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Long v. Colvin

United States District Court, C.D. California, Eastern Division

December 23, 2014

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


ANDREW J. WISTRICH, 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 supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The procedural facts summarized in the joint stipulation are undisputed. [See JS 2-3]. In a written hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge (the "ALJ") found that plaintiff had severe impairments consisting of morbid obesity, anterolisthesis of L5 on S1, and degenerative disc disease, but that she retained the residual functional capacity ("RFC") to perform a reduced range of sedentary work. [AR 24-33]. The ALJ concluded that the plaintiff was unable to perform her past relevant work as a general clerk, which is a light, semi-skilled occupation. [AR 33]. Based on the testimony of a vocational expert, the ALJ determined that plaintiff could perform alternate jobs that exist in significant numbers in the national economy, such as a food and beverage order clerk, optical assembler, and buttons and notions assembler. [AR 33-34]. Therefore, the ALJ found plaintiff not disabled at any time through the date of his decision. [AR 35].

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, Soc. 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. Soc. 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, Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).


Severity finding

Plaintiff contends that the ALJ erred in finding that her fibromyalgia was not a severe impairment. [JS 4-7, 9-10].

A medically determinable impairment or combination of impairments is not severe if the evidence establishes "a slight abnormality that has no more than a minimal effect on an individual's ability to work." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2006) (quoting Smolen v. Chater, 80 F.3d 1273, 1289-1290 (9th Cir. 1996)). To assess severity, the ALJ must determine whether a claimant's impairment or combination of impairments significantly limits his or her physical or mental ability to do "basic work activities." 20 C.F.R. §§ 404.1521(a), 416.921(a); see Webb, 433 F.3d at 686. 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 is required to 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)." Social Security Ruling ("SSR") 96-3p, 1996 WL 374181, at *2.

The ALJ found that there was objective evidence in the record showing that plaintiff had been evaluated and treated for fibromyalgia, hypertension, menometrorrhagia, and Epstein-Barr virus, which was equated by a treating source to chronic fatigue syndrome. [AR 24]. The ALJ found that those conditions were being managed medically, and that no aggressive treatment was recommended or anticipated for them. [AR 24]. Accordingly, although the ALJ found they were medically determinable medical impairments, he found they were nonsevere because they were only slight abnormalities and did not have more than a minimal effect on plaintiff's ability to do basic physical and mental work activities. [AR 24].

Plaintiff poses no specific challenge to the ALJ's finding, except to say that the treatment she received revolved around her chronic pain and chronic fatigue. She suggests that because she was diagnosed with fibromylagia, and because that impairment shares a number of common features with chronic fatigue syndrome, the ALJ erred in not finding her fibromyalgia severe. [JS 6].

However, the mere fact that plaintiff received a diagnosis of fibromyalgia does not mean that it is either severe or disabling. See Sample v. Schweiker, 694 F.2d 639, 642-643 (9th Cir. 1982) (noting that the existence of a diagnosed disorder "is not per se disabling, " so "there must be proof of the impairment's disabling severity"); Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997) (stating that a claimant "must show more than the mere presence of a condition or ailment" at step two) (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987)); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (explaining that "[t]he mere diagnosis of [an impairment], of course, says nothing about the severity of the condition, " and holding that the Appeals Council did not err in finding a claimant's diagnosed arthritis not severe where "the doctors' reports are silent regarding any limitation of joint motion, as well as the intensity, frequency, and duration of arthritic pain"); Jefferson v. Colvin, 2014 WL 4275516 at *8 (E.D. Cal. Aug. 29, 2014) (concluding that the claimant's diagnosis of fibromyalgia was insufficient by itself to establish that it was a severe impairment).

Moreover, the ALJ concluded that plaintiff's diagnosis of fibromyalgia was "questionable." [AR 30]. The ALJ explained that fibromyalgia is medically determinable if there are signs, primarily tender points, that are clinically established by the medical record. [AR 30]. The ALJ explained that the American College of Rheumatology ("ACR") defines the disorder as "widespread pain in all four quadrants of the body for a minimum duration of 3 months and at least 11 of the 18 specified tender points that cluster around the neck and shoulder, chest, hip, knee, and elbow regions." [AR 30]. The ALJ noted that other symptoms, may be signs of fibromyalgia if they have been clinically documented over time, such as irritable bowel syndrome, chronic headaches, temporomandibular joint dysfunction, sleep disorder, severe fatigue, and cognitive dysfunction. [AR 30].

The ALJ noted that an August 27, 2010 treatment note from LaSalle Medical Associates ("LaSalle") indicated plaintiff was "positive for 18 trigger points, " reflecting a "possible" fibromyalgia diagnosis. [AR 30, 267, 305]. Although the ALJ gave plaintiff "the benefit of the doubt in finding that fibromyalgia is a medically determinable impairment, " the ALJ also remarked that the record lacked sufficient positive clinical or diagnostic findings to satisfy the ACR criteria for fibromyalgia. [AR 30]. For example, periodic physical examinations revealed no positive findings of pain in areas other than the claimant's back. [AR 30, 309-310, 313-314, 320-321, 323-324; see also AR 270]. The August 27, 2010 note was the only report in the record indicating that plaintiff exhibited positive fibromyalgia trigger points. [AR 267] While ...

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