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Lee v. Astrue

April 1, 2010

SIA V. LEE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

DECISION AND ORDER DENYING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (DOC. 1)

ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF SIA V. LEE

Plaintiff is proceeding in forma pauperis and with counsel with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's application that was protectively filed on July 31, 2005, and made pursuant to Title XVI of the Social Security Act for supplemental security income (SSI) benefits, in which she had claimed to have been disabled since January 1, 2005, due to depression, sciatica, tail bone/spinal injury, and arthritis with pain in the low back, chest, left knee, right hand, and neck. (A.R. 7, 84-87, 98.) 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 Magistrate Judge Dennis L. Beck filed on May 22, 2009, 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) Michael J. Haubner, dated June 24, 2008 (A.R. 7-12), rendered after a hearing held on April 17, 2008, at which Plaintiff appeared and testified with the assistance of a Hmong interpreter and an attorney (A.R. 19-47).

The Appeals Council denied Plaintiff's request for review of the ALJ's decision on November 14, 2008 (A.R. 1-3), and thereafter Plaintiff filed the complaint in this Court on January 5, 2009. Plaintiff's amended opening brief was filed on September 24, 3009, and Defendant's brief was filed on October 16, 2009. The matter has been submitted without oral argument to the Magistrate Judge.

I. Jurisdiction

The Court has jurisdiction over the subject matter of this action 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 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 filed her complaint on January 5, 2009, less than sixty days after the mailing of the notice of decision on or about November 14, 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).

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 (2008).

B. The ALJ's Findings

The ALJ found that Plaintiff had severe impairments of mild C4-5 foraminal narrowing and lumbago, but Plaintiff had no impairment or combination thereof that met or medically equaled a listed impairment. (A.R. 9.) The ALJ concluded that Plaintiff's subjective complaints were not entirely credible, and Plaintiff retained the residual functional capacity (RFC) to perform the full range of light work. (A.R. 10-11.) Plaintiff could perform her past relevant work as a harvest worker, and thus Plaintiff had not been disabled since July 31, 2005. (A.R. 12.)

C. Plaintiff's Contentions

Plaintiff argues that the ALJ failed to provide legally sufficient reasons for rejecting Plaintiff's testimony. Further, he failed appropriately to consider, and to state legally sufficient reasons for rejecting, the opinion of Plaintiff's treating physician Roger Fife, M.D. Plaintiff seeks to have this Court direct an award of benefits.

IV. Medical Evidence

Plaintiff was treated by Dr. Satnam S. Uppal, M.D., at the Merced Medical Clinic, in 2005. (A.R. 140-57.) In February 2005, Plaintiff complained of neck and back pain, and she was prescribed Ultram, Mobic, and Tylenol. (A.R. 153.)

Steven E. Liston, M.D., a radiologist, reported that radiological studies of the cervical spine taken in February 2005 showed mild neural foraminal narrowing at C4-5 on the left, which was probably congenital. The other neural foramina were patent, and there was no significant facet arthropathy, no osseous trauma or abnormal calcification, and no soft-tissue swelling. (A.R. 151.) Studies of the lumbar spine showed radiographically mild degenerative disk and facet arthropathy at L5-S1, with otherwise normal facet joints and disk spaces. (Id.) Studies of the thoracic spine were negative. (Id.; A.R. 144.)

In March 2005, Plaintiff reported to Dr. Uppal back pain, headaches, shortness of breath, numbness, and joint pain. The assessment was obesity and GERD; tests were planned. (A.R. 147.) A pulmonary function test from March 2005 was within normal limits. (A.R. 148.) An ECG was also normal. (A.R. 146.) In April Plaintiff continued to complain of back pain; the treatment was medication (Paxil, Celebrex, Tylenol, and Ultram). (A.R. 143.) In May 2005, the assessment was back pain and muscle spasm; heat and physical therapy were included in the plan. (A.R. 142.) In June, medications were adjusted to Celebrex, Tylenol, Vicodin, Ultram, and Triavil. (A.R. 141.)

Records from Dr. Roger L. Fife show that in July 2005, Plaintiff complained of pain in the back, wrist, and many joints since she was three years old when a bag of rice was dropped on her from an airplane; her back pain had increased a lot in the past year. The examination reflected normal findings except a tender right wrist and low back. The assessment was multiple joint pains treated with Mobic. (A.R. 139.)

In August 2005, examination at the Merced Medical Clinic for back, hand, and leg pain revealed generalized symptoms that included joint pain, swelling, stiffness, muscle spasms, numbness of the hands, anxiety, and insomnia. The assessment was fibromyalgia, depression, and anxiety. Treatment was medication with Celebrex, Acetaminophen, Aleve, Tylenol, Ultram, and Triavil. (A.R. 140.)

Records of Dr. Fife reflect treatment of Plaintiff a few times a year from February 2006 through March 2008. (A.R. 171-75.) In February 2006, Plaintiff complained of back pain for which medication had worked only thirty minutes and had made Plaintiff sleep; examination revealed tenderness along the sacrum. The assessment was low back pain and depression for which Naprosyn, back exercises, and Lexapro were prescribed. (A.R. 175.) Later that month Plaintiff returned and reported that she had been treated at the emergency room for fainting and could not sleep because of her back. Ambien was prescribed along with the Lexapro. (A.R. 175.) By March 2006, she reported she had been taking Ativan, which made her feel better; she was just tired and fatigued. The assessment was a panic attack; Dr. Fife continued to prescribe Lexapro.

On March 18, 2006, Dr. James A. Nowlan, Jr., performed a comprehensive internal medicine evaluation with the assistance of an interpreter from the DDS. (A.R. 158-61.) Plaintiff's chief complaints were pain in her back, which radiated to her legs and caused them to be weak, and pain in the right wrist. No records were provided. Plaintiff reported that pressure on her spinal cord, as shown on x-rays, caused the pain; medication provided no relief, and walking and bending caused it to worsen. Plaintiff walked slowly but used no assistive devices. Finger-to-nose and Romberg were normal. Although Plaintiff asserted that she could not go any further when she reached about fifty degrees in a forward bend to touch her toes, she bent over and pulled off her sandals and straightened without any difficulty when asked to remove her shoes. (A.R. 159.) The right wrist was swollen with tenderness over the carpal bones on the right wrist. Motor strength was 5/5 throughout the bilateral upper and lower extremities; sensation was normal throughout, with reflexes 2 bilaterally in the upper and lower extremities. (A.R. 159-60.)

With respect to a functional assessment, Dr. Nowlan stated: I found no evidence of any pain in her legs that I could elicit other than what she said. Touching her legs and moving them produced no painful responses.

Her back seemed perfectly fine when she was putting her shoes on and taking them off, but she said that she could not bend because of the pain. (A.R. 160.) He then stated that based on objective findings, Plaintiff could lift and carry ten pounds frequently and twenty-five pounds occasionally, stand and walk for six hours in an eight-hour day, and sit without limitation; there were no postural or manipulative limitations, and Plaintiff did not need to use an assistive device. (A.R. 160-61.)

On April 24, 2006, state agency medical consultant Dr. J. Zheutlin opined that Plaintiff could occasionally lift fifty pounds and frequently lift ten pounds, sit and stand and/or walk about six hours in an eight-hour workday, with no other limitations. (A.R. 162-69.)

In June 2006, Plaintiff reported to Dr. Fife that she had broken her ankle a month before; along with her back pain she had a bump in her lower back that was very tender. The note referred to a connective tissue nodule. The assessment was low back pain, treated with an injection of the nodule with Xylocaine, and continued administration of Lexapro and Naprosyn. (A.R. 174.) By September 2006, Plaintiff was following up after gallbladder surgery, which she reported was not connected to her continuing back pain. The assessment was lumbago, gastritis, and depression; the treatment was to continue with Lexapro, Naprosyn, and Nexium, and injecting the back joint with Xylocaine. (A.R. 173.)

In March 2007, Plaintiff complained of pain in the ankle and the foot where she had broken it, dizziness, and pain in the back as well as the neck with stress. The assessment was lumbago, foot pain, and depression; the same medications were continued. (A.R. 173.) In June 2007, Plaintiff needed more Nexium despite improvement of her stomach; she continued to have back pain and wanted her medication changed, so Cymbalta was prescribed. (A.R. 173.) In September 2007, Plaintiff reported back pain in an area where she had undergone surgery. She described epigastric pain that radiated to the lower back; the pain was the same that she had before her gallbladder surgery. She could eat OK and denied digestive symptoms, but she reported that some weeks ago she had run out of her medicine, which had been helping. The assessment was abdominal pain and lumbago; Dr. Fife continued Nexium and Cymbalta and back exercises. (A.R. 172.) In December 2007, Plaintiff reported continued back pain and stomach pain after eating; taking Nexium made her feel dizzy. She reported not only lower back pain but pain down the front and side of the thighs and lumbar tenderness; the back ...


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