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Arlene Ward v. Michael J. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 23, 2011

ARLENE WARD, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Arlene Ward filed this action on June 22, 2009. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on July 13 and 23, 2009. (Dkt. Nos. 7, 9.) On March 31, 2010, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The Court has taken the matter under submission without oral argument.

Having reviewed the entire file, the Court reverses the decision of the Commissioner and remands for further proceedings consistent with this opinion.

I. PROCEDURAL BACKGROUND

On June 26, 2006, Ward filed applications for disability insurance benefits and supplemental security income benefits. Administrative Record ("AR") 9. In both applications, Ward alleged a disability onset date of May 26, 2005. Id. The applications were denied initially and upon reconsideration. AR 47-51, 53-58. Ward requested a hearing before an Administrative Law Judge ("ALJ"). AR 61. On August 14, 2008, the ALJ conducted a hearing at which Ward and a medical expert ("ME") testified. AR 19-34. On January 22, 2009, the ALJ conducted a supplemental hearing at which a vocational expert ("VE") testified. AR 35-42. On March 12, 2009, the ALJ issued a decision denying benefits. AR 9-16. On March 16, 2009, Ward requested that the Appeals Council review the decision denying benefits. AR 4-5. On May 1, 2009, the Appeals Council denied the request for review. AR 1-3. This action followed.

II. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

"Substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the /// evidence is susceptible to more than one rational interpretation, the Court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.

III. DISCUSSION

A. Disability

A person qualifies as disabled, and thereby eligible for such benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003).

B. The ALJ's Findings

The ALJ found that Ward meets the insured status requirements through June 30, 2010. AR 11.

Ward has the severe physical impairments of degenerative disc disease and osteoporosis. Id. Ward has the residual functional capacity to perform sedentary work. AR 12-15. Ward "could lift and/or carry 10 pounds frequently and 20 pounds occasionally. Out of an 8-hour period, the claimant could stand and/or walk for 2 hours and sit for 6 hours. She should avoid extreme wetness." AR 15. Ward "could bend, stoop, crouch, kneel and climb stairs only occasionally. The claimant could do fine and gross manipulation as well as reach in all directions." AR 14.

The ALJ found that Ward is able to perform her past relevant work as a telephone solicitor, appointment clerk and order/sales clerk as they were actually and generally performed in the national economy. AR 15.

C. Treating Physician

Ward contends the ALJ improperly rejected a treating physician's opinion regarding Ward's need to use a cane. JS 10.

The ALJ noted Ward requested a cane in early 2008. AR 14, 290 ("still pain on walking" "needs cane to stabilize keep wt off R foot"). The ALJ stated that, in September 2008, "it appears the doctor intended to prescribe one." AR 14, 348 ("Rx next apt").*fn1 The ALJ also commented that Ward was previously noted to be using a walker. AR 14, 294 ("pt has refused pain clinic epidurals" "pt will not exercise using walker"). An x-ray of the right foot in May 2008 showed degenerative disease but no obvious fracture. AR 14, 359.

The ALJ concluded that "[a]lthough [Ward] may ambulate with either a cane or walker, this would not interfere with sedentary work." AR 13. The Court does not interpret the ALJ's finding as a rejection of Ward's use of a cane. The ALJ did not err.

D. Listed Impairment

Ward argues the ALJ erred in determining that her condition does not meet or equal Listing 1.02. JS 5.

The claimant bears the burden of demonstrating that her impairments are equivalent to one of the listed impairments that are so severe as to preclude substantial gainful activity. Bowen v. Yuckert, 482 U.S. 137, 141, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). "If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step." Id. at 141; see also Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

"The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just 'substantial gainful activity.'" Sullivan v. Zebley, 493 U.S. 521, 532, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990) (citation omitted). "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Id. at 530 (emphasis in original). "To equal a listed impairment, a claimant must establish symptoms, signs and laboratory findings 'at least equal in severity and duration' to the characteristics of a relevant listed impairment, or, if a claimant's impairment is not listed, then to the listed impairment 'most like' the claimant's impairment." Tackett, 180 F.3d at 1099 (quoting 20 C.F.R. § 404.1526, emphasis in original). "'Medical equivalence must be based on medical findings.' A generalized assertion of functional problems is not enough to establish disability at step three." Id. at 1100 (quoting 20 C.F.R. § 404.1526).

Listing 1.02.A reads: "Major dysfunction of a joint(s) (due to any cause): Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With: A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b." 20 C.F.R., Part 404, Subpart P, Appendix 1. An inability to ambulate effectively is defined as "an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities." Id. § 1.00B.2.b(1). An example includes "the inability to walk without the use of a walker, two crutches or two canes . . . ." Id. § 1.00B.2.b(2). ///

Contrary to Ward's argument, the ALJ considered the relevant evidence. The ALJ noted that, after a motor vehicle accident, "[x]-ray of the cervical spine in November 2005 showed only mild multi-level cervical degenerative disc disease with mild stenosis at C6-C7 and minimal stenosis from C3-C6 with possible compression fracture." AR 13, 208. At that time, "x-rays of the lumbar and thoracic spine, sacrum and coccyx were normal." AR 13, 210-211, 229. In 2007, an MRI of the cervical spine "showed no evidence of spinal stenosis, only mild neural foraminal stenosis at C4-5 and C5-6 and minimal diffuse degenerative disc disease of the cervical spine." AR 13-14, 307. There was also multi-level degenerative changes of the upper thoracic spine. AR 14, 306 ("mild degenerative facet joint disease L5-S1 with secondary mild neural foraminal stenosis"), 309 ("multilevel degenerative changes with multiple chronic compression deformities of the upper thoracic spine").

With respect to her ability to ambulate without the use of a hand-held assistive device that limits the functioning of both upper extremities, the ALJ stated that Ward was noted to be using a walker in December 2007. AR 14, 294. The medical record does not indicate that Ward is unable to ambulate without a walker. Instead, the record states that Ward "claims disabled" and "has refused pain clinic epidurals PT will not exercise using walker." AR 294. As the ALJ noted, Ward subsequently "requested a cane" and there is no indication of Ward using a walker again. AR 14, 290. To the extent Ward argues that the use of one cane meets or equals Listing 1.02, her argument is rejected. There is no indication that the limitations on Ward's ability to walk are sufficiently "extreme" to render her unable "to ambulate effectively" as required to meet or equal Listing 1.02.A.

The ALJ further stated that his findings were supported by the ME and state agency physicians. AR 12, 15. The ME testified that Ward's right foot met 1.02A, but only for a period of less than 12 months. AR 23. Otherwise she did not meet or equal a listing.

Ward has not shown error. The ALJ's finding that Ward did not meet or equal a listing was supported by substantial evidence. The ALJ was not obligated to "state why a claimant failed to satisfy every different section of the listing of impairments." See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990). In Gonzalez, the court found that the ALJ's summary of the medical evidence and the claimant's testimony were sufficient, even though the ALJ did not state what evidence supported his conclusion. Id. at 1200-01. "To require the ALJ's to improve their literary skills in this instance would unduly burden the social security disability process." Id. at 1201; see also Lewis v. Apfel, 236 F.3d 503, 513 (9th Cir. 2001) (ALJ need not discuss and evaluate evidence that supports his or her conclusion under a specific heading).

E. Hypothetical Questions to the VE

Ward argues that the ALJ's hypotheticals to the VE did not include her need for a cane. An ALJ may rely on testimony a VE gives in response to a hypothetical that contains "all of the limitations that the ALJ found credible and supported by substantial evidence in the record." Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005).

As discussed above, the ALJ concluded that Ward's use of a cane would not interfere with sedentary work. AR 13. The treatment notes indicate Ward used a cane to keep weight off her right foot. AR 14, 290. The ALJ's hypothetical to the VE precluded Ward from standing or walking for more than three minutes at a time for a maximum of two hours out of an eight-hour workday. AR 40. The ALJ did not mention use of a cane. The VE testified that Ward could perform her past relevant work as telephone solicitor, appointment clerk and order/sales clerk. AR 39-40.

The Commissioner argues that the ALJ's finding that use of a cane would not interfere with sedentary work is correct and any error is harmless.*fn2 JS 21; see Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (omitting use of cane or wheelchair is irrelevant when hypothetical incorporates option of sitting while working). The ALJ did not include a sit/stand option in his hypothetical, and the record does not reveal whether a sit/stand option would affect the VE's testimony at step four of the sequential analysis. Accordingly, the ALJ erred.

IV.

ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded at step four and, if deemed appropriate, step five of the sequential analysis.

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.

ALICIA G. ROSENBERG


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