request, neurosurgeon Sana U. Bhatti, M.D., examined Plaintiff concerning her upper body pain, which Plaintiff reported continued but was under better control with Ultram, Vioxx, and physical therapy. Plaintiff denied numbness, paresthesis, or difficulty with gait; she reported that she had been diagnosed with CTS, and she continued working with an assignment which did not require significant manual work. On examination, neck and back were non-tender to palpation and percussion, extremities were unremarkable, motor strength was 5/5 throughout, and sensation was intact. The impression was cervical sprain; Dr. Bhatti found no evidence of radiculopathy or myelopathy by history or exam; no operative intervention was indicated. The lesion at C7 was a Schmorl's node and did not require any further follow-up. (A.R. 460.)

In November 2001, an x-ray of the lumbar spine was negative for a fracture or destructive process; vertebral body heights and disc spaces were maintained. (A.R. 390.) Plaintiff complained to Dr. Kamboj about chest pain and tightness; an EKG was unremarkable. Dr. Kamboj gave Plaintiff Ibuprofen and ordered Plaintiff's Xanax refilled for Plaintiff's complaint of anxiety. (A.R. 406.)

Dr. Sharma prescribed a TENS unit on March 12, 2002. (A.R. 499.) Dr. Kamboj prescribed Bextra and Ultracet for back pain and neck stiffness on May 7, 2002. (A.R. 406.)

Plaintiff suffered another work injury on May 27, 2002, when she caught a twenty-five-pound rack of falling purses. As to that injury only, on June 4, 2002, she was considered permanent and stationary, and Dr. Yale opined that she was able to resume regular duty work status with no residual deficits, ...

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