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Murry v. Colvin

United States District Court, E.D. California

July 10, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ALLISON CLAIRE, Magistrate Judge.

Plaintiff, proceeding with representation, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XIV of the Social Security Act. Administrative Record ("AR") 14. The parties' cross-motions for summary judgment are pending, as is plaintiff's request for remand with instructions to award benefits. For the reasons discussed below, the court will grant plaintiff's motion for summary judgment and remand (ECF No. 13-1) in part, and will deny defendant's motion for summary judgment (ECF No. 14-1).


Plaintiff Jenifer Lynn Murry filed an application for SSI on July 26, 2011, alleging disability beginning on January 1, 1993. AR 138-42. Plaintiff's application was denied initially and again upon reconsideration. AR 98-102, 106-11. On July 3, 2012, a hearing was held before administrative law judge ("ALJ") Jean R. Kerins. AR 47-74. Plaintiff appeared with attorney representation at the hearing, at which she, her mother Catherine Murry, and vocational expert Susan Creighton-Clavel testified. Id . In a decision dated August 20, 2012, the ALJ found plaintiff not disabled. AR 14-23. The ALJ made the following findings (citations to 20 C.F.R. omitted):

1. The claimant has not engaged in substantial gainful activity since July 26, 2011, the application date.
2. The claimant has the following severe impairments: asthma and fibromyalgia.
3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
4. After careful consideration of the entire record, the undersigned finds the claimant has the residual functional capacity to perform a full range of work at all exertional levels, but with the following nonexertional limitations: she is to avoid moderate exposure to extreme cold, noise, fumes, odors, dust, gases, and other respiratory irritants and concentrated exposure to hazardous heights and machinery.
5. The claimant has no past relevant work.
6. The claimant was born on October 12, 1991 and was 19 years old, which is defined as a younger individual age 18-49, on the date the application was filed.
7. The claimant has at least a high school education and is able to communicate in English.
8. Transferability of job skills is not an issue because the claimant does not have past relevant work.
9. Considering the claimant's age, education, and work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.
10. The claimant has not been under a disability, as defined by the Social Security Act, since July 26, 2011, the date the application was filed.

AR 16-23.

Plaintiff requested review of the ALJ's decision by the Appeals Council, but the Council denied review on November 26, 2012, leaving the ALJ's decision as the final decision of the Commissioner. AR 1-4.


Born on October 12, 1991, plaintiff was two years old on the alleged onset date of disability. AR 45. She was nineteen years old at the time her SSI application was filed, AR 138, and twenty years old at the time of the administrative hearing. AR 50. Plaintiff has a high school diploma and has taken one semester in community college, during which she took two courses. AR 50-51. She has no past relevant employment. She did, however, volunteer at a thrift store during the twelfth grade (2010-2011) starting at one day per week and progressing to volunteering for a few hours per day every day of the work week. AR 57. She stopped volunteering during the summer of 2011. Id.


The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin. , 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin. , 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999).

The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler , 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater , 94 F.3d 520, 521 (9th Cir. 1996). "It means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B. , 305 U.S. 197, 229 (1938)). "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 & 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 resolving ambiguities." Edlund v. Massanari , 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "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 v. Barnhart , 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the ALJ in her decision "and may not affirm the ALJ on a ground upon which [s]he did not rely." Orn v. Astrue , 495 F.3d 625, 630 (9th Cir.2007); see also Connett v. Barnhart , 340 F.3d 871, 874 (9th Cir. 2003).

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 nondisability 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 v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005).


Plaintiff seeks summary judgment and requests remand with instructions to award benefits on the grounds that: (1) the ALJ erred when she failed to give clear and convincing reasons for the apparent rejection of treating rheumatologist, Mark Mansour, MD; and (2) the ALJ committed a reversible error in evaluating plaintiff's credibility. The Commissioner argues that the ALJ's decision is supported by substantial evidence and is free from legal error.

A. Rejection of Dr. Mansour's Opinion

While the ALJ found that plaintiff has severe asthma and fibromyalgia, the ALJ also decided that plaintiff has the residual functional capacity ("RFC") to perform a full range of work, with the nonexertional limitations that she "avoid moderate exposure to extreme cold, noise, fumes, odors, dusts, gases, and other respiratory irritants and concentrated exposure to hazardous heights and machinery." AR 17-18. The ALJ reached this conclusion by rejecting the opinion of treating physician Dr. Mansour, and instead following the opinion of Dr. Acinas, a nonexamining agency physician. AR 21-22. Plaintiff contends that this was in error. Pl.'s Mot. Summ. J. 10, ECF No. 13-1.

1. Relevant Facts

a. Dr. Mansour's Opinion

Mark Mansour, MD, is a practicing rheumatologist who has been treating plaintiff since September 2011. AR 475. On September 8, 2011, Dr. Mansour first saw plaintiff for muscle pain ("myalgias") and ordered a full panel of diagnostic lab tests to test plaintiff's SSB antibodies for Sjoren syndrome; RNP antibodies for mixed connective tissue disease, systemic lupus erythematosus, and systemic sclerosis; Smith antibodies for systemic lupus erythematosus or renal disease; a cardiolipin panel for antiphospholipid antibody syndrome; scleroderma antibodies to test for scleroderma; and to test for anti-DNA antibodies. AR 329-34. The results of these lab tests were in the normal range, with the exception that plaintiff tested positive for the presence of Antinuclear Antibodies ("ANA").[1] AR 341-46, 411.

On February 2, 2012, Dr. Mansour again saw plaintiff for myalgias and performed a full examination. AR 410-11. He noted that plaintiff "continues to have chronic muscle pain and fatigue." AR 410. He did a general examination and found that plaintiff was alert, oriented, and had normal mental affect. Id . He found plaintiff had full movement in all joints, no deformities, no synovitis, no joint tenderness, and the presence of eighteen out of eighteen tender points. Id . Dr. Mansour determined that she had an unspecified disorder of muscle, ligament, and fascia and ordered an additional panel of lab tests to try to determine what was causing plaintiff's widespread pain ("hyperpathia"). AR 410-11. Dr. Mansour concluded that the combination of hyperpathia, the presence of eighteen out of eighteen tender points, and ...

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