McGovert v. Berryhill

          ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 13, 14

          Donna M. Ryu United States Magistrate Judge

         Plaintiff Robben Schaeffer McGovert (“Plaintiff”) moves for summary judgment to reverse the Commissioner of the Social Security Administration's (the “Commissioner's”) final administrative decision, which found Plaintiff not disabled and therefore denied her application for benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. and Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. The Commissioner cross-moves to affirm. For the reasons stated below, the courts GRANTS IN PART and DENIES IN PART Plaintiff's motion, and GRANTSINPARTand DENIESINPARTDefendant's motion.

         I. PROCEDURAL HISTORY

         On November 30, 2011, Plaintiff protectively filed applications for Social Security Disability Insurance (SSDI) and supplemental social benefits, alleging disability beginning on January 5, 2009. Administrative Record (“A.R.”) 90-91; 212-28. Her applications were initially denied on April 5, 2012 and again on reconsideration on December 29, 2012. A.R. 90-111 (Initial Denial), 112-47 (Reconsideration). On January 10, 2013, Plaintiff filed a request for a hearing before an Administrative Law Judge (“ALJ”). A.R. 166-67.

         After the hearing, ALJ K. Kwon issued a decision finding Plaintiff not disabled. A.R. 22-34. In relevant part, the ALJ determined that Plaintiff was 1) 56 years old on the alleged disability onset date, which is defined as “advanced age” within the meaning of the Social Security regulations (see 20 C.F.R. §§ 404.1563(e), 414.963(e)), and later changed age categories to “closely approaching retirement age, ” which is age 60 or older, see id; 2) has the following severe impairments: “adjustment disorder with depressed and anxious mood, and degenerative disc disease of the cervical spine (20 C.F.R. §§ 404.1520(c), 416.920(c)”; 3) has acquired work skills from relevant past work as a bank teller and bookkeeper (20 C.F.R. §§ 404.1568, 416.968); 4) is able to perform her past relevant work as a bookkeeper, both as generally and actually performed;^[2]and 5) has at least a high school education and is able to communicate in English. A.R. 27, 32-33. The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to “perform light work as defined 20 C.F.R. § 404.1567(b) and 416.967(b) [but] with no climbing ladders, ropes, or scaffolds; no more than occasional postural movements; and no working at heights or with hazardous moving machinery as a safety precaution” and “no regular interaction with the general public as a primary duty.” A.R. 28. Based on these findings, and relying on the opinion of a vocational expert (VE) who testified that an individual with such an RFC could perform other jobs existing in the economy, including typist clerk and credit clerk, the ALJ concluded that Plaintiff is not disabled. A.R. 33-34.

         The Appeals Council denied Plaintiff's request for review on September 11, 2015. A.R. 1-6. The ALJ's decision therefore became the Commissioner's final decision. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). Plaintiff then filed suit in this court pursuant to 42 U.S.C. § 405(g). [Docket No. 1].

         II. THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

         To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents her from engaging in substantial gainful activity^[3] and that is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

         To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows:

1. At the first step, the ALJ considers the claimant's work activity, if any. If the claimant is doing substantial gainful activity, the ALJ will find that the claimant is not disabled.

2. At the second step, the ALJ considers the medical severity of the claimant's impairment(s). If the claimant does not have a severe medically determinable physical or mental impairment that meets the duration requirement in [20 C.F.R.] § 416.909, or a combination of impairments that is severe and meets the duration requirement, the ALJ will find that the claimant is not disabled.

3. At the third step, the ALJ also considers the medical severity of the claimant's impairment(s). If the claimant has an impairment(s) that meets or equals one of the listings in 20 C.F.R., Pt. 404, Subpt. P, App. 1 [the “Listings”] and meets the duration requirement, the ALJ will find that the claimant is disabled.

4. At the fourth step, the ALJ considers an assessment of the claimant's residual functional capacity (“RFC”) and the claimant's past relevant work. If the claimant can still do his or her past relevant work, the ALJ will find that the claimant is not disabled.

5. At the fifth and last step, the ALJ considers the assessment of the claimant's RFC and age, education, and work experience to see if the claimant can make an adjustment to other work. If the claimant can make an adjustment to other work, the ALJ will find that the claimant is not disabled. If the claimant cannot make an adjustment to other work, the ALJ will find that the claimant is disabled.

20 C.F.R. § 416.920(a)(4); 20 C.F.R. §§ 404.1520; Tackett, 180 F.3d at 1098-99.

         III. FACTUAL BACKGROUND

         A. Plaintiff's Testimony

         At the hearing before the ALJ, Plaintiff gave the following testimony: Plaintiff was born in 1952. A.R. 44. She was married and has children, but has lived alone since 2000. A.R. 44, 49. Plaintiff completed some years of college. A.R. 45.

         Plaintiff testified that the last time she worked was in 2009. A.R. 45, 48. Prior to 2005, she worked as a bookkeeper at a construction site for five years and then as a bank teller for 3 years. A.R. 81. From 2005 to 2009, Plaintiff worked for John Deere as an assistant doing a variety of tasks including filing, procuring and stocking supplies, answering multiple phone lines, typing, and carrying cases of paper and office equipment. A.R. 80-81. In 2009, she worked as a grocery clerk at Safeway for 2 months, and then as a desk clerk at the Day Inns for 10 days. A.R. 46.

         Plaintiff believes that her fatigue has kept her from working. She attributes her fatigue to Hepatitis C and rheumatoid arthritis. A.R. 49-50. She has had Hepatitis C for almost 40 years, and finished interferon treatment for it in 2008. A.R. 50. Plaintiff now gets her liver checked every 6 months. A.R. 50. Plaintiff's Hepatitis C viral load was normal as of the last sonogram, but she gets it checked every year. A.R. 51.

         Plaintiff has difficulty breathing when walking up a few flights of stairs, standing to get up, and even when she is not exerting herself. A.R. 52-54. According to Plaintiff, the doctors found cysts on her lungs and told her that she lost approximately 25 percent usage of her lungs. A.R. 52. She goes to Vista Family Medical Health once every 1 to 2 months for a general check-up on her shortness-of-breath symptoms. A.R. 53. Plaintiff uses an inhaler intermittently, but does not use a nebulizer machine. A.R. 54. She still smokes, but is actively trying to quit, and usually smokes fewer than 10 cigarettes per day. A.R. 55.

         Plaintiff has neck pain, for which she sees a neurologist, Dr. Richard J. Mendius, 3 times per year. A.R. 55-56. Dr. Mendius wanted Plaintiff to get a block (injection) in her neck and referred her to another doctor to get this done. A.R. 57. She has not had the block performed because she is worried about having needles stuck in her neck. A.R. 57. She takes pain pills, ibruprofen, and aspirin to treat her neck pain. A.R. 57. In 2011, Plaintiff went to physical therapy 2 to 3 times per week for 6 months at Palm Hospital, but stopped going because the physical therapy seemed to aggravate her symptoms. A.R. 58-59.

         Plaintiff experiences pain in both of her arms, and has difficulty using both hands. A.R. 55, 72. She feels pain, tingling, and numbness in her left arm which starts from her left shoulder and moves down into her little finger. A.R. 55. She sometimes drops items that she is holding with her left arm because she loses her grip. A.R. 72. Plaintiff can carry a gallon of milk with her right hand only. A.R. 62-63. Plaintiff feels periodic, radiating pain in her right arm. A.R. 55, 72.

         Plaintiff has low back pain, and can only sit for 15 to 30 minutes each day without being in pain. A.R. 60, 75. She can sit for up to 1 to 1.5 hours before she has to stand up and stretch, but this is not an everyday occurrence. A.R. 60. Plaintiff is able to stand for approximately 30 to 45 minutes before she has to sit down. A.R. 61, 75. She feels pain down her leg, which makes it difficult to stand. She has fallen to the ground after getting up and standing out of bed due to her legs. A.R. 75-76.

         Plaintiff testified that on an average day, she feeds her dog, reads, takes a nap, gets up to her dog out, and then lies back down and listens to the radio. A.R. 63, 76. She takes her dog out for a 20 to 30 minute walk once or twice a week at most. A.R. 61, 71-72. During these walks, she has to stop to sit in a bus shelter. A.R. 61-62. While Plaintiff is independent in her personal care, e.g., dressing, feeding, and bathing herself, she does not perform it on a daily basis like she used to do. A.R. 64. She does not do household chores by herself generally. A.R. 66. Her daughter will assist her with laundry once in a while. A.R. 66. Plaintiff finds that washing dishes is difficult to do now because her left arm cannot hold plates; she has to put the plates on the counter and push on them to scrub them. A.R. 66. Plaintiff drives up to twice a week; once to go to the library to check out books, and the other time to go to the store. A.R. 65. Plaintiff will go visit a friend once in a while, but does not have a lot of friends. A.R. 65.

         Plaintiff had a serious problem with methamphetamine/IV drug use. A.R. 66-67. Plaintiff stopped any extreme drug use in 2000, but occasionally used drugs until 2007. A.R. 67. She did not attend any formal rehab or detox program to stop using drugs, but instead got involved with the Buddhist church. A.R. 67-68. Plaintiff has had one or two relapses with drug use since 2007, but has otherwise been sober. A.R. 69. Plaintiff also used to have a serious problem with alcohol. A.R. 66. She drank more heavily in the past when she was more social, but does not drink heavily now since she is not as social. A.R. 70. Plaintiff does not attend AA or NA meetings. A.R. 70.

         Plaintiff testified that since she has been unable to work, her depression has increased. A.R. 73-74. She finds it difficult to be around other people and to control her moods. A.R. 74. Plaintiff testified that she is prone to having good days and bad days. A.R. 77. On a bad day, she cries, feels really depressed, has a cup of tea and tries to read, but can also lay down all day, only getting up to use the restroom. A.R. 77. If her back goes out, then she can be in bed for up to two weeks. A.R. 77. In a given week, she estimates that at least 4 to 5 days are bad days; in some weeks, every day is a bad day. A.R. 78. On a good day, Plaintiff tries to read encouraging books, and, on some days, she feels “really elated.” A.R. 77.

         B. Relevant Medical Evidence

         1. Examining Physician ...