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Galina Ushakova v. Michael J. Astrue

September 20, 2012

GALINA USHAKOVA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff, who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Supplemental Security Income benefits under Title XVI of the Social Security Act ("Act").*fn1 In her motion for summary judgment, plaintiff contends that the administrative law judge ("ALJ") in this case erred by: (1) improperly evaluating plaintiff's obesity as less than "severe" at step two under the standards set out in Social Security Ruling 02-1p; (2) improperly assigning "little weight" to the medical findings of Dr. DuPratt, a treating physician; (3) improperly finding plaintiff's subjective complaints to be not credible to the extent that they are inconsistent with the ALJ's Residual Functional Capacity ("RFC") assessment; (4) failing to state how much weight she gave to the RFC opinion of the non-examining physician; and (5) failing to adequately explain her "medium" RFC finding. (Pl.'s Mot. for Summ. J., Dkt. No. 16 at 6-13.) The Commissioner filed an opposition to plaintiff's motion, along with a cross-motion for summary judgment. (Def.'s Cross-Mot. for Summ. J., Dkt. No. 17.) For the reasons stated below, the court grants plaintiff's motion for summary judgment, denies the Commissioner's cross-motion for summary judgment, and remands this case to the ALJ for further proceedings.

I. BACKGROUND*fn2

A. Procedural Background

On January 29, 2007, plaintiff filed an application for Supplemental Security Income benefits, alleging an onset date of August 1, 2006. (Administrative Transcript ("AT") 10.) The Social Security Administration denied plaintiff's application initially, on May 3, 2007, and upon reconsideration on June 8, 2008. (AT 47-48.) Plaintiff filed a request for a hearing on June 30, 2008, and the ALJ conducted a hearing regarding plaintiff's claims on April 19, 2010. (AT 32, 64.) Plaintiff, who was represented by a non-attorney representative, testified at the hearing. (AT 35-42.) A vocational expert ("VE") also testified at the hearing. (AT 42-45.)

In a decision dated June 17, 2010, the ALJ denied plaintiff's application for benefits based on a finding that plaintiff was "capable of performing past relevant work as a baby sitter" and that plaintiff could perform other work available in the national economy as a hand packager and as a small parts assembler. (AT 7-19.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1.) Plaintiff subsequently filed this action.

B. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since January 29, 2007, the date plaintiff filed her application. (AT 12.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: "diabetes, hypertension, headaches, back and leg pain, leg numbness, and hand numbness." (Id.) At step three, the ALJ determined that plaintiff's impairments, whether alone or in combination, did not meet or medically equal any impairment listed in the applicable regulations. (Id.)

The ALJ further determined that plaintiff has the RFC to perform "medium work." (Id.) In making this RFC determination, the ALJ found that plaintiff's "subjective complaints are much worse than the objective findings" in the record. (AT 17.) The ALJ gave "substantial weight" to the opinion of the examining physician, Dr. Brimmer, because the ALJ found that it was "reasonably well supported by medical findings and not inconsistent with the overall evidence in the file." (AT 14.) The ALJ assigned "little weight" to the opinion of the other examining physician, Dr. DuPratt. (AT 14-15.)

At step four, the ALJ found that, considering the VE's testimony, plaintiff was capable of performing her past work as a baby sitter. (AT 17.) In addition, the ALJ determined that plaintiff, given her "age, education, work experience, and [RFC], there are other jobs that exist in significant numbers in the national economy that [plaintiff] can also perform." (AT 18.) The ALJ relied on the VE's testimony, and found that plaintiff could perform jobs such as hand packager and small parts assembler*fn3 . (Id.) Based on plaintiff's ability to perform her past work and to perform jobs that exist in significant numbers in the national economy, the ALJ found that plaintiff is "not disabled." (Id.)

II. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "To determine whether substantial evidence supports the ALJ's decision, [a court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion." Andrews, 53 F.3d at 1039.

III. DISCUSSION

Plaintiff alleges that the ALJ erred by: (1) improperly evaluating plaintiff's obesity as less than "severe" at step two under the standards set out in Social Security Ruling 02-1p; (2) improperly assigning "little weight" to the medical findings of Dr. DuPratt, a treating physician; (3) improperly finding plaintiff's subjective complaints to be not credible to the extent that they are inconsistent with the ALJ's RFC assessment; (4) failing to state how much weight she gave to the RFC opinion of the non-examining physician; and (5) failing to adequately explain her "medium" RFC finding. The undersigned addresses each of these contentions in turn.

A. The ALJ Properly Considered Plaintiff's Obesity Plaintiff first contends that the ALJ erred at step two by not listing plaintiff's obesity among the impairments that the ALJ determined to be "severe." (Pl.'s Mot. for Summ. J. at 6-8.) At step two, the ALJ determined that plaintiff had the following severe impairments: "diabetes, hypertension, headaches, back and leg pain, leg numbness, and hand numbness." (AT 12.) Absent from this list was plaintiff's obesity. Plaintiff is 5'1", and on the date of her recorded maximum weight, weighed about 275 pounds. (AT 262.) For the reasons stated below, the undersigned finds that the ALJ adequately considered plaintiff's obesity for purposes of step two of the analysis.

An ALJ must consider a claimant's obesity throughout the sequential evaluation process, including whether it constitutes a "severe" impairment at step two of the analysis. Social Security Ruling ("SSR")*fn4 02-1p, 67 Fed. Reg. 57859-02 (Sept. 12, 2002); accord Burch, 400 F.3d at 682. "According to the Social Security Rules, obesity, as other medical impairments, will be deemed a 'severe' impairment, 'when alone or in combination with another medically determinable physical or mental impairment(s), it significantly limits an individual's physical or mental ability to do basic work activities.'" Burch, 400 F.3d at 682 (quoting SSR 02-1p, 67 Fed. Reg. 57859-02 (Sept. 12, 2002)). "In determining whether a claimant's obesity is a severe impairment, an ALJ must 'do an individualized assessment of the impact of obesity on an individual's functioning.'" Id. "An impairment or combination of impairments may be found 'not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.'" Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Smolen v. Chater, 80 F.3d. 1273, 1290 (9th Cir. 1996)).

Plaintiff is correct that her Body Mass Index ("BMI") is Level III, or "extreme" under SSR 02-1p.*fn5 Plaintiff is also correct in noting that those with extreme obesity are at greater risk of developing obesity-related impairments; however, a high BMI does not automatically necessitate a finding that a claimant's obesity constitutes a severe impairment for purposes of step two.*fn6 See SSR 02-1p, 67 Fed. Reg. 57859-02 (Sept. 12, 2002) ("There is no specific level of weight or BMI that equates with a 'severe' or a 'not severe' impairment."). Rather, SSR 02-1p requires an ALJ to "do an individualized assessment of the impact of obesity on an individual's functioning when deciding whether the impairment is severe." Id.

Here, the ALJ conducted an individualized assessment of the impact of plaintiff's obesity on her ability to function. (AT 15-16.) In fact, the ALJ acknowledged in the assessment "that obesity may aggravate the severity of various impairments," but also that "there is no formula compelling a finding of a disabling condition based upon [BMI] superimposed upon a physical impairment or combination thereof." (AT 15.) In analyzing the effect ...


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