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Lothian v. Colvin

United States District Court, N.D. California, San Jose Division

September 24, 2014

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


HOWARD R. LLOYD, Magistrate Judge.

Janet Lee Lothian appeals a final decision by the Commissioner of Social Security Administration denying her application for Supplemental Security Income pursuant to the Social Security Act. Presently before the court are the parties' cross-motions for summary judgment. The matter is deemed fully briefed and submitted without oral argument. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, all parties have expressly consented that all proceedings in this matter may be heard and finally adjudicated by the undersigned. Upon consideration of the moving papers, and for the reasons set forth below, the Court DENIES Plaintiff's motion for summary judgment and GRANTS Defendant's motion for summary judgment.


Plaintiff was born in 1959. Administrative Record ("AR") 27. She previously worked as a groundskeeper. AR 27. In March 2011, Plaintiff filed an application for Supplemental Security Income ("SSI") payments under Title XVI of the Social Security Act.[1] AR 18. Plaintiff alleged disability beginning on March 9, 2011. AR 18. Plaintiff's claims were denied initially and upon reconsideration. AR 58-72. At her request, she received a hearing before an Administrative Law Judge ("ALJ") on November 2, 2012, where she was represented by counsel. AR 58-72.

The ALJ issued a written decision dated December 28, 2012. AR 18-28. The ALJ evaluated Plaintiff's claim of disability using the five-step sequential evaluation process for disability required under federal regulations. AR 18-28; see 20 C.F.R. §§ 404.1520, 416-920. Ultimately, the ALJ found that Plaintiff "has not been under a disability, as defined in the Social Security Act, since March 9, 2011, the date the application was filed." AR 28.

At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since her application date, March 9, 2011. AR 20. At step two, he found that plaintiff had the medically determinable impairments of degenerative disc disease of the lumbar spine with sciatica; and status post right foot fractures, healed, with residual discomfort and limited range of motion. AR 20. At step three, the ALJ concluded that, through the date last insured, Plaintiff did not have an 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. AR 22. Accordingly, the ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform a full range of light work. AR 22. At step four, the ALJ found that Plaintiff was capable of performing jobs that exist in significant numbers in the national economy. AR 27-28. Accordingly, the ALJ found that she was not disabled. AR 28.

The Appeals Council denied Plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner. AR 1-3. Plaintiff now seeks judicial review of that decision.


Pursuant to 42 U.S.C. § 405(g), this Court has the authority to review the Commissioner's decision to deny benefits. The Commissioner's decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995). In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance-it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; accord Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. Where evidence exists to support more than one rational interpretation, the Court must defer to the decision of the Commissioner . Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258. "[T]he court will not reverse the decision of the ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).


Plaintiff moves for an order either granting summary judgment in favor of Plaintiff holding that Plaintiff was disabled under the Social Security Act, or remanding the case for a new hearing because the final decision of the Commissioner was based on legal error and unsupported by substantial evidence. Specifically, Plaintiff contends that the ALJ erred by (1) failing to credit the treating opinion of Nurse Practitioner Holly Bailey without articulating legitimate reasons for doing so; and (2) failing to properly evaluate and credit Plaintiff's testimony and third party statements as to the nature and extent of her functional limitations.

A. Opinion of Nurse Bailey

Nurse Bailey opined that Plaintiff should never lift over 10 pounds; should never twist, stoop, or crouch; only occasionally and slowly climb stairs; only use her arms to reach about 5% of an eight-hour workday; and limit fine manipulation to 50% of an eight-hour workday. In addition, Nurse Bailey expressed the opinion that the pain Plaintiff experiences would frequently (at least 20% of the day) interfere with her attention and concentration, making her unable to perform even simple work tasks. AR 497-99. The ALJ gave little weight to Nurse Bailey's opinion, finding that "[t]he objective evidence in the record does not support the level of severity that nurse practitioner Bailey assigns." AR 26.

Plaintiff argues that the ALJ failed to credit the treating opinion of Nurse Bailey without articulating legitimate reasons for doing so. Plaintiff argues that even though Nurse Bailey was not a doctor, opinions such as hers from "other medical sources" can be used to show the severity of the individual's impairments and how it affects her ability to function. According to Plaintiff, the substantial evidence of record supports the functional limitations assessed by Nurse Bailey. Plaintiff argues that her opinion was the most recent on record, and therefore the most probative. In addition, Plaintiff argues that the ALJ improperly accorded greater weight to Dr. Wainner's opinion than to Nurse Bailey's opinion. Plaintiff argues that Dr. Wainner incorrectly stated that a "consultative examination" took ...

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