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Mary Ann Parker v. Carolyn W. Colvin

March 26, 2013


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on November 14, 2011, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for a period of disability and disability insurance benefits ("DIB"). On December 19, 2011, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on July 11, 2012, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, Carolyn W. Colvin became the Acting Commissioner of the Social alternatively, remanding for further administrative proceedings; and the Commissioner requests that his decision be affirmed or, alternatively, remanded for further administrative proceedings.


On March 6, 2008, plaintiff filed an application for a period of disability and DIB, alleging an inability to work since March 11, 2006, due to "Rt arm can't push pull lift. Very weak and bad spasms . . . ." (Administrative Record ("A.R.") 97-98, 99-100, 107.) Plaintiff has past relevant work experience as a health assistant. (A.R. 108.)

The Commissioner denied plaintiff's application initially and upon reconsideration. (A.R. 51-60.) On September 23, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge F. Keith Varni (the "ALJ"). (A.R. 26-48.) On November 13, 2009, the ALJ denied plaintiff's claim (A.R. 13-25), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-6, 11). That decision is now at issue in this action.


The ALJ found that plaintiff has not engaged in substantial gainful activity since March 11, 2006, her application date. (A.R. 18.) The ALJ determined that plaintiff has the severe impairment of "post-surgical right shoulder impingement syndrome with subacromial bursitis and rotator cuff tendonopathy," but through the date last insured, she did not have any impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, the Listing of Impairments. (Id.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform less than a full range of light work as defined in 20 C.F.R. 404.1567(b). (A.R. 18.) Specifically, the ALJ found that plaintiff can: lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk six hours in an 8-hour workday; sit for six hours in an 8-hour workday; and occasionally reach above the shoulder with her right upper extremity. (A.R. 18-19.)

The ALJ found that plaintiff's past relevant work, as a school health aide, does not require the performance of work-related activities precluded by plaintiff's RFC. (A.R. 21.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, since March 11, 2006, the alleged onset date, through December 31, 2008, the date last insured. (A.R. 22.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff alleges the following issues: (1) whether the ALJ properly considered fibromyalgia as a severe impairment; (2) whether the ALJ properly considered the opinion of treating physician Paul Liu, M.D.; (3) whether the ALJ properly considered plaintiff's testimony; and (4) whether the ALJ properly considered if plaintiff could perform her past relevant work. (Joint Stipulation ("Joint Stip.") at 3.)

I. The ALJ Failed To Properly Consider Plaintiff's Fibromyalgia As A Severe Impairment.

At step two of the sequential evaluation process, the ALJ is tasked with identifying a claimant's "severe" impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c). A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). Despite use of the *fn2 term "severe," most circuits, including the Ninth Circuit, have held that the step two inquiry is "a de minimus screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Accordingly, "[a]n 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 [a claimant's] ability to work.'" Webb v. Barnhart, 433 F.3d 683, 686--87 (9th Cir. 2005)(citation omitted); see Soc. Sec. Ruling 85--28, 1985 WL 56856, at *3, 1985 SSR LEXIS 19, at *9 (stating that "[a] claim may be denied at step two only if . . . a finding [that the relevant impairments are not medically severe] is clearly established by medical evidence")(emphasis added).

On July 2, 2008, Sanjay C. Bhakta, M.D., plaintiff's treating physician, noted that plaintiff had "diffuse myalgias/trigger point pains suggestive of fibromyalgia . . . ." (A.R. 275.) On February 18, 2009, Dr. Bhakta recounted plaintiff's symptoms of "persistent pains in the right shoulder, hand and forearm, neck, and knee/ankle[] pains x 17 years" and "similar milder symptoms on the left side." (A.R. 250.) Upon physical examination, he noted that plaintiff had "[d]iffuse tender points over the posterior occiput, neck anterior chest, shoulders, elbows, medial knees and medial ankles . . . ." (A.R. 251.)

At the referral of Dr. Bhakta, on February 20, 2009, Anthony Te-Hui Lin, M.D., a rheumatologist, examined plaintiff for "diffuse pain, rule *fn3 out fibromyalgia." (A.R. 318-22.) Dr. Lin noted plaintiff's symptoms of "diffuse arthralgia involving [s]houlders, arms, neck, back and legs." (A.R. 318.) Upon examination, Dr. Lin observed that plaintiff exhibited "14/18 tender points," and he diagnosed her ...

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