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Michelle A. Gill v. Michael J. Astrue

December 28, 2011

MICHELLE A. GILL,
PLAINTIFF,
v.
MICHAEL J. ASTRUE,
DEFENDANT.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING FOR SUMMARY JUDGMENT DEFENDANT'S CROSS-MOTION

Plaintiff Michelle A. Gill filed a Complaint for Review of Final Decision of the Commissioner of Social Security ("Commissioner"). The parties filed cross-motions for summary judgment.*fn1 Plaintiff requests the Court to reverse the Commissioner's decision or remand her case for a new hearing. For the reasons which follow, Plaintiff's motion for summary judgment is DENIED and the Commissioner's cross-motion is GRANTED.

Plaintiff developed neck pain in late 1990s. She subsequently underwent left anterior cervical fusion. In 2000 she started developing lower back pain, and in 2001 had a failed discectomy. In 2002 Plaintiff underwent a lumbar fusion. After approximately a year, Plaintiff developed chronic pain. In March 2007 she underwent another discectomy, which was not successful. In August 2007, Plaintiff was walking and tripped over a curb, sustaining a compound fracture of her left leg. After treatment of her fracture, she developed a severe infection. The following October, she fractured the leg again. Ultimately she had a total of four surgeries related to the fracture on her left leg.

On October 26, 2007, Plaintiff filed a claim for disability insurance benefits under Title II of the Social Security Act, which was denied. A hearing before an Administrative Law Judge ("ALJ") was held on July 14, 2009. Plaintiff, medical expert John Morse, M.D., and vocational expert Robin Scher testified. On August 18, 2009, The ALJ found Plaintiff not disabled and denied her application. The Appeals Council denied de novo review, and Plaintiff appealed to this Court pursuant to 42 U.S.C. Section 405(g).

In reaching his decision, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. Section 404.1520(4). First, he found Plaintiff has not engaged in substantial gainful activity since the alleged onset of her disability on September 20, 2006. (Administrative Record ("AR") at 14.) Second, he determined Plaintiff suffered from multilevel degenerative disc disease of lumbar and cervical spine - status post lumbar fusion, fracture of the left leg, and migraines, all of which he found to be severe, and from anxiety disorder not otherwise specified, which he found not to be severe. (Id. at 14-15.) Third, he concluded that none of Plaintiff's impairments or combination of impairments met or medically equaled one of the listed impairments in the regulations. (Id. at 15.)

Next, he concluded Plaintiff had a residual functional capacity ("RFC") "to lift/carry ten pounds occasionally, less than ten pounds frequently; stand/walk at least two hours in an eight-hour workday; sit six hours in an eight-hour workday;" and that she had "postural limitations of occasionally climbing, balancing, stooping, kneeling, crouching, or crawling." (Id. at 15.) In reaching this conclusion, he considered objective medical evidence as well as Plaintiff's symptoms of pain in her left leg, low back and neck. He found that her impairments could reasonably be expected to cause these symptoms, but he rejected Plaintiff's statements concerning the intensity, persistence and limiting effects of the pain as not credible to the extent they were inconsistent with the RFC. (Id. at 16-17.)

Based on his RFC conclusion, the ALJ found at step four that Plaintiff was able to perform her past work as an accounting clerk, collection clerk and customer service representative. (Id. at 18.) This was sufficient to find Plaintiff not disabled for purposes of social security disability benefits, and did not require the ALJ to proceed to the last and fifth step of the evaluation. See 20 C.F.R. § 404.1520(a)(v).

Plaintiff contends the ALJ erred his RFC determination and conclusion that she was not disabled. She attacks these findings in three respects: (1) to the extent they were inconsistent with the RFC, the ALJ rejected Plaintiff's statements about the intensity, persistence and limiting effects of her pain as not credible; (2) the ALJ did not address the questionnaire provided by Plaintiff's partner regarding her functional ability; and (3) the ALJ did not give adequate weight to the opinion of Plaintiff's treating physician.

The Court "may reverse the ALJ's decision to deny benefits only if it is based upon legal error or is not supported by substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1. (9th Cir. 2005). The denial of benefits must be affirmed if the decision is supported by substantial evidence and applies the correct legal standards. Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence means "more than mere scintilla but less than a preponderance." Desrosiers v. Sec'y of HHS, 846 F.2d 573, 575-76 (9th Cir. 1988) (internal quotation marks and citations omitted). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Ostenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). "Under this standard, the Commissioner's findings are upheld if supported by inferences reasonably drawn from the record, and if evidence exists to support more than one rational interpretation, [the reviewing court] must defer to the Commissioner's decision." Batson, 359 F.3d at 1193 (internal citations omitted).

Credibility of Plaintiff's Statements About the Limiting Effects of Pain

The ALJ found Plaintiff's allegations of disabling pain, symptoms, and limitations not credible and rejected them to the extent they contradicted his RFC finding. Plaintiff argues this was error. The Court disagrees. Although a claimant's subjective symptoms are considered in the disability evaluation, see 20 C.F.R. § 404.1529(a), "[a]n individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability . . .." 42 U.S.C. § 423(d)(5)(A).

When, as here, the claimant meets her burden of producing objective medical evidence of an impairment or impairments and shows that the impairment or combination of impairments could reasonably be expected to produce some degree of symptom, Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996), the ALJ may reject the claimant's testimony only if he makes specific findings stating clear and convincing reasons for doing so.

ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion. [¶] To determine whether the Claimant's testimony regarding the severity of her symptoms is credible, the ALJ may consider, for example: (1) ordinary techniques of credibility evaluation, such as the Claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the Claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the Claimant's daily activities.

Id. at 1284. If the ALJ's credibility finding is supported by substantial evidence in the record, the reviewing court may not engage in second-guessing. Thomas v. ...


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