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Lori Lynn De La O v. Michael J. Astrue

May 15, 2012

LORI LYNN DE LA O,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Jean P. Rosenbluthu.s. Magistrate Judge

MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER

I. PROCEEDINGS

Plaintiff seeks review of the Commissioner's final decision denying her application for Social Security Disability Insurance Benefits ("DIB"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed March 19, 2012. The Court has taken the Joint Stipulation under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed and this action is dismissed.

II. BACKGROUND

Plaintiff was born on August 8, 1966. (Administrative Record ("AR") 33.) She has a high-school education and previously worked as a front-office receptionist, secretary, and dental-claims associate. (AR 122, 187.) Plaintiff claims to have been disabled since March 30, 2006. (AR 95.)

On January 22, 2008, Plaintiff filed an application for DIB. (AR 95-101.) After her application was denied, she requested a hearing before an Administrative Law Judge ("ALJ"), which was held on July 20, 2009. (AR 49-54.) Plaintiff appeared with counsel and testified on her own behalf. (Id.) Plaintiff's family members and friend submitted statements regarding Plaintiff's limitations. (AR 148-55, 211-18.) On August 17, 2009, the ALJ denied Plaintiff's claim, determining that she had the severe impairment of fibromyalgia (AR 29-30) but was not disabled because she retained the residual functional capacity ("RFC")*fn1 to perform "medium work" with "mild to moderate limitation in responding appropriately to co-workers, supervisors, or the public." (AR 32.) Plaintiff requested review of the ALJ's decision and submitted additional evidence to the Appeals Council. (AR 4, 20.) On January 21, 2011, after considering the new evidence, the Appeals Council denied Plaintiff's request for review. (AR 1-3.) This action followed.

III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's or ALJ's findings and decision should be upheld if they are free of legal error and are supported by substantial evidence based on the record as a whole. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.

Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.

IV. THE EVALUATION OF DISABILITY

People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a severe physical or mental impairment that is expected to result in death or has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

A. The Five-Step Evaluation Process

The ALJ follows a five-step sequential evaluation process to assess if a claimant is disabled. 20 C.F.R. § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. § 404.1520(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the ALJ to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of non-disability is made and the claim is denied. § 404.1520(a)(4)(ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the ALJ to determine if the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. § 404.1520(a)(4)(iii). If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the ALJ to determine whether the claimant has sufficient RFC to perform her past work; if so, the claimant is not disabled and the claim is denied. § 404.1520(a)(4)(iv). The claimant has the burden of proving she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id. If that happens or if the claimant has no past relevant work, the ALJ then bears the burden of establishing that the claimant is not disabled because she can perform other substantial gainful work available in the national economy. § 404.1520(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. § 404.1520; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

B. The ALJ's Application of the Five-Step Process

At step one, the ALJ found that Plaintiff had not engaged in any substantial gainful activity since March 30, 2006. (AR 29.) At step two, the ALJ concluded that Plaintiff's fibromyalgia was a "severe impairment" but her mental impairments were "nonsevere." (AR 29-31.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled any of the impairments in the Listing. (AR 32.) At step four, the ALJ found that Plaintiff had the RFC to perform "medium work as defined in 20 C.F.R. 404.1567(c), with mild to moderate limitation in responding appropriately to co-workers, supervisors, or the public." (AR 32-33.) At step five, the ALJ found that Plaintiff was able to perform past relevant work as a front-office receptionist, secretary, or dental-claims associate. (AR 33-34.) The ALJ further found that Plaintiff could perform other jobs that existed in significant numbers in the national economy. (AR 33-34.) The ALJ therefore concluded that Plaintiff was not under a disability from the alleged onset date, March 30, 2006, through the date of decision, August 17, 2009. (AR 34.)

V. DISCUSSION

Plaintiff contends that the ALJ (1) improperly rejected the opinion of Dr. Geoffrey L. Loman, her treating physician (J. Stip. 3-10); (2) failed to address third-party statements from Plaintiff's mother, father, friend, then-spouse, employer, and therapist (J. Stip. 15-19); (3) improperly evaluated Plaintiff's mental impairments (J. Stip. 24-26); and (4) improperly determined that Plaintiff was able to perform her past work (J. Stip. 29-33).

A. Rejection of Treating Physician's Opinion

1. The governing law

A treating physician's opinion is entitled to special weight because she is employed to cure and had the opportunity to know and observe the patient as an individual. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). "The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. § 404.1527(d)(2).

If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for "clear and convincing" reasons. See Lester, 81 F.3d at 830; Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When the treating physician's opinion is controverted, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence of record. See, e.g., Reddick, 157 F.3d at 725.

2. Relevant facts

Dr. Loman had regularly treated Plaintiff at the Brent Street Family Practice since at least January 2000. (AR 240-337, 393-405, 474-494, 512-555, 585-87.) Before May 2006, when, Plaintiff alleges, her disability began, Dr. Loman, a general practitioner, treated Plaintiff for a variety of issues, including back and neck pain from two motor-vehicle accidents, back strain and spasm, gynecological issues, reactive airway disease, bronchitis, allergies, depression, anxiety, and panic attacks. (AR 260-309.)

In May 2006, Dr. Loman noted that Plaintiff was "continuing to be quite anxious, associated with fatigue, difficulty concentrating"; was having trouble sleeping; and had "diffuse body aches." (AR 258.) She appeared depressed but had normal speech, language, and cognition. (Id.) He diagnosed "[g]eneralized anxiety disorder despite multiple medications" and "[f]ibromyalgia-like picture with fatigue, aches, sleep disorder, and multiple trigger points."*fn2 (Id.) Dr. Loman increased Plaintiff's trazodone, noted that she "may be a candidate for Topamax or some other type of medication to target fibromyalgia," and recommended she join Weight Watchers, lose weight, and start water exercise. (Id.)

In July 2006, Dr. Loman reported that Plaintiff "is sleeping better and is feeling less anxious" but "continues to wake up quite fatigued and continues to complain of shooting pains and aches throughout her body." (AR 257.) Dr. Loman noted that Plaintiff has "trigger points all over." (Id.) His diagnosis was anxiety and depression, which had improved on a regimen of Wellbutrin, Paxil, and trazadone, and fibromyalgia, which "seems to be what is troubling her the most at this time and is limiting her activities." (Id.) Dr. Loman prescribed Neurontin and recommended she continue water therapy and massage, rest more, and improve her nutrition. (Id.)

In August 2006, Dr. Loman noted that Plaintiff "continues to have body aches that have been essentially unchanged" and was often "disabled" from them. (AR 256.) He found that Plaintiff was "better in terms of her fatigue," and she was sleeping better and was less anxious. (Id.) Dr. Loman's diagnosis was "[f]ibromyalgia with body aches"; he prescribed Lyrica because Plaintiff was unable to tolerate Neurontin. (Id.)

In November 2006, Dr. Loman noted that Plaintiff suffered from anxiety, depression, fibromyalgia with chronic pain, and weight gain. (AR 254.) He found Plaintiff "quite anxious and depressed" and "not exercising much secondary to the fibro." (Id.) Dr. Loman increased Plaintiff's Lyrica and encouraged her to get counseling, improve her diet, and exercise. (Id.) Later that month, Dr. Loman noted that Plaintiff "is feeling better with her fibromyalgia after the Lyrica has been increased." (AR 252.) In December, Dr. Loman noted that Plaintiff had "marked pain" when she discontinued Lyrica due to a pharmacy mix-up but was much better once she was back on her medication. (AR 251.) She was "getting more strength and has begun a regular exercise program although she is only able to exercise for short periods of time." (Id.) He concluded that her fibromyalgia and anxiety were "overall improving" but she was still "unable to work for any period of time." (Id.)

In January 2007, Dr. Loman noted that Plaintiff's anxiety "seems to be a bit better," but her "fibromyalgia and chronic pain seems [sic] to be a bit worse," which Plaintiff attributed to the cold weather. (AR 250.) Dr. Loman noted that "[o]n exam there are multiple trigger points that are tender to touch" but no joint symptoms. (Id.) He ...


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