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Maria Marin v. Michael J. Astrue

October 31, 2012


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits and supplemental security income benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The procedural facts are undisputed and are summarized in the Joint Stipulation. [JS 2]. In a written hearing decision that constitutes the Commissioner's final decision, an administrative law judge (the "ALJ") found that plaintiff, who was then 51 years old, retained the residual functional capacity ("RFC") to perform her past work as a home health attendant and an industrial cleaner. Accordingly, the ALJ concluded that plaintiff was not disabled at any time through the date of her decision. [See Administrative Record ("AR") 27-31].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).


RFC assessment

Plaintiff contends that the ALJ erred in assessing plaintiff's RFC. More specifically, plaintiff argues that the ALJ erred in finding that plaintiff's diabetes and depression were not severe, and that the ALJ did not properly evaluate the medical evidence regarding her spinal impairment. [JS 4-15].

Severity determination

At step two of the sequential evaluation procedure, a claimant has the burden to present evidence of medical signs, symptoms and laboratory findings that establish a medically determinable physical or mental impairment that is severe, and that can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Ukolov v. Barnhart, 420 F.3d 1002, 1004--1005 (9th Cir. 2005); Smolen v. Chater, 80 F.3d 1273, 1289-1290 (9th Cir. 1996). A medically determinable mental impairment is one that results "from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques," and it "must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [the claimant's] statement of symptoms." 20 C.F.R. §§ 404.1508, 416.908; see 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). Symptoms are the claimant's description of his or her impairment, while psychiatric signs are medically demonstrable and observable phenomena which indicate specific abnormalities of behavior, affect, thought, memory, orientation, and contact with reality. See 20 C.F.R. §§ 404.1520a(b), 404.1528(b), 416.920a(b), 416.928(b); see also Social Security Ruling ("SSR") 96-4p, 1996 WL 374187, at *1-*2.

If a claimant demonstrates the existence of a medically-determinable impairment, the ALJ must determine whether the impairment significantly limits the claimant's ability to perform "basic work activities." 20 C.F.R. §§ 404.1521 (a), 416.921(a); see Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). Basic work activities are the "abilities and aptitudes necessary to do most jobs," such as (1) physical functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; (2) the capacity for seeing, hearing, speaking, understanding, carrying out, and remembering simple instructions; (3) the use of judgment; and (4) the ability to respond appropriately to supervision, co-workers, and usual work situations. 20 C.F.R. §§ 404.1521(b), 416.921(b).

The ALJ must consider the claimant's subjective symptoms in making a severity determination if the claimant "first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically determinable physical or mental impairment(s) and that the impairment(s) could reasonably be expected to produce the alleged symptom(s)." SSR 96-3p, 1996 WL 374181, at *2. If the claimant produces such evidence, "and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Smolen, 80 F.3d at 1281.

Plaintiff alleged that she became disabled on April 1, 2009 due to back problems, diabetes mellitus, and depression.*fn1 [AR 27, 62, 69, 79-80, 166]. The ALJ reasoned that plaintiff's diabetes was not severe because plaintiff alleged that she gets dizzy when her blood sugar level rises, but testified that she did not check her blood sugar levels because she did not feel there was any reason to do so. [AR 28, 69-70]. The ALJ also found that although the medical record contains diagnoses of Type II diabetes, there is no indication of end organ damage, and the diabetes appears to be controlled. [AR 28 (citing AR 287-300)].

The ALJ did not err in finding that plaintiff's diabetes and depression were not severe. Plaintiff has diagnoses of Type II diabetes mellitus. [See, e.g., AR 190, 212, 284, 287, 297]. Standing alone, however, a diagnosis does not establish that an impairment is severe. Sample v. Schweiker, 694 F.2d 639, 642-643 (9th Cir. 1982). Plaintiff's blood sugar level was elevated. [See, e.g.. AR 209, 219, 318]. She was prescribed medication (metformin or glipizide). [See. e.g., AR 225, 228, 231, 323, 325]. However, the ALJ correctly noted that plaintiff's medical records do not reflect end organ damage. [See. e.g.. AR 213, 228 (diagnoses of uncomplicated, uncontrolled Type II diabetes); AR 241 (diagnosis of uncomplicated, controlled diabetes, with no retinopathy); see generally AR 207-241, 287-300]. Plaintiff's own testimony and her treatment reports indicate that she had a history of noncompliance with diabetes treatment. [See AR 27, 69-70, 217, 229]. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (explaining that an "unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment" can "cast doubt on the sincerity of" a claimant's subjective symptoms). The ALJ further noted that a treating physician, Dr. Kim, noted in several reports that plaintiff had a "functional status" of "[n]o physical disability." [See AR 29, 208, 217, 226, 274, 277, 283]. Substantial evidence supports the ALJ's finding that plaintiff's diabetes mellitus was not severe.

The ALJ found that plaintiff did not have a severe mental impairment because plaintiff's symptoms of depression and her treatment by a licensed clinical social worker ("LCSW") were insufficient to establish a medically determinable impairment. In July 2009 plaintiff told Dr. Kim that she had been feeling sad for a few weeks. Dr. Kim noted that plaintiff reported "feelings of hopelessness, depressed, or feeling down," and a "loss of interest in activities," also known as anhedonia. [AR 277]. Dr. Kim ...

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