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Barber v. Colvin

United States District Court, Ninth Circuit

January 9, 2014

ROSALIE J. BARBER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.

MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER

JEAN ROSENBLUTH, Magistrate Judge.

I. PROCEEDINGS

Plaintiff seeks review of the Commissioner's final decision denying her applications for disability insurance benefits ("DIB") and supplemental security income benefits ("SSI"). 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 September 4, 2013, which the Court has taken 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 May 22, 1958. (Administrative Record ("AR") 156.) She completed high school and some college. (AR 41, 252.) She previously worked as a childcare worker and supervisor of special-needs adults. (AR 159, 171, 183.)

On August 5, 2009, Plaintiff filed applications for a period of disability, [2] DIB, and SSI. (See AR 141-42, 156.) She alleged that she had been unable to work since July 28, 2008, because of injuries to her back, neck, and left shoulder, leg, and foot; constant pain in her lower back and spine, neck, left side, and shoulder; headaches; sleep impairment; and grief and depression. (AR 156, 170.)

After Plaintiff's applications were denied, she requested reconsideration. (See AR 76.) They were again denied, after which she requested a hearing before an ALJ. (See AR 77-78.) A hearing was held on April 20, 2011, at which Plaintiff, who was represented by counsel, appeared and testified, as did a vocational expert ("VE") and medical expert Dr. Samuel Landau. (AR 37-60.) In a written decision issued April 29, 2011, the ALJ determined that Plaintiff was not disabled. (AR 19-31.) On August 20, 2012, the Appeals Council denied her request for review. (AR 4-6.) 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 ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. Id .; 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. 1996). "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 physical or mental impairment that is expected to result in death or which 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 in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(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 Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner 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 not disabled is made and the claim must be denied. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether 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), 416.920(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 Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC")[3] to perform her past work; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden of proving that 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 Commissioner 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), 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. §§ 404.1520, 416.920; 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 July 28, 2008. (AR 21.) At step two, he concluded that Plaintiff had severe impairments of morbid obesity with treated obstructive sleep apnea, degenerative joint disease of the left foot and knee, chronic sprain of the left shoulder, degenerative disc disease and arthritis of the neck and back, and headaches. (Id.) He determined that her hypertension and mood disorder were not severe. (AR 22.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 24.) At step four, he found that she retained the RFC to perform a range of "light work." (Id.) Based on the VE's testimony, the ALJ concluded that Plaintiff could not perform her past work as a special-needs aide or childcare worker. (AR 30.) At step five, he concluded that she was not disabled under the framework of the Medical-Vocational Guidelines, 20 C.F.R. part 404, subpart P, appendix 2 ("the Grids"), and that jobs existed in significant numbers in the national economy that she could perform. (AR 30-31.)

Accordingly, the ALJ determined that Plaintiff was not disabled. (AR 31.)

V. RELEVANT FACTS

A. Medical Records

Plaintiff reported that in March 2004, she tripped while working and injured a bone in her left foot. (See AR 274; but see AR 360 (citing different date, noting possibly not work related).) She had surgery on her left foot on November 11, 2004. (See AR 476.) She reinjured her foot when she again tripped at work sometime in 2005. (AR 360.) She was treated with a boot but reported in April 2009 that her foot had never improved. (Id.) There are no medical records reflecting these injuries and treatments, only descriptions of them in later medical reports. March 14, 2005 x-rays of Plaintiff's left ankle and foot were normal. (AR 244-45.)

On October 13, 2006, Plaintiff sustained a workplace injury when a chair collapsed beneath her. (See AR 275, 357, 518.) The following morning, she began to experience headaches and stiffness in her back and left leg, and she missed the next two days of work because of pain. (See AR 358.) She went to her employer's clinic for evaluation and treatment, where she was x-rayed, given pain medication, and taken off work duty. (See AR 275, 358.) She returned to light duty a couple of days later and, after a short period of time, resumed her normal duties. (See AR 275, 358.) Her back, neck, and leg pain and headaches continued, and her symptoms grew worse. (See AR 275, 358.) As her physical condition deteriorated, she began to suffer anxiety and difficulty sleeping. (AR 275.) Because her symptoms did not improve, sometime in 2007 she sought the advice of an attorney (id.), who filed a workers' compensation claim on her behalf. There are no records of Plaintiff's initial treatment for the October 2006 injury; most of the medical evidence in the record pertains to her later workers' compensation claim.

On January 22, 2008, Dr. Nelson J. Flores, Ph.D., a licensed and board-certified clinical psychologist, prepared a consultation report at the request of Plaintiff's attorney. (AR 274.) Plaintiff reported difficulty sleeping through the night, a sad and anxious mood, intense and frequent headaches, and nervousness sometimes accompanied by a sensation of warmth, dizziness, numbness, weakness, and trembling. (AR 277.) Dr. Flores subjected Plaintiff to "[a] battery of psychological tests" and reviewed her medical file. (AR 278-79.) He diagnosed dysthmia, [4] anxiety, and sleep disorder and opined that these were "directly related" to her 2006 injuries. (AR 279.) He recommended psychotherapy and deemed Plaintiff's prognosis "guarded." (AR 280.) He did not express an opinion as to Plaintiff's work status for workers' compensation purposes. (See AR 268-69.)

On January 28, 2008, Plaintiff was seen by chiropractor Justin Long for complaints of neck, low-back, left-shoulder, and left-knee injuries related to her 2006 workplace injury. (AR 601.) She described intermittent neck pain, rating it a "4" on a scale from zero to 10; intermittent low- and middle-back pain radiating through her left leg and foot, rating it a "9"; occasional left-shoulder pain and swelling, rating it a "7"; intermittent left-leg pain, rating it an "8" or "9"; difficulty sleeping; and stress. (AR 602-03.) Long noted tenderness and muscle spasms in Plaintiff's cervical, thoracic, and lumbosacral spine and range of motion between 75% and 90% of normal. (AR 605-06.) He noted somewhat limited range of motion in her left shoulder and pain in both shoulders with range-of-motion testing. (AR 606.) Plaintiff was positive for Apley's test[5] on the left. (Id.) Her sensation and motor strength were intact in her upper extremities. (Id.) He noted hypoesthesia[6] along her lumbosacral vertebrae but found her lower extremities otherwise normal. (AR 606-07.)

Long diagnosed cervical and lumbar radiculitis, [7] cervical and thoracolumbar segmental dysfunction, left-shoulder pain, insomnia, and stress. (AR 607.) He prescribed a course of phsyiotherapy and chiropractic care, home exercise, acupuncture, a work-conditioning program, [8] a TENS unit, and "supplies for home use." (AR 607-08.) He referred her for MRI studies of the cervical, thoracic, and lumbar spines and left shoulder and a nerve conduction velocity study.[9] (AR 608.) He also referred her for a pain-management evaluation and to a psychologist. (Id.) He noted that "patient is to return to regular job duties." (AR 611.)

On April 2, 2008, psychiatrist Dr. James E. O'Brien performed a thorough psychiatric examination of Plaintiff in connection with her workers' compensation claim. (AR 246, 249.) Plaintiff reported depression and anxiety arising from a work-related injury. (AR 248-49.) Dr. O'Brien reported that she was mildly depressed and anxious and that her concentration was "subjectively impaired"; but her intelligence and thought processes were normal and her judgment good. (AR 255-56.)

Plaintiff reported that her primary-care physician deemed her disabled in July 2008. (See AR 40, 478.) The record contains Off Work Authorizations from Dr. John R. Shaw, a family practitioner, covering the period from July 24, 2008, to February 27, 2009. (See AR 725, 727, 729, 730-32.) Chiropractor Long reported that Plaintiff was temporarily totally disabled from August 3, 2009, to July 5, 2010. (See AR 583, 585, 588, 590, 592, 596, 600.) Primary Treating Physician Progress Reports note such findings as limited range of motion in her cervical and lumbar spines and left hip, knee, and ankle; swelling in her left knee; and sensory loss in her upper and lower extremities. (See, e.g., AR 584.) Chiropractor Jerilynn Sue Kaibel, possibly affiliated with Dr. Shaw (see AR 729), provided Off Work Authorizations excusing Plaintiff from work from October 28, 2008, through February 27, 2009 (see AR 723, 724, 726, 728).

From September 10, 2008, through November 9, 2009, Plaintiff was seen by chiropractor Kaibel for treatment of injuries sustained in an August 2008 car accident. (See AR 347; see generally AR 317-48.) On September 10, 2008, Plaintiff's symptoms were reported to include pain and stiffness in her neck and back, left-foot pain, difficulty with prolonged standing and walking, and difficulty sleeping. (AR 347.) Kaibel's examination of Plaintiff revealed pain and spasm in her cervical, lumbar, and trapezoidal muscles and restricted range of motion in her cervical and lumbar regions. (Id.) Cervical compression, shoulder depression, Kemp's, [10] straight-leg raise, double straight-leg raise, and Ely[11] tests were positive. (Id.) Kaibel diagnosed cervical, thoracic, and lumbosacral sprain or strain, myalgia, headache, and left-foot strain. (Id.) Plaintiff was to be treated with "mild mobilizing spinal manipulation, " soft-tissue massage, ultrasound, and home stretching exercises. (Id.)

Although Kaibel's records reflect Plaintiff's consistent complaints of pain and stiffness in her neck and back, she reported improvement in her symptoms beginning in October 2008. (See AR 335-36, 339-41; see also AR 318-19, 322, 324, 326-28, 333.) On January 9, 2009, Kaibel reported that Plaintiff had been "released from active care" but advised to contact the office in case of "significant" "exacerbation." (AR 321.) Plaintiff reported continued pain and stiffness in her neck and back at a February 2, 2009 visit. (AR 317.)

On April 24, 2009, orthopedic surgeon Dr. Brent W. D'Arc performed a Qualified Medical Examination of Plaintiff.[12] (AR 357.) Dr. D'Arc noted Plaintiff's primary complaints of frequent moderate pain, occasional severe pain, swelling, and decreased motion in her left foot. (AR 358.) Plaintiff also complained of headaches occurring approximately four times a week, rating the pain as a "seven" on a scale of zero to 10. (Id.) She reported "diffuse low back pain" when she attempted to bend or grab things or when she sat too long, such as on long car rides. (AR 358-59.) The pain was worse in cold temperatures. (AR 359.) She reported no neurologic changes in her lower extremities. (Id.) Plaintiff reported pain from turning her neck that occurred about three times a week and occasional neck pain when she lay down to sleep. (Id.) She denied any weakness, neurologic changes in her upper extremities, or clumsiness with her hands. (Id.) Plaintiff reported stiffness and muscular tightness in her left shoulder and arm but denied any related neurologic changes. (Id.) Plaintiff reported that she had trouble sleeping because of back pain. (Id.)

In a daily-activities questionnaire, Plaintiff described difficulty with walking, stairs, lifting, prolonged sitting, overhead activities, pushing, pulling, and forceful activities. (Id.) She was unable to kneel, squat, or bend. (Id.) She noted trouble sleeping, depression, and anxiety because of her injuries. (Id.)

Upon physical examination, Dr. D'Arc reported "full active range of motion" of Plaintiff's cervical spine but "pain associated with movement in all directions." (AR 362.) He also noted diffuse tenderness in the back of her neck and along the vertebral column. (Id.) Plaintiff demonstrated diffuse bony and muscular tenderness in her lumbar region but full active range of motion and no spasm. (AR 363.) Plaintiff walked without assistance or a limp and had only minimal trouble getting on and off the exam table. (Id.) She demonstrated full strength and sensation in her upper and lower extremities. (AR 362-63.)

X-rays revealed "mild degenerative changes" of the lumbar spine "evidenced by decreased disc space and sclerosis at the L5/S1 level, " "mild degenerative changes" of the cervical spine "evidenced by osteophyte formation at the C5 and C6 level, " and "mild scoliosis." (AR 364.) Dr. D'Arc noted "no evidence of instability" in the lumbar spine and "good alignment of all articulations" in the cervical spine. (Id.) Images of Plaintiff's left shoulder were normal. (Id.) Images of her left ankle were normal except for "possible chronic ossifications at the distal tip of the medial malleolus." (Id.) Images of her left foot showed "moderate degenerative joint disease" but were otherwise normal. (Id.)

Dr. D'Arc diagnosed arthritis in Plaintiff's foot, degenerative joint disease of the lumbar and cervical spines, left-shoulder contusion, and headache. (AR 368.) He found no work restrictions or loss of preinjury capacity. (AR 370-71.)

On August 24, 2009, Dr. Eduardo E. Anguizola, a specialist in pain medicine, evaluated Plaintiff in connection with her workers' compensation claim. (AR 517.) He noted her complaints of intermittent "severe, stabbing, aching pain in the neck, radiating to the shoulders, " which was "aggravated by bending, twisting, and turning"; intermittent "moderate, sharp, and burning pain in the lower back, radiating to the legs" and feet and "aggravated by prolonged walking, standing, sitting, bending, squatting, and climbing"; intermittent moderate pain in the left leg, extending from the thigh to the foot, including numbness and tingling and aggravated by prolonged standing and walking; and continuous moderate, throbbing, sharp pain in both shoulders, "radiating to the arms, with more intensity in the left side, " with numbness and tingling in the hands and fingers and aggravated by lifting, carrying, overhead ...


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